Green v. Derwinski

Green v. Derwinski, 1 Vet. App. 121, decided 1991-01-18.

FARLEY, Associate Judge: This appeal presents two issues for review: the denial of service connection for the veteran’s current psychotic condition and the denial of service connection for the residuals of poliomyelitis. We affirm as to the former; we vacate as to the latter and remand the matter for further action.

The veteran challenges the denial of service connection for his current psychotic condition. The Board of Veterans’ Appeals (BVA) upheld the denial on the grounds that no psychotic disorders were demonstrated in service and it was not until several years after service that psychophysiologic nervous system reaction, conversion hysteria and psychotic depression were first demonstrated. Upon consideration of the record and the briefs of the parties, it is the holding of the Court that appellant has not demonstrated that the BVA committed either factual or legal error which would warrant reversal of the denial of service connection for the veteran’s current psychotic condition. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990); see also Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). Summary affirmance of the Board’s decision on this issue is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990).

II.

The second issue concerns the denial of service connection for the residuals of poliomyelitis. The veteran’s military records reflect that he was diagnosed as having poliomyelitis in 1947 while in service. In addition to back and neck problems, the service treatment record contains referenc*123es to “weakness present in triceps, hamstrings & quadriceps bilaterally], esp. on rt.” (R. at 35) and “only poor to fair strength in all muscles of both upper and lower extremes [sic]” (R. at 36). A neuro-logic evaluation by the then Veteran’s Administration of the veteran on January 15, 1988, yielded objective findings that the veteran’s “left leg was smaller than the right”; he “walks with a limpie [sic] type of gait, favoring the left lower extremity which is somewhat wasted from the knee down”; “muscle strength is diminished”; and “[d]eep tendon reflexes are diminished bilaterally.” R. at 161. The veteran claims that his current left leg problems are residuals from his 1947 polio.

A.

In affirming the denial of his claim, the BVA made a “de novo determination.” Victor G. Green, loe. no. 926493, at 2 (BVA Sept. 28, 1989). The Board decided that “Chronic poliomyelitis was not incurred in or aggravated by service. (38 U.S.C. 310, 331; 38 C.F.R. 3.303)”. Id. at 7. This “conclusion of law”, which is actually a factual finding, may well be correct, but it does not resolve the issue raised by the veteran in this appeal. The veteran’s argument is that his current left leg disability is a residual of the illness contracted in service and diagnosed as polio in 1947, irrespective of whether that polio is now deemed to have been chronic or acute. It would thus appear that the operative regulation is not 38 C.F.R. § 3.303 (1989), which governs chronic diseases, but 38 C.F.R. § 3.310 (1989) which provides: “Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.”

One searches the September 28, 1989, BVA decision in vain for any discussion or conclusion on the question whether the veteran’s current disability, which is well documented, is service-connected, i.e., whether it resulted from the polio diagnosed in 1947. Apparently referring to the January 15, 1988, evaluation, the BVA commented that: “A recent Veterans [sic] Administration neurologic examination also did not demonstrate chronic residuals of polio.” Victor G. Green, loc. no. 926493, at 7 (BVA Sept. 28, 1989). However, a review of the report of the neurologic examination relied upon by the BVA raises more questions than it answers.

The report contains the following “IMPRESSION: History of pylomyelitis [sic] in 1947. The patient still has some diminished muscle strength in the left lower extremity and ambulates with the help of a cane.” R. at 150. The report goes on to note: “There are some elements on the neurologic examination that are somewhat questionable and not entirely compatible with the diagnosis of polio.” Id. It suggests that further review of the veteran’s hospital records might “clarify the diagnostic doubt” and that, if such doubt remains after the record review, “additional diagnostic studies might be helpful.” Id.

