Patton v. West

12 Vet. App. 272, 1999 U.S. Vet. App. LEXIS 120, 1999 WL 172765
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 30, 1999
DocketNo. 97-828
StatusPublished
Cited by48 cases

This text of 12 Vet. App. 272 (Patton v. West) 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
Patton v. West, 12 Vet. App. 272, 1999 U.S. Vet. App. LEXIS 120, 1999 WL 172765 (Cal. 1999).

Opinions

STEINBERG, Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed a dissenting opinion.

STEINBERG, Judge:

The appellant, veteran Dorrance H. Patton, appeals through counsel a March 20, 1997, decision of the Board of Veterans’ Appeals (Board or BVA) denying Department of Veterans Affairs (VA) -service connection for post-traumatic stress disorder (PTSD). Record (R.) at 9. The appellant has filed a brief (the Court notes puzzling references in the brief to arthritis and knee and leg problems (Brief (Br.) at 23-24), whereas the only issue addressed by the Board was PTSD). The Secretary has filed a motion for single-judge affirmance and to strike appellant’s statement referring to an exhibit not part of the record on appeal (ROA). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will deny the Secretary’s motion for single-judge affir-mance, grant the Secretary’s motion to strike, and vacate the Board decision and remand a matter.

I. Facts and Procedural History

The appellant served in the U.S. Army from March to August 1956 and from October 1959 until February 1960. R. at 59-60. His service medical records (SMRs) indicated normal psychiatric clinical evaluations at the time of his first entry into service, first discharge, and second entrance physical. R. at 14-15, 17-18, 37-38.

On the evening of December 9, 1959, the veteran was admitted to the emergency room of an Army hospital, where he was treated for an acute anxiety reaction. R. at 27-28, 33. A detailed description of his treatment contained notations that he was afraid someone would “jump him” and that “inferentially, his profound feelings of shame, as well as other indirect derivatives suggest to me that there may be underlying homosexual panic.... ” R. at 26-27. The SMRs also indicated that he complained of headaches, anorexia, and sleeplessness, and that he attributed “most of his problems” to an incident when he had been hit in the head with a glass bottle while on leave a few weeks before. R. at 26-28. According to those records, other soldiers in the barracks had reported that the veteran had “some sort of attack” the night he was first admitted to the Army hospital. Ibid. Although SMRs dated December 10, 1959, report that his anxiety appeared to have worsened since he had arrived at Fort Bragg (R. at 26), the ROA contains no notations of anxiety prior to December 9, 1959. The veteran’s service personnel records contain no indication of any in-service assault incident. R. at 175-92, 194-206. On January 21, 1960, “despite a limited work assignment,” the veteran “pre[275]*275sented himself ... in a tearful disheveled state” at the Army hospital. R. at 51. He was diagnosed as having “[ejmotional instability reaction, chronic, moderate; manifested by diffuse anxiety, poor performance under stress”, and “administrative separation from the service [was] recommended”. R. at 51. The veteran was subsequently given an honorable discharge from the Army. R. at 59.

During 1978 and 1979, the veteran was hospitalized several times in a YA medical facility, was treated for anxiety and depressive neurosis, and received medication from VA and psychotherapy from a private clinic. R. at 62, 64, 68, 101-02, 105; see also R. at 65-67, 69-71, 98-100, 103. In August 1978, he reported a history of alcoholism (R. at 68), and in March 1979, he “admit[ted] to heavy use of alcohol as a means of coping with his anxiety” and was diagnosed by a VA psychiatrist as having a paranoid personality (R. at 101). In May 1979, a VA physician diagnosed the veteran as having a “habitual excessive drinking” disorder and stated: “On previous admission patient had been called paranoid type personality though at this time I feel that this is probably this patient’s basic underlying personality type which was brought out by his decompensation due to many years of alcohol abuse.” R. at 102. The veteran submitted letters from two acquaintances, each providing general information about his nervous condition and requesting any assistance that VA could provide for the veteran (R. at 73, 76) and one mentioning his drinking problem (R at 73). The veteran also submitted an August 1979 letter from his wife detailing his changed behavior since service, including his “not getting along with people”, his “hid[ing] behind his drinking”, his anger and depression, and his “being ashamed of the way he was”; and she specifically reported that around the end of 1961 the veteran’s mother had written to her that “she was afraid he might kill himself’ and that “something had happened to him in the service”. R. at 79-80. The veteran also submitted a July 1979 letter from a private physician stating that the veteran was “extremely agitated, depressed, loses control of [his] temper, and [was] potentially dangerous to both himself and others”, and had been so for the prior 12 months. R. at 82. The physician also stated that the veteran had not responded to medication and other treatment and that he might “lose control and kill someone”. Ibid.

In September 1979, after a VA regional office (RO) decision denying service connection for a nervous condition and a Statement of the Case were apparently issued (see R. at 84), the veteran filed a VA Form 1-9, Substantive Appeal to the BVA (R. at 95). At an October 1979 hearing at the RO regarding the nervous-condition claim, the veteran testified under oath that he had been hospitalized after an altercation with a noncommis-sioned officer; that he did not “know what in the hell happened!;] ... [i]t just all went black”; that he had then received a medical discharge of which he was ashamed; that since he left the service he had “done a lot of heavy drinking ... to cover this up”; that his anxiety had gotten worse since he stopped drinking a few years ago; and that untfi recently he had not sought psychiatric assistance because he did not want anyone to know about his problem. R. at 85-86, 86, 87-88, 88, 91. He subsequently submitted both VA and private medical records from 1978 through 1981 (R. at 107-09, 112-52), including a January 1981 private psychiatric evaluation that noted that the veteran had “a paranoid personality with decompensation into a psychotic state manifested by homicidal ideation, agitation and depression” (R. at 108). No BVA decision apparently was issued in connection with the 1979 RO denial. The ROA does not reflect further contact by the veteran with VA until 1993.

During a November 1993 VA medical examination, the veteran stated, apparently for the first time to any medical professional, that while he was at Fort Bragg he had been raped by three men and that he did not report it because of “fear and shame”. R. at 158. He disclosed that after a second hospitalization (apparently in January 1960, see R. at 51) he had told a sergeant about the rape and that the sergeant had instructed him not to tell anyone. At that time, he was diagnosed, for the first time, as having “PTSD, non-combat, chronic”. Ibid. In December 1993, the veteran sought to have his nervous-[276]*276condition claim “re-opened to include PTSD”. R. at 157. In January 1994, a VA medical examiner diagnosed PTSD, clearly relating the PTSD to the alleged in-service rape trauma. R. at 167-69.

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Cite This Page — Counsel Stack

Bluebook (online)
12 Vet. App. 272, 1999 U.S. Vet. App. LEXIS 120, 1999 WL 172765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patton-v-west-cavc-1999.