Corry v. Derwinski

FARLEY, Associate Judge, filed the opinion of the Court, in which MANKIN, Associate Judge, joined. STEINBERG, Associate Judge, filed a dissenting opinion. FARLEY, Associate Judge: Appellant seeks reversal of a Board of Veterans’ Appeals (Board or BVA) decision denying his reopened claim for service connection for his neuropsychiatric disorder. The appellant has failed to demonstrate that the Board committed factual or legal error and therefore the decision will be affirmed. I. On August 17, 1972, when he was 19, appellant was diagnosed as schizophrenic, paranoid type, and entered a State of Cali232 fomia mental health facility (CSH), first involuntarily and then under a voluntary treatment agreement. R. at 10. He reported having been “in a mental hospital in Switzerland” previously. Id. After “poor adjustment to this facility,” including one departure in a stolen car, appellant was discharged on January 2, 1973, “against medical advice” and with a recommendation that he “not be readmitted to this facility as he is uncooperative and appears to have reached maximum benefits at this time.” Id. Appellant was again hospitalized at CSH with a diagnosis of schizophrenia, chronic undifferentiated type, from June 17, 1974, until discharge on August 20, 1974. R. at 11. An admission note dated June 24, 1980, states that appellant was being “readmitted to CSH for the 4th time” with the same diagnosis. R. at 12. The evaluation report notes that appellant “has managed to stay out of the hospital for close to two years.” Id. The record also contains a diagnostic staff note which recommends referral to “Psychiatric Evaluation” dated July 25, 1980. R. at 22. Less than two months later, on September 15, 1980, appellant joined the U.S. Marine Corps. R. at 7; see also R. at 8 (“Severe mental problems surfaced thereafter leading to multiple psychiatric hospitalizations and eventual enlistment in the Marine Corps.”) After “an acceptable level of performance as indicated by average conduct and proficiency marks of 4.5 and 4.4 and no nonjudicial punishments,” appellant was assigned to a temporary detail at 29 Palms in California. R. at 7. The detail was terminated when appellant exhibited “sub-standard work performance and [text unreadable] attitude toward authority.” Id. “On his return to MCAS, El Toro via privately owned vehicle, [he] was apprehended by local law enforcement personnel 6 May 1982.” Id. He was arrested “while wandering through neighborhood backyards ‘looking for dead bodies’.” R. at 8. After admission to the San Bernardino Mental Health Facility, appellant was transferred to the Naval Regional Medical Center, Long Beach, California, where he was admitted with a diagnosis of “Paranoid schizophrenia, chronic EPTS [Existed Prior To Service] not aggravated.” R. at 9. An informal inquiry was conducted to determine appellant’s fitness for duty. The report, dated July 19, 1982, concluded as follows: All attending physicians concur that [appellant’s] condition is diagnosed chronic undifferentiated schizophrenia.... [His] malady occurs sporadically, having been involuntarily admitted to a mental facility in August 1972, June 1974, August 1978, June 1980 and again in May 1982. Also, each admittance was preceded by an abnormal behavioral act.... * * * * * * In view of the above stated facts and considering [his] present condition and diagnosed chronic disorder it is recommended that [he] be immediately discharged from the service_ Based on [his] dates of psychiatric treatment and his failure to reveal same prior to oath of enlistment, a fraudulent enlistment did occur. On this point I concur with physicians’ statement ... that to pursue a discharge on the premise of fraud would prove fruitless considering [his] past and present state of mental health. R. at 6 (emphasis in original). Appellant was granted an honorable discharge for the reason of “Unsuitability-Personality disorders” (R. at 1) on August 27, 1982. R. at 23. In July 1986, appellant filed a claim for compensation and pension with the Veterans’ Administration (now the Department of Veterans Affairs) (VA) which listed his disability as “1970 & on-going — Manic Depressive.” R. at 24. Appellant also indicated that he had been hospitalized at the Long Beach Naval Hospital in 1982 for a “nervous condition” (Id.) as well as in 1984 and 1985 in New York for “Manic/Depre[ssion].” R. at 25. Subsequently, appellant reported an additional hospitalization from 1985-1986. R. at 30. A physical examination was conducted (R. at 31-33) and a psychiatric examination was requested but apparently never conducted. R. at 35, 37. In a rating decision dated April 5, — 233 — 