In our view, the statement that some elements “are not entirely compatible with the diagnosis of polio,” in the absence of any further explanation or amplification, necessarily raises the implication that other elements were substantially compatible with such a diagnosis. Moreover, a report which notes that the veteran “still” has diminished muscle strength, confesses “diagnostic doubt” and suggests further record review and diagnostic studies is equivocal at best and, standing alone, cannot fairly support the conclusion that this veteran’s left leg disability did not result from the polio diagnosed in 1947. This is particularly true where, as here, there need only be “an approximate balance of positive and negative evidence” for the claimant to prevail. 38 U.S.C. § 3007(b) (1988); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

It is equally impossible to square the Secretary’s duty to assist a claimant under 38 U.S.C. § 3007(a) (1988) with the Department of Veterans Affairs’ (VA) failure to follow up the suggestion by the examining physician that a review of the veteran’s records “might help clarify the diagnostic doubt” and that additional diagnostic studies might be in order if such doubt remains. Indeed, VA adjudication regulations and *124guidelines provide that “if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1989); see also VA Adjudication Procedure Manual, M21-1, § 55.03. We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). In Littke, this Court held: “Where, as here, the record before the BVA was inadequate, remand is required” to the Regional Office pursuant to 38 C.F.R. § 19.182(a) (1989). At 93; cf. Akles v. Derwinski, 1 Vet.App. 118, 118-119 (1991). That is also the case here.

Moreover, while the Board did comply with 38 U.S.C. § 4004(d)(1) (1988) by providing the “reasons or bases” for its conclusion that the veteran did not contract chronic poliomyelitis while in service, there must be a decision on the issue whether the veteran’s current left leg disability is due to the 1947 illness and there also must be a statement of the “reasons or bases” for the decision on that issue. 38 U.S.C. § 4004(d)(1) (1988); see Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Similarly, in light of the implication of compatibility with polio and the “diagnostic doubt” raised by the examining VA physician, the rote recitation by the Board that the “evidence does not raise a reasonable doubt” is an inadequate statement of the reasons or bases for concluding that the veteran is not entitled to the benefit of the doubt under 38 U.S.C. § 3007(b) (1988).

B.

We cannot help but note that the appellant, through his representative, leapt into the vacuum created by the “diagnostic doubt” evidenced by the VA examining physician, adopted the role of an examining physician, and in his brief presented this Court with his own “diagnosis” of “postpo-lio syndrome” which he supported by an excerpt from the medical literature. Br. of Appellant at 14 and Appendix B; see also The Washington Post, Jan. 1, 1991, at A6, col. 1. While appellant’s self-diagnosis may well provide an acceptable explanation for the veteran’s current condition, it is not something which this Court is permitted to address in the first instance because it was not in the record of the proceedings before the Board. 38 U.S.C. § 4052(b) 1988; see Rogozinski v. Derwinski, 1 Vet.App. 19 (1990). Rather, such a diagnosis, assuming that it can be presented by a qualified physician and supported by a physical examination or appropriate authority, must be submitted to the Board, either initially, or as part of a request for reconsideration, or on a remand from this Court. Of course, it could also form the basis for an initial claim filed with the Regional Office or, in appropriate circumstances, serve as new and material evidence in support of a request that a claim be reopened. Id. at 22

CONCLUSION

As this Court held in Sammarco v. Derwinski, 1 Vet.App. 111, 113 (1991): “Whether the BVA’s ultimate conclusions are correct or not, we hold that the incomplete nature of the decision below does not permit proper review by this Court.” For this reason, we must remand the matter to give the Secretary the opportunity to assist the claimant by gathering additional evidence, including an examination by a physician who has reviewed the claimant’s medical records, to consider any additional medical opinions or diagnostic studies which the veteran might offer or which the Secretary might secure, to resolve the unresolved issue with respect to the veteran’s current left leg disability and to provide “reasons or bases” for its findings and conclusions as required by 38 U.S.C. § 4004(d)(1). See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Accordingly, the decision of the Board af*125firming the denial of service connection for the veteran’s current psychotic condition is AFFIRMED; the decision affirming the denial of service connection for the residuals of poliomyelitis is VACATED and that matter is REMANDED for further action consistent with this opinion.

