These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.
Service Connection
Frost v. Shulkin (2017)
This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected.
Saunders v. Wilkie (2018)
The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.
Effective Dates
Martinez v. McDonough (2023)
This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.
I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful. We decided I should submit a few new claims which we did. He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims. He said that the VA now has entire military medical record on file and would find the record(s) in their own file. It seemed odd to me as my service dates back to 1981 and spans 34 years through my retirement in 2015. It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me. He didn't want my copies. Anyone have any information on this. Much thanks in advance.
Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
This has to be MEDICALLY Documented in your records:
Current Diagnosis. (No diagnosis, no Service Connection.)
In-Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
VA has gotten away with (mis) interpreting their ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.
They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.
This is not true,
Proof:
About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because when they cant work, they can not keep their home. I was one of those Veterans who they denied for a bogus reason: "Its been too long since military service". This is bogus because its not one of the criteria for service connection, but simply made up by VA. And, I was a homeless Vet, albeit a short time, mostly due to the kindness of strangers and friends.
Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly. The VA is broken.
A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals. I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision. All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did.
I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt". Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day? Va likes to blame the Veterans, not their system.
Question
allan
Arbitrary and Capricious Standard of Review
UNITED STATES COURT OF VETERANS APPEALS
No. 94-609
Carl Smallwood, Appellant,
v.
Jesse Brown,
Secretary Of Veterans Affairs, Appellee.
Before NEBEKER, Chief Judge, and MANKIN* and IVERS, Judges.
O R D E R
This matter is before the Court on the Secretary's motion for clarification of the February 3,
1997, decision in this case, Smallwood v. Brown, __ Vet.App. __, No. 94-609 (Feb. 3, 1997).
The Secretary also moves for a stay of the issuance of the above mandate pending a ruling on
this motion. The Secretary correctly points out that the Court failed to adjudicate the issue of
the appellant's claim for an increased rating for his service-connected gunshot wound to his
chest.
The appellant's service-connected gunshot wound to the chest is rated at 40% disabling. In
affirming the rating decision, the BVA discussed the history of this injury, up to and including
an August 1991 VA examination. The Board found that the evidence presented did not
warrant a rating higher than 40%, or moderately severe, as outlined in 38 C.F.R. SS 4.97,
Diagnostic Code 6818. Since the record concerning the appellant's lung injury provides a
plausible basis for the rating decision, the finding of the Board is not clearly erroneous and
this Court will not disturb that decision. See 38 U.S.C. SS 7261(a)(4); Solomon v. Brown, 6
Vet.App. 396 (1994); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
Accordingly, the Secretary's motion for clarification is granted. The February 3, 1997, decision
in this case is amended to reflect that the 1994 decision of the Board denying an increased
rating for the appellant's service-connected gunshot wound of the chest is AFFIRMED. The
judgment having not yet issued, it is further
ORDERED that the Secretary's motion to stay the issuance of the mandate is DENIED. It is
further
ORDERED that judgment in this case will issue 21 days after the date of this order.
DATED: March 11, 1997 PER CURIAM.
Decision Assessment Document for this case
UNITED STATES COURT OF VETERANS APPEALS
No. 94-609
Carl Smallwood, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided February 3, 1997 )
Carl Smallwood, pro se.
Mary Lou Keener, General Counsel; Ron Garvin, Assistant General Counsel; David W. Engel,
Deputy Assistant General Counsel; and Carolyn F. Washington were on the pleadings for the
appellee.
Before NEBEKER, Chief Judge, and MANKIN* and IVERS, Judges.
NEBEKER, Chief Judge: The appellant, Carl Smallwood, appeals two March 28, 1994,
decisions of the Board of Veterans' Appeals (BVA or Board). The first decision denied (1)
service connection for residuals of injuries to Muscle Groups I through IV, (2) increased ratings
for residuals of gunshot wounds of the right foot and right side of the chest, and (3) a total
rating based on individual unemployability (TDIU). The Board styled this decision as a
"reconsideration" of two earlier Board decisions. The second decision denied (1) service
connection for arthritis of the cervical spine, (2) an increased rating for osteomyelitis, and (3)
an increased rating for a right sternoclavicular joint separation. For the reasons set forth
below, the Court will dismiss the appeal for lack of jurisdiction with respect to the claim for
residuals of injuries to the muscle groups and the claim for arthritis of the cervical spine. With
regard to the remaining claims, the Court will vacate both Board decisions and will remand
these matters for further proceedings.
