Williams v. Brown

Williams v. Brown, 4 Vet. App. 200, decided 1993-02-12.

MEMORANDUM DECISION

STEINBERG, Associate Judge: The pro se appellant, Mary Jo Williams, widow of World War II veteran Perry 0. Williams, appeals from an October 3, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) concluding that there was no clear and unmistakable error in an unap-pealed rating decision of May 17, 1962, which had denied the appellant’s claim for dependency and indemnity compensation (DIC) based on service connection for the cause of the veteran’s death and that the appellant had failed to submit new and material evidence to warrant reopening that DIC claim. Perry O. Williams, BVA 91-32797 (Oct. 3, 1991). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. Summary disposition is appropriate here because the case is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Court finds that the Board’s decision denying the appellant’s claim of clear and unmistakable error in a prior final decision was not arbitrary or capricious and that new and material evidence was not submitted to warrant reopening the claim, it will grant the Secretary’s motion and affirm the Board’s decision.

I. BACKGROUND

The veteran served on active duty in the United States Marine Corps from April 1944 to July 1946. R. at 1, 16. In August 1946, A Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) awarded him service connection for chronic bronchitis, rated as 10% disabling, and a fungal infection of the feet, rated as 0% disabling. R. at 17. The veteran received disability benefits for his chronic bronchitis effective from July 1946 until the time of his death on March 8, 1962. R. at 17, 36. The cause of death noted on his death certificate was pulmonary edema and congestion of unknown etiology. R. at 32. A subsequent autopsy protocol found that the veteran died of natural causes and confirmed that at the time of his death he had suffered from pulmonary edema, pulmonary congestion, and minimal apical pulmonary emphysema. R. at 33-35.

The appellant’s DIC claim was denied by a prior final RO decision in May 1962. Supp.R. at 1. She contends that because the veteran’s service-connected chronic bronchitis “rendered [him] materially less capable of resisting the effects of pulmonary emphysema, pulmonary congestion, and [pulmonary] edema”, the RO committed clear and unmistakable error by failing to “service connect the cause of death on a contributory basis”. R. at 47. See 38 C.F.R. §§ 3.105(a), 3.312 (1992). The appellant further asserts that the autopsy report listed the cause of her husband’s death as pulmonary emphysema, and that because emphysema cannot reasonably be dissociated from the veteran’s service-connected chronic bronchitis, the RO committed clear and unmistakable error in its decision denying her claim. R. at 40.

II. ANALYSIS

A.

“Clear and unmistakable error”, under 38 C.F.R. § 3.105(a), requiring revision of a prior final RO or Board decision exists only where it appears “undebatably” that “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.” Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc). On appeal of a Board decision that clear and unmistakable error was not made in a previous final adjudication, the Court’s scope of review is to determine whether that conclusion was “arbitrary, capricious, an abuse of *202discretion, or otherwise not in accordance with law_” Russell, 3 Vet.App. at 315 (quoting 38 U.S.C.A. § 7261(a)(3)(A) (West 1991)). Of course, as is true in all cases, this Court must review the Board’s decision to determine whether it provided adequate “reasons or bases” in support of its findings. Id. at 315; see 38 U.S.C.A. § 7104(d)(1) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

In concluding that there was no clear and unmistakable error in the 1962 RO decision, the Board stated:

While it is true that emphysema and bronchitis may have some symptoms in common, the clinical evidence then of record [in 1962] only confirmed the presence of minimal emphysema at time of death, as reported on autopsy_ Most significantly, neither the autopsy protocol report nor the certificate of death attributed the veteran’s death to bronchitis. In fact, the autopsy protocol report appeared to attribute his death to natural causes, and only apparently referred to the minimal emphysema as an incidental finding.... Since emphysema is not shown to have been present in service and is a pulmonary disability distinct from bronchitis, there was a tenable basis for denying the appellant’s claim. Therefore, we cannot conclude that the RO committed clear and unmistakable error in finding in May 1962 that service connection was not warranted for the cause of death.

Perry O. Williams, BVA 91-32797, at 5-6. The Court holds that (1) the Board did not act arbitrarily or capriciously in determining that the 1962 RO decision was fully supported by the evidence then of record under the provisions of law and regulations then applicable and thus did not contain clear and unmistakable error and (2) that the Board provided adequate reasons or bases in support of its 1991 decision.

B.

