                        COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Lemons


RUTH C. DALE

v.   Record No. 2752-98-3

VIRGINIA RETIREMENT SYSTEM

LACY POTTER-MEADOWS
                                                 MEMORANDUM OPINION *
v.   Record No. 2756-98-3                             PER CURIAM
                                                     JUNE 22, 1999
VIRGINIA RETIREMENT SYSTEM

BARBARA C. McCLANAHAN

v.   Record No. 2757-98-3

VIRGINIA RETIREMENT SYSTEM


               FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                       Keary R. Williams, Judge

           (John M. Lamie; Browning, Lamie & Sharp,
           P.C., on briefs), for appellants.

           (Mark L. Earley, Attorney General; Michael K.
           Jackson, Senior Assistant Attorney General;
           James W. Osborne, Assistant Attorney General,
           on briefs), for appellee.


     Barbara C. McClanahan (McClanahan), Ruth C. Dale (Dale), and

Lacy Potter-Meadows (Potter-Meadows) appeal orders of the trial

court affirming decisions by the Virginia Retirement System (VRS)

denying their claims for permanent disability retirement.


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
McClanahan, Dale, and Potter-Meadows contend that (1) the trial

court erred in finding that there was substantial evidence to

support VRS's denial of benefits on the ground that they failed to

prove that their disability was "likely to be permanent"; and (2)

Code § 51.1-156 is vague because it does not provide adequate

standards to guide the determination of whether a person is

"permanently" impaired, and, thereby, unconstitutionally delegates

to the Medical Review Board and private physicians the ability to

determine arbitrarily whether such person is permanently impaired.

Upon reviewing the records and the briefs of the parties, we

conclude that these appeals are without merit.    Accordingly, we

summarily affirm the trial court's decisions.    See Rule 5A:27.

                                 I.

                         Standard of Review

     "The burden shall be upon the party complaining of agency

action to designate and demonstrate an error of law subject to

review by the court."   Code § 9-6.14:17.    VRS is required to use a

Medical Review Board ("the Board") to certify that a claimant’s

disability "is likely to be permanent."     Code § 51.1-156(E)(ii).

Our review of this determination asks only whether there was

substantial evidence in the agency record to support the holding

of the administrative agency.   See Code § 9-6.14:17.   "The phrase

'substantial evidence' refers to 'such relevant evidence as a

reasonable mind might accept as adequate to support a


                                - 2 -
conclusion.'"    Virginia Real Estate Comm'n v. Bias, 226 Va. 264,

269, 308 S.E.2d 123, 125 (1983) (citation omitted).

        In accordance with well established principles, we view the

evidence in the light most favorable to the prevailing party

below, VRS in this instance.    See R.G Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

                               McClanahan

        McClanahan worked as a mineral license bookkeeper for

Buchanan County for eleven years, last working on November 27,

1993.    McClanahan's job duties required that she maintain all

mineral cards and updates, generate correspondence, wait on the

public, answer telephones, and perform other general office tasks.

        On April 6, 1994, McClanahan, then age 44, filed an

application with VRS seeking permanent disability retirement

benefits.    In her application, McClanahan alleged that she could

no longer perform her job due to a nervous condition, heart

problems, high blood pressure, and herniated discs.     McClanahan

had undergone back surgery in March 1993, was hospitalized for a

heart attack in November 1993, and had undergone heart by-pass

surgery in December 1993.

        The Board reviewed medical records of Drs. Christopher J.

Kennedy, Thomas M. Bulle, Richard A. Feit, and J.P. Sutherland,

Jr.   Those records revealed that McClanahan suffered from heart

disease with myocardial infarction.      In December 1993, she


                                 - 3 -
underwent a revascularization.    Both cardiologists, Drs. Bulle and

Kennedy, suggested that McClanahan undergo pulmonary function

tests and blood gases.   The pulmonary function tests were not

performed, and the blood gases were normal.

     In May 1994, Dr. Bulle noted that McClanahan had "some

perceived difficulty breathing," but he found normal lung fields

and heart size with no "cardiac basis for her dyspnea."   Dr. Bulle

also noted that "based on her chest x-ray and clinic exam, I did

not see any primary pulmonary process either."