I. FACTUAL BACKGROUND
The appellant served in the United States Army from June 1936 to April 1939, and from
November 1939 until July 1952. Record (R.) at 32. His service included combat duty in both
World War II and the Korean Conflict. Ibid. In November 1944, he was wounded by an artillery
shell fragment, and received an injury to the tip of his nose, left side of his chin and left index
finger. R. 179-84. In March 1945, he was shot in the right side of the chest, suffering a severe
penetrating wound and multiple lacerations of the right lung. R. 188, 192. In September 1950,
during his service in Korea, the appellant sustained a gunshot wound to his right foot. The shot
went in at the arch of the foot and exited though the heel. After a series of examinations,
x-rays, and operations, the appellant was medically retired from the Army in July 1952. R. at
476. In January 1953, a VA regional office (RO) awarded him service connection for residuals
of the gunshot wounds to his chest and right foot. R. at 508-09. He received a combined 40%
rating for his disabilities. Ibid. In July 1954, he was awarded service connection for
osteomyelitis of the right calcaneus at the 10% level. R. at 534-35. The calcaneus is a tarsal
bone of the foot and is commonly known as the heel bone. See Webster's Medical Desk
Dictionary 93 (1986).
In February 1982, the RO awarded the appellant a 60% rating for his various
service-connected disabilities. R. at 564. He disagreed with the rating and filed a claim for a
100% rating based on TDIU. R. at 575. In support of this claim, he submitted a statement from
Dr. Carl Pigman, which provided the following diagnoses: (1) osteomyelitis of the right
calcaneus; (2) right lung pathology; (3) right-side chest pathology; (4) osteoarthritis of the
dorsal and lumbar spine and both shoulders; and (5) gastritis. R. at 568. Dr. Pigman further
stated that the appellant was "totally disabled for any type of employment." Ibid.
In January 1984, the BVA granted service connection for residuals of a right shoulder
separation, denied the TDIU claim, denied increased ratings for residuals of gunshot wounds
to the right side of the chest and right foot, and denied an increased rating for osteomyelitis of
the right calcaneus. R. at 651. In April 1984, pursuant to the BVA's grant of service connection
for separation of the right sternoclavicular joint, the RO assigned a 20% disability rating. R. at
655. This rating brought his total combined disability rating to 70% disabling. Ibid. In
November 1987, the Board denied claims for service connection for a back disability and
injury to Muscle Groups I through IV, denied a TDIU claim, and denied increased ratings for
the appellant's remaining service-connected disabilities. R. at 750-56, Supplemental (Suppl.)
R. at 1-12.
In March 1988, the appellant filed another claim for an increased rating for his
service-connected right shoulder and right foot disabilities. R. at 761. He also filed a new
claim for service connection for a cervical spine disability. Ibid. In April 1988, the RO issued a
deferred rating decision and requested that the appellant "submit medical evidence in support
of [his] claim, including continuous treatment records for his claimed cervical spine condition."
R. at 763. In a letter dated May 4, 1988, the RO informed the appellant that he could submit
additional medical evidence, "which would support [his] claim[,] including medical evidence
showing continued treatment for [his] disability to [his] cervical spine from the time of [his]
discharge from the military to the present." Second Suppl. R. at 1. In October 1988, the RO
mailed the appellant the following letter:
This letter concerns your recent claim for [VA] benefits. Before final action could be taken on
your claim, we needed medical evidence to include medical evidence to show continued
treatment for your cervical spine from the time of your discharge to the present. This evidence
was requested in our letter to you dated May 4, 1988. Our records do not show that we have
received this evidence, therefore, we have disallowed your claim.
This disallowance does not mean that you cannot submit the requested evidence. You can do
so at any time. However, if the evidence is not received before May 4, 1989, one year from the
date of our first letter, benefits, if otherwise in order, cannot be paid prior to the date of receipt
of this evidence.
If you disagree with this decision, please refer to the attached notification of your appeal
rights.
R. at 790. On November 9, 1988, the appellant submitted a statement in support of his claim.
He stated, in part: "This now is my Notice of Disagreement (NOD) to your October 20, 1988
disallowance of benefits." He also enclosed medical records relating to his cervical spine
disability. R. 792-93. In December 1988, the RO received an NOD with respect to the denial
of his claim for increased disability ratings. R. at 817.