Pursuant to 38 U.S.C.A. § 5108 (West 1991), a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. 38 U.S.C.A. § 7104(b) (West 1991). In considering claims to reopen previously and finally disallowed claims, the Board must first determine whether the evidence presented or secured subsequent to the pri- or final disallowance of the claim is “new and material”. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Evidence is “new” if it is not “merely cumulative” of other evidence in the record; it is “material” if it is “relevant [to] and probative of the issue at hand” and there is a “reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The determination as to whether evidence is “new and material” is a conclusion of law, which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 213 (1991); Colvin, supra.

The evidence submitted by the appellant subsequent to the prior final disallowance of her claim consists of the sworn testimonial evidence of the appellant and her son before the RO in April 1991. The appellant testified under oath that the veteran had been a cigarette smoker and that on the morning of his death the veteran was in no apparent distress, respiratory or otherwise. She further stated that she could not recall any occasion in the years immediately preceding the veteran’s death where he sought medical treatment for any lung condition and that he did not seem to have any respiratory problems. R. at 52, 54. Her son testified under oath that he had no recollection of the events that transpired prior to the veteran’s death. R. at 53. Because neither the appellant’s nor her son’s testimony lends support to the appellant’s contention that the veteran’s service-connected chronic bronchitis caused or contributed substantially or materially to the veteran’s cause of death, the evidence is not probative and, therefore, not material. Also of record is a letter from the Teton County Deputy Coroner, submitted in an attempt to discredit the autopsy *203protocol report’s conclusion that the veteran’s died of natural causes, which states that it was a practice to label a cause of death due to “natural causes” where there was no indication of foul play, suicide, or accidental overdose of prescription drugs, and where no autopsy was performed in the case. R. at 58. Because an autopsy was performed in the case under consideration, the Deputy Coroner’s statement is not material to the appellant’s claim. Thus, new and material evidence was not submitted to reopen her claim, and the Board’s decision will be affirmed.

III. CONCLUSION

Upon consideration of the record, the appellant’s informal brief, and the Secretary’s motion, the Court holds that the appellant has not demonstrated that the BVA committed error, in its findings of fact, conclusions of law, procedural processes, consideration of the benefit-of-the-doubt rule, or articulation of reasons or bases, that would warrant remand or reversal under 38 U.S.C.A. §§ 7252, 5107(b), 7104(d)(1), 7261 (West 1991), and the analysis in Gilbert, supra. The Court grants the Secretary’s motion for summary affir-mance and summarily affirms the October 3, 1991, BVA decision.

AFFIRMED.

Williams v. Brown, 4 Vet. App. 270, decided 1993-02-18.

NEBEKER, Chief Judge: This case presents for review a February 1, 1991, Board of Veterans’ Appeals (BVA or Board) decision which denied appellant’s claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Upon consideration of the pleadings and the record on appeal, the Court concludes that the Board failed to provide an adequate statement of reasons or bases, as required by Gilbert v. Derwinski, 1 Vet.*271App. 49 (1990), for rejecting statements by medical personnel diagnosing appellant with PTSD; and failed to consider the application of the evidentiary equipoise rule of 38 U.S.C.A. § 5107(b) (West 1991).

I.

Appellant was a member of the United States Army from August 1965 to July 1968, and served a tour in Vietnam. His induction examination noted no psychiatric abnormalities. R. at 2, 4. On his separation examination, however, he reported suffering from “depression or excessive worry” and “nervous trouble”; the medical examiner noted “anxiety-OK.” R. at 6, 7.

In 1984, he filed a claim for Veterans’ Administration (now Department of Veterans Affairs) (VA) compensation for a service-connected “mental or nervous disorder.” R. at 11, 13. The Regional Office (RO) denied service connection after finding that his “[sjervice medical records [showed] no complaint of, treatment for or diagnosis of a ... nervous condition.” R. at 14. He amended his claim on December 24, 1985, and sought service connection for PTSD. The RO then asked him to describe any stressors he experienced during combat. R. at 17. In response, he described how his unit was ambushed by hostile fire, how he saw his friend, Lakeland, shot between the eyes, and his feelings of helplessness while carrying Lakeland’s dead body. R. at 19-20.

In February 1986, he was given a special psychiatric examination by a psychologist, who diagnosed his condition as an adjustment disorder stemming from unemployment. R. at 27, 28. The psychologist noted appellant’s combat experiences, but stated, “There is no evidence of hallucinations, delusions or other psychotic symptomatolo-gy present.” Id. Appellant was subsequently denied service connection for PTSD. R. at 29-30. He did not appeal.

