Brady v. BrownBrady v. Brown
- Reporters:
- , ,
- Before:
- Mankin
Appellant, George Wilbur Brady, has noted this appeal of a May 7, 1991, Board of Veterans’ Appeals (BVA or Board) decision that granted his claim for service connection for a psychiatric disorder, but denied service connection both for a gastrointestinal disorder and for headaches with dizziness. George W. Brady, BVA 91-14801 (May 7, 1991). The Court has jurisdiction of the case pursuant to
I. Background
George Wilbur Brady served in the United States Merchant Marine during World War II. Under the law in effect at the time of his discharge, such service, while undeniably hazardous, did not qualify appellant as a “veteran” for purрoses of benefits administered by the VA. In 1988, the Secretary of the Air Force, acting in accordance with authority delegated to him by the Secretary of Defense, determined that the service of merchant seamen such as appellant would henceforth be considered “аctive duty” for VA purposes. See 53 Fed.Reg. 2775 (1988);
Although apparently healthy when hе entered the Merchant Marine, appellant experienced a variety of health problems during his tour of duty. In May 1945, while serving as a cook, he was “attacked by sudden, severe pains of the head [and] loss of vision.” R. at 7. The next day, he felt better; but after returning to duty the following day, he experienced another attack with symptoms described as “severe pain, loss of vision, delirious, ... partial loss of muscle control.” Id. Following those initial episodes, appellant continued to experience severe migraine headaches. In September 1945, a physician recommended that he be discharged from duty for medical reasons. R. at 13. Despite his ill health, appellant worked as a butcher from 1946 until his retirement in 1982. Since his discharge from the Merchant Marine, he has been treated by numerous physicians for headaches, dizziness, loss of balаnce, nervousness, fatigue, and diarrhea. For the most part, however, appellant’s doctors were unable to identify any specific underlying physical cause for his chronic symptomatology.
Appellant submitted a claim for service-connected disability compensаtion in May 1989. A VA physician, after examining appellant and reviewing his extensive medical history, recorded an “impression of psychosomatic problems,” and noted: “It is obvious that this man has multiple problems which may have been studied by many excellent physicians without any definitive diagnosis.” R. at 61-62. In November 1989, a rating board denied appellant’s disability claims on the grounds that service medical records failed to establish *205that his gastrointestinal disorder was incurred in service, and that the more recent VA medical examination did not reveal an existing chronic headache disorder. R. at 72, 80. He promptly filed a Notice of Disagreement and, to further support his claims, submitted additional medical records describing his symptomatology. In response, the VA scheduled the veteran for a psychiatric examination. In her report, Dr. Elizabeth Tully noted:
The veteran dоes not meet DSM-3 criteria precisely [for] somatization disorders because at least 13 symptoms are not currently complained of from the criteria list. However, the veteran’s complaints began before age 30 and have persisted’ for many years with no apparеnt organic pathology or with complaints grossly in excessive [sic] what might be expected from physical findings, and he has taken medications, seen physicians and altered his life style as a result. The veteran probably meets criteria for somatoform pain disorder or undifferentiаted somato-form disorder, or psychological factors influencing physical condition or conversion disorder.
R. at 98. Dr. Tully further noted that, although during the examination the veteran claimed to experience depression as a result of his physical ailments, he had earlier stаted’ that “the dizziness, headaches, diarrhea, were all part of the same problem — nerves.” R. at 98-99. After considering this and other new evidence, the rating board again denied the claim in July 1990. R. at 105. In August 1990, the veteran testified at a personal hearing at the Salt Lake City, Utah, Regional Office. In the course of the hearing, his representative argued with considerable force that appellant’s disabilities had never been adequately diagnosed in service, but that Dr. Tully’s report provided a basis for awarding service connection for those disabilities
under the apprоpriate rating schedule for psychoneurotic disorders. We also feel that the benefit of the doubt should be given this veteran for the very reason that evidence does show treatment in service for a condition, nervous condition or medical condition of sorts associated with headaches.
