Shoemaker v. Derwinski

3 Vet. App. 248, 1992 U.S. Vet. App. LEXIS 301, 1992 WL 228784
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 21, 1992
DocketNo. 90-1055
StatusPublished
Cited by23 cases

This text of 3 Vet. App. 248 (Shoemaker 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
Shoemaker v. Derwinski, 3 Vet. App. 248, 1992 U.S. Vet. App. LEXIS 301, 1992 WL 228784 (Cal. 1992).

Opinion

STEINBERG, Associate Judge:

The appellant, veteran Joseph D. Shoemaker, challenges a May 30,1990, Board of Veterans’ Appeals (BVA or Board) decision which awarded him an increase from 30% to 50% in his service-connected disability rating for a “psychophysiological gastrointestinal reaction with probable ulcer”. Joseph D. Shoemaker, BVA 90-17136 (May 30, 1990). He argues on appeal that in assessing his claim for an increase in his disability rating, the Board should have awarded him a 100% disability rating. The Court holds that, under 38 U.S.C. § 7104(d)(1) (formerly § 4004), the Board erred by failing to provide the reasons or bases for its findings and conclusions, by failing to address, if not to consider, pertinent regulations governing findings of individual unemployability, and by failing to order a thorough and fully informed medical examination to determine, inter alia, the level of the veteran’s disability and the contribution to his service-connected disability of each of his psychiatric impairments. Consequently, the record will be remanded for readjudication in accordance with this opinion.

I. BACKGROUND

The veteran served on active duty in the United States Navy from January 1955 to July 1958 and in the Air Force from December 1958 to February 1960. R. at 3, 171. Prior to the initiation of these pro[250]*250ceedings, and effective on December 20, 1974, the Veterans’ Administration (now Department of Veterans Affairs) (VA) awarded the veteran a 30% service-connected disability rating for psychophysiological gastrointestinal reaction with a probable ulcer. R. at 139, 171. On October 20, 1987, he submitted to the VA a claim for an increased rating. His claim was denied twice by the VA Regional Office (RO) before reaching the Board. During a hearing before the BVA, the veteran testified under oath that on May 15,1984, he had been fired from his civilian job as a barber on a military installation, where he had worked since 1975, and that he had not worked since that time. R. at 179. In September 1984 the veteran apparently was hospitalized for depression in the psychiatric unit of the Tucson, Arizona, VA Medical Center (VAMC). R. at 113 (these records do not appear in the record on appeal). In December of that year, the veteran apparently was examined at the VAMC by Dr. Comer, a neuropsychologist, to whom he had complained of memory problems and “blanking out when he was away from home”. R. at 113. The neuropsychologist’s testing indicated that the veteran’s “psychological adjustment was characterized by depression, anxiety and somatization.” Ibid. His “blanking out” was believed to be a manifestation of emotional distress. In 1985, further psychological testing at the VAMC, conducted by Dr. Johnson, demonstrated that the veteran suffered from “considerably more emotional disturbance than when he was tested in 1984.” R. at 113.

On April 25, 1987, the veteran’s treating VA psychiatrist, Dr. Zuniga, completed a “Mental Residual Functional Capacity Assessment” to facilitate review of the veteran’s application to receive Social Security disability benefits. R. at 29. The psychiatrist categorized the veteran as “markedly limited”, the most limiting category on the scale provided on the evaluation form, in his ability to, inter alia, (1) maintain concentration for extended periods, (2) perform activities within a specified schedule, (3) work in coordination with or proximity to others, (4) make simple work-related decisions, (5) complete a normal workday or week without interruption from psychological symptoms, (6) get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and (7) respond appropriately to changes in the work setting. Ibid. He further stated:

[The veteran] has shown evidence of social-vocational dysfunction related to abnormal affect for many years. He is not able to handle co-workers[,] supervisors[,] clients[, or] human relations without severe tension[,] irritability[,] and depression.

R. at 31. Dr. Zuniga indicated on the evaluation form the categories of disorders upon which his opinion was based, including anxiety disorders, anxiety-related disorders, and personality disorders. R. at 32. However, he noted that anxiety was the “predominant disturbance” or was “experienced in the attempt to master [other] symptoms”. R. at 35. The psychiatrist noted that the veteran’s anxiety-related disorder resulted in “complete inability to function independently outside the area of one’s home.” R. at 38 (emphasis in original).

On May 1, 1987, Dr. Heiman, a private psychiatrist, at the behest of the veteran’s attorney, conducted a psychiatric evaluation of the veteran and reviewed, inter alia, letters from the veteran’s therapist at the Cochise Community Counseling Services (CCCS), medical records from the VAMC, and Social Security records. R. at 112. On mental status examination, the veteran’s affect “was blunted, his tone was monotonous, and he cried frequently during the interview.” Ibid. When asked “some formal mental status questions ... he began to weep and shake and stated that he could not answer because he was afraid to make mistakes.” R. at 115. Dr. Heiman concluded, in pertinent part:

My diagnosis is major depression in a person with mixed personality disorder. Mr. Shoemaker’s symptoms are quite overwhelming as corroborated by the psychological testing.

Ibid. Dr. Heiman also completed Social Security disability evaluation forms, noting attributes similar to and consistent with [251]*251those noted by Dr. Zuniga, and added a notation under the form’s personality disorders category that the veteran had “[inflexible and maladaptive personality traits”. R. at 121.

In a May 21, 1987, letter to Dr. Zuniga, the veteran’s therapist, Ann Anderson, a behavioral health counselor at CCCS, stated:

During the past year, Mr. Shoemaker has attempted to work and take care of his business affairs, in an effort to help his wife who works long hours daily. This resulted in frustration for him as he is emotionally unstable and unable to withstand any stress or situation that calls for control very long.

R. at 107.

On June 12, 1987, an administrative law judge (AU) awarded the veteran Social Security disability benefits, effective from May 15, 1984, the date he was fired from his job. R. at 103. The AU concluded, inter alia, that the veteran’s psychiatric impairments — dysthymic disorder, anxiety disorder, and mixed personality disorder— had prevented him from working for at least twelve continuous months. Ibid.

In early February 1988, Dr. Zuniga examined the veteran in an outpatient visit and concluded that he manifested “fragile but satisfactory control of anxious depression”. R. at 13. On February 24, 1988, the veteran received a VA medical examination for the purpose of evaluating his service-connected disability. R. at 130. The examining physician who evaluated the veteran’s physical condition stated explicitly that the veteran’s VA claims file and medical records were not available to review in preparation for the examination. R. at 132. The physical examination showed only peptic inflammation. There was no evidence of ulceration. R. at 134. The neuropsychia-tric examination showed that the veteran interacted in a depressed, submissive, and downtrodden way. R. at 133.

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Bluebook (online)
3 Vet. App. 248, 1992 U.S. Vet. App. LEXIS 301, 1992 WL 228784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shoemaker-v-derwinski-cavc-1992.