In March 1989, he was hospitalized for recurring hiccups along with gastric discomfort. The examining physician, Dr. Dan Jablonski, M.D., noted the probability that a “strong psychological component” was associated with appellant’s hiccups. R. at 33. In April 1989, Dr. Jablonski examined appellant again and noted the possibility of an “adjustment disorder stemming from Vietnam” or possibly PTSD. He referred appellant to a VA staff psychologist, Michael Daly, Ph.D., for a consultation.

Dr. Daly diagnosed appellant with “PTSD, chronic, delayed onset.” R. at 35. Dr. Daly’s examination report remarked on appellant’s heavy combat exposure and frequent contact with the dead and wounded. He stated that appellant reported “frequent combat related nightmares,” “described several combat traumatic events which would be classified as outside the range of human experience,” and “[mjeets DSM III-R [Diagnostic and Statistical Manual of Mental Disorders] criteria for PTSD.” R. at 35. He documented the following observations to support his diagnosis: “impacted grief, crying when talking about dead friends in Vietnam,” “socially isolated,” “nightmares and awoke in cold sweats,” “[increased] autonomic arousal,” “insomnia,” “rage,” “intrusive thoughts,” “emotional numbness,” “avoidance behavior,” and a “sense of a foreshortened future.” R. at 35. At Dr. Daly’s suggestion, appellant obtained individual and group therapy from Donald J. Warn, a VA registered nurse therapist.

Appellant reopened his claim on April 4, 1989. The RO requested that a Board of Psychiatric Specialists (BPS) examine the veteran and “offer an opinion as to whether a diagnosis of PTSD is warranted.” R. at 37. The BPS exam was performed by Dr. Luca Alverno, M.D., and the report indicated that a Dr. Craig Larson “will be reviewing the record and interview the veteran at a different time.” R. at 38. Dr. Alverno stated that appellant had recurrent dreams of Vietnam; that after leaving Vietnam, “he was having these dreams almost everynight [sic]”; that he sleeps poorly; and that he otherwise “has no feelings for sex and has a poor appetite.” Id. Dr. Alverno further stated that appellant acknowledged experiencing “hallucinatory perceptions and hiccup[s] as a consequence of drinking.” R. at 39. No other symp*272toms of psychosis were noted. Dr. Alvemo concluded that “[although the veteran might have been in contact with seriously stressful situations during the Vietnam campaign, he did not exhibit the full symptoms justifying [a diagnosis of PTSD].” Id. What appears to be a signature of Dr. Craig Larson appears at the end of the report. R. at 40. In August 1989, VA issued a rating decision again denying service connection for PTSD.

Appellant subsequently reopened his claim, submitting a report, dated December 12, 1989, from Mr. Warn, who had been treating him for his psychological disorder. In Mr. Wain’s opinion, appellant was “experiencing PTSD per DSM III-R.” R. at 46. Mr. Warn listed numerous specific symptoms and noted that appellant “shares his combat experiences/feelings in a soft tone of voice, blunted affect, at times breaking down and crying when talking about loss of friends.” Id. The VA again denied the claim by relying upon the July 1989 BPS exam. R. at 48-49.

In February 1990, Dr. Daly, the VA staff psychologist who had examined appellant earlier, prepared a second report, in which he concurred with Mr. Wam’s findings and opinion. R. at 50. Dr. Daly further noted that “[p]art of Mr. Williams problem is his tendency to minimize [and] deny pertinent symptoms because he would prefer to avoid any stimuli associated with his Vietnam experience.” R. at 50. Dr. Daly noted that this behavior was not in appellant’s best interest and explained that it was a “psychological defense against feeling the deep pain and grief that are buried inside his mind.” He further opined that appellant’s difficulties discussing his Vietnam traumas were consistent with the DSM-III-R criteria for a PTSD diagnosis. R. at 51.

A subsequent RO decision considered Dr. Daly’s letter, but again denied service connection for PTSD. On August 10, 1990, he appealed his claim to the BVA. That appeal disputed the July 1989 BPS examination as unrepresentative of his condition:

I wasn’t asked very much about Vietnam and did not want to talk about it anyway. Much of [the BPS exam] dealt with how I grew up. I never said I ever had hallucinations due to drinking.... I do not have any drinking problems and none of my symptoms are related to anything but PTSD. In regards to whether I have a startle response, hypervigilance, re-experiencing stressful situations, I was never asked.

R. at 60. The Board affirmed the RO decision on February 1, 1991.

II

Section 7104(d)(1) of title 38, United States Code Annotated (West 1991), provides that each Board decision must include “a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record....” The material issues of fact in appellant’s case are reflected in two VA examinations, one in 1986 and one in 1989, stating that appellant does not have PTSD; and statements by a VA psychiatrist and a VA therapist that appellant does have PTSD.

