Olson v. BrownOlson v. Brown
Albеrt R. Olson appeals the November 27, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to an increased evaluation for undifferentiated schizophrenic reaction, currently evaluated as 70% disabling, and determined that new and material evidence had not been submitted to reopen his claim for a total evaluation (100%) based on individual unemployability, retroactive to July 1981. The Secretary of Veterans Affairs filed a motion for remand for the Board to consider whether appellant is currently entitled to a total evaluation based on individual un-employability. Appellant opposes this motion and contends that the decision which terminated his individual unemployability benefits contained clear and unmistakable error (CUE). We agree and are compelled to rеverse the November 1990 BVA decision, as to this issue, and remand the matter for the Board to reinstate appellant’s former total rating based on individual un-employability (IU), with an effective date of July 2, 1981. We affirm that part of the decision which denied an increased rating for schizоphrenia.
I. BACKGROUND FACTS
Appellant served on active duty from August 1942 to November 1945. In July 1961, the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) awarded appellant a 100% schedular rating for schizophrenia. This was reduced to 70% in July 1962.
On November 21, 1966, the Vocational Rehabilitation Board (VRB) determined vocational rehabilitation to be indefinitely medically infeasible for appellant. This determination was based on a report from a counseling psychologist, Dr. Peterson, who observed appellant from 1962 to 1966 at the VA Mental Hygiene Cliniс and Day Center. On December 8, 1966, the RO awarded appellant a total rating based on IU, effective from August 6, 1966.
From February 9,1979, to March 2,1979, appellant was hospitalized for schizophrenia, schizo-affective type, manifested by depression. A rating decision continued his 70% rаting for schizophrenia. On November 28, 1980, the VA conducted a medical examination of appellant, which included a social and industrial interview, and a psychiatric evaluation. Dr. Whitacre found that appellant’s diagnosis of schizophrenia had remained essentiаlly unchanged over a number of years; that he had been “a
On July 8, 1982, the BVA affirmed the RO decision. The veteran disagrеed with the BVA decision and alleged, inter alia, that the decision contained CUE because the Board failed to consider a VA VRB report. The Board construed Mr. Olson’s claim to be a motion for reconsideration and denied it.
In March 1989, appellant sought to reoрen his claim for an increased rating. This was denied by a March 30, 1989, rating decision. He filed a Notice of Disagreement and added a claim for IU benefits. He also submitted a Substantive Appeal (VA Form 1-9) in which he contended that the VA’s failure to apply
The November 14, 1989, rating decision continued the 70% rating, denied retroactive IU benefits and denied a current IU rating. The BVA, in a November 27, 1990, decision found that new and material evidence has not been presented to establish IU retroactive to July 1981, and denied an increased rating for schizophrenia, currently rated as 70% disabling. Albert R. Olson, BVA 90-40288, at 7 (Nov. 27, 1990).
II. ANALYSIS
A. Schedular Rating for Schizophrenia
The Court must affirm factual findings of the BVA unless they are found to be “clearly erroneous.”
The rating criteria for schizophrenia, undifferentiated type, appears at
In denying an increased rating for schizophrenia, the BVA relied upon a recent VA examination which revealed that Mr. Olson was oriented, alert, and cooperative. The examination report indicated that appellant's affect was found to be slightly inappropriate, that his speech was normal in mechanics and content, but that associations were somewhat sparse and tended to be a little circumstantial. He had a history of paranoid thinking, and complaints of ideas of reference were noted, but there was no evidence of active psychotic manifestations. Based on the evidence in the record, the Court holds that a рlausible basis exists for the BVA determination on this issue.
B. Clear and Unmistakable Error
In his Substantive Appeal, appellant alleged that the July 1982 BVA decision contained CUE because it improperly terminated appellant’s IU benefits when it failed to consider
*433 When a determination of the agency of original jurisdiction [an RO] is affirmed by the [BVA], such determination is subsumed by the final appellate decision.