     By letter dated October 27, 1994, the Board denied

McClanahan's application for permanent disability benefits.

McClanahan appealed that decision.

     On appeal, McClanahan submitted additional medical evidence

including a psychological evaluation from Dr. L. Andrew Steward, a

licensed psychologist, dated September 29, 1994, and a physical

capabilities evaluation form completed by Dr. Steward.    The Board

also reviewed Dr. Sutherland's office notes.   Dr. Steward

diagnosed McClanahan as suffering from major severe depression,

recurrent, and a generalized anxiety disorder, consistent with

chronic pain syndrome due to a combination of major physical

problems, including a heart attack and back surgery.   Dr. Steward

opined that "[t]he combination and severity of factors do make her

functionally disabled to work, and she will most likely be so

indefinitely."


                                 - 4 -
     On March 14, 1995, Dr. Eric Moffett, a psychiatrist,

evaluated McClanahan at VRS's request.     Dr. Moffett reviewed

McClanahan's medical records and her job description.    Dr. Moffett

diagnosed McClanahan as suffering from mild major depression,

single episode.    Dr. Moffett opined that McClanahan's depression

would readily respond to medication.     Dr. Moffett recommended that

McClanahan receive appropriate psychotropic medication treatment

from a psychiatrist.    Dr. Moffett opined as follows:

             Given that treatment, it would be my
             expectation that she would return to full
             psychological functioning within four to six
             months. I see no reason she would be
             permanently disabled from performing her job
             duties at that time. I also feel that
             returning to work would help with her issues
             of self-esteem and self-confidence.
             Therefore, I believe she should return to
             work for her psychological well being.

     By letter dated April 12, 1995, the Board again denied

McClanahan's application.    The Board noted that it had

previously found that McClanahan was not disabled by her heart

condition.    The Board accepted Dr. Moffett's opinion that

McClanahan was not permanently disabled from a psychiatric

standpoint.    McClanahan appealed that decision.

     On June 23, 1995, the Social Security Administration awarded

benefits to McClanahan for a period of disability beginning on

November 27, 1993 through at least the date of the decision.

     On August 31, 1995, R. Louis Harrison, Jr., Esquire, hearing

officer for VRS, conducted a fact finding hearing.    At that

                                 - 5 -
hearing, McClanahan described her heart attack and her back

surgery.   McClanahan described continuing symptoms of chest pain,

shortness of breath, and depression.

     On November 3, 1995, Harrison issued his written decision

finding that McClanahan was not permanently disabled, relying

upon Dr. Moffett's report.   With respect to McClanahan's

psychological problems, Harrison noted that, "[i]t is difficult

to grant a disability for an item when the patient has not

attempted to treat the condition."     Harrison also found that

McClanahan failed to prove that her heart attack or back

condition were permanently disabling.    McClanahan appealed

Harrison's decision.

     On December 21, 1995, the Board issued its final case

decision again denying McClanahan's application.    McClanahan

appealed that decision to the circuit court.    In her petition

for appeal, McClanahan contended that VRS's decision was not

supported by substantial evidence, represented an arbitrary and

capricious denial of benefits, and constituted an abuse of

discretion.   On March 15, 1996, McClanahan moved for summary

judgment, indicating that there were no disputed facts in the

administrative record.

     On October 8, 1998, the trial court issued its decision,

finding that substantial evidence existed in the record to




                               - 6 -
support VRS's denial of benefits.   McClanahan appealed to this

Court from that decision.

