Webster v. Derwinski

1 Vet. App. 155, 1991 U.S. Vet. App. LEXIS 13, 1991 WL 149043
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 28, 1991
DocketNo. 90-268
StatusPublished
Cited by74 cases

This text of 1 Vet. App. 155 (Webster 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
Webster v. Derwinski, 1 Vet. App. 155, 1991 U.S. Vet. App. LEXIS 13, 1991 WL 149043 (Cal. 1991).

Opinion

KRAMER, Associate Judge:

In its decision of February 22, 1990, the Board of Veterans’ Appeals (BVA) denied appellant’s reopened claim for an increased rating for his 30-percent service-connected post traumatic stress disorder (PTSD). Without providing reasons or bases for its action, supported by a thorough analysis of how the rating schedule for PTSD applies to the relevant evidence in the record, the BVA simply concluded that the criteria for a rating of more than 30 percent were not met. The BVA also failed to evaluate which part of the appellant’s disability is service connected and which is not. We reverse and remand the case to the BVA for proceedings consistent with this opinion.

I.

The appellant served on active duty with the United States Navy from November 1942 to March 1946. R. at 1. He contends, and the appellee does not dispute, that during this period, he underwent several stressful combat experiences as a result of which, on May 25, 1984, the Veterans’ Administration (now the Department of Veterans Affairs) (VA) awarded him a 30-per-cent service-connected disability for PTSD. R. at 45, 48, 78, 79, 83. (It is unclear from the record when appellant first applied for such benefits.) From April 1, 1985, to April 17, 1985, appellant was hospitalized by the VA for mental illness and was diagnosed as having, in addition to PTSD, bipolar disorder, depression, and parkinsonism. R. at 11.

Following this hospitalization, in July 1985 appellant’s mental condition forced him to retire on disability from his job as a national representative for the American Federation of Government Employees (AFGE). R. at 10, 30, 105.

In 1986, Dr. Hal J. Breen, a private psychiatrist who had been treating appellant since 1982, diagnosed him as permanently disabled because of mental disorders including PTSD. R. at 20.

On January 27,1987, a VA physician, Dr. Luis Collo, confirmed appellant's previous diagnosis for PTSD, bipolar disorder, and depression. R. at 6. In his report, he classified appellant by degree of impairment using the following definitions:

Mild: suspected impairment of slight importance which does not affect ability to function.
Moderate: an impairment which affects but does not preclude ability to function.
[157]*157Moderately Severe: an impairment which seriously affects ability to function. Severe: extreme impairment of ability to function.

R. at 5.

Based on these definitions, Dr. Collo rated appellant’s impairment as follows: mild impairment in personal habits; moderate impairment to respond appropriately to supervision, perform simple tasks, and maintain personal hygiene and outside interests; moderately severe impairment to relate to other people, socialize with friends and neighbors, attend meetings, work around the house, understand, carry out, and remember instructions, respond appropriately to co-workers and customary work pressures, and perform repetitive and varied tasks; and severe impairment to perform complex tasks in a routine work setting. Finally, Dr. Collo concluded that, based on the above, appellant was unable to sustain scheduled activity, such as conventional employment, on either a daily or weekly basis. R. at 4-6.

On June 22, 1987, a federal Administrative Law Judge (A.L.J.), subsequent to a hearing, found appellant unable to engage in any gainful activity because of his mental impairment and therefore entitled to disability insurance benefits under the Social Security Act. 42 U.S.C. § 416, 423 (1988 & Supp. I 1989). R. at 8-11. The A.L.J. determined that appellant suffered from a severe anxiety-related disorder manifested by persistent recollections of past traumatic experiences, marked limited ability to concentrate, demonstrated social isolation, and inability to begin and complete a task in a work-like setting. These findings were based on appellant’s own testimony at the hearing, statements from his co-workers, and the above-described evaluations of Dr. Breen and Dr. Collo. R. at 10-14.