In February 1989, the appellant submitted a VA form 21-8940, Veteran's Application for
Increased Compensation Based on Unemployability. R. at 830-32. The RO confirmed a prior
rating decision which denied the appellant's claim for TDIU. R. at 838. In April 1990, the BVA
remanded to the RO for readjudication in light of new evidence submitted after the issuance of
the most recent Statement of the Case. R. 883-84. In June 1990, the Regional Office (RO)
granted the appellant "[a]n increased evaluation . . . for [his] osteomyelitis of the right foot at
the 30% evaluation level." R. at 907. However, the RO denied service connection "for
degenerative joint disease of the neck," and an "ncreased evaluation of the service
connected right shoulder disability and gun shot wound to the right foot remained denied."
Ibid. In October 1990 the appellant perfected his appeal by filing a VA Form 9, Appeal to the
Board of Veterans' Appeals (Form 9), and he requested that his claim be amended to include
a TDIU claim. R. at 931-32. In November 1990, the RO issued a rating decision denying the
appellant's TDIU claim. R. at 940-42. In December 1990, the appellant filed another Form 9,
for his TDIU claim. R. at 944.
In October 1991, the RO denied an increased rating for the appellant's previously established
service-connected disabilities, denied service connection for the cervical spine disability, and
denied entitlement to TDIU. R. at 1003. In March 1992, the appellant notified the RO, through
his service representative, that he disagreed with the denials for increased disability ratings,
and the denial of entitlement to TDIU. R. at 1013-14. In August 1992, the BVA received a
motion from the appellant requesting reconsideration of two prior BVA decisions. R. at
1052-53. The appellant requested that the January 1984 and November 1987 BVA decisions
be reconsidered. Ibid. The appellant also contended that the January 23, 1953, RO rating
decision was a product of clear and unmistakable error (CUE). R. at 1053.
In two separate decisions, both dated March 28, 1994, the BVA essentially denied all of the
appellant's claims. In the first decision, the BVA granted "reconsideration" of the 1984 and
1987 BVA decisions and denied all claims. R. at 7-29. In the second decision, the BVA
denied service connection for arthritis of the cervical spine, and denied increased ratings for
osteomyelitis of the right calcaneus, which is currently rated as 30% disabling, and residuals
of a right sternoclavicular joint separation, which is currently rated as 20% disabling. R. at
30-46.
II. ANALYSIS
A. Jurisdiction-Conferring NOD
It is axiomatic that as a prerequisite "for the Court to have jurisdiction over a case, the
appellant must have filed a valid NOD as to that case on or after November 18, 1988." West v.
Brown, 7 Vet.App. 329, 331 (1995) (en banc); Veterans' Judicial Review Act, Pub. L. No.
100-687, SS 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. SS 7251 note). In
Hamilton v. Brown, the Court established that "[t]here can be only one valid NOD as to a
particular claim . . . until a final RO or BVA decision has been rendered in that matter, or the
appeal has been withdrawn by the claimant." 4 Vet.App. 528, 538 (1993) (en banc), aff'd, 39
F.3d 1574 (Fed. Cir. 1994).
The appellant filed an NOD to the denial of service connection for his cervical spine disability
on November 9, 1988. R. at 792. The Court holds that this statement was the appellant's NOD
because it initiated the appellate process with respect to this claim by expressing
disagreement with the October 1988 RO decision. See 38 C.F.R. SS 20.201 (1995); see
also Crippen v. Brown, 9 Vet.App. 412, 424 (1996); Hamilton, 4 Vet.App. at 531. Therefore,
because the NOD predates November 18, 1988, the Court lacks jurisdiction to review the
Board's decision with respect to the cervical spine claim.
The Secretary argues, in the first instance, that the Court lacks jurisdiction over the first March
28, 1994, Board decision because it was styled as a "reconsideration" decision. The
Secretary is correct only with respect to the Board's treatment of the claim for residuals of
injuries to Muscle Groups I through IV, as the NOD to that claim was filed before November
18, 1988. The Board's decision on that claim was indeed a reconsideration and was not the
final decision issued as the result of a new appeal. However, the remaining claims that were
adjudicated in the Board's "reconsideration" decision (increased rating claims for residuals of
the service-connected gunshot wounds, right sternoclavicular joint separation, osteomyelitis of
the right calcaneus and the TDIU claim) all have jurisdiction-conferring NODs. See Smith v.