      Applying the applicable standards of review to the record

made before the VRS, it is clear that although the physicians who

treated or examined McClanahan agreed that she sustained a heart

attack and back injury and that she suffers from depression, they

disagreed concerning the extent of her condition and her

disability.   Dr. Moffett opined that McClanahan suffered from mild

depression and was not permanently disabled from a psychiatric

standpoint.   He opined that with proper medication, she would be

able to work within four to six months.   In addition, Dr. Bulle,

the cardiologist, found no cardiac basis for McClanahan's dyspnea

and opined that she could return to work as of March 2, 1994.     VRS

chose to believe the opinions of Drs. Moffett and Bulle and to

lend less weight to Dr. Steward’s opinion, as it was entitled to

do.   See Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407

S.E.2d 32, 35 (1991) ("The appellate court does not retry the

facts, reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses.").    Guided by

the "substantial evidence" standard of review, we find that the

opinions of Drs. Bulle and Moffett, when considered with the

entire record, are adequate to support VRS's decision.   Thus, the

trial court did not err in affirming VRS's denial of permanent

disability retirement benefits to McClanahan.


                               - 7 -
                                  Dale

        Dale worked for the Buchanan County Health Department from

July 1, 1970 through October 14, 1994 as an office service

specialist.    Her job duties required that she answer telephones,

register patients for clinics, pull and file charts for each

clinic, schedule appointments, work-up the charts after clinics,

pack materials needed for clinics outside of the office,

performing billing functions, make bank deposits, and pick up

mail.

        On December 4, 1995, Dale, then age 45, filed an application

with VRS seeking permanent disability retirement benefits.      She

alleged that neck, back, and head pain, as well as leg weakness

prevented her from performing her job.    She also alleged that her

nerves were "messed up really bad" and that she suffered from

frequent panic attacks.    Dale revealed that she had sustained the

neck, back, and right knee injuries in an October 14, 1994

automobile accident.

        In a letter dated November 17, 1995, Dr. D.N. Patel indicated

that Dale had been under his care for accidental injury with neck

and back pain with "HNP C spine," low back syndrome with chronic

lumbar sprain, right knee sprain, severe anxiety neurosis and

depression associated with her pain syndrome, and cardiac

arrhythmia with angina pectoris.    Dr. Patel noted that Dale

continued to suffer from severe neck and back pain.    He opined


                                 - 8 -
that he did "not anticipate any gainful employment out of her.       I

believe that she is totally and permanently disabled to work."

     In December 1994, Dr. Matthew W. Wood, Jr., a neurosurgeon,

examined Dale upon referral from Dr. Patel.    Dr. Wood found that

Dale had mild degenerative bulges of the C4, C5, and C6 discs.

Dale's CT scan of the lumbar spine was normal.    Dr. Wood opined

that Dale had "typical musculoskeletal pain subsequent to a rear

ending accident."

     On January 26, 1995, Dr. Wood examined Dale, who complained

of constant neck and left arm pain.     Dr. Wood counseled Dale on

the "benign nature of her pain" and told her that he did not

believe she required surgery.   He noted that an EMG suggested

early carpal tunnel syndrome and he placed Dale in a nocturnal

wrist splint and began vitamin B6 for that condition.    Dr. Wood

recommended that Dale try cervical traction for her neck pain,

which he believed would gradually resolve with time.

     On January 26, 1996, Dr. Jim C. Brasfield, a neurosurgeon,

examined Dale at the request of the Board.    Dr. Brasfield reviewed

Dale's medical records and prior x-rays.    Dr. Brasfield found no

evidence of cervical disc rupture and opined that Dale had a

cervical strain.    Dr. Brasfield stated that Dale's left arm

discomfort was due to mild carpal tunnel syndrome.    Dr. Brasfield

indicated that "[f]rom a purely physical standpoint, she has

absolutely no abnormalities that I can discern as being


                                - 9 -
restrictive or disabling."    Dr. Brasfield suggested that Dale

return to work in order to improve her neck symptoms.   He

recommended that she undergo a bone scan and possibly a cervical

epidural block, and physical therapy, stating that "this would

bring the patient back to the full state of work without a

significant neck discomfort, and restore what appears to be a very

valuable employee to her pre-injury status."

     Based upon this medical evidence, the Board denied Dale's

application by letter dated February 27, 1996.   Dale appealed that

decision.

