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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).
SOURCE: http://search.vetapp.gov/isysquery/6297570...54011a8/40/doc/
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