Murincsak v. DerwinskiMurincsak v. Derwinski
John A. Murincsak appeals from a December 5, 1989, Board of Veterans’ Appeals (BVA or Board) decision, which denied entitlement to a total disability rating based on individual unemployability due to service-connected disability. Because the BVA decision contains errors of law, we vacate the BVA decision and remand the case to the BVA with specific instructions to proceed in a manner consistent with this opinion.
I. BACKGROUND
The veteran, John A. Murincsak, served on active military duty in the United States Air Force from January 14, 1964, to January 8, 1968. R. at 1. During service, appellant was treated for anxiety and nervousness on several occasions. Appellant filed his original claim for service connection for schizophrenia in February 1971. After intensive examination, the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (VARO)
On June 2, 1972, a VA medical examiner reported a diagnosis of “schizophrenia, chronic, undifferentiated. He is actively psychotic.” R. at 4. The veteran was hospitalized for this condition from August 18, 1972, to October 4, 1972. R. at 5. He moved from his sister’s home in Maryland to California in 1975, and apparently began treatment at the VA Medical Center (VAMC) in Long Beach, California, in 1976, in addition to private therapy. R. at 6. He was again hospitalized from March 12, 1979, to April 30, 1979, at the VAMC in Long Beach. R. at 7-8.
A Mental Status Examination was performed on January 17, 1980, which revealed: “The veteran is acutely psychotic during the interview and his judgment is highly impair[ed]. He has no ability to concentrate and is unemployable at the present time.” R. at 9. The final diagnosis was schizophrenia, chronic undifferentiated type. On February 6, 1981, a Compensation and Pension Report concluded with a diagnosis of “Schizophrenia, chronic, undifferentiated type, competent,” and the statement, “It is questionable whether this veteran can hold on to any type of employment.” R. at 11. Apparently based on the February examination, on May 7, 1981, the VARO in Los Angeles, California, reduced appellant’s disability rating for schizophrenic reaction, undifferentiated type, from 100% to 70% effective from August 1, 1981. The rating board concluded: “Veteran is not shown to be unemployable primarily because of [service-connected] condition.” R. at 12.
A rating decision of November 17, 1982, indicates that appellant was hospitalized for his service-connected condition effective from September 30, 1982, to November 3, 1982, and was consequently awarded a 100% disability rating from September 30, 1982, and then reduced back to a 70% disability rating effective December 1, 1982. R. at 15. Appellant was again hospitalized for several days in November 1985, and then returned to the board and care home where he had been living. R. at 17. On December 4, 1986, the diagnosis of schizophrenia, chronic, undifferentiated type, was continued. R. at 18.
On July 14, 1987, the veteran filed a claim with the VA for an increased rating for service-connected schizophrenia, which was then rated at 70%. The veteran mentioned that he was unemployable and seeking weekly treatment at the VAMC in Long Beach. R. at 19. Only the medical records from February 18, 1987, to February 19, 1988, were reviewed by the VARO in appellant’s reopened claim. R. at 20-70. A rating decision of March 11, 1988, continued the 70% disability rating for service-connected schizophrenic reaction, chronic undifferentiated type, from December 1, 1982, and denied service connection for residuals of exposure to Agent Orange. R. at 73-74. In May 1988, the veteran was admitted to the VAMC hospital for several days for his schizophrenic condition. R. at 75. The VARO confirmed the previous rating decision on August 24, 1988. R. at 76.
On January 11, 1989, the veteran filed another application for increased compensation based on unemployability, stating that the date of his last full-time employment was in 1974, when he was fired because of psychiatric problems from his job as a police officer. He concurrently filed his Notice of Disagreement with the August 1988 rating decision, as it did not consider unemployability. R. at 77-79. On January 30, 1989, the VARO in Los Ange-les found that the veteran’s “[service-connected] schizophrenia is not shown to be of such severity as to produce unemployability.” R. at 80.
A Compensation and Pension Examination performed on February 13,1989, noted that appellant was living in a board and care home and was unemployed, in addition to the following:
The patient is alert and oriented times three. He is somewhat disheveled, wearing a dirty shirt and walking with a cane. Speech is loud and hoarse. He complains of auditory hallucinations including command auditory hallucinations. Visual*366 hallucinations, paranoid ideation, poor impulse control. He also complains of feelings of unreality as if he is another person at times. He states that he hears voices in Hungarian telling him to do various things. He believes that other people know what his thoughts are. He sees auras, halos and blood coming out of other people’s heads.... The patient is somewhat disheveled. His affect is somewhat irritable and angry. Judgment and insight seem to be impaired.
ASSESSMENT: AXIS I: Chronic undifferentiated schizophrenia.
AXIS II: Deferred.
AXIS III: Arthritis, hypertension.