Brown, 8 Vet.App. 546 (1996) (en banc). Appeals with respect to these claims were
perfected, and the Board was required to issue a decision that addressed these claims. See
38 U.S.C. SS 7105; see also 38 C.F.R. SS 20.202 (1994) ("[p]roper completion and filing of
a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal").
As the Board failed to issue any other decision purporting to adjudicate the appeals to these
claims, the Court shall construe the "reconsideration" decision as the decision that the Board
was required to issue on those appeals. While the Board is free to treat its decision as a
"reconsideration" pursuant to 38 U.S.C. SS 7103, this action will not defeat the Court's
jurisdiction over the appeal. See Smith, 8 Vet.App. at 551-52. Surely, if the Board cannot
bypass an effort to reopen as in Smith, it cannot avoid review of a claim which has a valid
NOD by incorporating it into a ruling on reconsideration.
B. Increased Ratings for Osteomyelitis and the Sternoclavicular Separation
The determination of whether a claimant is entitled to an increase in a schedular disability
rating is a question of fact subject to the "clearly erroneous" standard of review in 38 U.S.C.
SS 7261(a)(4). See Solomon v. Brown, 6 Vet.App. 396, 402 (1994); Lovelace v. Derwinski, 1
Vet.App. 73, 74 (1990). Under this standard, the Court can overturn the BVA decision only
when there is no "plausible basis in the record" for the decision. Gilbert v. Derwinski, 1
Vet.App. 49, 53 (1990).
The appellant's gunshot wound to his right foot and osteomyelitis disabilities are essentially
treated under the amputation rule. See 38 C.F.R. SSSS 4.43 and 4.68 (1995). According to
the BVA, this means that "the combined rating for the right below-the-knee disability cannot
exceed 40 percent, the current level." R. at 44. The appellant argues that the amputation rule
should not apply because he has osteomyelitis symptoms that have spread to involve other
bodily functions which are not below the right knee. Pursuant to 38 C.F.R. SS 4.71a,
Diagnostic Code (DC) 5000 (1993), both 60% and 100% disability ratings require
"constitutional symptoms." Here, the record is devoid of any medical support for the
appellant's contention that he has constitutional symptoms. Therefore, there is a plausible
basis in the record for the BVA's conclusion that the appellant is not entitled to an increased
schedular rating for his service-connected osteomyelitis. See Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
Nevertheless, the Court holds that the BVA erred by not considering referral of this claim to the
appropriate VA official for consideration of an extra-schedular rating under 38 C.F.R. SS
3.321(b) (1995). See Bagwell v. Brown, 9 Vet.App. 337 (1996). The appellant's foot disability
is excreting a particularly foul-smelling drainage that seems to suggest that he may qualify as
an exceptional case under section 3.321. In fact, the Board specifically made a finding of fact
that, because the "[o]dor from the discharge . . . [of the appellant's] foot, permeated [an]
examining room," one medical examiner stated that "[t]his, of itself, would seem to preclude
employment in a confined space with other workers." R. at 562. However, the Board failed to
address this fact in its subsequent analysis and decision. As the issue of whether an
extra-schedular rating is warranted based solely on the odor emanating from the appellant's
foot is reasonably raised by the Board's own factual findings, its failure to address the referral
issue in its decision constitutes error. EF v. Derwinski, 1 Vet.App. 324 (1991); see also Myers
v. Derwinski, 1 Vet.App. 127 (1991).
Section 3.321(b) provides that a claimant may be entitled to an extra-schedular evaluation if
there is "[a] finding that the case presents such an exceptional or unusual disability picture with
such related factors as marked interference with employment or frequent periods of
hospitalization as to render impractical the application of the regular schedular standards." 38
C.F.R. SS 3.321(b). It was established in Floyd v. Brown, 9 Vet.App. 88, 94-96 (1996), that
the BVA cannot consider an extra-schedular rating in the first instance; rather, the Court held
that "the proper procedure for extra-schedular consideration of a claim under 38 C.F.R. SS
3.321(b)(1) requires consideration in the first instance by the Under Secretary for Benefits
(formerly the Chief Benefits Director) or the Director of the Compensation and Pension
Service." Id. at 95. However, the Court in Floyd did not limit the BVA's duty to consider
whether an extra-schedular rating should be addressed by the appropriate official. As the
Court stated, "[T]he Board is in fact obligated to consider the applicability of the
extra-schedular rating regulation, but must then refer the matter for decision in the first
instance by the appropriate VA officials." Id. at 96. Accordingly, a remand is required so that
the BVA may consider whether the appellant's claim for an increased rating of his
service-connected osteomyelitis should be referred to the appropriate VA official to determine
whether an extra-schedular rating under section 3.321(b) would be appropriate.
