tdiu Cue; Credibility Of Testimony; Adequacy Of Va Examination

[allan]

DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 91-1868 ACTIVITY: RATING

NAME: Stanton v. Brown

ISSUE(S): CUE; Credibility of testimony; Adequacy of VA examination

ACTION BY COURT: Remand DECISION DATE: 11/5/92

BEFORE JUDGES: Nebeker, Kramer and Ivers

Significant Point(s): The Board is not free to disregard its own regulations and is "required to apply all relevant statutes and regulations appropriate to the particular case before it."

Facts: On 5/6/77, while on active duty for training, the veteran slipped and fell, tearing a rotator cuff in his right shoulder. On 12/4/78, while on ACDUTRA, he aggravated a preexisting sciatic muscle injury while lifting a power cable. In February 1980, service connection was granted for the right shoulder condition and denied for a back injury. In 1981, BVA upheld the assigned evaluation of 20% for the right shoulder and the denial of service connection for a back condition. In June 1989, the evaluation for the right shoulder was increased to 30% and secondary service connection was denied for left impingement syndrome; the RO also denied service connection for a low back injury with residuals of a low back strain. BVA upheld the decisions in August 1991.

Court Analysis: The Court affirmed the BVA's finding that a 30% rating for the appellant's right shoulder condition was warranted. When considering the issue of service connection for a lower back condition, BVA failed to address appellant's and his wife's testimony and medical evidence as documented by the record. The Court also found that the VA examination for this issue was inadequate. This issue was remanded to conduct a thorough and comtemporaneous medical examination and to address the other inadequacies of the record. In review of the left shoulder claim, the Court found that BVA rejected two VA physicians' statements linking the left shoulder condition to the service-connected right shoulder condition with "its own unsubstantiated medical conclusions." The Court, however, also pointed out its Leopoldo decision which found that VA regulations and statutes do not provide disability compensation for aggravation of a non-service-connected condition by a service-connected condition. This issue was remanded for readjudication. The Court also found that the appellant had submitted a well-grounded claim for individual unemployability that had not been addressed by VA. Since the appellant had served continuously for more than 90 days during a period of war, BVA should also have adjudicated appellant's eligibility for a nonservice-connected pension.

The Board raised an issue of CUE in the previous 1981 BVA decision. Having recognized in its January 1991 remand that the VA had not previously considered certain facts concerning appellant's period of service, the Board raised, and was required to follow through and adjudicate, the CUE issue. On remand, the Board will make a determination on the CUE issue.

RECOMMENDED VBA ACTION(S): None. The Court's findings concerning inadequacies in the VA examination, failure to address credibility of testimony, failure to address medical evidence, and failure to address issues raised by the claimant have been previously covered in prior decisions. Failure to address a CUE issue which it raised on its own motion is a matter solely for the Board in this case. No changes to VBA policy, regulations or procedures is required.

APPROVED

J. Gary Hickman, Director

[Chuck75]

This decision was dated in 1992. Evidently, since then, the VA regs/laws have changed. As I read them over the last year or so, the secondary conditions that are caused or, if preexisting, aggravated by the service connected disability are service connectible. An effort by the VA to judge the amount of aggravation is required, unless the medical problem is 100%. What gets me is the "may" often included in the language, often placing the veteran at the VA's total mercy (or lack thereof).

"The Court, however, also pointed out its Leopoldo decision which found that VA regulations and statutes do not provide disability compensation for aggravation of a non-service-connected condition by a service-connected condition."

DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 91-1868 ACTIVITY: RATING

NAME: Stanton v. Brown

ISSUE(S): CUE; Credibility of testimony; Adequacy of VA examination

ACTION BY COURT: Remand DECISION DATE: 11/5/92

BEFORE JUDGES: Nebeker, Kramer and Ivers

Significant Point(s): The Board is not free to disregard its own regulations and is "required to apply all relevant statutes and regulations appropriate to the particular case before it."