     On appeal, Dale submitted additional medical evidence from

Donald W. Hodock, a licensed professional counselor, filing an

additional application alleging that her chronic pain had also

caused her to suffer severe depression.    In a January 31, 1996

report, Hodock diagnosed Dale as suffering from a generalized

anxiety disorder and a dysthymic disorder.   He recommended that

she engage in individual counseling and that her status be

re-evaluated in six months.   Hodock indicated that "the prognosis

for her to do well is fair to poor."

     On April 2, 1996, Dale was evaluated by William Brezinski, a

licensed psychologist, to obtain information for her application

for Social Security disability benefits.   Brezinski diagnosed

major depression, moderately severe to severe, post-traumatic

stress disorder, moderate, generalized anxiety disorder, moderate,


                                - 10 -
panic disorder with developing agoraphobia and multiple sequelae

from motor vehicle accident by history.   Brezinski opined that

Dale was "disabled for all substantial gainful employment at the

present time."

     On September 23, 1996, Dr. Moffett evaluated Dale at VRS's

request.   Dr. Moffett diagnosed Dale as suffering from major

depression, panic disorder, and cervical strain.   Dr. Moffett

noted that Dale was not on any medication to treat her depression

and panic disorder.    Dr. Moffett noted that Dale was not able to

work at the current time because she had not received appropriate

psychiatric treatment.   He opined that if Dale were provided such

treatment, her symptoms would significantly improve and possibly

totally remit within six to twelve months.   Dr. Moffett did not

believe that Dale was disabled from a psychiatric standpoint and

opined that it would be beneficial for her to return to work.

     By letter dated October 21, 1996, the Board again denied

Dale's application, relying upon Dr. Brasfield's normal

neurological examination and Dr. Moffett's psychiatric

consultation.    Dale appealed that decision and submitted

additional medical evidence from Dr. Joshua P. Sutherland, Jr.

Dr. Sutherland indicated that Dale suffered from multiple complex

problems including irritable bowel syndrome, reflux esophagitis,

severe musculoskeletal disorder associated with the cervical

spine, lumbar spine, and right knee, panic disorder with


                                - 11 -
agoraphobia, post-traumatic migraines, and severe synotenovitis

and traumatic arthralgia of the right knee.   Sutherland opined

that Dale's "overall prognosis is extremely poor" and that

"[t]here is a strong indication that the type of injury is a

permanent injury and the patient will have to deal with it on both

a physical and emotional status."

     On April 16, 1997, Harrison conducted a fact finding hearing.

At that hearing, Dale described her neck, back, leg and arm

symptoms, as well as her emotional difficulties.

     On May 5, 1997, Harrison issued his written opinion,

concluding that the psychiatric evidence failed to show a

permanent disability due to the lack of treatment thus far to

address the problem and the fact that Dale believed that her

emotional difficulties were largely due to her physical problems.

Harrison also found that Dale's physical problems were not

permanently disabling, although "aggravating."   In rendering his

decision, Harrison relied heavily upon the opinions of Drs.

Moffett and Brasfield.   Dale appealed from Harrison's decision.

     On May 22, 1997, VRS issued its final case decision, finding

again that Dale had failed to prove that her disability was likely

to be permanent.   Dale appealed that decision to the circuit

court.   In her petition for appeal, Dale alleged that VRS's

decision was not supported by substantial evidence, represented an

arbitrary and capricious denial of benefits, and constituted an


                               - 12 -
abuse of discretion.   On October 9, 1997, Dale moved for summary

judgment.

     On October 19, 1998, the trial court issued its written

opinion affirming VRS's denial of benefits on the ground that

"[t]he record . . . does not reveal a sound or valid reason why

[VRS] was not entitled to accept the medical evidence of Dr.

Moffett."   Dale appealed from that decision to this Court.