It is so Ordered.

Green v. Derwinski, 1 Vet. App. 320, decided 1991-06-21.

MANKIN, Associate Judge, dissenting.

It is with greatest respect that I dissent from my learned colleague’s opinion.

The majority does not consider whether the decision here under review is adequately supported by reasons or bases. In effect, the majority holds that “reasons or bases” amounting to little more than that appellant loses, are sufficient under 38 U.S.C. § 4004(d)(1) (1988) and Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Because I believe that the character of the Board of Veterans’ Appeals (BVA) findings is inadequate to allow meaningful judicial review, I dissent.

I would have thought that the need for strict adherence to the reasons or bases requirement was by now firmly ingrained in the Court’s jurisprudence. Perhaps some of the advantages of this requirement bear repeating. The most obvious advantage, and what is lacking in the present case, is that reasons or bases inform the veteran and this Court how the BVA arrived at its ultimate decision. In addition, this requirement is the best way to avoid carelessness by the BVA. See United States v. Forness, 125 F.2d 928, 942 (2d Cir.1942) cert. denied, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942).

The reasoning of the BVA with regard to aggravation is contained exclusively in the following sentences:

During service the appellant underwent hospitalization due to the presence of psychotic symptoms which included delusions, agitated behavior and paranoid reaction. Clearly these recurrent psychotic symptoms are consistent with his preser-vice psychiatric disability and they represent an acute exacerbation of this disability.

In light of the forgoing, we are of the opinion that the appellant’s psychiatric disability ... did not increase in severity as a result of this service.

Michael E. Green, loc. no. 918794, at 5 (BVA July 7, 1989). It is simply not possible from those statements to affirm the BVA’s decision without resort to speculation. In substance the only information *324these statements convey is that the BVA concluded that appellant’s condition was not aggravated. This is merely a rephrasing of the finding at issue. The BVA’s error in this case may have prejudiced the veteran. There is no dispute that schizophrenia can be aggravated; the Secretary has established six levels of disability for “Schizophrenia, paranoid type.” 38 C.F.R. § 4.132, Diagnostic Code 9203 (1990). There is evidence that appellant’s condition did deteriorate as a result of service (see R. at 42), thus presenting questions of evidence that we should not resolve initially on appeal. Indeed, the majority may have misunderstood the medical issue: it is not the quality of appellant’s symptoms which is primarily at issue but rather the frequency of those symptoms. Appellant claims he suffers recurrences more frequently now than prior to service. Appellant’s Br. at 13-14.

If the Court decides that its role is merely to search the record for some plausible basis to support global findings, not only will we have failed in our responsibilities, but we will encourage the type of vague BVA decisions which are all too common. Although our role is limited, we must insist that the decisions which we review allow us to comply with the role mandated by the Congress. Cf. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir.1987) (federal courts must not “act as automatons” in reviewing the decisions of the Secretary of Health and Human Services). I am aware that the BVA has a large volume of cases, but in view of the serious nature of the claims involved, it does not seem too much to insist that the BVA inform the veteran and this Court as to the reasons or bases which underlie its decision. 38 U.S.C. § 4004(d)(1). Accordingly, I would vacate the BVA decision and remand the case to the BVA.

HOLDAWAY, Associate Judge, filed the opinion of the Court, in which FARLEY, Associate Judge, joined.

MANKIN, Associate Judge, filed a dissenting opinion.

HOLDAWAY, Associate Judge: This case concerns an appeal of a July 7, 1989, Board of Veterans’ Appeals (BVA or Board) decision denying entitlement to service connection because appellant’s psychiatric disability, diagnosed as paranoid schizophrenia, was not incurred in or aggravated during appellant’s active duty for training or active duty in the Air Force. We affirm the Board’s decision.

