Ussery v. Brown

8 Vet. App. 64, 1995 U.S. Vet. App. LEXIS 514, 1995 WL 405718
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 11, 1995
DocketNo. 93-696
StatusPublished
Cited by16 cases

This text of 8 Vet. App. 64 (Ussery 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
Ussery v. Brown, 8 Vet. App. 64, 1995 U.S. Vet. App. LEXIS 514, 1995 WL 405718 (Cal. 1995).

Opinion

FARLEY, Judge:

This is an appeal from a June 30, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which denied the appellant’s claim for residuals of pneumonia, including schizophrenia, seizure disorder, and atypical organic brain syndrome. A timely appeal to this Court followed. The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will vacate the Board’s decision and remand the matter for readjudication consistent with this opinion.

I.

The appellant served on active duty with the U.S. Army from February 1, 1956, until he was honorably discharged on February 13, 1958. Record (R.) at 17. His service medical records (SMRs) are unavailable due to a fire at the National Personnel Records Center in 1973. R. at 115. In September 1989 the appellant applied for disability compensation for “resporitory [sic], bronical [sic], organic brain sydome [sic], nervous condition and pneumonia.” R. at 24. On his application, the appellant stated that he had received treatment for three months while in service in 1956 for pneumonia, which “caused brain trouble.” Ibid. The appellant submitted three letters from his private psychiatrist, Dr. Riehoux, who provided diagnoses of atypical organic brain syndrome with psychotic features. R. at 28, 139, 186. In the latest letter, dated July 25, 1991, Dr. Riehoux stated, “In considering Mr. Ussery’s history, it is my opinion that there is a significant possibility of a causal link between an extended febrile illness which Mr. Ussery suffered in 1956 and the onset of his organic brain syndrome.” R. at 186.

There are two VA diagnoses in the record. The first, dated December 8, 1988, noted: “Pt. has a confused history. OBS? [organic brain syndrome] never clarified. Seizure disorder? also not clear.” R. at 48. The second, dated December 18, 1988, diagnosed “chronic paranoid schizophrenia.” R. at 50. The record also contains various diagnoses by private physicians from 1976 to 1980: “obsessive compulsive neurosis versus schizophrenia” (R. at 209-10); “adjustment reaction with depressive and paranoid features— possibly ‘borderline’ ” (R. at 220-21); “Sehi-zo-effective [sic] schizophrenia with chronic depressed features_ Obsessive compulsive personality” (R. at 243); “Schizo-affective schizophrenia” (R. at 251, 254, 331); “Organic Brain Syndrome possibly [secondary] to ECT Encephalopathy” (R. at 283); and “paranoid schizophrenia.” R. at 382. (Encephalopathy is “any degenerative disease of the brain.” See Dorland’s IllustRAted MEDICAL DICTIONARY 550 (27th ed.1988)). The record does not contain records of diagnoses or treatment of the appellant from 1958 to 1976.

In April 1990, the VA regional office (RO) denied the appellant’s claim, stating that pneumonia “[was] not shown by the evidence of record. Schizophrenia and seizure disorder shown many years after service, not incurred in or aggravated by service and not shown within one year of discharge.” R. at 98. The appellant submitted a Notice of Disagreement (R. at 102) and perfected his appeal to the BVA (R. at 113). During the [66]*66processing of this appeal, the BVA remanded the matter three times to the RO: first for the RO to obtain SMRs directly from the appellant’s unit where he had been assigned when he received medical treatment during service (R. at 161); second, for the RO to retrieve medical records directly from the Army hospital where the appellant had received in-service medical treatment, as well as to retrieve medical records from the U.S. Public Health Hospital in New Orleans, and, if the records confirmed the appellant’s in-service treatment for pneumonia or fever, to schedule a VA neurological examination (R. at 194-95); and third, for the RO to provide the appellant another Supplemental Statement of the Case that included the text of 38 U.S.C. § 5107(a) pertaining to the requirements for a well-grounded claim (R. at 417-18).

In June 1993, the Board, in its reasons and bases statement, recounted the multiple diagnoses in the record and stated that “[r]eview of the entire, extensive medical record shows a clear history of acute onset of psychiatric disorder and the development of organic brain syndrome and seizures secondary to ECT.” R. at 9. The BVA also took note of Dr. Richoux’s opinion, that a causal link existed between the appellant’s current mental disorder and his in-service high fever resulting from pneumonia, and characterized it as “essentially a hypothetical proposition: If the appellant suffered a prolonged high fever, then it is highly likely that it caused atypical organic brain syndrome with psychotic features and the seizure disorder. The probative value of the opinion rests entirely on the proof of the alleged fever.” R. at 8. The Board found that the history given by the appellant of having had pneumonia in service, “while not directly impeached, is of questionable credibility ...” (R. at 9; emphasis added) and concluded that

the appellant did not suffer a prolonged febrile illness in service. Dr. Richoux’s opinion, therefore, is not probative evidence, predicated as it is on erroneous fact. The preponderance of the evidence is against a grant of service connection for residuals of pneumonia, including schizophrenia, seizure disorder!,] and atypical organic brain syndrome.

R. at 10.

On appeal, the appellant seeks reversal of the Board’s decision and argues that the Board’s finding of a material fact, i.e., that the appellant did not suffer a prolonged high fever due to pneumonia in service, was clearly erroneous (Appellant’s brief (Br.) at 12-19) and that the Board erred in concluding that the preponderance of the evidence was against the appellant’s claim (Appellant’s Br. at 19-22). Alternatively, the appellant argues that the ease should be remanded because the Board failed in its duty to assist the veteran in developing his claim, and because the Board’s reasons or bases for denying the veteran the benefit of the doubt were without merit. Appellant’s Br. at 22-24. The appellant takes issue with the Board’s impeachment of his statements concerning his pneumonia and high fever in service based upon medical histories taken from him many years before he filed his claim for high fevers in service. Appellant’s Br. at 13-14. Finally, the appellant argues that medical evidence of other incidents of pneumonia in 1976 did not conflict with his assertions of having suffered pneumonia also in 1956 or 1957. Appellant’s Br. at 14-15.

• The Secretary urges that the Board’s decision should be affirmed because it is predicated on a plausible basis, i.e., “there is no evidence whatsoever to establish that a chronic condition was incurred in or aggravated by service and that this condition has existed continuously from date of discharge to the present time.” Secretary’s Br. at 8. Even assuming, arguendo, that the Board erred in finding that the appellant had not suffered a high fever in service, the Secretary argues that any such error would be harmless since it could not possibly change the outcome of the appellant’s claim, given the lack of continuity of symptomatology from 1956 to the present. Secretary’s Br. at 13-14.

II.

The Board is required to provide “a written statement of [its] findings and conclusions, and the reasons or bases for those [67]

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Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 64, 1995 U.S. Vet. App. LEXIS 514, 1995 WL 405718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ussery-v-brown-cavc-1995.