Johnson v. Brown (1994)

Second, section 4.16(c) provides that if a mental disorder has been assigned a disability rating of 70%, “and such mental disorder precludes a veteran from securing or following a substantially gainful occupation^] ... [then] the mental disorder shall be assigned a 100% schedular evaluation under the appropriate diagnostic code.” 38 C.F.R. § 4.16 (c); but see Johnson (Gary) v. Brown, 7 Vet.App. 95, 97-99 (1994) (suggesting that section 4.16(c) is superfluous in relation to s…

See 38 C.F.R. § 4.13 (1996); 38 C.F.R. § 4.30 (1996) (setting forth criteria for 100 percent rating); Johnson v. Brown, 7 Vet.

Under the “broad authority — indeed, mandate — [of section 7261] to carry out comprehensive review of [Board] decisions, the Court undoubtedly would have jurisdiction to consider those same Board errors if raised by the • appellant or noted, sua sponte, by the Court itself.” Johnson v. Brown, 7 Vet.App. 95, 99 (1994).

Cir. 2001) (noting that inclusion of conjunctive “and” clearly indicates that all three criteria in 5 C.F.R. §§ 831.902 and 842.802 must be demonstrated); Heuer v. Brown, 7 Vet.App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by "and"); Malone v. Gober, 10 Vet.App. 539 (1997) (construing "and" as conjunctive in a statute); cf. Johnson v. Brown, 7 Vet.App. 95, 97 (1994) (holding that "or" in the rating criteria shows that each is an indep…

In Johnson v. Brown, 7 Vet.App. 95, 97 (1994), in response to a Court order, the Secretary stated that the criteria in DC 9411 for a 100% rating “are each independent bases for granting a 100% rating.” The Court upheld this interpretation of the regulation.

This Court held in Johnson v. Brown that each of those factors provided an independent basis for the award of a 100% rating. 7 Vet.App. 95, 97 (1994).

App. 539 (1997) (construing "and" as conjunctive in a statute); cf. Johnson v. Brown, 7 Vet.

App. 539 (1997) (construing "and" as conjunctive in a statute); cf. Johnson v. Brown, 7 Vet.

Johnson v. Brown, 7 Vet.

Johnson v. Brown, 7 Vet.

Secretary’s Interpretation of Regulation Deference is afforded to an agency’s interpretation of its own regulation, as long as that interpretation is not “ ‘plainly erroneous or inconsistent with the regulation.’ ” Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed.Cir.2006) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 415 , 65 S.Ct. 1215 , 89 L.Ed. 1700 (1945)); see Meedel, 23 Vet.App. at 281 ; Johnson v. Brown, 7 Vet.App. 95, 99 (1994).

Similarly, in Johnson v. Brown, the Court found that the Board had erred in requiring a claimant to satisfy all of the disjunctively written criteria in 38 C.F.R. § 4.132 (1994) for a 100% disability rating for post-traumatic stress disorder. 7 Vet.App. 95, 99 (1994) (“[U]pon remand the Board shall determine whether the appellant’s [post-traumatic stress disorder] disability meets any one of the three independent criteria required for a 100% [post-traumatic stress *83 disord…

Johnson (Gary) v. Brown, 7 Vet.App. 95, 97, 99 (1994).

In Johnson v. Brown, this Court ordered the Secretary to submit a supplemental memorandum addressing the applicability of 38 C.F.R. § 4.16 (c). 7 Vet.App. 95, 97 (1994).

Johnson (Gary) v. Brown, 7 Vet.App. 95, 98 (1994) (quoting Nominations of Jo Ann Krukar Webb, Sylvia Chavez Long, James A. Endicott, Jr., and Allen B.

App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet.

See Johnson v. Brown, 7 Vet.

App. 334 (1991); compare with Johnson v. Brown, 7 Vet.

See Johnson v. Brown, 7 Vet.

App. 334 (June 1991) (noting that use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]); compare Johnson v. Brown, 7 Vet.

App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet.

App. 334 (1991); compare with Johnson v. Brown, 7 Vet.

App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet.

A 100 percent rating required that the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; psychoneurotic symptomatology bordering on gross repudiation of reality; or demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132 , Code 9411 (1996); see also Johnson v. Brown, 7 Vet.

See Johnson v. Brown, 7 Vet.

See Johnson (Gary) v. Brown, 7 Vet.App. 95, 97 (1994) (Court sustains Secretary’s interpretation that 38 C.F.R. § 4.16 (c) reasoning “applies equally well in other cases involving mental disorders which are the cause of unemployability, regardless of whether another compensable service-connected disability is or is not present”); see also Cathell, 8 Vet.App. at 542.

See Zang v. Brown, 8 Vet.App. 246, 252-53 (1995) (noting that regulation, as written in 38 C.F.R. § 3.354 using the term “or”, “appear[ed] to provide for three independent instances of insanity”); see also Johnson (Gary) v. Brown, 7 Vet.App. 95, 97 (1994) (agreeing with memorandum by Secretary suggesting that criteria listed in 38 C.F.R. § 4.132 , DC 9411, for 100% rating are each independent bases for granting such rating).

See Johnson (Gary) v. Brown, 7 Vet.App. 95, 99 (1994); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc); see also Talley v. Derwinski, 2 Vet.App. 282, 287-88 (1992). .

Ibid.; see also Johnson v. Brown, 7 Vet.App. 95 (1994) (noting, and agreeing with, a memorandum by the Secretary suggesting that the criteria listed in DC 9411 for a 100% rating are each independent bases for granting such a rating).