Tucker v. Derwinski

HOLDAWAY, Associate Judge, filed the opinion of the Court, in which MANKIN, Associate Judge, joined. STEINBERG, Associate Judge, filed a concurring opinion. HOLDAWAY, Associate Judge: Appellant, Harold Tucker, appeals a May 21, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) which denied an increased evaluation for his service-connected chronic bipolar disorder. Appellant filed a motion with the Court for summary reversal, alleging that his total disability rating was reduced without consideration of 38 C.F.R. § 3.343 (1991) and 38 C.F.R. § 3.344(a) (1991) and so was void ab initio. We reverse the portion of the BVA decision over which the Court has jurisdiction and remand with directions to reinstate appellant’s 50% rating as of October 1, 1989. This case involves three separate appeals to the BVA of three discrete adjudications that were consolidated in one BVA decision. As to the first two adjudications, the Notices of Disagreement (NOD) were filed before November 18, 1988. Therefore this Court has no jurisdiction to review them. See 38 U.S.C. § 7105 (formerly § 4005); Pub.L. No. 100-687, § 402. There was a timely NOD as to the third adjudication, but that NOD cannot be considered an NOD as to the prior separate adjudications. But cf. Whitt v. Derwinski, 1 Vet.App. 40, 42-43 (1990) (an NOD filed in response to a later adjudication of the same rating adjudication which was filed after November 18, 1988, is effective to give the Court jurisdiction over a BVA decision on that adjudication). In short, the fact that the three appeals were fortuitously consolidated into one decision cannot give jurisdictional life to adjudications that Congress has forbidden this Court from considering. In order to put the adjudication over which we do have jurisdiction in proper context, we will briefly outline the history of all three cases that were before the BVA. Appellant was awarded a schedular 100% disability evaluation for his service-connected bipolar disorder in December 1982. The 100% rating was continued until December 1986 when the Veterans’ Administration (now Department of Veterans Affairs) (VA) reduced appellant’s disability evaluation to 70%. Appellant’s rating was further reduced to 50% in April 1987. Appellant was hospitalized for alcohol detoxification several times between 1987 and 1989. The VA Regional Office (VARO) issued rating decisions in response to the hospitalizations which confirmed appellant’s 50% rating for service-connected bipolar disorder. In April 1989, a VA examination was performed. The examining psychiatrist confirmed the diagnosis of bipolar disorder and stated that appellant’s “[vocational capacity is moderately impaired, while the social capacity is mildly impaired.” As the result of this examination, appellant’s rating was reduced by the VARO to 30% in a June 1989 decision which stated: Apparently the claims folder was not reviewed by the examiner and the history reported by the veteran is nor [sic] reliable. Since 1986 he has been treated primarily for alcohol dependence with no objective evidence of psychiatric impair-ment_ The objective evidence on current examination and the veteran’s history do not warrant more than a 30% evaluation. On May 21, 1990, the BVA issued an opinion consolidating all three rating reductions. The Discussion and Evaluation section stated: [E]ach succeeding decrease in evaluation was well supported by the medical evidence of record at that time.... At present, the veteran’s bipolar disorder is not more than moderately disabling and does not produce more than definite social or industrial inadaptability. The Board also found that “[t]he schedular criteria for evaluation in excess of 30 percent for chronic bipolar disorder since Octo [203] ber 1, 1989 are not met.” Appellant filed a timely Notice of Appeal to this Court. ANALYSIS As to the rating decision over which we have jurisdiction (where appellant’s 50% rating was reduced to 30%), the rating board was faced with a psychiatric exam where “apparently the claims folder was not reviewed by the examiner.” The rating board chose to substitute its own opinion for that of the doctor instead of insisting on correction of the deficiency or an adequate examination. “It is ... essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.” 38 C.F.R. § 4.1 (1991). “If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent on the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1991). Moreover, we have previously held that BVA panels “must consider only independent medical evidence to support their findings rather than provide their own medical judgment in the guise of a Board opinion.” Colvin v. Derwinski, 1 Vet.App. 171, 175 (1990). “This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be a part of the record before this Court.” Id. If the Board finds that the medical evidence in the record is not adequate, it must remand for further development. 38 C.F.R. § 19.182 (1991). Because a medical opinion by a Regional Office rating board or hearing officer is not “independent medical evidence” as described in Colvin and, therefore, cannot be relied on by a Board panel to support its opinion, much time and effort would be saved if the rating boards insisted on adequate examination results initially rather than leaving the Board panéls to do so. This Court reviews findings of fact under the clearly erroneous standard. See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (“If there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them.”). The BVA’s factual finding that appellant’s service-connected bipolar disorder produced no more than definite impairment is not plausible based on the medical evidence of record and, therefore, is “clearly erroneous.” Accordingly, the May 21,1990, BVA decision is reversed as to the rating reduction from 50% to 30% and the case is REMANDED with directions to restore appellant’s 50% rating for service-connected bipolar disorder as of October 1, 1989.