1987, appellant’s claim for service connection for his disability was denied: It is clear from the record that the veteran’s hospitalization in 5/82 was just one in a series with essentially the same pattern as those prior to service and that it does not reflect aggravation of the pre-service chronic, undifferentiated schizophrenia. R. at 39. Appellant was advised of the denial by letter dated April 10, 1987 (R. at 40) and provided with notice of his appellate rights. R. at 41. Although it is not contained in the record on appeal, a letter to appellant dated May 19, 1987 (R. at 43) refers to receipt of his “reopened claim” and advised that the claim was previously denied as indicated in the letter of April 10, 1987, “because there is nothing in your records to indicate that this condition was incurred in or aggravated by your military service.” R. at 43. The appellant was advised that in order to reopen his claim, he “must submit new and material evidence.” Id. In November 1988, appellant submitted a YA Form 21-4138, Statement In SUPPORT Of Claim. R. at 44. The VA responded by advising that the April 1987 denial was final because appellant had not appealed within one year and that new and material evidence was required in order to reopen the claim. R. at 45. Another VA Form 21-4138 was received by the VA on December 14, 1988, on which appellant expressed his disagreement with the denial of service connection, noted that his condition had worsened, and stated that he “was unable to respond to your initial denial due to the nature of my condition.” R. at 46, 47. In a rating decision dated January 9, 1989, appellant’s claim was denied because the Notice of Disagreement (NOD) was “not timely filed” and because of the lack of new and material evidence. R. at 48. In a letter dated February 1989, appellant expressed the view that he had been misdiagnosed at the Long Beach Naval Hospital and that the actual diagnosis should have been “manic-depressive disorder.” R. at 50. He also asked for assistance in locating his former commanding officer “who noticed the symptoms of an advancing manic stage and who terminated my duty based on my behavior.” Id. In a letter to a VA adjudication officer dated April 19, 1989, Yezid Meló, M.D., advised that appellant “has a history of Schizoid Personality Disorder dating back to 1978 and has been hospitalized for this illness on a number of occasions.” R. at 52-53. In addition to providing information as to appellant’s then-current condition, Dr. Melo stated: It is clear that this patient’s episodes of mental illness preceded his enlistment in the Marine Corps in 1980, but this condition appears to have deteriorated while in the service and this deterioration led to his poor mental condition and consequent hospitalization on May 10, 1982. R. at 53. By letter dated May 19, 1989, appellant was advised of a rating decision which once again denied his claim. An NOD was filed on August 1, 1989. R. at 64. A Statement of the Case dated October 2, 1989, was sent to appellant. R. at 68. A hearing was held on December 26, 1989. R. at 81-89. The Hearing Officer denied the claim on January 24, 1990 (R. at 92) and appellant perfected his appeal. R. at 94. The BVA upheld the denial of service connection for appellant’s neuropsychiatric disorder. James E. G. Corry, BVA 90-29929 (Aug. 30, 1990). The BVA first noted that the April 1987 rating had become final due to appellant’s failure to file a timely NOD within one year of the decision. The Board then stated that the issue for review is whether the evidence received since the April 1987 rating provides a new factual basis which demonstrated that a neuropsychiatric disorder is of service origin or aggravation. That evidence includes a statement from a private physician wherein the veteran was currently diagnosed to have a bipolar disorder; an opinion was also rendered that his mental condition deteriorated in service. However, on the basis of the entire evidentiary record, including evidence bearing on treatment rendered the veteran for problems of a neu-ropsychiatric nature beginning in 1972, — 234 — the opinion that the veteran’s mental condition worsened during service is not sustainable. Corry, BVA 90-29929, at 3-4. A timely Notice of Appeal was filed. II. Pursuant to 38 U.S.C. § 7105(c) (formerly § 4005(c)), claims adjudications are final unless a Notice of Disagreement is filed “in accordance with this chapter within the prescribed period.” The prescribed period is “within one year from the date of mailing of notice of the result of initial review or determination.” 