Ternus v. Brown

6 Vet. App. 370, 1994 U.S. Vet. App. LEXIS 233, 1994 WL 99505
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 29, 1994
DocketNo. 91-1903
StatusPublished
Cited by6 cases

This text of 6 Vet. App. 370 (Ternus v. Brown) 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
Ternus v. Brown, 6 Vet. App. 370, 1994 U.S. Vet. App. LEXIS 233, 1994 WL 99505 (Cal. 1994).

Opinion

IVERS, Judge:

John William Ternus III appeals a September 6, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied an effective date earlier than September 13, 1989, for a 100% rating for service-connected schizophrenia on the grounds that there was no clear and unmistakable error (CUE) in an October 1985 rating reduction or a September 1987 continuation of that reduced rating. John W. Ternus, BVA 91-26587 (Sept. 6, 1991). The Secretary has filed a motion for summary affirmance. The Court has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, we reverse the September 1991 decision of the BVA.

I. FACTUAL BACKGROUND

Appellant served in the United States Army from December 1967 to February 1970, a period including one year of service in Vietnam. R. at 1. After his return from Vietnam in 1969, he was admitted to Letterman General Hospital with a diagnosis of schizophrenia. R. at 31. At that time, he gave a history of psychiatric hospitalization at Fort Ord, California, from May to August 1968 with a diagnosis of schizophrenia. Ibid. In February 1970, appellant’s ease was reviewed by a medical board, which noted a diagnosis of

[schizophrenia reaction, undifferentiated type, chronic, moderate, treated, slightly improved, manifested by poor interpersonal relationships, poor motivation, withdrawn behavior, chronic depression, paranoid ideation and inappropriate affect, minimal stress, routine military duty; moderate predisposition, lifelong history of poor interpersonal relationships; marked impairment.

R. at 29; see also R. at 33. The medical board recommended that appellant be “[s]ep-arated from military service for [an] EPTS [existed prior to service] condition.” R. at 30; see also R. at 33. Appellant was honorably discharged for medical reasons on February 25, 1970. R. at 1.

On March 27, 1970, a VA regional office (RO) granted service connection for schizophrenic reaction, undifferentiated type, rated as 10% disabling. R. at 94.

In June 1971, in connection with a claim for an increase in the 10% rating, appellant was examined by the VA. R. at 36-40. The examination report stated this diagnosis:

Schizophrenic Reaction, undifferentiated type with paranoid coloring, manifested by confused thinking and difficulty in concentration with perplexity, ideas of reference, fear states and a disturbance of affect. Currently the mental illness is active and he was advised to seek hospitalization and medication. He is competent to handle VA funds and that’s about all.

R. at 39. On July 30, 1971, the RO sent notification to appellant that it had denied the claim for an increase for his service-connected schizophrenia, which continued to be rated 10% disabling. R. at 96; see R. at 95.

In April 1975, appellant was again examined by the VA. R. at 43. At that time, the examination report stated: “Schizophrenia, chronic, undifferentiated by history. At the present time he is almost in complete remission. ...” R. at 44. The VA examiner also stated that appellant was “employable providing not too much pressure is placed on him. His social activities are greatly limited because of his inability to relate with other people and his general suspiciousness which is less severe than it was but is still present.” [372]*372R. at 43. On June 6, 1975, the RO sent notification to appellant that it would continue rating his schizophrenia as 10% disabling. R. at 97; see R. at 98.

On June 7,1976, appellant was interviewed and tested at a VA mental health clinic by a VA psychologist. R. at 46, 60-64. At this interview, appellant complained that his television had been talking to him but he became vague when asked to explain. R. at 62. The examiner noted that appellant was a “rather vague historian for someone who says he is a senior psychology student.” Ibid. Appellant told the examiner that he had spent 5 years at junior college and the past year at a university and that he had completed 17 psychology courses but lacked 7 courses to meet the graduation requirements. Ibid. He also admitted to “TV influence [and] reference” and “seemed vaguely paranoid about [his roommate].” Ibid. The examiner noted that appellant was in no apparent distress, that he avoided eye contact for most of the interview, that he was oriented and in contact with reality, and that his affect was appropriate although he would “stop during a monologue and gaze blankly, then pick up his train of thought similar to the manner of hallucinating patients.” R. at 63. The examiner stated his impression that appellant presented a questionable history of schizophrenic episodes and expressed the need to “[rule out] schizophrenia, paranoid type vs. borderline syndrome.” R. at 64. A June 15, 1976, VA psychological report stated that the results of a test administered to appellant were “indicative of schizophrenia, paranoid type.” R. at 65.

On July 25, 1977, appellant sought an increase in the 10% disability rating for his service-connected schizophrenia. See R. at 99. On December 29, 1977, appellant underwent a VA examination. R. at 67. The resulting report gave a final diagnosis of “[s]ehizophrenia, undifferentiated, chronic.” R. at 69. In that report, the examining VA psychiatrist stated:

This patient appears to have a chronic undifferentiated schizophrenia condition which has remained unchanged since being out of treatment. He has continued to do reasonably well academically and has managed to hold a job at the same time for the past 1% years. Socially he is terribly isolated and has virtually no social skills. He finds his apartment to be an island of security and rarely has anyone other than his brother in the apartment. There is certainly room to question his ability to do anything other than be a student, and one must wonder whether he will ever be able to be gainfully employed upon completion of his academic endeavors. His continuing social isolation will undoubtedly continue at a remarkably abnormal level.

Ibid. On March 1, 1978, the RO granted a 30% disability rating. R. at 99. Appellant filed a Notice of Disagreement (NOD) regarding the 30% rating on June 27,1978. R. at 100.

A July 1978 VA medical certificate provided an impression of paranoid type schizophrenia in partial remission. R. at 72. On July 11, 1979, appellant underwent a VA psychiatric evaluation for compensation purposes. R. at 73. The chief of the mental hygiene clinic diagnosed schizophrenic reaction, chronic, paranoid type, and stated:

Mr. Ternus exhibits the classical sympto-matology of a chronic psychosis. His symptomatology is not dramatic at the present time, and he is certainly not in need of hospitalization. His condition, however, is such that he does not function very well[,] either in terms of interpersonal relations or with respect to school and employment. It is very likely that this man will have difficulty in leading a totally self-sufficient life, now or in the foreseeable future. In terms of symptomatology, Mr. Ternus’s psychosis must be considered mild at the present time; in terms of functional impairments, his condition must be considered more severe at the present time.

R. at 74.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sorakubo v. Principi
16 Vet. App. 120 (Veterans Claims, 2002)
Sondel v. West
13 Vet. App. 213 (Veterans Claims, 1999)
Baldwin v. West
13 Vet. App. 1 (Veterans Claims, 1999)
Wamhoff v. Brown
8 Vet. App. 517 (Veterans Claims, 1996)
Degmetich v. Brown
8 Vet. App. 208 (Veterans Claims, 1995)
Kirwin v. Brown
8 Vet. App. 148 (Veterans Claims, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 370, 1994 U.S. Vet. App. LEXIS 233, 1994 WL 99505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ternus-v-brown-cavc-1994.