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Title: spurgeon.opn

Author: USCVA

Typist: USCVA

UNITED STATES COURT OF VETERANS APPEALS

No. 95-956

David P. Spurgeon, Appellant,

v.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided April 15, 1997 )

Robert C. Rhodes was on the brief for the appellant.

Mary Lou Keener, General Counsel; Ron Garvin, Assistant General

Counsel; Thomas A. McLaughlin, Deputy Assistant General Counsel; and John

D. McNamee were on the brief for the appellee.

Before FARLEY, HOLDAWAY, and IVERS, Judges.

IVERS, Judge: The appellant appeals a July 26, 1995, decision of the

Board of Veterans' Appeals (BVA or Board) denying an increased rating for

service-connected post-operative residuals of an osteoma removal currently

rated 10% disabling. David P. Spurgeon, BVA 95-14582 (July 26, 1995). An

osteoma is a benign, slow-growing mass of mature, predominantly lamellar (

thinly layered), bone. Stedman's Medical Dictionary 1269 (26th ed. 1995) [

hereinafter Stedman's]. The Court has jurisdiction over this appeal

pursuant to 38 U.S.C. 7252(a). For the reasons set out below, the Court

will vacate the Board's decision and remand the matter for further

adjudication.

I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Navy from

July 1, 1973, until January 12, 1976. Record (R.) at 59. In January

1974, the appellant underwent surgery for the removal of an osteoid

osteoma on his right wrist. R. at 22, 80.

In March 1975, the appellant witnessed the gruesome death of his

brother by an airplane propeller blade at Miramar Naval Air Station. R.

at 54-56. A psychiatric examination conducted on December 18, 1975,

revealed that the appellant was under great emotional stress and that he

blamed the Navy for his brother's death. Id. The examining psychiatrist

recommended immediate discharge on "psychiatric as well as humanitarian

grounds." R. at 55. The appellant was honorably discharged in January

1976 for "unsuitability - apathy, defective attitudes, and inability to

expend effort effectively." R. at 59.

The appellant filed for disability compensation on July 22, 1985,

requesting service connection for psychological problems, right wrist

tumor removal, and a right ankle problem. R. at 61-64. He was awarded

service connection for post-operative residuals relating to his right

wrist osteoma removal on November 18, 1985, rated noncompensable. R. at

101. The appellant was later awarded a non-service-connected disability

rating for passive-aggressive personality disorder, rated 30% disabling.

R. at 105-06.

On December 1, 1986, the VA regional office (RO) increased to 10% the

appellant's rating for residuals of a right wrist osteoma removal. R. at

127-28. In 1988, 1990, 1991, the appellant made additional requests for

an increase which the RO denied. R. at 133, 175-76, 187. In August 1993

the appellant filed a VA Form 1-9, Appeal to Board of Veterans' Appeals,

perfecting his appeal to the Board and claiming service connection for

post-traumatic stress disorder (PTSD). R. at 195. On January 11, 1993,

the BVA remanded the claims for further adjudication and ordered the RO to

afford the appellant a complete psychiatric examination and an orthopedic

examination of his right wrist. R. at 247-52.

On April 3, 1993, the appellant had a complete orthopedic examination

to determine the severity of his wrist disorder. R. at 258-59, 268.

During that examination, the physician noted:

[The appellant] is not able to make a fist. He has a well-healed

incision over the dorsum of his right distal radius. He demonstrates

strength of interossei grip,

abductor pollices, adductor pollices and opponens, but these are all

decreased in strength. He states that he is numb in all of the

fingers of his right hand.

R. at 259. The physician observed that the appellant had 25° of

dorsiflexion, 30° of palmar flexion, and 15° of ulnar and radial

deviation in his right wrist. Ibid. With regard to the appellant's

complaint of wrist pain, the examiner noted:

The etiology, however, of his pain and lack of motion is not easily

understood. He has had numerous bones [sic] scans, EMG's, etc.,

which apparently have shown nothing. . . .

