CVA Decision Beck vs. West
STATES COURT OF APPEALS FOR VETERANS CLAIMS
A. Beck, Appellant,
D. West, Jr.
of Veterans Affairs, Appellee.
Appeal from the Board of Veterans' Appeals
June 27, 2000
Mitchell Lanier, of Moncks Corner, South Carolina, was on the pleadings for
A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; and
Carolyn F. Washington, Deputy Assistant General Counsel, all of Washington,
D.C., were on the pleadings for the appellee.
NEBEKER, Chief Judge, and KRAMER and HOLDAWAY, Judges.
Chief Judge: The appellant, Robert A. Beck, appeals from a June 25, 1997,
Board of Veterans' Appeals (Board or BVA) decision that denied as not well
grounded his reopened claim of service connection for a psychiatric disorder.
Based on the parties' briefs and the record on appeal, the Court will vacate
the Board's decision denying Mr. Beck veteran status for his second period of
service, and remand for readjudication of the matters of his eligibility for
VA benefits and his claim for service connection.
Beck had two periods of service in the U.S. Army. He received an honorable
discharge from the first period, which extended from January 18, 1971, to
January 18, 1974. Record (R.) at 22. His second period, from May 2, 1974, to
January 12, 1976, was terminated under other than honorable (OTH) conditions.
R. at 23. Charges against him during the latter period (for which he accepted
the OTH discharge in lieu of special court-martial proceedings) included
lawful order (on two occasions in September 1974), failing to report at the prescribed time to his appointed place of duty in October 1975, and two periods of several days' absence without leave (AWOL) during November and December 1975. R. at 107, 109, 110. In executing a "Request for Discharge for the Good of the Service," he acknowledged that he had committed a serious offense and that he had no excuse for being AWOL, but wrote that he had "reasons." R. at 114. He stated that he had "severe family problems," and that he "would do whatever it takes" to be reunited with his wife and daughter. Id. He had, in fact, gone to the trailer home where his wife and daughter were living, and his first AWOL period ended when he was located there after a neighbor complained of a disturbance. R. at 107. He voluntarily returned to his unit to end his second AWOL period. R. at 107.
service medical records (SMRs) from his first period of service showed no
significant medical problems, either physical or mental; however, a medical
report from that period noted a history of head injury, dizziness or fainting
spells, and problems with teachers. R. at 26-29. On his reenlistment report of
medical history, prepared in April 1974, the box labeled "nervous trouble
of any sort" is checked and the physician's summary section of the report
states, "[T]reated for nervous age 10 [sic]. " R. at 66-67. SMRs
dated in October 1975 reflected that Mr. Beck had complained of having
insomnia for a period of four weeks, feeling nervous, and being jittery; he
was diagnosed with anxiety. R. at 80. The mental status evaluation conducted
prior to separation from his second period of service indicated that (1) the
examiner noted no significant mental illness; (2) Mr. Beck was mentally
responsible; (3) he was able to distinguish right from wrong; (4) he was able
to adhere to the right; and ( 5) he had the mental capacity to understand and
participate in board proceedings. R. at 62.
Mr. Beck's discharge, a VA administrative decision, dated in November 1976,
determined that he was entitled to VA benefits for his first period of
service; it further determined that he was barred from VA benefits for his
second period of service. R. at 90. In April 1977, during a VA
hospitalization, he was diagnosed with acute and undifferentiated
schizophrenia. R. at 92-93. During a VA hospitalization from January 1978 to
March 1978, the diagnosis was "schizophrenia, chronic undifferentiated
type." R. at 307. In July 1978, Mr. Beck was hospitalized
at the South Carolina State Hospital and his treating physicians recorded a diagnostic impression of schizophrenia, paranoid type. R. at 132-33.
January 1979, Dr. Wayne Braverman wrote that the appellant was severely
disabled and that he had probably been so for the "past three or four
years." R. at 125, 296. In March 1980, Dr. P. Richard Gunter noted that
although the appellant did not elaborate as to exactly when his psychiatric
difficulties began, he did state that when he was in the Army he once went
AWOL because he had a vision that his daughter was being " placed out on
the street." R. at 294. In June 1980 Mr. Beck filed an initial
application for service connection for "insomnia-anxiety and paranoid
schizophrenia." R. at 137. The claim was denied. Id. Stated as the basis
for the denial was the lack of evidence of a nervous condition during the
appellant's first period of service, and the presence of "evidence to
show onset" during the period from which he received the OTH discharge.