Facts: On 5/6/77, while on active duty for training, the veteran slipped and fell, tearing a rotator cuff in his right shoulder. On 12/4/78, while on ACDUTRA, he aggravated a preexisting sciatic muscle injury while lifting a power cable. In February 1980, service connection was granted for the right shoulder condition and denied for a back injury. In 1981, BVA upheld the assigned evaluation of 20% for the right shoulder and the denial of service connection for a back condition. In June 1989, the evaluation for the right shoulder was increased to 30% and secondary service connection was denied for left impingement syndrome; the RO also denied service connection for a low back injury with residuals of a low back strain. BVA upheld the decisions in August 1991.

Court Analysis: The Court affirmed the BVA's finding that a 30% rating for the appellant's right shoulder condition was warranted. When considering the issue of service connection for a lower back condition, BVA failed to address appellant's and his wife's testimony and medical evidence as documented by the record. The Court also found that the VA examination for this issue was inadequate. This issue was remanded to conduct a thorough and comtemporaneous medical examination and to address the other inadequacies of the record. In review of the left shoulder claim, the Court found that BVA rejected two VA physicians' statements linking the left shoulder condition to the service-connected right shoulder condition with "its own unsubstantiated medical conclusions." The Court, however, also pointed out its Leopoldo decision which found that VA regulations and statutes do not provide disability compensation for aggravation of a non-service-connected condition by a service-connected condition. This issue was remanded for readjudication. The Court also found that the appellant had submitted a well-grounded claim for individual unemployability that had not been addressed by VA. Since the appellant had served continuously for more than 90 days during a period of war, BVA should also have adjudicated appellant's eligibility for a nonservice-connected pension.

The Board raised an issue of CUE in the previous 1981 BVA decision. Having recognized in its January 1991 remand that the VA had not previously considered certain facts concerning appellant's period of service, the Board raised, and was required to follow through and adjudicate, the CUE issue. On remand, the Board will make a determination on the CUE issue.

RECOMMENDED VBA ACTION(S): None. The Court's findings concerning inadequacies in the VA examination, failure to address credibility of testimony, failure to address medical evidence, and failure to address issues raised by the claimant have been previously covered in prior decisions. Failure to address a CUE issue which it raised on its own motion is a matter solely for the Board in this case. No changes to VBA policy, regulations or procedures is required.

APPROVED

J. Gary Hickman, Director

[john999]

Chuck75

The court saying that a VA SC condition cannot be shown to have aggravated a NSC condition is a way for a vet to get compensation flies in the face of federal department of labor rules that say a work related injury can be shown to be the cause of a non work related injury. That is inconsistent since both laws involved the federal government. It is obvious that if you have a SC bad knee and that knee causes you to fall down and hurt the other knee that there is a connection between the two events. If not for the SC knee the NSC knee would never have been injured. It is not logical to say there is no connection and should be no way for a vet to be compensated. I am not saying your post is wrong, but I am saying it does not make sense for the court to say what it said.

[broncovet]

Scout,

Good Post, and I agree with your statement:

"If it was not an adverserial setting then the VA would not try to create reasons to deny your claim. If leadership was taking into consideration then the Cleveland VARO Manager would not be getting promoted to the one of the top positions in the VA for having one of the worst VARO in the country."

If Shiniski is any good, he will fire this manager..Cleveland is a BAD Regional Office on at least two counts:

1. There were 58 Shredded documents found at Cleveland by the VAOIG...one of the 4 worst in the country.

2. It is one of the lowest compensation states, also according the the Attorney General.

When I called the VARO in Cleveland, about a year ago, I asked the representative why was Cleveland compensating Veterans about $4000 per year less than New Mexico or Maine Veterans? She responded, proudly that Cleveland has a "high accuracy rate" suggesting that Maine or New Mexico are overpaying the Vets, and Cleveland is more fair.

Well, their "high accuracy" rate is due to them shredding any evidence that disagrees with their agenda!

I do not think it is any coincidence that Cleveland is BOTH one of the top shredders of claims of all RO's AND compensates its VEts less than other states. I think those are the same problem.