Barclay v. Brown

4 Vet. App. 161, 1993 U.S. Vet. App. LEXIS 42, 1993 WL 20430
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 3, 1993
DocketNo. 92-94
StatusPublished
Cited by1 cases

This text of 4 Vet. App. 161 (Barclay 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
Barclay v. Brown, 4 Vet. App. 161, 1993 U.S. Vet. App. LEXIS 42, 1993 WL 20430 (Cal. 1993).

Opinion

MEMORANDUM DECISION

FARLEY, Associate Judge:

This is an appeal from an October 16, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied service connection for multiple sclerosis (MS). A timely appeal to this Court followed. The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). On June 25, 1992, appellant filed a brief in support of his claim; appellant asserted that the Board erred in (1) failing to seek [163]*163an outside medical opinion before it denied service connection for MS and (2) failing to grant service connection for MS. As an appendix to his brief, appellant provided a copy of a document from the Veterans’ Administration (now Department of Veterans Affairs) (VA) titled: “IB 11-70, Multiple Sclerosis: Guidelines for Diagnosis and Management” (VA Department of Medicine and Surgery, April 21, 1980) [hereinafter “IB 11-70”]. On August 26, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for summary affirmance, for acceptance of the motion in lieu of a brief, for a stay of proceedings pending a ruling on the motion, and to strike evidence submitted with appellant’s brief; the Secretary asserted that the material provided in the appendix to appellant’s brief was not part of the record on appeal and, therefore, is not properly before this Court. Secretary’s Mot. at 1. On September 3, 1992, appellant filed a response in opposition to the Secretary’s motion; in his response, appellant noted that he does not oppose the Secretary’s motion to strike from the record the appendix attached to appellant’s brief, but “state[d] for the record that this was placed into the record for informational purposes only, to show the difficulty in recognizing MS.” Appellant’s Response at 3. On December 17, 1992, appellant’s representative filed a motion for expedited consideration, pursuant to Rule 47 of the Court’s Rules of Practice and Procedure, on the grounds that appellant is terminally ill.

I. BACKGROUND

Appellant served on active duty from February 1943 to November 1945. R. at 1. His service medical records indicate a history of encephalitis in 1940 which was of short duration and left no residuals, with no neurological problems at that time. R. at 3. Appellant’s discharge examination noted a history of encephalitis in 1941, rather than 1940, but was negative for any physical problems. R. at 10. Appellant was first diagnosed with MS in September 1956. R. at 13. According to a history provided by appellant in a September 1956 private hospital report, an “onset of unsteady gait associated with weakness of the [right] arm” first occurred in 1953. R. at 31. A letter by a private physician, Dr. A.N. Johns, M.D., dated May 13, 1961, noted that appellant was treated in his office on December 1, 1945, with complaints of urticaria (defined as “a vascular reaction, usually transient, involving the upper dermis, representing localized edema caused by dilatation and increased permeability of the capillaries, and marked by the development of wheals [hives or welts],” see Dor-land’s Illustrated Medioal Dictionary [hereinafter Dorland’s] 1796, 1854 (27th ed. 1988)); that appellant was next seen on November 8, 1947, with a sinus infection; and that appellant also suffered from a facial paralysis and was referred to Max Schnitker, M.D., for this condition. R. at 21. Dr. Johns noted in his letter that the diagnosis for the latter ailment was neuritis, but that it was now apparent that this was the beginning of the symptoms common to MS. Id. (Neuritis is defined as “inflammation of a nerve, a condition attended by pain and tenderness over the nerves, anesthesia and paresthesias, paralysis, wasting, and disappearance of the reflexes,” see Dorland’s, at 1127.) In a rating decision dated March 15, 1962, the VA Regional Office (RO) denied appellant’s claim for service connection for MS on the basis that “[t]he evidence before the Board [did] not establish that the veteran suffered [from] [MS] in service or [that MS] was ... diagnosed within the presumptive period as required by law.” R. at 53. On June 30, 1962, the RO confirmed the denial of service connection for MS. R. at 62.

On October 12, 1962, the VA notified appellant that newly enacted Public Law No. 87-645, 76 Stat. 442 (Sep. 7, 1962), extended the presumption period for service-connection for MS from three to seven years. In a rating decision dated November 8, 1962, the RO confirmed the previous denial of service connection for MS, noting that “[a] determination has been made that [MS] did not develop to a compensable degree of disability within seven years from the date of separation from military service, as required by [Public L. No. 87-[164]*164645].” R. at 72. On November 17, 1962, appellant perfected an appeal to the BVA. R. at 73.

In support of his appeal to the BVA, appellant submitted another letter by Dr. Johns, dated February 2, 1963; in this latter letter Dr. Johns noted that appellant was treated by him on March 17, 1952, for a facial paralysis. R. at 76. Dr. Johns also stated that, “while in this disease, an exact date of the beginning illness is impossible to state, I do feel that Mr. Barclay has been suffering from MS, or it’s [sic] first symptoms since on or before December 1, 1945.” Id. Appellant also submitted a “Certificate of Attending Physician,” by Dr. George T. Booth (signed by Dr. Max T. Schnitker in Dr. Booth’s absence), dated June 23, 1961; the certificate noted that appellant was treated by Dr. Booth on March 9, 1952, for a right facial paralysis. R. at 78. Dr. Booth noted his impression that appellant was suffering from Bell’s Palsy at that time, and referred appellant to a physical rehabilitation center for extensive physiotherapy. Id. A report of a special neuropsychiatric examination by Dr. Benjamin Berger, dated March 26, 1963, noted in pertinent part:

Veteran has a history of diplopia in 1939 strongly suggestive of the original episode of [MS]. The exact period when there was again a recurrence of his symptoms is difficult to ascertain. They may have been present in 1952 when he had the Bell’s palsy, although this is a relatively uncommon associate of [MS] but would definitely confirm the 1956. In reconstructing the clinical history, I feel that the actual onset of this man’s condition was prior to service in 1939 or 1940, when he was hospitalized for diplo-pia and at that time a diagnosis of encephalitis was made. There was then the rather typical picture of a long remission and the recurrence of symptoms some time in the 1950’s, the exact date again difficult to ascertain. At the time he was hospitalized in 1956 there was full-blown and moderately-advanced sympto-matology.

R. at 87. (Diplopia is defined as “double vision in which the images of an object are formed on noncorresponding points of the retinas,” see Dorland’s, at 479. Bell’s palsy is defined as “unilateral facial paralysis of sudden onset, due to lesion of the facial nerve and resulting in characteristic distortion of the face,” id. at 1215.) A report of a special eye examination conducted on March 26, 1963, revealed “no ocular manifestations of any [MS].” R. at 88. Appellant also provided lay statements from his father and two family friends to the combined effect that following service he was lacking in energy and stamina; that he would sometimes stagger and stumble; that in 1946 this unsteadiness became worse; and that he was sometimes subject to periods of shortness of temper. R. at 97.

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Related

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5 Vet. App. 316 (Veterans Claims, 1993)

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Bluebook (online)
4 Vet. App. 161, 1993 U.S. Vet. App. LEXIS 42, 1993 WL 20430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barclay-v-brown-cavc-1993.