As a result, the RO decision became part and parcel of the final July 1982 BVA decision.
In the BVA decision on appeal, the Board acknowledged Mr. Olson’s claim, stаting:
The veteran and his representative apparently contend that the veteran should be entitled to a total evaluation based on individual unemployability due to his service-connected schizophrenia retroactive to July 1981 because the decisions whiсh resulted in this reduction did not consider his vocational rehabilitation file, or consider or cite the provisions of 38 C.F.R. [§§] 3.327 and 3.343. They maintain that his claim for a total evaluation was prejudiced by the failure to consider that evidence and those regulations.
Olson, BVA 90-40288, at 2. In its evaluation of appellant’s claim, however, the Board incorrectly phrased the issue as “whether the additional evidence associated with the claims file subsequent to the Board’s 1982 decision creates a new factual basis warranting a favorable determination.” Olson, BVA 90-40288, at 5. The BVA further stated that
[w]hilе the veteran feels that his earlier claim was prejudice [sic] by the failure to consider his vocational rehabilitation file or the provisions of 38 C.F.R. [§§] 3.327 and 3.343 at the time of the July 1982 decision of the Board, this contention does not provide, or suggest, a new factual basis warrаnting a total evaluation retroactive to July 1981.
Id. Although the Board mischaracterized Mr. Olson’s claim as a reopened one, it essentially adjudicated the actual claim made by appellant — a claim of CUE in the prior July 1982 BVA decision.
Pursuant to
In order for there to be a valid CUE claim, there must have been an error in the prior adjudication of the claim. Porter,
The Court cannot directly review the July 1982 BVA decision; our authority reaches only to review of the November 1990 BVA decision on appeal. Thus, we are limited to deciding whether the Nоvember 1990 BVA decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Russell,
It is clear that the requirements for decrease of a rating for disabilities which have continued for a long time at the same level are more stringent than those for an
In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of [38 C.F.R.]§ 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.
(Emphasis added.)
The purpose of a standard of proof is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship,
A review of the record here reveals that the Board did not apply the “clear and convincing” standard.
The evidence upon which the RO necessarily relied at the time of its April 1981 decision сonsisted of a VA medical examination, a social and industrial interview, and a psychiatric evaluation, all of which were conducted on November 28, 1980. The social worker’s interview indicated that the veteran
has held no jobs since [his] last rating. ... He spends his days helping with household chores and maintenаnce, some cooking, listening to the radio and occasionally going to the Air Force PX for lunch. In the summer he spends time at his lake cabin near Brainerd. He reads and watches TV little because it hurts his eyes.
(Emphasis added.) The VA psychiatric evaluation also fails to rеveal any evidence of employment. Dr. Whitacre found that once appellant, formerly an osteopath, had become psychotic, he had never recovered and worked again. He noted that Mr. Olson “works on the house and visits the neighbors and rides his bike and generally maintains a solitary life.... [H]e does a little yard work for his sister, [but] basically, he doesn’t do much of anything else.” The only reference to employability in the VA physical medical examination consisted of the physician’s notation that the veteran “says he hasn’t beеn able to work since [his] neck injury. He relates [his] neck problem to injury in service.”
It is evident that the RO did not have clear and convincing evidence of employa-bility with which to legally terminate Mr. Olson’s benefits in April 1981. In fact, the RO’s only statements relating to the termination are bare and conclusive: “[C]urrent psychiatric examination does not reveal symptomatology or manifestations of the veteran’s psychosis which would prevent all forms of gainful employment. Accordingly, entitlement to individual unemploya-bility benefits is not found and the benefit
III. CONCLUSION
Accordingly, as to the issue of IU, we reverse the November 27, 1990, BVA decision and remand the matter for the Board to reinstate appellant’s former total rating based on individual unemployability, with an effective date of July 2, 1981, the date that benefits were terminated. The BVA decision is affirmed as to the denial of an increased rating for schizophrenia.