     Applying the applicable standard of review to the record made

before the VRS, it is clear that although the physicians who

treated or examined Dale agreed that she suffers from various

physical ailments and emotional problems, they disagreed about the

severity of her condition and her disability.   Dr. Moffett opined

that although Dale suffered from depression, her condition was

treatable and was not permanently disabling from a psychiatric

standpoint.   He opined that with proper medication, she would be

able to return to full duty within six to twelve months.   In

addition, Dr. Brasfield, the neurologist, opined that from a

physical standpoint Dale's condition was not permanently disabling

and that she should return to work in order to improve her neck

symptoms.   VRS chose to believe the opinions of Drs. Moffett and

Brasfield and to lend less weight to the opinions of Drs. Patel

and Brezinski and the professional counselor, Hodock, as it was

entitled to do.   See Wagner Enters., Inc., 12 Va. App. at 894, 407

S.E.2d at 35 ("The appellate court does not retry the facts,


                               - 13 -
reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses.").    Guided by

the "substantial evidence" standard of review, we find that the

opinions of Drs. Moffett and Brasfield, when considered with the

entire record, are adequate to support VRS's decision.   Thus, the

trial court did not err in affirming VRS's denial of permanent

disability retirement benefits to Dale.

                           Potter-Meadows

     Potter-Meadows worked for Buchanan County Public Schools as a

teacher from August 1, 1976 through January 20, 1995.

     On June 16, 1995, Potter-Meadows filed an application with

VRS seeking permanent disability retirement benefits.

Potter-Meadows alleged that bronchial asthma, frequent bronchial

pneumonia, high blood pressure, chronic diarrhea, depression,

anxiety attacks, headaches, arthritis, memory loss, and a short

concentration span prevented her from performing her job.    The

medical records submitted by Potter-Meadows from Dr. Vinod Modi

indicated that Potter-Meadows suffered from asthmatic bronchitis

and chest pains of unknown etiology.   Dr. Modi advised Potter-

Meadows to stop smoking.

     By letter dated August 30, 1995, the Board denied

Potter-Meadows' application, finding that she was not permanently

disabled by her bronchial asthma.   Potter-Meadows appealed that

decision and submitted additional medical records.


                              - 14 -
     Those records revealed that Potter-Meadows underwent

umbilical hernia repair on April 19, 1995.    On August 22, 1995,

Dr. James Eden, a psychiatrist, evaluated Potter-Meadows.     Dr.

Eden diagnosed a major affective disorder and generalized anxiety

disorder.   He opined that her prognosis was poor.   On September 5,

1995, Brian E. Warren, a licensed clinical psychologist, evaluated

Potter-Meadows for symptoms of depression.   Warren opined that

Potter-Meadows' "loss of ability to work in many respects have

precipitated a major depressive episode."    Warren opined that she

needed individual and group psychotherapy, as well as chemotherapy

to control her symptoms.   Warren concluded that Potter-Meadows

should be re-evaluated in six to twelve months to assess her

progress.

     On March 19, 1996, Dr. Moffett evaluated Potter-Meadows at

VRS's request.   Dr. Moffett noted that Potter-Meadows had a

history of asthma and bronchitis and that she had been advised to

quit smoking, but that she continued to smoke one and one-half

packs of cigarettes per day.    Dr. Moffett diagnosed major

depression, panic disorder, and asthma.   Although Dr. Moffett

believed that Potter-Meadows was currently disabled from her job,

he opined that she had not had an adequate course of treatment

with psychiatric medications.    Dr. Moffett opined that "with

adequate psychotropic mediation management in combination with

psychotherapy, [Potter-Meadows] should be able to return to her


                                - 15 -
full functioning within the next six to twelve months."      Dr.

Moffett did not believe that Potter-Meadows' current disability

was a "permanent condition."

     By letter dated April 17, 1996, the Board again denied

Potter-Meadows' application, relying upon Dr. Moffett's opinion

that she needed more intensive treatment and that her disability

was not permanently disabling.    Potter-Meadows appealed that

decision.

     On December 23, 1996, Harrison conducted a fact finding

hearing.    At that hearing, Potter-Meadows described her asthma

symptoms, as well as her depression symptoms, which she believed

prevented her from performing her job.