Id. He did not appeal (R. at 214), but continued to exhibit symptoms of a
serious psychiatric disorder. See, e.g., R. at 143. In February 1981, the
Social Security Administration concluded that the appellant had been disabled
since July 1978 and granted disability benefits. R. at 244. In 1993, Mr. Beck
attempted to reopen his VA claim for service connection. Dr. Raul Paez wrote
to VA on his behalf, stating that Mr. Beck's symptoms prior to discharge from
service were, in fact, the onset of his illness which was diagnosed in April
1977. R. at 151. Mr. Beck provided sworn testimony at a VA personal hearing in
October 1993. R. at 182-93.
March 1996, the Board determined that the claim had been reopened and remanded
it for further development, including a psychiatric examination. R. at 213-20.
Specifically, the BVA's remand directed the VA regional office (RO) to obtain
copies of all of Mr. Beck's treatment and social security claim records. These
documents were to be associated with the claims folder. Once this had been
done, the Board directed the following:
veteran should be afforded a VA psychiatric examination to determine the
current extent and likely etiology of his chronic schizophrenia. All necessary
testing in this regard should be accomplished. The claims folder should be
made available to the examiner for review. Based on his/her review of the
case, it is requested that the examiners express an opinion as to the medical
probability that any currently demonstrated schizophrenia was present during
the veteran's second period of military duty from May 2, 1974[,] to January
12, 1976, as claimed by the veteran. The opinion should contain complete
reasons or bases for the conclusions reached.
at 217-18 (emphasis in original). Once the records and examination were
complete, the RO was to make a de novo adjudication, which if adverse to Mr.
Beck, was to trigger issuance of a supplemental statement of the case, with
opportunity to respond, and ultimately return of the matter to the Board. Id.
his June 1996 report of the BVA-directed psychiatric examination, the VA
examiner (identified as "T. Gardner" (R. at 225)) stated that Mr.
Beck was suffering from a schizo affective disorder that began with the
initial "break" in September 1975 that led Mr. Beck to see a doctor
in October 1975. R. at 229. The examiner opined that the reason for the
appellant's AWOL was his schizophrenia's manifestation with extreme paranoia
and extreme thought disorder symptomatology. R. at 230. The examiner further
concluded that the veteran's symptoms had been present "
continuously" since October 1975. R. at 231. He stated, "In other
words, this is the same illness that was present in 1975." Id. He
referred to the initial, honorable three-year period of service, and
concluded, "It is unlikely that a person who served for three years
without problems would suddenly [go] AWOL without reason. The reasons in my
opinion are clearly schizophrenia manifesting itself with extreme paranoia and
extreme thought disorder symptomatology." R. at 230. He also stated that
Mr. Beck's failure in 1975 to reveal to the Army doctor his "strange
unusual thoughts that he was having [was based on] his fear that the doctor
would think that he [was] unfit for duty." R. at 229-30. The examiner
characterized this behavior as "a common reaction" of people with
Mr. Beck's level of paranoia and thought disorder. R. at 230.
September 1996, the RO denied service connection for schizophrenia, concluding
that Mr. Beck was not insane at the time he went AWOL. R. at 375-76. In the
decision now on appeal, the Board concluded that Mr. Beck had submitted
evidence adequate to reopen his claim, but that upon review of the record as a
whole, the claim was not well grounded. R. at 3. The Board found that no
competent evidence had been submitted that the appellant was insane at the
time of his AWOL offenses, or that his currently demonstrated paranoid
schizophrenia was due to disease or injury that occurred in or was aggravated
by service. R. at 16. This appeal followed.
threshold determination in this matter is whether Mr. Beck is a "
veteran" who is eligible for VA benefits for any condition incurred
during his second period of military service. 38 U.S.C. § 101(2); see Holmes
v. Brown, 10 Vet.App. 38, 40 (1997). The term "veteran" is defined
under section 101(2) as someone who has served "in the active military,
naval, or air service and who was discharged or released therefrom under
conditions other than dishonorable." Under 38 C.F.R. § 3.12(d)(4)
(1999), a discharge under OTH conditions for willful and persistent misconduct
will render a claimant ineligible for veterans benefits. See Struck v. Brown,
9 Vet.App. 145 (1996). A disability claim that was previously the subject of a
final denial based on the character of the claimant's discharge is subject to
reopening under 38 U.S.C. § 5108. D'Amico v. West, 209 F.3d 1322, 1326-27
(Fed. Cir. 2000), vacating 12 Vet.App. 264 (1999).
Accordingly, the BVA did not err when it addressed Mr. Beck's claim as an attempt to reopen, and deemed the claim reopened based on the presentation of new and material evidence in the form of hearing testimony and the 1993 report of Dr. Paez. R. at 151, 182-93, 215.
Beck does not dispute VA's conclusion that the acts that led to his accepting
the OTH discharge in lieu of court-martial proceedings are, on their face, the
type of acts that constitute "willful and persistent misconduct."
