Opinion

Dodge v. Brown

  • 5 Vet. App. 6
  • 1993 U.S. Vet. App. LEXIS 124
  • 1993 WL 95622
Court
United States Court of Appeals for Veterans Claims
Filed
Apr 2, 1993
Status
Published
Author
Steinberg
On the bench
Kramer, Mankin, Steinberg
Cited by
0 cases

The opinion

STEINBERG, Judge,

concurring:

I concur in the Court’s order. However, in light of the Secretary’s concession in his motion for summary affirmance that remand would be appropriate on the issue of the applicability of 38 C.F.R. § 4.131 (1992), which the Board did not address, I believe that somewhat more of an explanation is necessary as to why the Board’s failure to address this issue does not warrant a remand.

In a September 1988 decision and Statement of the Case, a Veterans’ Administration (now Department of Veterans Affairs) regional office concluded that the veteran had been discharged from the Navy in 1978 due to a “personality problem”. R. at 183, 190. However, even if that “personality disorder” were found to be the precursor of the veteran’s currently diagnosed post-traumatic stress disorder (PTSD), for which service connection is currently established, section 4.131 would not provide any basis for an increase in the veteran’s current PTSD rating. Section 4.131 provides that a condition sufficiently severe to warrant discharge from service will be assigned at least a 50% rating at the time of such discharge, provided that the requirements for service connection are otherwise established. Moreover, that provision expressly provides for an examination within six months after discharge, at which time the severity of the condition could be reevaluated.

In the present case, service connection for PTSD was not established until 1988, many years after the veteran’s 1978 discharge. His service-connected disability rating must be based on the current severity of that condition rather than on a determination as to what rating would have been appropriate in 1978 if service connection had then been established. See 38 C.F.R. §§ 3.327 (a) (reexamination required when “it is likely that a disability has improved or evidence indicates there has been a material change in disability”); 4.1 (over “a period of many years, a veteran’s disability may require reratings in accordance with ... his or her physical or mental condition”) (1992). Accordingly, the Board’s *8 failure to discuss appellant’s contention regarding section 4.131 is not, in my view, prejudicial error. 38 U.S.C.A. § 7261 (b) (West 1991).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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