With regard to the appellant's sternoclavicular separation claim, there is no specific DC which
applies to this disability; therefore, the RO is required to rate the appellant's disability under a
similar DC. See 38 C.F.R. SS 4.20 (1994) ("When an unlisted condition is encountered it will
be permissible to rate under a closely related disease or injury in which not only the functions
affected, but the anatomical localization and symptomatology are closely analogous"). The
determination of whether the proper DC in a particular case was selected involves an
application of law to facts and is set aside only if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 38 U.S.C. SS 7261(a)(3)(A); Butts v.
Brown, 5 Vet.App. 532, 539 (1993) (en banc). Here, the BVA concluded that because the
appellant's disability involves a "limitation of motion of the right arm," DC 5201, which governs
limitation of arm motion, was the proper DC under which the appellant's disability should be
rated. See 38 C.F.R. SS 4.71(a) DC 5201. The selection of this DC was not arbitrary and
capricious because it governs a disability that is "closely analogous" to the appellant's
disability. See 38 C.F.R. SS 4.20.
The appellant's right sternoclavicular separation is currently rated as 20% disabling, and in
order for him to achieve a higher rating there must be a determination that there is a "limitation
of motion of . . . [the arm to] midway between the side and shoulder level." See 38 C.F.R. SS
4.71(a) DC 5201 (1994). Although in February 1989, the appellant's doctor found the shoulder
to be "essentially frozen" with no abduction and very limited external rotation, a February 1991
and August 1991 VA examination found abduction to be between 80 and 90 degrees. See R.
at 836 and compare R. at 983, 996. Based on this evidence alone, it appears that the
appellant was not entitled to a disability rating greater than his present rating for his right
sternoclavicular separation. Nevertheless, the appellant has made several complaints of pain
in association with the use of his shoulder. Both VA regulations and this Court's precedent
explicitly state that pain may provide a basis for a disability rating. See, e.g., Magana v.
Brown, 7 Vet.App. 224, 228 (1994) (recognizing that "VA regulations and [this Court's]
caselaw are very clear that pain may provide a basis for a compensable rating"). Relevant VA
regulations describe pain as a factor that must be considered when making a disability rating
decision involving the musculoskeletal system. See 38 C.F.R. SSSS 4.40, 4.45(f) and 4.59
(1994). Section 4.40 provides in pertinent part that "t is essential that the examination on
which ratings are based adequately portray the . . . functional loss . . . , [and] the functional loss
. . . may be due to pain." 38 C.F.R. SS 4.40. In addition, section 4.45(f) states that "pain on
movement" is a relevant consideration for determinations of joint disabilities. 38 C.F.R. SS
4.45(f). Finally, section 4.59 provides that "[w]ith any form of arthritis, painful motion is an
important factor of disability, [and] the facial expressions, wincing, etc., on pressure or
manipulation, should be carefully noted and definitely related to affected joints." 38 C.F.R. SS
4.59.
The BVA has a well-established statutory duty to provide a written statement of its "findings
and conclusions" setting forth sufficient "reasons or bases" for its decision. See 38 U.S.C. SS
7104(d)(1). This Court has strictly construed this statutory duty, and has articulated it in the
following manner:
The Board must identify those findings it deems crucial to its decisions and account for the
evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear
analysis and succinct but complete explanations. A bare conclusory statement, without both
supporting analysis and explanation, is neither helpful to the veteran, nor "clear enough to
permit effective judicial review", nor in compliance with statutory requirements.
Gilbert, 1 Vet.App. at 57; see also Peters v. Brown, 6 Vet.App. 540, 542 (1994). Accordingly,
if the BVA fails to provide an adequate statement of its "reasons or bases" the case must be
remanded for further adjudication. Gilbert, 1 Vet.App. at 57.
Here, the BVA has not explained, with respect to the appellant's complaints and reports of
pain, the reasons or bases for denying the claim for an increased disability rating. See 38
U.S.C. SS 7104(d)(1). Although the BVA did briefly mention that it took the appellant's
complaints of pain into consideration, it did not clearly indicate or describe what role the
appellant's assertions of pain played in its decision. R. at 45. Moreover, the DC under which
the appellant's shoulder disability was rated, DC 5201, makes no reference to pain; yet
without discussing the applicability of 38 C.F.R. SSSS 4.40, 4.45(f) and 4.59 (1994), the BVA
stated that it "considered the [appellant's] complaints of pain" in assigning a 20% rating. See
Hatlestad v. Brown, 5 Vet.App. 524, 532 (1993).
