Bentley v. Derwinski

1 Vet. App. 28, 1990 U.S. Vet. App. LEXIS 12, 1990 WL 303134
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 13, 1990
DocketNo. 89-70
StatusPublished
Cited by27 cases

This text of 1 Vet. App. 28 (Bentley v. Derwinski) 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
Bentley v. Derwinski, 1 Vet. App. 28, 1990 U.S. Vet. App. LEXIS 12, 1990 WL 303134 (Cal. 1990).

Opinion

KRAMER, Associate Judge:

SUMMARY

This case involves an appeal by Russell L. Bentley (veteran) from a decision by the Board of Veterans’ Appeals (BVA) which concluded that the rating actions of February 24 and April 25, 1960, were not clearly and unmistakably erroneous in failing to assign ratings of 60 percent rather than 40 percent for traumatic arteriovenous aneurysm under 38 C.F.R. § 4.104 (1989), Diagnostic Code 7113.

We conclude that, as a matter of law, there was clear and unmistakable error in not awarding a 60-percent rating on February 24, 1960 and that, as a consequence, a 40-percent rating could not have properly been assigned on April 25, 1960 without notifying the veteran of a reduction in rating with opportunity to respond. The decision of the BVA is reversed and the case remanded to it for further proceedings consistent with this opinion.

HISTORY

The veteran was in active service in the Armed Forces from March 1942 to October 1945. While serving aboard the U.S.S. S-13, a Navy submarine, he slipped on a wet deck in April 1944, fracturing his right elbow and dislocating the bones in his right arm. He underwent treatment for these conditions and upon discharge in October 1945 had residual limitation of motion.

By VA rating board action of November 1945, the veteran was awarded a 10-per-cent service-connected disability for residuals of a healed fracture of the right arm. In August and September 1947, the veteran received hospital care from the Veterans’ Administration (VA) for further right arm injury incurred while lifting a heavy object at work. Thereafter, he lost most of the use of the forearm, and elbow motion was about 50 percent of normal. Although there were significant physical symptoms, it was concluded by the VA, after orthopedic and neurosurgical consultations, that such symptoms were not of an organic basis. The veteran was discharged with a diagnosis of bone malunion due to right arm fracture.

A statement of October 1947 from J.R. Briscoe, M.D., a private physician, concluded that the veteran had nerve damage as a result of the right arm injury.

The veteran underwent further examinations at a VA hospital in November 1947. After psychiatric and neurologic evaluation, it was concluded that the neurological findings were most consistent with hysteria, and a diagnosis of conversion reaction manifested by complete paralysis of the right arm was made.

The case was reviewed by a VA rating board in January 1948, and a 70-percent rating was assigned for paralysis of the right upper arm with conversion reaction, residuals of old bone fracture, and traumatic arthritis of the right elbow.

Following another VA hospitalization from April 26 to May 25, 1948, during which the veteran underwent diagnostic testing, a VA regional office in January 1949 reduced the rating from 70 percent to 50 percent.

In a statement dated July 7, 1959, E.H. Schaper, M.D., a private physician, related that a recent examination revealed an ar-teriovenous aneurysm requiring surgical correction and evidence of hypertensive cardiovascular disease.

In a letter dated July 27, 1959, Dr. Bris-coe stated his opinion that the veteran had had a post-traumatic aneurysm of the bra-chial artery since the time of his discharge from the service.

In August-September 1959, the veteran was hospitalized in the VA Hospital in St. Louis, Missouri. During the hospitalization, excision of the aneurysm was performed. The narrative summary of the hospitalization stated that the veteran had incipient congestive heart failure, shortness of breath at night, and Grade III aortic systolic murmur, and needed to use digitalis.

A rating board memorandum prepared by the St. Louis Regional Office on October 29, 1959 concluded that the veteran’s dis[30]*30ability should be characterized as an arter-iovenous fistula which had its inception in April 1944. The memorandum further concluded that the veteran had never been properly examined and, thus, the correct diagnosis had not been made.

On January 28, 1960, the Director of the VA Compensation and Pension Service at VA Central Office, Washington, D.C., based on the narrative summary of the August-September hospitalization, directed the assignment for a period of ninety days of a temporary 100-percent rating for ar-teriovenous aneurysm, traumatic, with cardiac involvement, to be followed by a 40-percent rating for arteriovenous aneurysm with cardiac involvement under Diagnostic Code 7113. These ratings were effectuated by a rating board on February 24, 1960. The veteran was examined by the VA on March 15, 1960. There was a Grade I systolic murmur, tachycardia, and blood pressure readings of 170/80, 170/90, and 150/100. The examiner concluded that: there was no current evidence of an arter-iovenous aneurysm; a diagnosis of hypertension was not justified although there might have been masking of hypertension by the drugs being taken; tachycardia could not be explained on an organic basis; and there was no heart disease.

In a statement dated March 28, 1960, Dr. Briscoe stated that since the surgery for removal of the aneurysm, the veteran had been under his continuous supervision for hypertensive heart disease which was only partially relieved by the use of digitalis and reduced activity.

In a rating decision dated April 11, 1960, the VA continued the February 24, 1960 rating of 40 percent for arteriovenous aneurysm with cardiac involvement, noting that the March 15, 1960 examination revealed the absence of hypertension, cardiac insufficiency and heart disease.

On June 30, 1980 and September 18, 1984, the veteran underwent additional examinations at the VA Medical Center in St. Louis, regarding his aneurysm and its effect upon him.

Following an onset of chest pain and labored breathing on exertion, angioplasty was performed in January 1988. The veteran was hospitalized during the last week in May 1988 at the St. Louis VA Medical Center for coronary artery disease at which time it was determined that he had significant arterial obstruction. From June 7, 1988 to June 18, 1988, he was hospitalized for coronary artery disease at the VA Medical Center in Chicago, Illinois.

On November 1, 1988, a rating decision continued the veteran’s rating for his aneurysm. The veteran, through his representative, then asked that the VA review its February 24, 1960 rating decision on the theory of clear and unmistakable error in that the minimum rating for an aneurysm with cardiac involvement is 60 percent. By rating decision of November 21, 1988, the VA determined that there was no clear and unmistakable error in the February 24, 1960 rating. The BVA in its decision of November 16, 1989 affirmed this determination, and the veteran appealed to the Court.

ANALYSIS

The issue for decision here is whether the BVA was correct in determining that there was not “clear and unmistakable error” in the 40-percent rating decisions of February and April 1960. Pursuant to 38 C.F.R. § 3.105(a) (1989), promulgated under the authority of 38 U.S.C. § 4005(c) (1982), “previous determinations upon which an action was predicated, including ... degree of disability ...

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Bluebook (online)
1 Vet. App. 28, 1990 U.S. Vet. App. LEXIS 12, 1990 WL 303134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bentley-v-derwinski-cavc-1990.