Brown v. Derwinski, No. 90-505

Brown v. Derwinski, No. 90-505

UNITED STATES COURT OF VETERANS APPEALS
No. 90-505
CLEM BROWN, APPELLANT,
V.
EDWARD J. DERWINSKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Submitted September 9, 1991 Decided JUNE 1, 1992)
Clem Brown, pro se.
Robert E. Coy, Acting General Counsel, Barry M. Tapp, Assistant General Counsel,
Andrew J. Mullen, Deputy Assistant General Counsel, and Barry F. Bohan were on the brief
for appellee.
Before NEBEKER, Chief Judge, and FARLEY and MANKIN, Associate Judges.
MANKIN, Associate Judge: Appellant, Clem Brown, has noted an appeal from a
March 15, 1990, Board of Veterans’ Appeals (BVA or Board) decision to deny his claim for
entitlement to a permanent and total disability rating for a non-service-connected pension
relating to sarcoidosis (a chronic disease of unknown cause) of the liver and lungs, personality
disorder, and a reconstructed left tibia (the larger bone between the knee and ankle). We hold
that while the regulations of the Department of Veterans Affairs are confusing, they are
consistent with the relevant statute. We further hold that a new physical examination must be
performed to accurately identify the percentage of disability attributable to each specific
handicap, and that the BVA’s findings and conclusions were not supported by adequate
“reasons or bases” for such findings and conclusions. 38 U.S.C. § 7104(d)(1) (formerly
§ 4004(d)(1)); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Therefore, the Court vacates the
BVA decision, and remands the case to the BVA for proceedings consistent with this opinion.
I. Factual Background
Appellant served in the U.S. Army from April 4, 1973, to June 3, 1974, receiving an
honorable discharge. R. at 7. Subsequent to his military service, his work history consists
primarily of construction work during 1978 and from 1985 to 1986. Appellant also worked as a.2
cashier from 1981 to 1982 and 1984 to 1985, as a laborer in chemical spills from 1982 to
1985, and as a cook in 1985. R. at 22, 25. In June 1979, appellant was in an automobile
accident in which his left leg was crushed between two cars. He had reconstructive surgery
on his left tibia. R. at 116-18. Apparently, the Veterans’ Administration (now the Department
of Veterans Affairs) (VA) granted appellant a combined 40% disability rating for his non-service-
connected disabilities on December 30, 1980. R. at 14. This disability rating has
remained in effect since 1980, and the VA has refused to assign a higher rating. R. at 14, 102,
109.
Between August 13 and October 22, 1986, appellant was hospitalized at the VA
medical facility in Alexandria, Louisiana, four times for complaints of shortness of breath, night
sweats, and lack of energy. R. at 8-13. While appellant has a history of sarcoidosis, he has
not been treated for it since 1979. R. at 11. Several tests were done, all results within normal
limits, except for his liver. R. at 8, 10, 13. The examining doctor opined that,”[h]is liver profile
is abnormal which could be secondary to involvement due to sarcoidosis in addition to his
ethanol abuse.” R. at 12. A rating decision of January 5, 1987, denied appellant a 100%
disability rating. R. at 14. The Social Security Administration (SSA) awarded appellant a
disability payment based on unemployability on May 26, 1988. R. at 21-26. The
administrative law judge noted that the “Social Security Act defines `disability’ as the inability
to engage in any substantial gainful activity due to physical or mental impairment(s) which can
be expected to either result in death or last for continuous period of not less than 12 months.”
R. at 21.
On July 28, 1988, appellant requested another physical examination from the VA in
anticipation of reopening his claim of non-service-connected disability. R. at 40. The physical
examination of September 5, 1988, revealed: sarcoidosis with mild restrictive respiratory
impairment; the fracture of the left tibia healed satisfactorily; the abnormal liver was either
residual sarcoidosis or “more likely early alcoholic cirrhosis of the liver”; and mixed substance
abuse and dependency and a passive aggressive personality disorder, aggressive type. R. at
43. After the case was reopened, the rating specialists denied a total and permanent disability
rating on October 4, 1988. R. at 55. On May 9, 1989, the VA reopened appellant’s claim after
he submitted the Social Security decision in support of his unemployability; however, an
increase was denied again on June 6, 1989. R. at 102. Appellant filed a Notice of
Disagreement with the New Orleans, Louisiana, VA Regional Office on June 28, 1989, and
then filed a timely appeal to the Board on August 21, 1989. R. at 104, 110. The Board denied
Mr. Brown’s claim in its “Conclusion of Law”, stating:.3
The veteran’s disabilities are less than 100 percent disabling and
he is not permanently and totally disabled within the meaning of
the governing law and regulations. (38 U.S.C. §§ 502, 521; 38
C.F.R. 3.321, 3.340, 3.342, and Part 4.)