However, pursuant to 38 U.S.C. § 5303(b) and its implementing regulation, 38
C.F.R. § 3.354(b) (1999), a service member who is insane at the time of the
acts that led to an OTH discharge retains eligibility for veterans benefits.
He argues that the record demonstrates that he was insane at the time of these
acts and, thus, should retain his eligibility for benefits, including service
connection, because symptoms and behavior manifested during service were the
early manifestation of his current psychiatric disorder. See Zang v. Brown, 8
Vet.App. 246, 252-54 ( 1995) (existence of insanity, as defined in section
3.354(a), at time of commission of act, negates intent so as to preclude act
from constituting willful misconduct under section 3.1(n)).
3.354(a) defines an "insane person" as one who exhibits, due to
disease, a more or less prolonged deviation from his normal method of
behavior; or who interferes with the peace of society; or who has so departed.
. . from the accepted standards of the community . . . to which he belongs as
to lack the adaptability to make further adjustment to the social customs of
the community in which he resides.
VA determines that, at the time of the commission of an offense that led to an
OTH discharge, the claimant was "insane," that person is not
precluded from an award of VA benefits based on that period of service. The
definition of insanity in section 3.354(a) is broad. Mental illness is not
identical to "insanity," and there need be no causal connection
between the insanity and the misconduct. See Zang, supra. The acts leading to
the discharge and the insanity must, however, be concurrent. Id.; Stringham v.
Brown, 8 Vet.App. 445, 448 (1995). The determination whether insanity existed
at the relevant time is factual, and the Court reviews the Board's
determination under the "clearly erroneous" standard. Id. at 448-49.
The Court will not overturn a factual determination of the BVA if there is a
plausible basis in the record to support it, and it is supported by an
adequate statement of reasons or bases for rejecting evidence favorable to the
claimant. 38 U.S.C. § 7104(d)(2); Gilbert v. Derwinski, 1 Vet.App. 49, 53,
reaching this factual determination, however, where a claim has been reopened,
the Secretary must determine whether the claim is well grounded. See Elkins v.
West, 12 Vet.App. 209 (1999); (en banc) Winters v. West, 12 Vet.App. 203, 208
(1999) (en banc). Here, the Board, in essence, concluded that the claim of
service connection was not well grounded because Mr. Beck had not established
"veteran" status during his second period of service "by
submitting competent medical evidence that he was insane at the time of his
AWOL offenses." R. at 2-3, 17.
ultimate conclusion whether a claim is well grounded is a question of law. See
Hensley v. West, __ F.3d __,__, slip op. at 13-14, No. 99-7029 (May 12, 2000).
The underlying elements of a well-grounded claim involve "factual matters
the determination of which by the agency fact-finders is entitled on review to
substantial deference." Id. at 15. As the Court held in Caluza v. Brown,
for a claim to be well grounded, there generally must be (1) medical evidence
of a current disability; (2) medical, or, in certain circumstances, lay
evidence of a disease or injury in service; and (3) medical evidence of a
nexus between the asserted in- service injury or disease and the current
disability. 7 Vet.App. 498, 596 ( 1995), aff'd, 78 F.3d 694 (Fed. Cir. 1996)
Beck indisputably meets the first criterion: he currently has a serious
psychiatric disorder. Moreover, medical evidence in the record, which links
conduct during service to both his OTH discharge and his present psychiatric
condition, satisfies the second and third elements of a well-grounded claim
BVA discounted the medical opinions favorable to Mr. Beck for four reasons.
First, no medical opinion contemporaneous with the offenses diagnosed the
disorder. R. at 12-13. Second, the October 1975 Mental Status Examination
report noted "no complaints" and that Mr. Beck reported he was
"feeling well." R. at 15. Third, the Board emphasized, in 1980 a
psychiatric examiner had described Mr. Beck as being "considered a poor
historian" who "related his psychiatric history in a very poor
manner"; and, according to the Board, the examiners who opined that his
going AWOL in service was the early manifestation of his present psychiatric
disorder " did not have the benefit of first-hand clinical evaluation of
symptomatology proximate to the time of the events," and based
conclusions on Mr. Beck's--the "poor historian's"--account of his
own symptoms. R. at 14-16. The BVA concluded that "the only evidence of
record indicating that the appellant was insane at the time he had committed
the AWOL offenses are his own assertions of having had paranoid
feelings." R. at 16 (emphasis added). Fourth, citing Struck, supra, the
BVA concluded that the medical opinions favorable to Mr. Beck were
"incompetent" and that his claim was, accordingly, not well grounded
because he had not submitted competent medical evidence to support his claim
for veteran status. R. at 2-3, 16; see Struck, 9 Vet.App. at 155-56 (BVA did
not err in rejecting, on the merits, as incompetent single favorable medical
opinion by private physician where opinion was based on history provided by
Mr. Struck and on other secondary sources, where history was demonstrably
inaccurate as to key fact, and where physician had not reviewed relevant
material in claims file).
threshold for a well-grounded claim is "unique and uniquely low."