Where, as in the instant case, the BVA has failed to provide adequate reasons or bases with
respect to considerations of the veteran's assertions of pain, this Court has consistently
remanded the case. See 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 appellant's pain, as
well as any limitation of motion due to his service connected disabilities"); Fanning v. Brown, 4
Vet.App. 225, 231 (1993) (remanding for a "consideration of appellant's employability in light
of the pain he suffers"); Quarles v. Derwinski, 3 Vet.App. 129 (1992) (remanding because the
BVA failed to analyze the effect of the veteran's back pain on his disability). At the very
minimum, the BVA must "consider or discuss how regulations 4.40, 4.45(f), [and 4.59] apply
[or do not apply] to the facts presented in this case." Voyles, 5 Vet.App. at 453.
C. TDIU
The appellant filed a separate claim for TDIU after 1987. This claim was denied by the RO,
and the appellant properly filed a NOD as to that claim. The BVA failed to address this issue.
For the reasons already discussed, we reject the Secretary's contention that the TDIU claim
was subsumed into the reconsideration decision. Therefore, the BVA's failure to review the
adjudication of the TDIU claim was error and this claim is remanded to the BVA for
adjudication. EF, 1 Vet.App. at 326, citing Littke v. Derwinski, 1 Vet.App. 90, 92 (1990).
D. CUE
Finally, on appeal to the BVA, the appellant raised for the first time the issue of CUE in a
January 1953 RO decision. R. at 1053. The BVA referred the CUE claim to the RO for
adjudication. The Court concludes that the BVA did not err in referring this claim to the RO.
See Godfrey v. Brown, 7 Vet.App. 398 (1995); cf. Kellar v. Brown, 6 Vet.App. 157, 160
(1994); Bernard v. Brown, 4 Vet.App. 384, 393-94 (1993). Therefore, this claim is presently
not ripe for the Court's review.
III. CONCLUSION
Accordingly, the Court DISMISSES for lack of jurisdiction the appeal with respect to the claim
for residuals of injury to Muscle Groups I through IV, and the claim for a cervical spine
disability. The Court VACATES the remaining March 28, 1994, BVA decisions with the
exception of the Board's action on the CUE claim, and REMANDS these matters for further
proceedings.
UNITED STATES COURT OF VETERANS APPEALS
No. 94-609
Carl Smallwood, Appellant
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
Before NEBEKER, Chief Judge, and MANKIN and IVERS, Judges.
OR D E R
On January 31, 1996, the Court issued an order in this case for the Secretary to submit a
supplemental memorandum addressing the following questions:
(1) Was VA's October 1988 letter a denial of the cervical spine disability claim incorporating a
notice regarding the submission of new and material evidence, or was it a second request for
additional evidence in support of the cervical spine disability claim?
(2) What is the effect upon the Court's jurisdiction of the November 9, 1988, statement
identified by the appellant as an "NOD"?
(3) What is the effect upon the Court's jurisdiction of the December 14, 1988, statement
identified by the appellant as an "NOD"?
On March 29, 1996, the Secretary filed a motion for leave to file a second supplemental
record on appeal. On April 1, 1996, the Secretary filed a memorandum in response to the
Court's January 31, 1996, order. Pursuant to the January 31, 1996, order the appellant, who is
not represented by counsel, has until May 1, 1996, to file a response to the Secretary's
memorandum addressing the same questions. Upon further consideration of the April 1,
1996, pleading submitted by the Secretary and the factual background detailed in the Court's
January 31, 1996, order, the Court has determined the need for additional memoranda.
Accordingly it is ORDERED that, the Secretary's motion for leave to file a second
supplemental record on appeal is granted, and the Clerk is directed to file the second
supplemental record as of the date of this order. It is further
ORDERED that, any interested individual or entity may, within 30 days after the date of this
order, submit a memorandum, as amicus curiae, on the issues stated above. It is further
ORDERED, sua sponte, that within 30 days after the date of this order the appellant may file a
memorandum addressing the same issues stated above.
DATED: April 19, 1996 PER CURIAM.
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Wings 1 post
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Oct 27 2009
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Oct 29 2009
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