I am not entirely sure why he continues to have the degree of pain,

etc.[,] that he has had. I do feel that there is probably a strong

psychosocial overlay to this problem. Certainly if the bone scan is

negative this rules out any bony pathology with regard to this.

R. at 258-59.

On March 10, 1993, the appellant underwent a VA psychiatric

examination in which he was diagnosed with PTSD. R. at 263-67. The RO

issued a rating decision on October 7, 1994, awarding the appellant

service connection for PTSD rated at 30% disabling and continuing his 10%

rating for post-operative residuals of the right wrist osteoma. R. at 285-

86.

The appellant, through his service representative, notified the Board

on June 14, 1995, that he believed the PTSD rating was fair and accurate

but that he disagreed with the decision to deny an increased rating for

his right wrist and hand. R. at 303. On July 26, 1995, the Board issued

a final decision denying an increased rating for post-operative residuals

on his right wrist based upon the results from the April 1993 orthopedic

evaluation. Spurgeon, BVA 95-14582, supra; R. at 4-12. The appellant

appealed this decision to the Court.

II. ANALYSIS

A. Claim for an Increased Rating Due to Pain

The appellant argues, in his brief, that the examining physician did

not adequately evaluate the severity of his right wrist pain and that he

is entitled to an increased rating because he suffers functional loss of

his hand due to pain. Appellant's Brief (Br.) at 11-12. The appellant's

claim for an increased rating for a right wrist disorder under the rating

schedule is "a new claim, and the Court reviews the Board's findings of

fact regarding new claims under a 'clearly erroneous'

standard of review." Cox v. Brown, 6 Vet.App. 459, 460 (1994); see also

38 U.S.C. 7261(a)(4); Butts v. Brown, 5 Vet.App. 532, 535 (1993)(en banc

). "[T]his 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, even if this Court might

not have reached the same factual determinations, we cannot overturn them

." Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). The BVA is required

to provide reasons or bases for any material factual or legal

determination. See 38 U.S.C. 7104(d)(1); see also Webster v. Derwinski,

1 Vet.App. 155, 159 (1991).

Under 38 C.F.R. 4.40 (1996), the Board is required to consider the

impact of pain in making its rating determination. Schafrath v. Derwinski,

1 Vet.App. 589, 593 (1991). The Board is required to provide a statement

of its reasons and bases with respect to that aspect of the determination

as well. Ibid (citin

g Gilbert, 1 Vet.App. at 58). Although section 4.40 does not

require a separate rating for pain, it does promulgate guidance for

determining ratings under other diagnostic codes assessing musculoskeletal

function. See generally 38 C.F.R. 4.71(a) (1996). The fact that a

specific rating for pain is not required by section 4.40 does not relieve

the BVA from its obligation to provide a statement of reasons or bases

pertaining to that regulation. See DeLuca v. Brown, 8 Vet.App. 202, 207 (

1995).

During the examination, the physician evaluated the appellant's wrist

with respect to his complaints of pain and expressly stated that he could

find no etiological basis for the pain. R. at 259. The physician opined

that there was "probably a strong psychosocial overlay" to the problem of

pain. Ibid. The appellant argues that, if the pain were psychosocial,

the physician should have referred him to a psychiatrist and the RO should

have followed up on this recommendation. Appellant's Br. at 11. Although

the appellant did undergo a complete VA psychiatric examination and was

eventually diagnosed with PTSD, there was no consideration given to

whether his painful wrist could be attributed to his psychiatric problems.

R. at 260-67. A veteran may be awarded a disability for "Somatoform

Disorders." See 61 Fed.Reg. 52695 (Oct. 8, 1996) (renaming 38 C.F.R. 4.

132, "Psychological Factors Affecting Physical Condition," DC 9500-9511,

as 38 C.F.R. 4.130, DC 9421-9425, "Somatoform Disorders"). "Somatoform"

refers to

psychogenic symptoms resembling those of physical disease. Dorland's

Illustrated Medical Dictionary 1545 (28th ed. 1994).

In its decision, the BVA failed to discuss the appellant's pain,

mention 38 C.F.R. 4.40, or discuss the possible link between the

appellant's complaints and his service-connected psychiatric condition.

