Murincsak v. Derwinski

2 Vet. App. 363, 1992 U.S. Vet. App. LEXIS 102, 1992 WL 85114
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 24, 1992
DocketNo. 90-222
StatusPublished
Cited by126 cases

This text of 2 Vet. App. 363 (Murincsak v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murincsak v. Derwinski, 2 Vet. App. 363, 1992 U.S. Vet. App. LEXIS 102, 1992 WL 85114 (Cal. 1992).

Opinion

MANKIN, Associate Judge:

John A. Murincsak appeals from a December 5, 1989, Board of Veterans’ Appeals (BVA or Board) decision, which denied entitlement to a total disability rating based on individual unemployability due to service-connected disability. Because the BVA decision contains errors of law, we vacate the BVA decision and remand the case to the BVA with specific instructions to proceed in a manner consistent with this opinion.

I. BACKGROUND

The veteran, John A. Murincsak, served on active military duty in the United States Air Force from January 14, 1964, to January 8, 1968. R. at 1. During service, appellant was treated for anxiety and nervousness on several occasions. Appellant filed his original claim for service connection for schizophrenia in February 1971. After intensive examination, the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (VARO) [365]*365in Baltimore, Maryland granted appellant a 100% service-connected disability rating for schizophrenic reaction, undifferentiated type, on January 11, 1972. R. at 2-3.

On June 2, 1972, a VA medical examiner reported a diagnosis of “schizophrenia, chronic, undifferentiated. He is actively psychotic.” R. at 4. The veteran was hospitalized for this condition from August 18, 1972, to October 4, 1972. R. at 5. He moved from his sister’s home in Maryland to California in 1975, and apparently began treatment at the VA Medical Center (VAMC) in Long Beach, California, in 1976, in addition to private therapy. R. at 6. He was again hospitalized from March 12, 1979, to April 30, 1979, at the VAMC in Long Beach. R. at 7-8.

A Mental Status Examination was performed on January 17, 1980, which revealed: “The veteran is acutely psychotic during the interview and his judgment is highly impair[ed]. He has no ability to concentrate and is unemployable at the present time.” R. at 9. The final diagnosis was schizophrenia, chronic undifferentiated type. On February 6, 1981, a Compensation and Pension Report concluded with a diagnosis of “Schizophrenia, chronic, undifferentiated type, competent,” and the statement, “It is questionable whether this veteran can hold on to any type of employment.” R. at 11. Apparently based on the February examination, on May 7, 1981, the VARO in Los Angeles, California, reduced appellant’s disability rating for schizophrenic reaction, undifferentiated type, from 100% to 70% effective from August 1, 1981. The rating board concluded: “Veteran is not shown to be unemployable primarily because of [service-connected] condition.” R. at 12.

A rating decision of November 17, 1982, indicates that appellant was hospitalized for his service-connected condition effective from September 30, 1982, to November 3, 1982, and was consequently awarded a 100% disability rating from September 30, 1982, and then reduced back to a 70% disability rating effective December 1, 1982. R. at 15. Appellant was again hospitalized for several days in November 1985, and then returned to the board and care home where he had been living. R. at 17. On December 4, 1986, the diagnosis of schizophrenia, chronic, undifferentiated type, was continued. R. at 18.

On July 14, 1987, the veteran filed a claim with the VA for an increased rating for service-connected schizophrenia, which was then rated at 70%. The veteran mentioned that he was unemployable and seeking weekly treatment at the VAMC in Long Beach. R. at 19. Only the medical records from February 18, 1987, to February 19, 1988, were reviewed by the VARO in appellant’s reopened claim. R. at 20-70. A rating decision of March 11, 1988, continued the 70% disability rating for service-connected schizophrenic reaction, chronic undifferentiated type, from December 1, 1982, and denied service connection for residuals of exposure to Agent Orange. R. at 73-74. In May 1988, the veteran was admitted to the VAMC hospital for several days for his schizophrenic condition. R. at 75. The VARO confirmed the previous rating decision on August 24, 1988. R. at 76.

On January 11, 1989, the veteran filed another application for increased compensation based on unemployability, stating that the date of his last full-time employment was in 1974, when he was fired because of psychiatric problems from his job as a police officer. He concurrently filed his Notice of Disagreement with the August 1988 rating decision, as it did not consider unemployability. R. at 77-79. On January 30, 1989, the VARO in Los Ange-les found that the veteran’s “[service-connected] schizophrenia is not shown to be of such severity as to produce unemployability.” R. at 80.

A Compensation and Pension Examination performed on February 13,1989, noted that appellant was living in a board and care home and was unemployed, in addition to the following:

The patient is alert and oriented times three. He is somewhat disheveled, wearing a dirty shirt and walking with a cane. Speech is loud and hoarse. He complains of auditory hallucinations including command auditory hallucinations. Visual [366]*366hallucinations, paranoid ideation, poor impulse control. He also complains of feelings of unreality as if he is another person at times. He states that he hears voices in Hungarian telling him to do various things. He believes that other people know what his thoughts are. He sees auras, halos and blood coming out of other people’s heads.... The patient is somewhat disheveled. His affect is somewhat irritable and angry. Judgment and insight seem to be impaired.
ASSESSMENT: AXIS I: Chronic undifferentiated schizophrenia.
AXIS II: Deferred.
AXIS III: Arthritis, hypertension.

R. at 87. On March 6, 1989, the veteran appealed the January 1989 rating decision to the BVA. On March 10, 1989, the VARO confirmed the 70% disability rating for service-connected schizophrenia. R. at 92. The veteran, his brother, a friend, and his service representative personally appeared before a member of the rating board at a hearing held in Los Angeles on May 16, 1989. R. at 97-108. On June 6, 1989, the hearing officer concluded: “The symptomatology is consistent with the currently assigned 70% evaluation. Accordingly, prior ratings are affirmed. Consideration for individual unemployability is not appropriate in this case as the veteran’s sole service-connected disability is that of his psychiatric condition.” R. at 110. On December 9, 1989, the Board denied entitlement to a total rating by reason of individual unemployability due to a service-connected psychiatric disorder. John A. Murincsak, BVA 89-05877 (Dec. 5, 1989). The Court has jurisdiction of the case pursuant to 88 U.S.C. § 7252(a) (formerly § 4052(a)).

II. ANALYSIS

Appellant first claims eligibility for a 100% schedular disability rating for schizophrenia, undifferentiated type, under 38 C.F.R. § 4.132, Diagnostic Code (DC) 9204 (1991). Appellant also claims entitlement to a total disability rating for compensation based on individual unemployability under 38 C.F.R. § 4.16(c) (1991).

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Bluebook (online)
2 Vet. App. 363, 1992 U.S. Vet. App. LEXIS 102, 1992 WL 85114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murincsak-v-derwinski-cavc-1992.