38 U.S.C. § 7105(b)(1). The exception to this rule is 38 U.S.C. § 5108 (formerly § 3008) which states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary [of Veterans Affairs] shall reopen the claim and review the former disposition of the claim.” See Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991). In Manio v. Derwinski, 1 Vet.App. 140 (1991), this Court established that § 5108 requires a two-step analysis when a veteran seeks to reopen a claim based upon new evidence. First, it must be determined whether the evidence is “new and material”; second, if the evidence is “new and material,” then the claim must be reopened and the merits of the claim must be evaluated “in light of all the evidence, both new and old.” Manio, 1 Vet.App. at 145 (emphasis in original). Here, the BVA did not specifically determine whether appellant had submitted sufficient new and material evidence to warrant reopening. However, it is clear that the BVA moved to the second part of the Manió test and made its decision “on the basis of the entire evidentiary record, including evidence bearing on treatment rendered the veteran for problems of a neuropsychiatric nature beginning in 1972.” Corry, BVA 90-29929, at 4. Therefore, even if the BVA’s failure to address the first part of the Manio test constituted error, such error is harmless. 38 U.S.C. § 7261(a)(4); see Kehoskie v. Derwinski, 2 Vet.App. 31, 34 (1991) (where a claim should not have been reopened, if the Board nevertheless denied the claim, such error would be considered harmless); Godwin v. Derwinski, 1 Vet.App. 419, 424-25 (1991); Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991). III. In concluding that appellant’s neuropsychiatric disorder was not incurred in or aggravated during service, the BVA made a factual determination. In reviewing a finding of fact made by the Board, the Court can only “hold unlawful and set aside such finding if the finding is clearly erroneous.” 38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4)); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); see also Gilbert, 1 Vet.App. at 52. In determining whether a finding is clearly erroneous, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ... we cannot overturn them.” Gilbert, 1 Vet.App. at 53. Based on a thorough review of the record, the Court holds that there is more than a plausible basis to support the BVA’s conclusion that Dr. Melo’s conjecture — that appellant’s “condition appears to have deteriorated while in the service and this deterioration led to his poor mental condition and consequent hospitalization on May 10, 1982” (R. at 53) — cannot be sustained in light of the total record which includes records of lengthy hospitalizations dating back to 1972 and reports of hospitalization even prior to that time, records and reports which Dr. Melo did not mention. IV. Our dissenting colleague takes the Board and the majority to task for failing to recognize his view that a December 1988 statement by the veteran “reasonably rais — 235 — es” and “implicitly raised a claim for a ‘good cause’ extension of the one-year NOD filing period.” We disagree. At the outset, we note that there is no legal entitlement to an extension; the regulation commits the decision to the sole discretion of the Secretary. 38 C.P.R. § 3.109(b) (“may be extended”) (emphasis added). The regulation requires that [w]here an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. 38 C.F.R. § 3.109(b). Appellant’s statement (“I was unable to respond to your initial denial due to the nature of my condition” (R. at 46)) was insufficient, as a matter of law, to satisfy the regulatory requirement that “good cause must be shown as to why the required action [i.e., the filing of an NOD] could not have been taken during the original time period and could not have been taken sooner than it was.” 38 C.F.R. § 3.109(b). We find that appellant did not request a discretionary extension and that there is no basis in fact which would permit, much less require, that the Board or this Court join the dissent in speculating that such a request was “implicitly raised” on this record. Cf. Herzog v. Derwinski, 2 Vet.App. 502, 503 (1992). V. Upon consideration of the record and the briefs of the parties, the Court holds that appellant has not demonstrated that the Board committed either factual or legal error which would warrant reversal. Gilbert, 1 Vet.App. 49; see also Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). The Court is also satisfied that the BVA decision meets the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)), and the benefit of the doubt doctrine of 38 U.S.C. § 5107(b) (formerly § 3007(b)). See Gilbert, supra. Accordingly, the August 30, 1990, decision of the Board of Veterans’ Appeals is AFFIRMED.