Appellant enlisted in the Air Force Reserve in June 1986 and was on active duty for training from July 1986 to November 1986. His enlistment physical showed no history of psychiatric disability or discharge from previous military service because of mental disability. In May 1987, appellant went on active duty as a jet mechanic with the Air Force.

On December 17, 1987, appellant was forcibly hospitalized after a violent episode. During his treatment, appellant revealed that he had been hospitalized during high school for treatment of a psychosis. Records of his treatment, beginning in 1977 up to May 1986, were obtained by the doctors. Appellant also revealed that he had previously been in the Army and was discharged for mental problems in 1979.

In January 1988, appellant went before a medical evaluation board which found that he suffered from “[pjaranoid schizophrenia, chronic, with acute exacerbation.” The medical evaluation board also found that appellant’s condition existed prior to service and was not aggravated by service. Appellant was found unfit for duty and was honorably discharged from the Air Force.

Appellant filed a claim for service connection for his psychiatric disability in June 1988. The Department of Veterans Affairs (VA) Regional Office denied his claim stat*322ing that the “[v]eteran’s disability existed prior to service with no evidence of aggravation during service beyond natural progression.” Appellant appealed this decision to the BVA. In his VA Form 1-9, appellant stated that although his illness existed prior to service, the Air Force knew about it and found him fit for duty on his entry into service. He also stated that the stress of military service had caused an increase in his disability.

The BVA decision was issued on July 7, 1989. The Discussion and Evaluation portion of the decision stated:

In the present case, the evidence of record reveals that prior to the appellant’s periods of active duty and active duty for training he was hospitalized on several occasions due to the recurrence of psychotic symptoms. The principal diagnosis was deemed to be paranoid schizophrenia. Although under the cited laws and regulations an appellant will be considered to be in sound condition except for defects noted when examined and accepted for service, clear and unmistakable evidence that the disability manifested in service existed prior to service will rebut the presumption of soundness. The above-mentioned medical records along with the concessions made by the appellant clearly demonstrated that he suffered from a psychiatric disability prior to his entrance into service. During service the appellant underwent hospitalization due to the presence of psychotic symptoms which included delusions, agitated behavior and paranoid reaction. Clearly these recurrent psychiatric symptoms are consistent with his pre-service psychiatric disability and they represent an acute exacerbation of this preservice disability.

In light of this foregoing, we are of the opinion that the appellant’s psychiatric disability, diagnosed as paranoid schizophrenia, existed prior to his periods of service and did not increase in severity as a result of this service.

Michael E. Green, loc. no. 918794, at 4-5 (BVA July 7, 1989).

A timely appeal to this Court followed.

ANALYSIS

For the purposes of veteran’s compensation, “every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination ... or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” 38 U.S.C. § 311 (1988); 38 C.F.R. § 3.304(b) (1990).

A BVA finding that a veteran’s disease did not worsen in service is a finding of fact. Hunt v. Derwinski, 1 Vet.App. 292, 293 (1991). This Court reviews factual determinations of the BVA under the “clearly erroneous” standard of 38 U.S.C. § 4061(a)(4) (1988). “[T]his Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ... we cannot overturn them.” Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).

In this case, there is no notation on the appellant’s induction exam indicating that he had psychiatric problems or had been previously discharged from a branch of the military because of those problems. He was then entitled to the presumption of soundness noted above. However, the BVA finding that the “presumption of soundness” was rebutted by “clear and unmistakable evidence” consisting of appellant’s own admissions of a prior psychiatric disorder and his medical records of hospitalizations for a psychiatric disorder which occurred prior to his entry into the Air Force is clearly correct.

The only question remaining is whether appellant’s illness was aggravated by service. “Aggravation in service” is defined in 38 U.S.C. § 353 (1988): “A preexisting injury or disease will be considered to have been aggravated by active *323... service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” See 38 C.F.R. § 3.306(a) (1990) (aggravation of preservice disabilities); Hunt, 1 Vet.App. 296.