Clem A. Brown, BVA 89-07869, at 5 (Mar. 15, 1990) (hereinafter Brown). Appellant brings
this appeal from that decision.
II. Analysis
A.
The appellant is seeking a non-service-connected pension pursuant to 38 U.S.C.
§ 1521 (formerly § 521). Section 1521 provides in pertinent part:
(a) The Secretary shall pay to each veteran of a period of war
who meets the service requirements of this section (as
prescribed in subsection (j) of this section) and who is
permanently and totally disabled from non-service connected
disability and not the result of the veteran’s willful misconduct,
pension at the rate prescribed by this section, as increased from
time to time under section 3112 of this title.
. . . .
(j) A veteran meets the service requirements of this section if
such veteran served in the active military, naval, or air service–
(1) for ninety days or more during a period of war. . . .
38 U.S.C. § 1521 (formerly § 521). To be eligible for a non-service-connected pension based
on permanent and total disability under chapter 15, a two-part test must be met. First, the
veteran must have served during a period of war. “The term `Vietnam Era’ means the period
beginning August 5, 1964, and ending on May 7, 1975.” 38 U.S.C. §§ 101(29) and 1521. The
appellant’s service in the U.S. Army from April 4, 1973, to June 3, 1974, during the “Vietnam
Era,” satisfies the first prerequisite of the statutory test.
The second prong of the test for pension disability benefits requires that the veteran be
permanently and totally disabled. Permanent and total disability can be shown in one of two
ways: either 1) the veteran must be unemployable as a result of a lifetime disability, or 2) if
not unemployable, he must suffer from a lifetime disability which would render it impossible for
the average person with the same disability to follow a substantially gainful occupation. See
38 U.S.C. § 1502(a) (formerly § 502(a)). This Court has held “that the Secretary’s
promulgation of the regulations regarding VA pension eligibility with a combination of objective
and subjective standards is `consistent with’ 38 U.S.C. §§ 1521(a) and 1502(a).” Talley v..4
Derwinski, 2 Vet.App __, No. 90-419, slip op. at 8 (U.S. Vet. App. Apr. 6, 1992); see 38
C.F.R. § 4.17 (1991).
Although the Board in its decision, referred to “permanent and total disability” as “THE
ISSUE”, it did not enunciate which standard of section 1502(a) was being applied to the
evaluation of appellant’s claim. The Board found five disabilities. In discussing two of them,
appellant’s sarcoidosis and personality disorder, the Board considered the veteran’s age,
educational background, and occupational experiences, and concluded that despite those
disabilities, he was not precluded from substantially gainful employment (“occupation” is the
statutory term and “employment” is the regulatory term). The Board did not consider the other
three disabilities in its evaluation. Likewise, the BVA did not contemplate whether, these three
disabilities together with the veteran’s sarcoidosis and personality disorder, would render
appellant unemployable.
The Board further erred when it neglected to consider appellant under the “average
person” test of 1502(a)(1). In claims for pension disability benefits, the Board must look not
only to whether the veteran is unemployable due to a lifetime disability or combination of
lifetime disabilities, but to whether the veteran “suffers from . . . (1) any [lifetime] disability . . .
sufficient to render it impossible for an average person to follow a substantially gainful
occupation.” 38 U.S.C. § 1502 (emphasis added). The Board’s decision contains no
discussion as to whether appellant’s combination of disabilities would render it impossible for
the average person to find gainful employment.
While the statutory bifurcated standard of what constitutes a permanent and total
disability allows for both objective and subjective criteria in the VA regulations, the standard
must be applied in a consistent manner to all veterans. The case on appeal illustrates the
difficulty and confusion of the regulations, which lead to an apparently ad hoc application of
the law. For this reason, the Court strongly advises the Secretary “to undertake a broad-based
review and revision (complete with the mandatory statutory-source reference) of the
pension unemployability regulations to bring them fully into line with the statutory scheme as
outlined in this opinion.” Talley, 2 Vet.App. ___, No. 90-419, slip op. at 10.
B.