The Board therefore had a statutory obligation to provide reasons or bases for its decision to reject the two diagnoses of PTSD and embrace the two diagnoses to the contrary. We hold that the reasons or bases outlined by the Board do not provide an adequate record from which this Court can determine whether appellant’s case was erroneously decided.

The Board first explained its reasons for rejecting the veteran’s testimony and the diagnoses of PTSD:

We are troubled ... by the fact that neither of the specific individuals the veteran mentioned as having been killed in his unit are identified in the list of names appearing on the Vietnam Veterans Memorial. This fact indicates to us not so much that there is a fundamental problem with the veteran’s sincerity, but that the accuracy of his memory is impaired. This in turn creates problems in relying upon diagnostic assessments based principally upon history supplied by the veteran. While the record shows that a *273registered nurse and a social worker are of the opinion that the veteran has post-traumatic stress disorder, these opinions are primarily based upon history from the veteran.

Willie L. Williams, Jr., BVA 91-3383, at 5-6 (Feb. 1, 1991). First, the Court notes that Dr. Daly is not a social worker, but holds a Ph.D. in psychology; the Board had no basis for mischaracterizing Dr. Daly’s qualifications. Second, if the opinions by Dr. Daly and Mr. Warn are to be disbelieved because they are based on statements provided by the veteran, the same must be true of the diagnoses by the two BPS examiners. A review of the record does not indicate that the BPS diagnoses were based on any data other than statements provided by the veteran. Moreover, Mr. Wam’s diagnosis was based on numerous therapy sessions with appellant. The most objective statement the Court discerns is the diagnosis of PTSD by Dr. Daly given after appellant reported to the hospital complaining of hiccups and gastric problems in 1989. R. at 35.

The Board’s second reason for rejecting the two diagnoses of PTSD was that neither

specifically delineates [sic] how each element of the diagnostic criteria for post-traumatic stress disorder is met.... The reason why the psychiatrists who examined the veteran in 1986 and 1989 have concluded that the veteran did not have post-traumatic stress disorder is that the other symptoms required to support this diagnosis were not present.

Willie L. Williams, Jr., BVA 91-3383, at 6 (Feb. 1, 1991). Although it is true that neither Dr. Daly nor Mr. Warn specifically delineated the criteria for PTSD, they were never asked to do so. The RO, on the other hand, asked the BPS to specifically delineate appellant’s history and provide a full description of past and present symptoms. R. at 37.

Secondly, as appellant notes in his brief, Dr. Daly and Mr. Warn both point to criteria indicative of PTSD in their statements: “frequent combat related nightmares,” traumatic combat events “classified as outside the range of human experience, “[m]eets DSM III-R criteria for PTSD,” “impacted grief, crying when talking about dead friends in Vietnam,” “socially isolated,” “nightmares and awoke in cold sweats,” “[increased] autonomic arousal,” “insomnia,” “rage,” “intrusive thoughts,” “emotional numbness,” “avoidance behavior,” “sense of a foreshortened future,” and appellant “shares his combat experiences/feelings in a soft tone of voice, blunted effect, at times breaking down and crying when talking about loss of friends.” R. at 35, 46. The Board did not provide reasons or bases why these symptoms, which generally accord with the DMS III-R criteria for PTSD, were insufficient to indicate a diagnosis of PTSD.

The Board further erred when it stated that because Dr. Daly’s and Mr. Wam’s opinions “do not establish the existence of all the symptoms required under the diagnostic criteria for the disorder in question, they do not ... cause us to question the diagnostic assessments reached by the examining psychiatrists.” Nowhere is it provided in law or regulation that opinions by the examining psychiatrists are inherently more persuasive than that of other competent mental health professionals. The Board cannot take the opinion of the examining psychiatrists as fact and then require the appellant to rebut such. If the Board believes the opinions of the examining psychiatrists to be more persuasive, it must explain why this is so.

Lastly, the Board failed to address the provisions of 38 U.S.C.A. § 5107(b) which read, in pertinent part:

When, after consideration of all evidence and material of record ... there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.

In a case where there is significant evidence in support of an appellant’s claim, as there is here, the Board must provide a satisfactory explanation as to why the evi*274dence was not in equipoise. See Gilbert, 1 Vet.App. at 54 (1990).

Accordingly, we REVERSE the decision of the BVA and REMAND the matter for readjudication consistent with this opinion. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (Court expects critical examination to occur on remand, in which Board will reexamine evidence of record, seek additional evidence as necessary, and issue well-supported decision). On remand, both parties are free to submit additional evidence.