Bagwell v. Brown

9 Vet. App. 337, 1996 U.S. Vet. App. LEXIS 449, 1996 WL 366460
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 3, 1996
DocketNo. 95-0238
StatusPublished
Cited by182 cases

This text of 9 Vet. App. 337 (Bagwell v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bagwell v. Brown, 9 Vet. App. 337, 1996 U.S. Vet. App. LEXIS 449, 1996 WL 366460 (Cal. 1996).

Opinion

FARLEY, Judge:

This is an appeal from a January 30, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) denying an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) (1995) and denying entitlement to an increased disability rating for blindness in the left eye. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a).

On May 28, 1996, this Court issued a decision which vacated the decision of the BVA and remanded the matter for further adjudication. The Secretary, on June 18, 1996, filed a timely motion for reconsideration. The Secretary’s motion is granted, the May 28,1996, decision is vacated, and this decision is issued in its stead. For the reasons that follow, the Court will vacate the January 30, 1995, decision of the BVA and remand the matter for’ further adjudication consistent with this opinion.

I.

The appellant served with the United States Army from 1942 to 1945. Record (R.) at 14. In July 1992, the VA regional office (RO) granted entitlement to disability compensation for blindness in the appellant’s left eye resulting from inadequately performed cataract surgery at the Shreveport, Louisiana, VA medical center (VAMC). R. at 274. [338]*338The RO treated this disability as if service connected under 38 U.S.C. § 1151 and assigned a 30% rating and special monthly compensation on the basis of the “loss of use of left eye with no light perception.” R. at 272-74. As a result, the appellant’s combined disability evaluation was increased from 70% to 80%. R. at 274. Individual unemployability was not found. R. at 274.

Shortly thereafter, the appellant filed a Notice of Disagreement arguing that he was entitled to a rating greater than 30% because 30% did not take into account his and his wife’s pain and suffering. R. at 279. In addition, he argued that this rating was not sufficient to compensate for expenses incurred as a result of his prolonged hospital stays, including his wife’s transportation to and from VAMCs in Dallas and New Orleans and assistance from friends. Ibid. In his substantive appeal to the BVA, the appellant argued that he should be rated at 100% based upon his inability to obtain employment. R. at 291. The appellant also requested that the BVA consider results of a March 1993 eye examination, which are not of record, and a letter from a potential employer indicating that he had been denied employment due to his physical disabilities (R. at 293).

The Board issued a decision on January 30, 1995, denying an increased rating for blindness in the left eye. R. at 3-8. The Board found that the appropriate rating for this disability was governed by 38 C.F.R. § 4.84a, Diagnostic Code 6070 (1995) [hereinafter DC 6070], which provides a 30% rating for blindness in one eye where the other eye has vision of 20/40 or better. R. at 6. It appears that the Board did not obtain the results of the March 1993 eye examination because, in its opinion, pursuant to 38 C.F.R. §§ 4.14 and 3.383(a) (1995), the appellant’s evaluation would not change unless the veteran was also blind in his right eye. Ibid. Finally, the Board concluded that an extra-sehedular evaluation under 38 C.F.R. § 3.321(b)(1) (1995) was not warranted because the record did not show frequent periods of hospitalization after November 1991 or a marked interference with employment. The issue of total disability due to individual unemployability (TDIU) was referred to the RO (R. at 4) and therefore is not on appeal.

II.

As an initial matter, the Court recognizes that, in pursuing this appeal, the appellant is seeking compensation in an amount which would be commensurate with the financial expenses which he and his wife incurred and the circumstances associated with the treatment he received at the Shreveport VAMC. This Court is unable to award such relief. It is not within the Court’s power to award such traditional tort damages as reimbursement for expenses or compensation for “pain and suffering.” See, e.g., Mason v. Brown, 8 Vet.App. 44, 59 (1995) (Court cannot award punitive damages); Schleis v. Principi 3 Vet.App. 415, 418 (1992) (Court not permitted to take equitable considerations into account). Further, the Court is prohibited by statute from adjusting the schedule of ratings in individual cases. 38 U.S.C. § 7252(b).

III.

In exceptional cases where the schedular evaluation is found to be inadequate, pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits may approve an extraschedular evaluation

commensurate with the average earning capacity impairment due exclusively to the • service-connected disability or disabilities. The governing norm in these exceptional cases 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.

See also Veterans’ Medical Programs Amendments of 1992, Pub.L. No. 102-405, § 302(b), 106 Stat.1972 (1992) (redesignating the Chief Benefits Director as the Under Secretary for Benefits). In Floyd v. Brown, 9 Vet.App. 88, 95 (1996), where the BVA had purported to grant an extraschedular rating, this Court stated that a claim for an extras-chedular rating must be sent by the BVA to those “officials who possess the delegated [339]*339authority to assign such a rating in the first instance,” but held that the BVA’s failure to so refer to such officials constituted harmless error. Here, the BVA did not purport to grant an extraschedular rating; rather, the Board considered the issue and concluded that an extraschedular rating was not warranted. As Floyd, specifically noted, the “regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required.” Ibid. Moreover, we do not read the regulation as precluding the BVA from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Under these circumstances, the action of the Board was not inconsistent with 38 C.F.R. § 3.321(b)(1).

Nor, in this instance, did the Board’s denial of an extraschedular rating in the first instance violate the prejudice safeguard set forth in Bernard v. Brown, 4 Vet.App. 384 (1993).

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9 Vet. App. 337, 1996 U.S. Vet. App. LEXIS 449, 1996 WL 366460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bagwell-v-brown-cavc-1996.