R. at 87. On March 6, 1989, the veteran appealed the January 1989 rating decision to the BVA. On March 10, 1989, the VARO confirmed the 70% disability rating for service-connected schizophrenia. R. at 92. The veteran, his brother, a friend, and his service representative personally appeared before a member of the rating board at a hearing held in Los Angeles on May 16, 1989. R. at 97-108. On June 6, 1989, the hearing officer concluded: “The symptomatology is consistent with the currently assigned 70% evaluation. Accordingly, prior ratings are affirmed. Consideration for individual unemployability is not appropriate in this case as the veteran’s sole service-connected disability is that of his psychiatric condition.” R. at 110. On December 9, 1989, the Board denied entitlement to a total rating by reason of individual unemployability due to a service-connected psychiatric disorder. John A. Murincsak, BVA 89-05877 (Dec. 5, 1989). The Court has jurisdiction of the case pursuant to
II. ANALYSIS
Appellant first claims eligibility for a 100% schedular disability rating for schizophrenia, undifferentiated type, under
A. Legal Error
Appellant argues that the BVA and the Regional Office failed to follow several regulatory provisions in deciding his claim. The Court has consistently held that “the BVA is not free to ignore its own regulations.” Karnas v. Derwinski,
The Court finds that appellant presented a well-grounded claim for both a schedular total disability rating and one premised on individual unemployability based upon his repeated contentions that he has been unemployed since 1970 or 1974 (he asserts that he cannot remember the exact year due to his service-connected psychosis), has been hospitalized numerous times over the years precluding employment, attends weekly group therapy, and lives in a board and care home because he cannot care for
While the BVA states the applicability of
The provisions of paragraph (a) of this section are not for application in cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation. In such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code.
Total disability ratings for compensation may be assigned, where the schedu-lar rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more,....
Active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability.100
With lesser symptomatology such as to produce severe impairment of social and industrial adaptability .70
In the BVA’s denial of appellant’s claim for a total disability rating based on individual unemployability, it continued the 70% disability rating that had been continued by the rating decision of June 6, 1989. The VARO hearing officer concluded his decision by stating that “the symptomatology is consistent with the currently assigned 70% evaluation. Accordingly, prior ratings are affirmed. Consideration for individual unemployability is not appropriate in this case as the veteran’s sole service-connected disability is that of his psychiatric condition.” R. at 110. This conclusion contains legal error in its misstatement of the law. It is manifest from this erroneous conclusion that the hearing officer ignored and failed to apply
In response to a question posed at oral argument, counsel for the Secretary conceded that there is no evidence in the record to show that the veteran is actually employable. “Where a VA regulation is made potentially applicable through the assertions and issues raised in the record, the Board’s refusal to acknowledge and consider that regulation is ‘arbitrary, capricious, an abuse of discretion,’ and ‘not in accordance with the law,’ and must be set aside as such.” Schafrath,
B. Administrative Error
The December 5, 1989, BVA decision confirmed the June 1989 rating decision, which affirmed all prior rating decisions based upon the 70% disability rating, which had been in effect since a 1981 rating reduction from a 100% disability rating. The May 7, 1981, rating decision is a final and binding agency decision not “subject to revision on the same factual basis except by duly constituted appellate authorities.” 56 Fed.Reg. 65,846 (1991) (to be codified as amended at
The issue of clear and unmistakable error was raised by appellant’s contention that the VARO committed error in 1981 when it unlawfully reduced appellant's disability rating for service-connected schizophrenia from 100% to 70% effective August 1, 1981. Br. of Appellant at 23. Based upon one medical examination and apparently without applying VA regulations,
(a) General. Total disability ratings when warranted by the severity of the condition ... will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest....
A comparison of the examination report of February 6, 1981, which is the basis of the first reduction, with the immediately previous examination report of January 17, 1980, which was the basis for continuing appellant’s 100% disability rating, shows no indication of any material improvement. The final diagnosis at the end of both of these reports is identical: “schizophrenia, chronic, undifferentiated type, competent” for VA purposes. These two examination reports do not demonstrate material improvement in either appellant’s “social and industrial inadaptability” within the meaning of
Section 3.344 addresses the stabilization of disability evaluations. Paragraph (a) of that section states in relevant part:
Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, ... will not be reduced on any one examination, except in those instances*369 where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.
(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve.
The 1981 rating decision indicates “administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.” Oppenheimer v. Derwinski,
C. Duty to Assist
1. Social Security Records '
In his brief, appellant contends that, since the Social Security Administration (SSA) has deemed him unemployable and eligible for benefits due to his mental condition, the VA should also grant him a total disability rating based on the SSA’s findings. Br. of Appellant at 15. Appellant also argues, that under
The pertinent portion of
(a) Evidence received in the Social Security Administration in support of a claim filed on or after January 1, 1957, for benefits under Title II of the Social Security Act will be considered to have been received in the Department of Veterans Affairs as of the date of receipt in the Social Security Administration.
While the argument that the VA had constructive notice of SSA records under
Once a claimant has submitted a well-grounded claim, “the Secretary shall assist the claimant in developing facts pertinent to the claim.”
Although the SSA’s decision regarding appellant’s unemployability is not controlling for VA determinations, it is certainly “pertinent” to the present claim. See Collier v. Derwinski,
there are significant differences in the definition of disability under the Social Security and VA systems (e.g., under Social Security,42 U.S.C. § 423(d) (1988) and20 C.F.R. § 404.1509 (1990), the disability need not be reasonably likely to last for the claimant’s lifetime as is required for VA purposes under 38 U.S.C. § [1502(a)(1)] and38 C.F.R. § 3.340(b) ), there are also significant similarities {e.g., both statutes include within their respective definitions, the terms “substantially]” and “gainful” when describing the form of employment in which the claimant is unable to engage).