Appellant claims that his condition at entry into the Air Force should be considered the baseline against which his condition on discharge should be measured. Appellant’s mental disease was apparently in remission when he was on active duty for training and when he entered the regular Air Force. Because he was discharged as unfit for duty after hospitalization because of his mental disease, appellant claims his condition had necessarily worsened.

“Temporary or intermittent flare-ups of a preexisting injury-or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt, 1 Vet.App. at 297. This means that the baseline against which the BVA had to measure any worsening of appellant’s psychiatric disability in this case was the appellant’s psychiatric disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted in the Air Force.

In this case, the Board had records of appellant’s hospitalizations, symptoms, and diagnoses made prior to his service in the Air Force to compare with the records of his hospitalization in 1987. The BVA’s finding of fact that the appellant’s “psychiatric disability did not increase in severity as a result of [his] service” is plausible and supported by the clinical description in the medical records of appellant’s condition before entry into service and during his hospitalization in the Air Force. The symptoms described in the medical reports prior to his service are strikingly similar to the symptoms described in his service medical records.

Accordingly, the July 7, 1989, BVA decision in this case is AFFIRMED.

Green v. Derwinski, 1 Vet. App. 570, decided 1991-11-18.

PER CURIAM: Appellant, Stewart P. Green, has noted an appeal from a June 25, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to a complete waiver of recovery of a loan guaranty indebtedness. We find the decision of the BVA is supported by the evidence of record and find no legal or factual error contained in the decision which would warrant reversal. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Accordingly, we hold that summary disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23 (1990).

*571In 1976, Mr. Green purchased a home in New York for which he obtained a Veterans’ Administration (VA) guaranteed mortgage loan in the amount of $35,500. R. at 7-10. In 1979, the VA was informed that Mr. Green had defaulted on the loan. The VA Regional Office (VARO) sent several notices to Mr. Green regarding actions to be taken with respect to his delinquency but received no response from him. R. at 12-17. A judgment of foreclosure was rendered by the Supreme Court of New York in 1980, and the foreclosure sale resulted in a deficiency of $7,382 which the VA paid. R. at 34-36. In 1988, Mr. Green applied to the VA for a waiver of indebtedness. The VARO applied 38 U.S.C. § 3102(c) (1972) to determine whether or not to grant the waiver. The statute provided that two requirements must be met: (1) that the veteran not be guilty of “fraud, misrepresentation, material fault, or lack of good faith” in the creation of the debt, and (2) that collection of the debt by the VA would be “against equity and good conscience” under 38 C.F.R. §§ 1.964 and 1.965. 38 U.S.C. § 3102(c) (1972) (now § 5302(c)) has since been amended by the Veterans’ Benefits Amendments of 1989, Pub.L. No. 101-237, but the amendments are not relevant to the disposition of this case. The VARO found that Mr. Green met the first requirement but that collection of the debt would not be against equity and good conscience since Mr. Green was paying several other creditors each month and therefore should also be able to make payments to the government. In reviewing the case, the BVA noted that factors in this case, such as Mr. Green’s psychiatric disability, which may have contributed to his home loan default, called for some moderation in the exercise of the government’s rights. Consequently, the Board waived half of the debt, deciding that recovery of half of it would not be inequitable. R. at 4.

The Court finds that the BVA properly applied an existing rule of law to the facts in this case and that its decision was not arbitrary or capricious or an abuse of discretion. Smith v. Derwinski, 1 Vet.App. 267, 279 (1991). We further find that the BVA committed no legal or factual error in reaching its decision and that the case otherwise meets the standards for summary affirmance set forth by this Court in Frankel v. Derwinski, 1 Vet.App. 23 (1990). Accordingly, the appellee’s motion for summary affirmance is GRANTED and the decision of the BVA is AFFIRMED.