Sheed v. Derwinski

2 Vet. App. 255, 1992 U.S. Vet. App. LEXIS 78, 1992 WL 53623
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 23, 1992
DocketNo. 90-256
StatusPublished
Cited by2 cases

This text of 2 Vet. App. 255 (Sheed 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
Sheed v. Derwinski, 2 Vet. App. 255, 1992 U.S. Vet. App. LEXIS 78, 1992 WL 53623 (Cal. 1992).

Opinion

IVERS, Associate Judge:

Alexander T. Sheed appeals from a December 20, 1989, Board of Veterans’ Appeals (BVA or Board) decision which denied service connection for a psychiatric disability, to include post traumatic stress disorder, and which denied a total rating for compensation purposes based on individual unemployability. The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). Upon consideration of the record, appellant’s informal brief, and appellee’s motion, the Court holds that the Board failed to provide adequate reasons or bases for its decision denying service connection for the psychiatric disability; that the Department of Veterans Affairs (VA) failed in its duty to assist the veteran in obtaining medical records; and that the BVA exaggerated the veteran’s level of education in denying him individual unemployability. Accordingly, ap-pellee’s motion for summary affirmance is denied, and we vacate the BVA decision and remand the case for readjudication consistent with this opinion.

FACTS

The veteran served in the U.S. Army from 1963 to 1965 and from 1980 to 1985. R. at 1, 51. Between these periods of active service, the veteran served in the active and inactive reserves, including a period in which he served as an Army Reserve recruiter. R. at 51, 403. His service medical records covering the first tour of active service are negative for any psychiatric abnormality, except for one consultation report dated August 28, 1964, in which it was reported that the veteran requested a psychiatric evaluation after voicing a number of complaints about his sergeant and his job. The report stated that Mr. Sheed seemed “unduly disturbed about his external reality situation — i.e., his NCO’s, and how he should best avoid the restrictions they place on him.” The doctor felt that Mr. Sheed wanted very much to be transferred out of his present unit for psychiatric reasons but that his mental status at the time gave no reasons for concern. [257]*257The doctor’s impression was that Mr. Sheed was possibly a sociopathic personality. R. at 25. The psychiatric evaluations given in 1965 upon separation and in 1974 as part of an examination for reserve training were normal. R. at 37, 47.

In November 1983, the veteran was treated at Walson Army Community Hospital in Fort Dix, New Jersey, for several problems. At this time it was noted in the medical record that Mr. Sheed complained of being pressured at his job and that he seemed to be suffering from “severe job-related stress”. R. at 98, 101. In January 1984, Mr. Sheed was admitted to the Army hospital in Fort Dix for evaluation for chest pain, and it was determined that he had suffered a slight heart attack that week. Mr. Sheed related his condition to his job stress and stated that he had been seen for stress management at a mental health facility. R. at 103-105.

In February 1984, the veteran was seen by a VA doctor for further evaluation of psychosomatic problems and psychosocial stress. The VA psychiatric note stated that Mr. Sheed felt considerable apprehension with regard to people within his unit and that he felt “threatened from all sides”, noting problems with neighbors and with his thirteen year old son. The doctor wondered whether Mr. Sheed was “exter-iorizing his problems within at least to some extent.” The doctor’s impression was that “[psychological [factors [were] affecting physical condition.” R. at 280. An April 27, 1984, medical board report stated that while Mr. Sheed was being observed and evaluated at the Army hospital at Fort Dix in February,

... two people from his Unit came and gave him an evaluation which upset him tremendously and he became very stressful. At that point, he was referred to Psychiatry for evaluation because of his extreme anxiety. He was seen by the psychiatrist who felt it was an adjustment disorder and anxiety. He gave him an appointment with Community Mental Health Service and Social Work Service.

R. at 111.

In May 1984, the veteran received a VA medical examination. The clinical evaluation checklist included in this examination report showed no check mark in either of the boxes designated “abnormal” or “normal” for psychiatric problems. R. at 115. During this examination, Mr. Sheed again reported that he had been treated for stress at a mental health clinic, specifically naming the Fort Dix Mental Health Clinic. R. at 114. There are no medical records from the mental health facility in the record on appeal, but the veteran’s claims regarding treatment at the clinic between November 1983 and January 1984 were corroborated by a letter dated February 8, 1989, from the Unit Administrator of the unit in which Mr. Sheed had served at that time. R. at 363. Moreover, Mr. Sheed claimed on his VA Form 1-9, Appeal to Board of Veterans Appeals, dated February 10, 1989, that “records for major depression go all the back [sic] to the time of my recruiting days, 1978-1981.” Mr. Sheed recalled that during this time his job-related stress became so severe that he began to have recurring nightmares of having killed the station commander, and, after an incident of potential violence occurred, he was admitted to the Philadelphia Naval Hospital for approximately two weeks. R. at 360, 373, 377-78. The record contains a statement of a recruiting specialist who worked with Mr. Sheed at this time. He recalled that Mr. Sheed “made some sort of threat to [h]is [sjtation [c]ommander. ... The threat was serious enough for Sheed to be taken out of the recruiting station and admitted to the Naval Hospital for some period of time.” R. at 362. Mr. Sheed claims that the Army informed him that the records from the Naval Hospital have “disappeared from St. Louis Files.” R. at 360, 378.

The veteran suffers from a number of physical ailments for which he is service-connected: lumbosacral strain with degenerative arthritis and nerve root irritation— 40% from 8/25/86; subendocardial infarction with hypertension — 30% from 7/23/85; degenerative joint disease, heels and knees, with calcaneal spurs — 10% from 7/1/87; chronic prostatitis — 10% from 10/30/87; internal hemorrhoids — 0% from 7/23/85. [258]*258His combined rating has shifted between 50% and 70% in recent years as follows: 50% from 7/28/85; 70% from 8/25/86; 60% from 7/1/87; and 70% from 10/30/87. R. at 346. The veteran was retired from the service in 1985 when an Army Physical Evaluation Board concluded that his “physical condition prevents satisfactory performance of duty_” R. at 160.

In a letter dated April 30, 1987, Dr. Dennis Zaslow, a private physician, stated that he felt that Mr. Sheed “is disabled to the point that he is not able to work.” He also noted more specifically that Mr. Sheed “is to do no lifting or bending at all. He would have difficulty doing any longstanding [sic], bending or lifting.” R. at 216. Mr. Sheed testified at a hearing before the Board in October 1989 that he last worked as a truck driver in 1988, a job in which his son assisted him by doing most of the driving. Mr. Sheed claims that he could not sit in the truck for long periods of time because of pain, particularly pain caused by his chronic prostatitis. He testified that when his employer discovered that Mr. Sheed was taking pain relievers with codeine he was fired. R. at 389-90.

In 1988, a VA psychiatrist diagnosed Mr.

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5 Vet. App. 422 (Veterans Claims, 1993)
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Bluebook (online)
2 Vet. App. 255, 1992 U.S. Vet. App. LEXIS 78, 1992 WL 53623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheed-v-derwinski-cavc-1992.