As a consequence of appellant’s reopening his YA claim for an increased rating for his PTSD, a Regional Office (RO) hearing was held on February 4, 1988. R. at 21-42. During this proceeding, appellant testified under oath that he rarely associated with anyone outside of his immediate family. R. at 23. Bert Reynolds, a national representative for AFGE and appellant’s past co-worker, recounted under oath that appellant, prior to his forced retirement, frequently failed to report for work, was confused and unable to complete tasks when he did Show up, and became aggressively accusatory of others when his performance was criticized. R. at 29-31. In addition, Mr. Reynolds testified that appellant, once a gregarious man, had become a social recluse. R. at 31. Lastly, Dr. Breen offered his sworn expert opinion that appellant suffered from a psycho-neurotic disorder which bordered on the psychotic and, as a result, was unable to function in either a social or work setting. R. at 34-39.

On March 9, 1988, Dr. James McLoone, another YA physician, examined appellant pursuant to his application for an increased disability claim and diagnosed him as having chronic PTSD occasioned by World War II experiences, a passive-aggressive personality disorder, and a mood disorder. R. at 47-48. In making an apparent attempt to isolate the disorders which were relevant to appellant’s impairment, he remarked: “There was no information obtained during this rating examination that would dismiss any of these diagnostic impressions. They all seem to be relevant.” R. at 47.

On October 24, 1988, the VA denied appellant’s claim for increased service-connected disability. R. at 84-85.

Appellant filed a Notice of Disagreement on April 10, 1989. Another RO hearing was held on June 7, 1989, at which only appellant testified. R. at 99-104. In a letter dated July 25, 1989, the RO again denied the requested increased rating stating, that, “... if the symptomatology assignable to your non[-]service-connected bipolar disorder is not considered, the current 30-percent evaluation for your service-connected PTSD is appropriate.” R. at 107.

Appellant appealed this decision to the BVA which denied his claim on February 22, 1990, and concluded:

For entitlement to a 50 percent rating for the veteran’s post-traumatic stress disorder, it must be demonstrated that the disability is productive of considerable [158]*158social and industrial impairment. After a review of all the evidence of record, the Board cannot reach such a conclusion.
When the veteran was recently examined for compensation purposes, mood was sad and frustrated but judgment was adequate. Therefore, while the Board does not wish to minimize the difficulties the veteran has encountered as a result of the post-traumatic stress disorder, it is concluded that this disability is productive of no more than definite social and industrial inadaptability.

Richard H. Webster, loc. no. 003375, at 4 (BVA Feb. 22, 1990). Appellant subsequently perfected an appeal to this Court on April 9, 1990.

II.

Pursuant to 38 U.S.C. § 4061(a)(3) (1988), this Court is to

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

Related

181105-847
Board of Veterans' Appeals, 2019
Sullivan v. McDonald
815 F.3d 786 (Federal Circuit, 2016)
Margreit Castellano v. Eric K. Shinseki
25 Vet. App. 146 (Veterans Claims, 2011)
Lawrence Delisio v. Eric K. Shinseki
25 Vet. App. 45 (Veterans Claims, 2011)
Dennis W. Cogburn v. Eric K. Shinseki
24 Vet. App. 205 (Veterans Claims, 2010)
Willie E. Tatum v. Eric K. Shinseki
24 Vet. App. 139 (Veterans Claims, 2010)
Carl v. Lamb v. James B. Peake
22 Vet. App. 227 (Veterans Claims, 2008)
Mark A. Stover v. Gordon H. Mansfield
21 Vet. App. 485 (Veterans Claims, 2007)
Anthony J. Diorio v. R. James Nicholson
20 Vet. App. 193 (Veterans Claims, 2006)
Roberson v. Principi
17 Vet. App. 135 (Veterans Claims, 2003)
Hensley v. West
212 F.3d 1241 (Federal Circuit, 2000)
Arnesen v. Brown
8 Vet. App. 432 (Veterans Claims, 1995)
Seals v. Brown
8 Vet. App. 291 (Veterans Claims, 1995)
Horowitz v. Brown
5 Vet. App. 217 (Veterans Claims, 1993)
DeLuca v. Brown
6 Vet. App. 321 (Veterans Claims, 1993)
Ferazzoli v. Brown
4 Vet. App. 152 (Veterans Claims, 1993)
Martin v. Brown
4 Vet. App. 136 (Veterans Claims, 1993)
Cleary v. Principi
3 Vet. App. 495 (Veterans Claims, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 155, 1991 U.S. Vet. App. LEXIS 13, 1991 WL 149043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-derwinski-cavc-1991.