Collier,
In response to the Court’s order of October 23, 1991, the parties filed post-oral argument, supplemental briefs addressing, among other issues, the following two questions:
1) whether the Social Security Administration (SSA) is obliged to discontinue supplemental security income (SSI) and social security disability (SSDI) benefits based on a change in a recipient’s status vis-a-vis employability, and
2) whether the SSA conducts periodic examinations to determine the employa-bility status of recipients of SSI and SSDI benefits.
Murincsak v. Derwinski,
Pursuant to
The Secretary of Veterans Affairs further responded to the Court’s order regarding the staleness of the 1981 SSA disability determination concerning appellant by stating that
it is uncertain from the record when SSA initially made a determination that Appellant was entitled to SSA disability benefits. The record does indicate, at page 14, that Appellant was in receipt of SSA benefits in May 1981, but not when it was first determined that he was entitled thereto or the dates of medical records filed in support of entitlement.
Supp.Br. of Appellee at 2. This response exemplifies the Secretary’s disregard of the duty to assist triggered by the VA’s actual knowledge of the existence of such SSA records. Had the VA fulfilled its duty to assist the veteran in developing his claim by acquiring the SSA decision and these records, the Secretary would have known the initial date of entitlement to such SSA benefits and for which disability it was awarded.
In further response to the Court’s order of October 23, 1991, counsel for the Secretary asserted that any medical records dated in 1981 would be irrelevant and stale with respect to appellant’s reopened claim, filed with the VA in July 1987, for entitlement to an increased rating based on individual unemployability due to service-connected schizophrenia. Supp.Br. of Appellee at 2-3. Even if that were so, which the above discussion rebuts, the VA’s failure to obtain the SSA decision and records again exemplifies its failure to comply with its duty to assist the veteran by following its own regulations in evaluating a veteran’s claim. See
As noted earlier, the record on appeal includes a letter, dated January 22, 1988, from appellant to Senator Alan Cranston requesting assistance with his claim. R. at 71. In the Secretary’s response to the Court’s October 23, 1991, order, requesting an explanation as to when and how the letter became part of the record, there are attached copies of letters from Senator Cranston, dated February 11, 1988, and the Secretary’s response to Senator Cranston, dated February 24, 1988. These two letters and their subject matter were not made part of the record on appeal, apparently because they were not considered to be part of the record of proceedings before the BVA when it reviewed appellant’s claim. The jurisdiction of and review by this Court is limited to “records of proceedings before the Secretary and the Board.”
The Secretary's duty to assist includes obtaining this evidence from the SSA, and giving it appropriate consideration and weight in its determination to award or deny appellant a total disability rating based on unemployability. At a minimum, the decision of the administrative law judge at the SSA “is evidence which cannot be ignored and to the extent its conclusions are not accepted, reasons or bases should be given therefor.” Collier,
2. VAMC Records
As this Court’s review is limited by
The Secretary contends that the VA’s statutory and regulatory duty to assist the veteran in processing a claim includes obtaining VA medical records, but only to the extent VARO or BVA personnel have been informed of the existence and relevance of such records. Br. of Appellee at 8. The medical records in dispute are dated between the date of the last rating decision and the BVA decision on appeal.
The Secretary also contends that
it would be impossible to expect BVA to decide the merits of a claim based upon evidence of which it is unaware. (And, it would be a fictional exercise for the Court to review a BVA decision in which “the record of proceedings before the [Secretary] and the Board” was somehow deemed to contain records actually not there; see38 U.S.C. § 7252(b) (formerly 4052(b))).
Br. of Appellee at 12.
The Court cannot accept the Board being “unaware” of certain evidence, especially
In this case, the BVA had ample notice that the veteran had been attending continuous weekly treatment and counseling as an outpatient at the Long Beach VAMC for many years. For example, although the veteran had apparently referenced ongoing treatment at the Long Beach VAMC during a February 13,1989, VA examination, R. at 87, and testified about the ongoing treatment at his May 16,1989, hearing, R. at 97, the most recent Long Beach VAMC report in the record before the BVA is the February 1989 report of examination, nearly ten months before the issuance of the BVA decision on December 9,1989. Having concluded that the BVA had actual notice of the possible existence and relevance of the veteran’s ongoing treatment at the Long Beach VAMC sufficient to trigger the duty to assist the veteran by acquiring and considering such records before adjudicating appellant’s claim, the Court need not reach the issue of whether the BVA should be charged with constructive notice of all medical records in the possession of the VA under all circumstances.
Jurisdiction and review by this Court is over the “record of proceedings before the Secretary and the Board.”
III. CONCLUSION
The VA clearly violated its duty to assist, and, thus, the veteran’s claim is remanded for readjudication in light of the veteran’s entire medical evidence, including both the SSA records and the Long Beach VAMC records, and for an evaluation of his claim under
It is so Ordered.