Sanden v. Derwinski

2 Vet. App. 97, 1992 U.S. Vet. App. LEXIS 17, 1991 WL 294526
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 21, 1992
DocketNo. 90-1593
StatusPublished
Cited by48 cases

This text of 2 Vet. App. 97 (Sanden 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
Sanden v. Derwinski, 2 Vet. App. 97, 1992 U.S. Vet. App. LEXIS 17, 1991 WL 294526 (Cal. 1992).

Opinion

HOLDAWAY, Associate Judge:

Appellant, Steven Jay Sanden, appeals a decision of the Board of Veterans’ Appeals (BVA or Board) which denied him entitlement to service connection for a chronic acquired psychiatric disorder. Steven J. Sanden, BVA 90-33109 (Sept. 25, 1990). The BVA found that a chronic acquired psychiatric disorder was not shown during active military service, or within one year after service. The Court holds that the decision of the BVA was not clearly erroneous, and that the BVA provided adequate reasons or bases for its decision. Therefore, we affirm the decision of the BVA.

FACTS

The appellant entered the Air Force on February 13, 1974. He was found medically qualified for service upon examination. On March 16, 1975, appellant voluntarily admitted himself for treatment at the North Dakota State Hospital, a civilian facility, where he was diagnosed with “Depressive Neurosis with features of anxiety with the use of alcohol [and narcotics].” He was sent back to the Air Force Base (AFB) mental health center, where he had been receiving treatment since February [98]*9814, 1975, for alcohol, marital problems, and depression. On April 3, 1975, an evaluation of appellant was made by a psychiatric social worker and the chief of the neurop-sychiatric service at the AFB mental health center. They found that the appellant “has no psychiatric disease that is medically disqualifying for general military service ... and there are not sufficient grounds to warrant the diagnosis of Character and Behavior Disorder.” Appellant was diagnosed with “Adjustment Reaction of Adolescence associated with immaturity, impul-sivity, and poor judgment.” It was recommended he be trained in an Air Force career field other than the one in which he was then serving.

On April 18, 1975, the Air Force conducted a separation exam. The exam report indicated “Depression, nervous trouble, followed by Mental Health 2lk months for depression. Examinee states nervous about health.... examinee denies family history of ... psychosis, use of ... drugs ... any other history of ... disturbances of consciousness....” He was separated from service on April 29, 1975, at eighteen years of age.

On May 14, 1976, one year and three weeks after separation from service, the appellant again entered the North Dakota State Hospital. He was diagnosed as suffering from “passive aggressive personality, possible marital maladjustment, [and] habitual excessive drinking with drug abuse.” The appellant was readmitted on July 18, 1976, nearly fifteen months after separation from service. Upon discharge, the same diagnosis was rendered as during his May 1976 hospitalization. Chronic anxiety neurosis was also listed as a diagnosis. On September 13, 1976, appellant again entered the North Dakota State Hospital and was given a final diagnosis of passive aggressive personality, and habitual excessive drinking with drug abuse.

From June 22, 1978, to September 5, 1978, appellant entered the Veterans’ Administration (now Department of Veterans Affairs) (VA) Medical Center (MC) in St. Cloud for alcoholic rehabilitation. He left the program with readmission to that facility not advised.

On December 22, 1980, appellant was given a Minnesota Multiphasic Personality Inventory. A consulting psychologist who reviewed the examination noted that appellant “is probably depressed, and it is likely that he has been for some time and that the depressive signs and behaviors are more o[r] less an essential part of his character make up.” The impression given was “moderate maladjustment which is probably fairly intense but also fairly longstanding.” Appellant was also found likely to be quite depressed with passive aggressive and passive dependent features.

Records from May 21, 1986, to May 30, 1986, show outpatient treatment at a VAMC. The appellant was found to be a very disturbed individual, who was having active hallucinations. The physician suspected that the veteran may have schizophrenia. A “problem list” on a VA medical facility form is also of record, with notations from March and April 1987 indicating “possible Schizophrenia ... possible PTSD [post-traumatic stress disorder] ... Depression, Psychic ... Generalized Anxiety Disorder ... [and] Hx [history of] alcohol addiction.”

Appellant filed a claim on January 30, 1987, with the VA Regional Office (VARO) for a nervous condition “which started while serving in the Air Force.” In a rating decision of March 11, 1987, the VARO made two findings: (1) that depressive neurosis was not found on discharge from service, and (2) that adjustment reaction of adolescence, the diagnosis rendered in-service by the AFB mental health center, was not considered a disability under the law. Appellant’s claim was therefore denied. Another claim was again denied by the VARO on April 9, 1987. A BVA decision of December 18, 1987, continued the denial of service connection for a chronic acquired psychiatric disorder, finding that appellant’s current psychological disorder was unrelated to his military service.

On November 13, 1989, appellant sought to reopen his claim by submitting, inter alia, a statement dated November 8, 1989, [99]*99from his treating psychiatrist, a private practitioner, who diagnosed appellant with “bipolar disorder, depressed with psychotic features.” A secondary diagnosis was dys-thymia with a history of alcohol abuse, in remission. Dysthymia is also known as “depressive neurosis.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 230 (3d ed. rev. 1987). Onset was noted to be during service on March 16, 1975, the date the North Dakota State Hospital diagnosed appellant as suffering from “depressive neurosis.” The VARO denied appellant’s claim on December 5, 1989, stating, “A review of the total record does not establish service connection for a psychiatric condition.”

On May 16, 1990, appellant presented sworn testimony in a hearing before the VARO. The hearing officer found that service connection was not established for a psychiatric condition. Appellant appealed his claim to the BVA.

On September 25, 1990, the BVA denied appellant entitlement to service connection. The Board found that a chronic acquired psychiatric disorder was not manifest during active service, and that a chronic acquired psychiatric disorder was not manifest within one year after separation from active service. Appellant appeals this decision of the BVA.

In his informal brief, appellant argues (1) that the BVA did not correctly find that he was diagnosed with depressive neurosis while in service; (2) that he should be granted service connection for his present psychiatric conditions, bipolar disorder and depressive neurosis, because they originated in his Air Force service; (3) that the in-service diagnosis of adolescent adjustment reaction was incorrect and refuted by the subsequent medical history; and (4) that the BVA incorrectly denied entitlement to service connection in the face of the treating physician’s opinion in 1989 that appellant’s mental illness had its onset in March 1975, during service.

The Secretary of Veterans Affairs (Secretary) argues that the decision of the BVA was supported by the evidence of record. The Secretary also argues that the BVA correctly performed its fact-finding function and was not clearly erroneous in according less weight to the 1989 opinion of appellant’s psychiatrist because it was not substantiated by the evidence.

ANALYSIS

I.

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Cite This Page — Counsel Stack

Bluebook (online)
2 Vet. App. 97, 1992 U.S. Vet. App. LEXIS 17, 1991 WL 294526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanden-v-derwinski-cavc-1992.