Beaty v. Brown

6 Vet. App. 532, 1994 U.S. Vet. App. LEXIS 849, 1994 WL 275874
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 23, 1994
DocketNo. 92-730
StatusPublished
Cited by52 cases

This text of 6 Vet. App. 532 (Beaty 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
Beaty v. Brown, 6 Vet. App. 532, 1994 U.S. Vet. App. LEXIS 849, 1994 WL 275874 (Cal. 1994).

Opinion

STEINBERG, Judge:

The appellant, World War II veteran Loyd E. Beaty, appeals a February 10, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to a total disability rating based upon individual unem-ployability (TDIU). R. at 3-9. The appellant has filed a brief urging reversal or, in the alternative, remand for readjudication. The Secretary has moved for remand in order for the BVA to readjudicate the claim in a decision supported by adequate reasons or bases. Also pending before the Court is the appellant’s motion for oral argument. For the reason set forth below, the Court will reverse the BVA’s decision and remand the matter to the Board for proceedings consistent with this opinion.

I. Background

The veteran served in the U.S. Army from November 1941 to January 1945. R. at 12. In February 1944, he sustained a gunshot wound in his left eye while disarming a weapon in the line of duty. R. at 12, 13, 32. In September 1944, a military examiner stated a final diagnosis: “Eyeball, enucleation of[] [left eye] ... [as a] result of penetrating injury sustained when [the veteran] was disarming [a] 20 mm. shell[] while on duty with 815th Engineers.” R. at 13. (Enu-cleate means to remove. WebsteR’s MediCAL Desk DICTIONARY 214 (1986) [hereinafter [534]*534Webster’s].) In November 1944, a service medical entry stated: “Incapacitated for military service because of loss of left eye in combat. Injury has resulted in episodes of headaches, inability to judge distance clearly and loss of depth perception.” R. at 19. In January 1945, the Army granted the veteran a Certificate of Disability for Discharge as a result of his left-eye injury. R. at 18.

As of February 1950, the veteran was service connected for the following disabilities: (1) “enucleation, left eye, residuals of GSW [gunshot wound]”, rated 40% disabling; (2) “GSW group XV, mesial thigh group, left, mod[erately] severe”, rated 20% disabling; (3) “GSW group IX, intrinsic muscles of left hand, with retained foreign bodies”, rated 10% disabling; (4) “minute multiple metallic foreign bodies, left maxillary antrum and maxilla”, rated 10% disabling; (5) “conjunctivitis, r[igh]t, active with retained foreign body in r[igh]t cornea, vision normal”, rated 10% disabling; and (6) “multiple minute scars, left chest and r[igh]t leg, asymptomatic; hemorrhoids, external, mild”, rated 0% disabling. R. at 34. His total combined rating was 70%, effective July 1947. Ibid.

In May 1989, he filed with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) an application for increased compensation based on unemployability due to problems with his eyes; he listed farming as his full-time occupation. R. at 37. The veteran indicated that he had attained an 8th grade level education. R. at 38. In support of his claim, he submitted an April 1989 letter from Dr. Bruce Purdy, a private physician, who had stated:

[The veteran] has a prosthetic left eye as a result of injury sustained in combat during World War II. He has had severe difficulty in the last few years with chronic irritation as a consequence [of] dust. His experience is related to driving farm equipment. When driving combines and tractors, the dust is severe. He has been advised to retire because of this disability.

R. at 36.

In a July 1989 VA report of medical examination for disability evaluation, the veteran complained of “c[h]ronie [i]rritation of false[-]eye socket due to dust [and] sand from ... farming equipment [and] irritatiofn] of right eye [w]ith shrapne[l] scars”. R. at 40. A July 1989 VA radiologio Consultation" request/report concluded that the veteran had experienced, inter alia: “Marked osteoarthritic degenerative changes of the joints of the [left] hand and fingers”. R. at 44. In a consultation report apparently dated July 1989, a VA physician stated that the veteran’s left eye “has had considerable irr[i]tat[ion] from dust”. R. at 46. In an August 1989 compensation and pension examination report, a VA physician diagnosed him as having, inter alia, “chronic conjunctivitis of the left orbit prosthetic eye[;] recurrent conjunctivitis of the right eye, residual of shrapnel injury causing also iritis” and “gunshot wound residual left hand [dominant hand], shrapnel injury with decreased grip”. R. at 49. (Iritis is an inflammation of the iris of the eye. Webster’s, at 352).

In September 1989, the VARO issued a confirmed rating decision, concluding: “The evidence does not establish] that the vet[eran] is unemployable by virtue of his s[ervice-]c[onnected] conditions nor did they cause his unemployability.” R. at 51. In May 1990, the veteran filed a Notice of Disagreement. R. at 54. In support of his claim, he submitted a March 1990 letter from a prospective employer, owner of an auto service center, who had stated: “After reviewing your job application, [w]e find that we cannot hire workers with your vision problems and other disabilities as we cannot get insurance covering employees with those kind of handicaps.” R. at 55. The veteran also submitted a February 1990 letter from an owner and manager of a paint and body repair shop, who had stated: “In regard[ ] to your job application, we are not hiring [Unexperienced personnel at this time as we do not have an on-the-job training program.” R. at 56. In May 1990, the RO issued a confirmed rating decision. R. at 57.

In his June 1990 appeal to the BVA, the veteran stated:

I think I am due ... 100% unemployment ... due to wounds I received [i]n W[orld] W[ar] II[.] I have been forced to quit the only occupation I know how to do [and] I am skilled at ... due to irritation [and] [535]*535[i]nfection to both my blown[-]out eye ... and my scarred[,] good eye[.] [M]y doctor has treated me for those conditions for an average of three times a year since 1980 and advised me each year to seek a more sanitary work environment [other] than [fjarming_ In [April] 1989[,] ... I had to quit [fjarming due to infected eyes ... [and] seek other employment^] I app[li]ed to 10 different firms [i]n person from [A]pril 1989 to June 1990[.] [N]o one has hired me yet. [The] [p]rimary reason for not hiring me[,] [according to prospective employers, was that] I would be a hazard to myself as well as a hazard to other employees due to my type of disability.
R. at 63.

In August 1990, at an RO hearing on appeal to the BVA-the veteran testified under oath, in pertinent part:

I worked 600 acres [at] one time[] by myself but it got so difficult that I’d get these irritations in my eye — sometimes infections. I would have to lay on the couch for two days with ice packs, heat packs [until] ... I could go back ... and work[ ]_ [I k]ept ... trying to make a go of it [until] ... my doctor ... said[:] [“W]hy don’t ... you [get] a job [with a] little more [of a] sanitary environment[?] You don’t want to spend the rest of your life blind, do you[?”] ... I told him this was the only occupation I know and [after] ... 30 [to] 40 years[ ] I don’t know any other occupation. This is my life.
.... [When I farm my left] eye gets infected ... [I] can’t see [anything ... in front of [me]. I can kind of see to the side and then I [get] a severe headache...., [a] throbbing ... that feel[s] like a ... sledgehammer. [I] can feel [my] heart beating behind the [left] eye.
I wear the best goggles. I [have] three pair ... or two pair on my combine.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 532, 1994 U.S. Vet. App. LEXIS 849, 1994 WL 275874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beaty-v-brown-cavc-1994.