Where the BVA has failed to provide adequate "reasons and bases" with

respect to the role, if any, that pain played in its determination, a

remand is required. See Hicks v. Brown, 8 Vet.App. 417, 422 (1995);

Voyles v. Brown, 5 Vet.App. 451, 453 (1993) (remanding because "it was

necessary for the BVA to address both the existence and extent of [the]

appellant's pain, as well as any limitation of motion due to his service-

connected disabilities").

B. Duty to Notify

The appellant's claim should also be remanded for the Board's failure

to notify the appellant that he was responsible for furnishing employment

records to support his claim that his wrist disability affected his

employment.

A veteran is entitled to an extraschedular rating in "exceptional"

cases "where the scheduler evaluations are found to be inadequate." 38 C.

F.R. 3.321(b)(1) (1996). Under this regulation, an "exceptional" case

is one which presents "such an exceptional or unusual disability picture

with such related factors such as marked interference with employment or

frequent periods of hospitalization as to render impractical the

application of the regular scheduler standards." Ibid. (emphasis added).

The appellant testified that his wrist condition "quite disturbed"

his work and that he had missed 800 hours of work at the U.S. Postal

Service. R. at 207. He further argues that the VA failed to assist him

by not seeking and obtaining records from the U.S. Postal Service showing

that he had, in fact, missed 800 hours of work. Appellant's Br. at 11-13.

Under the regulations governing VA's duty to assist:

(b) When information sufficient to identify and locate necessary

evidence is of record, the Department of Veterans Affairs shall

assist a claimant by requesting, directly from the source, existing

evidence which is either in the custody of military authorities or

maintained by another Federal Agency . . . .

© Should its efforts to obtain evidence prove unsuccessful for any

reason which the claimant could rectify, the Department of Veterans

Affairs shall so notify the

claimant and advise him or her that the ultimate responsibility for

furnishing evidence rests with the claimant.

38 C.F.R. 3.159(b),©; see also 38 U.S.C. 5106, 5107; White v.

Derwinski, 1 Vet.App. 519 (1991).

The Secretary relies on the novel argument that the U.S. Postal

Service is an independent establishment of the executive branch and, since

it operates in a "business-like fashion, similar to other self-sustaining

commercial ventures" the records in their possession cannot be deemed to

be "in the possession of the Federal Government" for purposes of the

regulation. Secretary's Br. at 8 (citing Counts v. Brown, 6 Vet.App. 473,

478 (1994)).

There is no evidence in the record that VA ever attempted to secure

the appellant's employment records and no evidence that VA ever notified

the appellant that he had the ultimate responsibility of furnishing the

records. Whether or not the Postal Service is a federal agency as

contemplated by 38 C.F.R. 3.159(b) is beside the point. Employment

records, particularly those relating to lost time or sick leave, are

generally highly confidential in nature and not releasable to anyone other

than the employee without his written and specific release. Any argument

or suggestion that VA could have or should have simply obtained these

records, unilaterally, is misplaced. Having now recognized the possible

importance of these records, it is unfortunate that the appellant, who

could have obtained the records easier than the Secretary, did not do so.

While there is certainly a duty to assist, such a duty does not relieve a

claimant entirely from assisting himself. See Wood v. Derwinski, 1 Vet.

App. 190, 193 (1991) ("The duty to assist is not always a one-way street").

However, if VA could not or would not request the records, it had, at a

minimum, an obligation to advise the appellant of their relevance to his

claim. 38 C.F.R. 3.159©; 38 U.S.C. 5103(a); Robinette v. Brown,

8 Vet.App. 69, 80 (1995) (Secretary has obligation to inform claimant what

evidence is required to complete his claim). It did not. Therefore, a

remand is required. See Lehman v. Derwinski, 1 Vet.App. 339 (1991).

III. CONCLUSION

For the foregoing reasons, the Court VACATES the July 1995 decision

of the Board and REMANDS the matter for further adjudication. On remand,

the appellant may submit additional evidence and argument to support

his claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).

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