Block v. Brown

7 Vet. App. 343, 1994 U.S. Vet. App. LEXIS 1041, 1994 WL 711249
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 23, 1994
DocketNo. 92-0633
StatusPublished
Cited by5 cases

This text of 7 Vet. App. 343 (Block 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
Block v. Brown, 7 Vet. App. 343, 1994 U.S. Vet. App. LEXIS 1041, 1994 WL 711249 (Cal. 1994).

Opinion

STEINBERG, Judge:

The appellant, veteran Martin A. Block, appeals a December 3, 1991, Board of Veterans’ Appeals (BVA or Board) decision denying entitlement to a permanent and total disability rating for non-serviee-connected pension due to, inter alia, lumbosacral strain. Record (R.) at 4-8. The appellant has filed a brief contending that the BVA decision was clearly erroneous and should be reversed. The appellant argues in the alternative that the BVA decision should be vacated and the matter remanded. The Secretary has filed a brief contending that the Board decision should be vacated and the matter remanded.

Oral argument was held on July 22, 1994. On August 2, 1994, the Court ordered the parties to hold a conference with the Court’s Central Legal Staff in order to attempt to develop a joint motion for remand. A conference was conducted on September 15, 1994. On September 20, 1994, the Court ordered the proceedings stayed for 30 days thereafter, or until a joint motion for remand was filed. On October 25, 1994, the appellant filed a motion for reversal of the Board decision, or, in the alternative, for remand with retention of jurisdiction and establishment of a timetable for postremand adjudication; the appellant asserts that the parties have been unable to agree on the terms of a joint [345]*345motion for remand. Motion (Mot.) at 1. On November 21, 1994, the Secretary filed a response to the appellant’s motion, again urging remand. Response at 2. For the reasons that follow, the Court will vacate the Board decision and remand the matter.

I. Background

The veteran served in the U.S. Army from June 1956 to October 1975. R. at 4. His entrance medical examination showed no pertinent abnormalities. R. at 85. A September 1974 service medical record (SMR) indicated bilateral high frequency hearing loss. R. at 21. His October 7, 1975, separation examination noted a “moderate” high frequency hearing loss in the left ear. R. at 15. An October 24, 1975, hearing evaluation in preparation for separation from service also noted bilateral high frequency hearing loss, “probably noise induced”. R. at 71.

In October 1987, the veteran apparently injured his back in a fall at work. See R. at 131. In February 1989, he filed with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) an application for compensation or pension, asserting that he had injured his back in October 1987 and had not been employed since the injury. R. at 134-87. An April 1989 VA x-ray examination report indicated “mild degenerative changes consistent with age”. R. at 146. In May 1989, a VA medical examination report diagnosed chronic low back pain and tension headaches. R. at 145. In September 1989, the VARO determined that the veteran’s lumbosacral strain and tension headaches were not service connected and rated these non-service-connected disabilities 20% and 10% disabling, respectively, for a combined rating of 30% disabling, and denied entitlement to VA non-service-connected pension. R. at 150, 179.

In March 1990, the veteran sought an increased rating for his disabilities. R. at 154. A March 1990 VA examination report indicated “L4-5/S1 radiculopathy and tension headaches”, and an x-ray report indicated “minimal osteophytie changes”. R. at 160-61. In April 1990, the Social Security Administration (SSA) determined that the veteran was entitled to SSA disability benefits, effective October 1987. R. at 174. The veteran also submitted to the RO various medical reports from private physicians (including a January 1988 computerized axial tomography (CAT) scan and a February 1988 examination), and a statement from a vocational rehabilitation counselor. R. at 117, 120-21, 125-26, 128, 131-32, 152-53, 162-64. In May 1990, the RO again denied entitlement to non-service-connected pension, and in July confirmed that rating. R. at 175.

The veteran appealed to the BVA, and in the December 3, 1991, decision here on appeal, the Board denied entitlement to pension, finding that “while the veteran may be precluded from performing certain types of work involving strenuous physical activity, the reported clinical findings do not demonstrate that his disabilities are so incapacitating as to prevent him from engaging in all forms of substantially gainful employment consistent with his age, education, and occupational experience.” R. at 8. A timely appeal to this Court followed.

II. Analysis

The appellant argues that his back condition should have been rated under Diagnostic Code (DC) 5293 (intervertebral disc syndrome), with a maximum rating of 60%, which would entitle him to an award of pension under the schedular rating in 38 C.F.R. § 4.17 (1993). Brief (Br.) at 21-23. In the alternative, he argues that he is permanently unemployable by reason of his disability, and thus qualifies for pension based on the extra-schedular criteria of 38 C.F.R. § 3.321(b)(2) (1993). Br. at 12-16.

The appellant urges reversal of the BVA decision with instructions to award entitlement to pension on the ground that all the evidence of record demonstrated that he was unable to pursue gainful employment. Mot. at 2; Br. at 12-16. In the alternative, he urges remand of the matter due to failure of the BVA to assist the veteran in developing the record, to apply the benefit-of-the-doubt rule, or to provide an adequate statement of reasons or bases for its decision. Br. at 17-23. The appellant also argues that the BVA failed to adjudicate the veteran’s implied claim of service connection for hearing loss. Br. at 24-25. If remand is ordered instead [346]*346of reversal, the appellant urges the Court to retain jurisdiction and establish a timetable for readjudication by VA. Mot. at 6-7. The appellant argues for a timetable on remand on the ground that the appellant “waited nearly three years after filing his claim before receiving a decision by the Board the first time”, and that claimants generally experience “significant delays” on remand to the BVA. Mot. at 6.

The Secretary argues that remand is necessary because VA failed to assist the veteran adequately and the BVA did not provide an adequate statement of reasons or bases. Br. at 8-14. The Secretary argues against the establishment of a timetable by the Court for postremand adjudication, because, he asserts, that would violate 38 U.S.C. § 7107. Response at 3.

A Reversal

The parties disagree on whether reversal is indicated. In order for this Court to reverse a BVA decision on a finding of fact, we must find that the BVA decision was clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (“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”). Despite valiant efforts by the appellant’s counsel to convince the Court otherwise, we conclude that the record is not sufficiently developed to support reversal at this time.

A veteran who has served for 90 days or more during a period of war is entitled to VA non-service-connected pension if he or she is permanently and totally disabled from non-service-conneeted disability. 38 U.S.C.

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Bluebook (online)
7 Vet. App. 343, 1994 U.S. Vet. App. LEXIS 1041, 1994 WL 711249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/block-v-brown-cavc-1994.