Furthermore, having followed an incomplete and confusing analysis, the Court notes that
the Board reached its conclusion without including the requisite “written statement of [its] findings
and conclusions, and the reasons or bases for those findings and conclusions” as mandated by
38 U.S.C. § 7104(d)(1) (formerly § 4004 (d)(1)) to enable the veteran to understand the decision
and for this Court to fulfill its function of judicial review. See Sammarco v. Derwinski, 1 Vet.App..5
111, 112-113 (1991); Gilbert, 1 Vet.App. at 56. As this Court stated in Gilbert, “the Board must
identify those findings it deems crucial to its decision and account for the evidence which it finds
to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but
complete explanations.” Gilbert, 1 Vet.App. at 57. The BVA failed to provide a clear statement
of its reasons or bases as required by 38 U.S.C. § 7104(d)(1) for its conclusion that “[t]he
veteran’s disabilities are less than 100 percent disabling and he is not permanently and totally
disabled within the meaning of the governing law and regulations.” Brown, BVA 89-07869, at 5.
After discovering the ambiguities and inconsistencies in the BVA’s decision, we are compelled to
overturn the Board’s decision and remand this case for compliance with the statutory requirement
and the standards established by this Court.
C.
Not only is it unclear as to what standard was applied by the Board in reaching its
conclusion that appellant’s disabilities were permanent, yet not total, for unemployability purposes,
but it is likewise inconceivable how an accurate determination could be made when there has not
been a rating decision since 1980. In 1980, the VA apparently determined that appellant’s non-service-
connected disabilities added to a total combined 40% disability rating, though this rating
decision was not included in the record on appeal. Nonetheless, the record is confusing as to
whether the 40% disability rating applies to appellant’s sarcoidosis of the lungs or liver, the
problem with his left leg, or to his personality disorder. The rating decisions of January 5, 1987,
October 4, 1988, and June 6, 1989, merely denied a 100% disability and confirmed that appellant
was not unemployable, but never stated what percentage was attributable to each specific
disability. In view of these ambiguities in the record, the Court remands this case for a new
physical examination and a new rating decision to identify accurately the percentage of
impairment attributable to each specific disability.
D.
In its statement of the “reasons or bases,” the Board must also include in its decision “the
precise bases for that decision, and . . . the Board’s response to the various arguments advanced
by the claimant.” Gilbert, 1 Vet.App. at 56. In his brief, appellant contends that since the SSA
has deemed him unemployable and eligible for benefits, the Department of Veterans Affairs
should also grant him eligibility for total disability benefits. Br. of Appellant at 1. The Board
acknowledged receipt of the SSA’s decision in the record, Brown, BVA 89-07869, at 2, yet failed
to give this evidence any consideration or weight in its determination to deny appellant a total
disability rating based on unemployability. The Board decision simply noted the differences in the.6
SSA criteria, but did not say how the SSA unemployability decision was irrelevant to the issue
before the BVA. This evidence is relevant to the determination of appellant’s ability to engage in
substantially gainful employment, which demonstrates the relevance and significance of the SSA
decision as to the VA’s current adjudication of appellant’s claim. Murincsak v. Derwinski, __
Vet.App. __, No. 90-222, slip op. at 12-13 (U.S. Vet. App. Apr. 24, 1992). The decision of the
administrative law judge at the SSA “cannot be ignored and to the extent its conclusions are not
accepted, reasons or bases should be given therefor.” Collier v. Derwinski, 1 Vet.App. 413, 417
(1991). See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991); Sammarco, 1 Vet.App. 111,
112 (1991); Gilbert, 1 Vet.App. at 56-57. For this reason, the decision of the BVA must be
vacated and the case remanded for consideration of the SSA’s decision and a statement of
reasons or bases for the weight given to this evidence.
III. Conclusion
For the reasons stated above, the March 15, 1990, decision of the Board of Veterans’
Appeals is VACATED, and this case is REMANDED to 1) enable the Department of Veterans
Affairs to conduct a new medical examination; 2) establish a current rating decision based on
percentages of specific disabilities; 3) properly apply 38 U.S.C. §§ 1502 and 1521; 4) consider
all evidence in the record, including the Social Security Administration award of unemployability;
and 5) provide the BVA with the opportunity to include a statement of the reasons or bases,
including the statutory and regulatory bases, for its findings and conclusions in light of the Court’s
recommendation to the Department of Veterans Affairs to review the regulations regarding total
and permanent disability for unemployability in pension cases insofar as they are inconsistently
applied.
It is so ordered.


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