Hensley, __ F.3d at __, slip op. at 11. The claim need only be "
plausible." Id. at __, slip op. at 12. As the relevant "statutes,
rules, and cases" make clear, in determining whether a claimant has met
the requisite threshold, VA "must accept as true" the evidence
submitted in support of a claim "[except] when the evidentiary assertion
[other than in a government record] is inherently incredible or when the fact
asserted is beyond the competence of the person making the assertion."
Id. at __, slip op. at 13-14 (citing Robinette v. Brown, 8 Vet.App. 69, 75-76
the Board in its March 1996 remand decision concluded that Mr. Beck's claim
had been reopened based on Dr. Paez's opinion "that the veteran's
schizophrenia began in service." R. at 216.
remand to the RO, it issued specific instructions to the VA examiner to
conduct "[a]ll necessary testing" of Mr. Beck, to review the claims
folder, and to express an opinion on "the current extent and likely
etiology of [Mr. Beck's] chronic schizophrenia." R. at 218-19. He was to
provide an opinion, supported by adequate reasons or bases, as to whether the
currently demonstrated schizophrenia was present during Mr. Beck's second
period of military service. Id. The examiner opined that schizophrenia was
present, and that Mr. Beck's going AWOL was the early manifestation of the
schizophrenia diagnosed shortly after service. R. at 229-30. The BVA referred
to these conclusions in the examination report, but concluded that the report
was "incompetent" as evidence. The report is favorable to Mr. Beck's
claim. In its analysis, the Board stated that its "crucial determination
. . . is whether the appellant has presented competent medical evidence that
he was insane at the time of his AWOL offenses." R. at 13. The BVA also
noted that it "is not required to accept the appellant's evidence and is
entitled to weigh the credibility of that evidence." R. at 14. It
concluded that "the VA examiner's diagnosis was based on the appellant's
report of paranoia, thought insertion, auditory hallucinations with command
thoughts and voices to hurt himself and others that [led] to nervousness and
insomnia [ for] which he had gone to see a doctor in October 1975." R. at
15. The Board summarized its evaluation of the favorable medical evidence as
follows: "In fact, the only evidence of record indicating that the
appellant was insane at the time he had committed the AWOL offenses are his
own assertions of having had paranoid feelings." R. at 16. The Court
holds that the Board impermissibly analyzed the weight and credibility of the
medical reports at the threshold stage of determining whether Mr. Beck's
claims were well grounded. In its recent precedential decision in Hensley,
supra, the U.S. Court of Appeals for the Federal Circuit held that the
elements underlying a determination of whether a claim is well grounded are
factual findings, but cited with approval this Court's holding concerning the
presumption of credibility for favorable evidence at this pre-merits stage. __
F.3d at __, slip op. at 13-14. Here, the Board failed to apply the
Court also notes that, even if the BVA had been reviewing the case on the
merits, it failed to address statements in the VA examiner's report that were
incontestably based on material other than Mr. Beck's own assertions. For
example, under "Psychiatric History," the examiner states, "
There is a report from the discharge summary [from a 1977 hospitalization at
the Charleston VA Hospital] that lists numerous outbursts of anger, including
those requiring jail, anxiety, fear and inability to care for himself for the
period immediately following his discharge from the United States Army."
R. at 225. The examiner also states, "His first psychiatric symptoms
actually appeared in October of 1975 and are documented in his C-file."
Id. The report contains a number of other references to documents, and to the
examiner's observation of Mr. Beck (see, e.g., id. at 228- 29), and the BVA
does not reconcile these references with its conclusion that the appellant's
"assertions" are the sole basis for the opinions offered by all
recent medical examiners.
remand, the Secretary shall fulfill his duty to assist, providing further
psychiatric examinations, if warranted. 38 U.S.C. § 5107(a). Mr. Beck is
entitled to submit further evidence and argument and to have his claim
readjudicated expeditiously. See Veterans' Benefits Improvements Act, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) ( found at 38 U.S.C. § 5101
the June 25, 1997, Board decision is VACATED, and the matters of whether Mr.
Beck is to be granted veteran status for his second period of service by
reason of insanity at the time he committed the offenses that led to his OTH
discharge, and whether he is entitled to service connection for a chronic
psychiatric disorder, are REMANDED for adjudication according to law.