Pratt v. Derwinski

3 Vet. App. 269, 1992 U.S. Vet. App. LEXIS 308, 1992 WL 238187
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 24, 1992
DocketNo. 91-955
StatusPublished
Cited by12 cases

This text of 3 Vet. App. 269 (Pratt 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
Pratt v. Derwinski, 3 Vet. App. 269, 1992 U.S. Vet. App. LEXIS 308, 1992 WL 238187 (Cal. 1992).

Opinion

FARLEY, Associate Judge:

Appellant, Edward W. Pratt, seeks reversal of a February 19, 1991, Board of Veterans’ Appeals (BVA or Board) decision which denied him entitlement to a total disability rating based upon individual un-employability. The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance. The Court concludes that the BVA failed to articulate “reasons or bases” as required by 38 U.S.C. § 7104(d)(1) for, inter alia, its bare finding that the evidence does not permit the conclusion that appellant’s unemployability is due to service-connected disabilities or for its “conclusion of law” that appellant’s service-connected disabilities “alone” do not establish unemployability. Accordingly, the BVA decision of February 19, 1991, will be vacated and the matter remanded pursuant to 38 U.S.C. § 7252(a) (formerly 4052(a)).

I.

Appellant served in the United States Marine Corps from January 19, 1942, until October 22, 1945, when he was discharged due to wounds received in combat. R. at 59. His present combined service-connected disability rating of 80% includes: a 60% rating (from 1988) for residuals of fracture of the left wrist, to include loss of use of the left hand; 50% (from 1971) for anxiety reaction; 10% (from 1945) for residuals of a gunshot wound to the left knee; 10% (from 1951) for osteoma of the left femur. R. at 15-16. Appellant receives special monthly compensation for loss of use of the left hand. Id. The record indicates that appellant has additional non-service-connected disabilities including “systematic arthritis of multiple joints, cardiovascular pathology, and a thyroid disorder.” R. at 44. Appellant also has a recent history of two heart attacks. R. at 31.

In 1970, appellant retired from a position he had held for 22 years as a supply man for the United States Air Force at Hans-com Field. R. at 30. From 1972 to 1982, appellant was a state civil service employee in the Speaker’s Office at the State House. Id. This employment was terminated by retirement, but it is not clear whether it was “ordinary” retirement or disability retirement. Compare R. at 30 (“I went out under and [sic] ordinary retirement.”) with R. at 37 (“Ordinary disability.... I couldn’t walk anymore.”). Appellant has been unemployed since 1982. R. at 38.

[271]*271On October 5, 1988, appellant reopened his claim for “his left wrist condition.” R. at 1. Following an examination (R. at 4), he received a rating on August 8, 1989, which “increased the evaluation for the veteran’s service connected left wrist disorder from 10% to 60% and now characterized said service connected disability as loss of use of left hand....” R. at 41. Twenty days later, on August 28, 1989, appellant applied for increased compensation based upon unemployability. R. at 9-10. In block 7, a space for describing the service-connected disability that prevents employment, appellant wrote: “All my conditions.” Id. He also indicated in block 18 that he had left his previous job due to disability and in block 21 that he had not tried to obtain employment because it was “impossible.” Id. Notwithstanding the appellant’s claim that he was unemployable due to “all my [service-connected] conditions,” his claim was denied in a rating decision dated December 28, 1989, which only made reference to the wrist condition.

Appellant filed a Notice of Disagreement on February 28, 1990, and requested a hearing. R. at 17. Following the issuance of a Statement of the Case (R. at 19-22), a hearing was held on June 20, 1990. R. at 23-39. The hearing officer denied the claim (R. at 41-44), as did the BVA. Edward W. Pratt, BVA 91-12696 (Feb. 19, 1991).

II.

Appellant and the Secretary agree on two issues. First, appellant is now unemployable, as the Secretary agreed at oral argument, and he was unemployable at the time of the BVA decision. See Pratt, BVA 91-12696, at 4 (“[W]e do not dispute the fact that he is currently unemployable”). Second, the standard of review to be applied by this Court is the “clearly erroneous” test of 38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4)). See Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1991). If the Court were to find that there is a plausible basis in the record for the BVA’s conclusion that appellant has not been rendered unemployable solely because of his service-connected disabilities, then the Court would adopt the Secretary’s position and affirm the BVA decision. On the other hand, if unable to find such a plausible basis, the Court would agree with the appellant and reverse the BVA decision. Based upon its review of the record, the briefs submitted by the parties, and the oral argument held on July 21, 1992, the Court concludes that there is an insufficient predicate for either affir-mance or reversal. Simply stated, the BVA decision ignores more questions than it answers and fails to provide an adequate statement of the reasons or bases for its findings and conclusions as is required by 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)). A remand is required pursuant to 38 U.S.C. § 7252(a) to correct these defects.

A.

In the “Discussion and Evaluation” section of its decision, the BVA commented as follows:

[W]e do not dispute the fact that he is currently unemployable. The question is how much can be attributed to service-connected disabilities and how much to nonservice-connected disabilities and other factors such as advancing age.

Pratt, BVA 91-12696, at 4. The BVA did not answer this question. Instead, the BVA merely offered, without the statement of reasons or bases required by 38 U.S.C. § 7104(d)(1), that “the evidence does not provide for a conclusion that the veteran has been rendered incapable of successful participation in substantially gainful employment as a result of his service-connected disorders.” Id. A remand will permit the BVA to readjudicate the claim and, if it persists in its view, to include the requisite statement of the reasons or bases for its findings and conclusions. Fluharty v. Derwinski, 2 Vet.App. 409, 411-12 (1992) (remand for a statement of reasons or bases for the BVA’s statement that it was “not persuaded” that appellant was unemployable); see also Hyder v. Derwinski, 1 Vet.App. 221, 224 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Mingo v. Derwinski, 2 Vet.App. 51, 53-54 (1992).

[272]*272B.

The BVA does not explicitly find or conclude that appellant’s conceded unemploya-bility is due to his non-service-connected heart condition and/or advancing age. However, immediately following the unsupported conclusion that there is no evidence that the service-connected disabilities caused appellant’s unemployability, the BVA cited information from appellant and his son which, in the words of the BVA, “reveals” that appellant’s 1970 and 1982 retirements “were not brought about because of disability.” Pratt,

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Bluebook (online)
3 Vet. App. 269, 1992 U.S. Vet. App. LEXIS 308, 1992 WL 238187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pratt-v-derwinski-cavc-1992.