     On February 19, 1997, Harrison issued his written decision,

finding that the evidence did not show that any of Potter-Meadows'

physical problems were permanently disabling.      With respect to her

psychiatric problems, Harrison agreed that Potter-Meadows suffered

from depression, but relied upon Dr. Moffett's opinion that her

condition, if treated properly, was not permanently disabling.

Potter-Meadows appealed that decision, submitting a physical

capabilities evaluation from Dr. Lois March.

     On March 6, 1997, VRS issued its final case decision, finding

that the medical evidence did not prove that Potter-Meadows'

incapacity was likely to be permanent.      Potter-Meadows appealed

that decision to the circuit court.       In her petition for appeal,


                                 - 16 -
Potter-Meadows alleged that VRS's decision was not supported by

substantial evidence, represented an arbitrary and capricious

denial of benefits, and constituted an abuse of discretion.      On

June 16, 1997, Potter-Meadows moved for summary judgment.

     On October 19, 1998, the trial court issued its written

opinion affirming VRS's denial of benefits and relying upon its

reasoning in the McClanahan and Dale cases.    The trial court

determined from its review of the record "that there was credible

evidence that might lead a reasonable person to come to the same

conclusion that [VRS] reached."   Potter-Meadows appealed from that

decision to this Court.

     Applying the applicable standards of review to the record

made before VRS, it is clear that although the physicians who

treated or examined Potter-Meadows agreed that she suffers from

various physical ailments and emotional problems, they disagreed

concerning the severity of her condition and her disability.     Dr.

Moffett opined that although Dale suffered from depression, her

condition was treatable and was not permanently disabling from a

psychiatric standpoint.   Moreover, from a physical standpoint, no

evidence showed that her bronchial asthma and umbilical hernia

were permanently disabling.   VRS chose to believe Dr. Moffett's

opinion and to lend less weight to the opinions of Drs. Eden,

Warren, and March, as it was entitled to do.    See Wagner Enters.,

Inc., 12 Va. App. at 894, 407 S.E.2d at 35.    Guided by the


                               - 17 -
"substantial evidence" standard of review, we find that Dr.

Moffett's opinion, when considered with the entire record, is

adequate to support VRS's decision.      Thus, the trial court did not

err in affirming VRS's denial of permanent disability retirement

benefits to Potter-Meadows.

                                  II.

     McClanahan, Dale, and Potter-Meadows raise this issue for

the first time on appeal.     Contrary to their contention on

appeal, nothing in the record indicates that at any time before

the Board, VRS, or the trial court did they argue that Code

§ 51.1-156 is vague and unconstitutionally delegates authority

to the Board and private physicians.      Accordingly, Rule 5A:18

bars our consideration of this issue.      See Overhead Door Co. of

Norfolk v. Lewis, 29 Va. App. 52, 61-62, 509 S.E.2d 535, 539-40

(1999) (claimant who failed to raise due process argument before

workers' compensation commission barred from raising it for

first time on appeal); Parnell v. Commonwealth, 15 Va. App. 342,

349, 423 S.E.2d 834, 838 (1992) (defendant who failed to

challenge constitutionality of statute in trial court barred

from raising that issue on appeal).      Moreover, the record does

not reflect any reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18.

     The reliance of McClanahan, Dale, and Potter-Meadows upon

the Supreme Court's holding in Almond v. Day, 197 Va. 419, 89


                                - 18 -
S.E.2d 851 (1955), in support of their argument that this Court

should consider their constitutional argument for the first time

on appeal, is misplaced.    In Almond, the Attorney General

petitioned for a writ of mandamus pursuant to Code § 8-714

against the State Comptroller "to determine the validity of [a

statute] which appropriat[ed] funds for the 'education of

orphans of soldiers, sailors and marines' who were citizens of

Virginia and were 'killed in action or died, or who were totally

and permanently disabled as a result of service during the World

War.'"    Id. at 420, 89 S.E.2d at 852.   Code § 8-714 (now

§ 8.01-653) requires consideration of constitutional questions

on a writ of mandamus, thereby distinguishing Almond from this

case.

        For the reasons stated, we affirm the trial court's

decisions in all three cases.

                                                              Affirmed.




                                - 19 -