R. at 124-25. Appellant’s claim was again denied, and he submitted further medical evidence, including a January 14, 1991, letter from his private physician, Dr. Philip Roberts. Dr. Roberts stated that, based on his treatment of appellant since 1983, he had confirmed “two major medical prоblems” that he described as, first, “a progressive, peripheral neuropathy, primarily involving the lower extremities but also involving, to a lesser degree, the upper extremities,” and second, “a chronic, mal-absorptive type of diarrhea which appears to be due to сhronic pancreatic insufficiency ... of undetermined etiology.” R. at 154. Dr. Roberts further stated:
It is the opinion of the medical consultants evaluating him that his symptoms are not psychological, nor do I believe they were initially related to any type of psychologic or psychiаtric disease. From what we know about these types of diseases, I would suspect that he probably had some sort of toxic or infectious insult many years ago which resulted in some sort of immunologic response that has been slowly progressive and remains as yet unidentified.
R. at 155.
The BYA issued its decision in the case on May 7, 1991. Following a lengthy review of the evidence, the Board noted that it
must first determine whether the gastrointestinal problem and the problem with headaches and dizziness are due to an infection or toxin which the appellant acquired during his merchant marine serviсe in World War II, or whether these claimed disorders are manifestations of a psychiatric disorder, for which he is also seeking service connection. In the opinion of the Board, notwithstanding Dr. Roberts’ letter of January 1991, the headaches, dizziness, and diarrhea, along with other complaints, are somatic in nature and are related to the appellant’s psychiatric problems. The Board, after having carefully reviewed all the medical evidence, believes there is no organic ba*206sis for these reported symptoms. Accordingly, service connеction for a gastrointestinal disorder and for headaches with dizziness is denied.
Brady, BVA 91-14801, at 6-7. With respect to appellant’s psychiatric disability claim, however, the Board determined:
[T]his is a case in which it must give the benefit of the doubt to the appellant. There is, in the Board’s judgment, enough evidence to warrant a reasonable belief that the appellant has continually suffered from a somatoform disorder, starting with an acute episode in May 1945 and continuing to the present day. Accordingly, service connection for a psychiatric disorder is granted.
Id. Dissatisfied with such disposition of his claims, and without waiting for the VA to issue a rating decision in his case, appellant filed a timely notice of appeal in this Court.
II. Pyramiding of Benefits
As a wartime veteran, appellant is entitled to compensation for disability resulting from a personal injury suffered or disease contracted in line of duty.
In Washington v. Derwinski, 1 Vet.App. 459, 465 (1991), a casе involving a psychophysiological musculoskeletal disorder, this Court took note of
When two diagnoses, one organic and the other psychological or psychoneurotic, are рresented covering the organic and psychiatric aspects of a single disability entity, only one percentage evaluation will be assigned under the appropriate diagnostic code determined by the rating board to represent the major degree of disability.
The above language is consistent with
We note that the above-quoted provision of
III. Prejudicial Error
In reaching its conclusions, the Board stated: “In the opinion of the Board, notwithstanding Dr. Roberts’ letter of January 1991, [appellant’s symptoms] are somatic in nature and are related to [his] psychiatric problems.” Brady, BVA 91-14801, at 7. From this statement, it is unclear whether the Board weighed all the medical еvidence of record (such as Dr. Tully’s report) in reaching this conclusion, or merely relied on its own medical judgment to refute Dr. Roberts’ expert medical opinion, thus violating the rule of Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (in rejecting medical evidence, Board must point to a medical basis other than its own opinion). Ordinаrily, in response to an error of such character, the Court would remand the case to allow the Board to reconsider the evidence and issue a properly formed decision. See, e.g., Bailey v. Derwinski, 1 Vet.App. 441, 447 (1991); Godwin v. Derwinski, 1 Vet.App. 419, 426-27 (1991); Colvin, 1 Vet.App. 171. In this case, however, a remand is unnecessary. Even if the Board may have erred by improрerly discounting Dr. Roberts’ opinion, such error was not ultimately prejudicial to appellant’s claim in view of Dr. Tully’s report. See
In his informal brief, appellant suggests that the VA failed to provide him with adequate assistance in obtaining his medical records from the years 1945 to 1947, and also (despite contrary evidence in the record) failed to conduct a physical examination in evaluating his claim. See
IV. Conclusion
For the reasons stated above, the BVA decision appealed from is AFFIRMED.