Vettese v. Brown

7 Vet. App. 31, 1994 U.S. Vet. App. LEXIS 747, 1994 WL 486638
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 9, 1994
DocketNo. 92-1297
StatusPublished
Cited by20 cases

This text of 7 Vet. App. 31 (Vettese 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
Vettese v. Brown, 7 Vet. App. 31, 1994 U.S. Vet. App. LEXIS 747, 1994 WL 486638 (Cal. 1994).

Opinion

HOLDAWAY, Judge:

The appellant, Ronald L. Vettese, appeals a June 24, 1992, decision of the Board of [33]*33Veterans’ Appeals (BVA or Board) which denied service connection for tinnitus, an increased disability rating for post-traumatic stress disorder (PTSD), currently rated 50% disabling, and a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The appellant is appealing only those portions of the BVA’s decision regarding an increased disability rating for PTSD and its denial of a TDIU rating. The Court will dismiss the appellant’s claim for an increased disability rating for lack of jurisdiction, and reverse the Board’s denial of a TDIU rating.

I. FACTS

The appellant, a Vietnam veteran, had active service from June 1967 to July 1970. From December 5, 1984, to February 14, 1985, the appellant was hospitalized at the Ann Arbor VA Medical Center (MC). He was initially admitted for treatment of alcoholism, but was later transferred to the psychiatric unit where he was diagnosed with PTSD. In May 1985, the appellant was hospitalized again after an apparent suicide attempt.

In 1985, the appellant began counseling with Dr. Olen, a private psychiatrist, and Leigh Brewster, a private clinical social worker. In October 1985, he was evaluated by Dr. Chamberlain, a VA psychiatrist. Dr. Olen determined that the appellant was suffering from PTSD due to his experiences in Vietnam. He further stated that the appellant did have some preexisting personality problems, but that they had been magnified by the appellant’s combat experiences. Both Dr. Chamberlain and Ms. Brewster opined that the appellant was not capable of employment due to the severity of his PTSD.

Throughout 1987 and 1988, the appellant continued to receive outpatient treatment from the Ann Arbor VAMC. In February 1988, he was admitted to the Ann Arbor VAMC for evaluation of his psychiatric disabilities. Both examining psychiatrists diagnosed him with PTSD, and recommended that he be admitted to a PTSD treatment center for long-term care.

In an April 1988 rating decision, the regional office (RO) granted the appellant service connection for PTSD, and assigned him a 30% disability rating. In May 1988, the appellant submitted a letter disagreeing with the RO’s decision stating, “I should have been granted a much higher rating_” In July 1988, he submitted a VA Form 1-9 (Appeal to the Board). In April 1989, the Board remanded the appellant’s claim to obtain another psychiatric examination. In June 1989, Dr. Lilly, a VA psychiatrist, diagnosed the appellant with PTSD, and a non-serviee-eonnected personality disorder. Dr. Lilly assessed the appellant’s social adjustment as moderately impaired, and his vocational adjustment as severely impaired. On March 1, 1990, the Board granted the appellant a 50% disability rating for PTSD. There is nothing in the record to indicate that the appellant ever asked for reconsideration of this decision.

In April 1990, the appellant submitted a claim for a TDIU rating due to his service-connected PTSD. He neither disputed the 50% rating in this new claim nor asked for a higher rating based on evidence of “worsening” of his condition. In May 1990, the RO denied the TDIU claim. The RO did leave the 50% disability rating in effect even though there had been no claim for an increase. In June 1990, the appellant filed a Notice of Disagreement (NOD) with the RO’s decision to “deny me [service connection for] ... tinnitus [,] and individual unemployability.” He expressed no disagreement with the RO’s decision as to the disability rating for PTSD. In July 1990, he filed a VA Form 1-9 (Appeal to the Board) listing the issues on appeal as entitlement to individual unemploy-ability and service connection for tinnitus. In June 1991, Dr. Valenstein, a VA psychiatrist, submitted a statement in which she opined that the appellant suffered from both PTSD and a non-service-connected schizoaf-fective disorder. She further described him as being severely impaired by both disabilities and unable to sustain any gainful activity. That same month Dr. McMillan, a private psychotherapist, described the appellant as barely functioning in society.

On August 12, 1991, the Board remanded the appellant’s claim to the RO for the appellant to obtain another psychiatric examina[34]*34tion to determine the degree of impairment due to his service-connected PTSD. In September 1991, a VA social worker concluded that “this veteran would find it extremely difficult to work unless it were something he were to do in the home, by himself.” That same month Dr. Dorsey, a VA psychiatrist, determined that the appellant was equally disabled by PTSD and a schizoaffective disorder. . A Statement of the Case (SOC) was furnished in November 1991. The SOC reflected that in May 1990 the RO had denied the appellant’s claim for a TDIU rating, and had sua sponte determined that the appellant was not entitled to an increased disability rating for PTSD.

In November 1991, Dr. Valenstein submitted another statement in which she opined that the appellant was totally disabled from his psychiatric disorders and’was not capable of industrial employment. On June 24, 1992, the Board determined that the appellant was not entitled to an increased disability rating for his PTSD, and that the appellant was not entitled to a TDIU rating as his service-connected disabilities were not profoundly disabling.

II. ANALYSIS

A. Increased Evaluation for PTSD

As an initial matter, the Court must determine whether it has jurisdiction over the Board’s decision to deny the appellant an increased disability rating for his service-connected PTSD. This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress and the Court may not extend its jurisdiction beyond that permitted by law. See Prenzler v. Derwinski, 928 F.2d 892 (Fed.Cir.1991). As established by the Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note), this Court has jurisdiction only over cases in which an NOD was filed on or after November 18, 1988. The Court has previously held that:

There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudication on remand cannot be an NOD.

Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc) (emphasis in original).

The RO granted the appellant a 30% disability rating for PTSD in April 1988. An NOD was submitted in May 1988. In March 1990, the Board granted the appellant a 50% disability rating. The appellant had not asked for a specific rating in his appeal to the BVA, but merely appealed on the ground that the 30% rating was insufficient. Moreover, he did not seek reconsideration of the Board’s decision upgrading his rating. The May 1990 rating decision continued and implemented the 50% disability rating, and was part and parcel of the same claim. The appellant expressed no disagreement with the RO’s sua sponte decision to continue the 50% disability rating.

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Cite This Page — Counsel Stack

Bluebook (online)
7 Vet. App. 31, 1994 U.S. Vet. App. LEXIS 747, 1994 WL 486638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vettese-v-brown-cavc-1994.