Nash v. Brown

6 Vet. App. 1, 1993 U.S. Vet. App. LEXIS 437, 1993 WL 326662
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 30, 1993
DocketNo. 91-613
StatusPublished
Cited by3 cases

This text of 6 Vet. App. 1 (Nash v. Brown) 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
Nash v. Brown, 6 Vet. App. 1, 1993 U.S. Vet. App. LEXIS 437, 1993 WL 326662 (Cal. 1993).

Opinion

NEBEKER, Chief Judge:

Appellant, Alvin R. Nash, appeals a February 13, 1991, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to service connection for a psychiatric disorder. Upon review of the pleadings and the record on appeal, we hold that the Secretary of Veterans Affairs (Secretary) erred in failing to apply the provisions of 38 C.F.R. § 3.303(d) (1992), and neglected to provide an adequate statement of reasons and bases for the decision. Accordingly, we vacate and remand.

I.

Appellant served in the U.S. Marine Corps from October 1969 to August 1971. While serving in Vietnam, he was convicted of assaulting a fellow serviceman and sentenced to one year in prison. R. at 146. Upon separation from service in June 1971, he underwent a psychiatric examination and was diagnosed with “aggressive personality, homicidal potential if provoked.” R. at 3. In October 1973, he was denied service connection for a nervous condition by the Veterans’ Administration (now Department of Veterans [2]*2Affairs) (VA) Regional Office (RO). R. at 5. He reopened his claim in 1980, submitting evidence consisting of (1) a 1973 private hospital report diagnosing him with “schizophrenia, paranoid type,” R. at 20; (2) a 1974 VA hospital summary report also diagnosing him with schizophrenia, R. at 8; (3) a 1975 private hospital report diagnosing him with paranoid schizophrenia, R. at 14; (4) a 1980 lay statement from his brother to the effect that appellant was very much changed when he left the service, R. at 24; (5) a 1980 lay statement from a friend that appellant returned from Vietnam with psychological problems, and that he was first hospitalized in 1972 or 1973, R. at 25-26; (6) and a 1980 VA neuropsychiatric examination diagnosing him with “schizophrenia, paranoid type.” The RO denied his claim, finding that a psychosis was not shown in service or within the applicable presumptive period. R. at 36. He appealed to the Board, and a subsequent RO decision again denied service connection. R. at 39, 119.

Appellant subsequently submitted a 1981 VA hospital summary diagnosing him with antisocial personality disorder, R. at 109; and a 1981 private hospitalization report diagnosing him with “schizophrenia, chronic undifferentiated type, currently in remission,” R. at 124. The RO reopened his claim, but denied service connection. R. at 150. He appealed to the Board, and was subsequently examined by VA and diagnosed with borderline personality disorder. R. at 166. He then submitted a 1983 letter from Robert L. Leon, Chairman of the University of Texas Medical School Department of Psychiatry, who opined that appellant suffered from a borderline personality disorder incurred in service, R. at 176; and a copy of a Social Security Administration decision finding him disabled. R. at 186-87.

• In 1983, the Board considered appellant’s claim and found that he suffered from a noncompensable personality disorder and denied service connection for a psychiatric disease. R. at 200-07. The Board reconsidered its decision in 1984 and found no obvious error in its previous decision.. R. at 223-28. Appellant reopened his claim in 1984, submitting a letter from a private psychiatrist, Dr. Hunter, and a private clinical social worker, Diane Jenkins, which reads, in pertinent part, as follows:

After reviewing our charts and information received from other agencies, we believe that due to Mr. Nash’s history of psychiatric services while in the Marines and consistently since that time, including [private hospitalizations], consideration should be given to the possibility that his disorder is service connected. His continued need for and response to psychotropic medication also seem to point to a diagnosis of schizophrenia.

R. at 231. The RO denied his claim, finding that the above letter did not establish a new factual basis upon which service connection could be granted. R. at 235.

Appellant reopened his claim in 1985, submitting a copy of a VA examination diagnosing him with a personality disorder: “The patient’s status is questionable in that it would appear to us he does not have paranoid schizophrenia, but he is persistent in pursuing this claim in the interest of getting a disability.” R. at 237. He also submitted a letter from a private physician, Dr. Mercedes de River, which reads, in part, as follows:

I have reviewed [appellant’s] chart that includes hospitalizations to several state facilities and the Regional VA Hospital and [it] is apparent that his symptoms have changed since the time of discharge from the military and he meets the criteria for a diagnosis of Paranoid Schizophrenia; this diagnosis was made several times by different observers at different places.

R. at 239. Lastly, appellant submitted a copy of a 1985 VA psychiatric examination diagnosing him with schizophrenia. R. at 249. The RO considered the new evidence and found that it did not establish service connection. R. at 261-62. He appealed to the Board. R. at 263. In the meantime, appellant physically attacked and injured a VA physician, and proceedings were commenced to have appellant involuntarily committed. VA examinations given in conjunction with these proceedings diagnosed appellant with paranoid personality disorder. R. at 278, 284-85, 288-89. Despite these diagnoses, he was involuntarily committed to a [3]*3VA medical center due to “paranoid schizophrenia.” R. at 269. During his commitment, progress reports show a diagnosis of personality disorder, not schizophrenia: “He has shown no evidence to suggest a diagnosis of paranoid schizophrenia.” R. at 291, 296, 336.

In December of 1986, VA requested an advisory opinion based on a review of appellant’s record by Dr. Fred J. Kane, Chief of Psychiatry Service, in which Dr. Kane, assuming incorrectly that VA conceded that appellant suffered from paranoid schizophrenia and wanted only to know when it began, opined that appellant’s personality disorder and schizophrenia are one and the same, and that the condition began in service. R. at 343-45. The advisory opinion stated that “The Borderline Personality Disorder was first observed one month after the veteran arrived in Vietnam in June 1970.... The Schizophrenic Disorder was first clearly evidenced in October 1974_” R. at 349. Based on this opinion, the RO denied entitlement to service connection, R. at 352, and appellant appealed. R. at 353. The Board denied service connection in 1987, finding that appellant did not suffer from a compen-sable psychiatric disease while in service, or within the presumptive period. R. at 368-72.

In 1989, appellant reopened his claim by submitting a 1989 letter from Dr. Hunter, stating that he had treated appellant for five years, and after reviewing appellant’s medical history, believed that appellant’s symptoms in service were “more or less consistent with schizophrenia.” R. at 388. The RO found Dr. Hunter’s statements “conjectural” and denied service connection. R. at 390. Appellant appealed to the Board and submitted a new statement from Dr. Hunter:

I have carefully reviewed [appellant’s] case and I sincerely believe that [he] has Paranoid Schizophrenia, chronic type. His military records do not show that a thorough psychiatric evaluation was performed with a full battery of psychological testing and clinical observation to definitely rule in or out the diagnosis of Paranoid Schizophrenia.

R. at 407. In October 1989, Dr.

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Bluebook (online)
6 Vet. App. 1, 1993 U.S. Vet. App. LEXIS 437, 1993 WL 326662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nash-v-brown-cavc-1993.