Brannon v. West

12 Vet. App. 32, 1998 U.S. Vet. App. LEXIS 1335, 1998 WL 800033
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 17, 1998
DocketNo. 96-282
StatusPublished
Cited by85 cases

This text of 12 Vet. App. 32 (Brannon v. West) 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
Brannon v. West, 12 Vet. App. 32, 1998 U.S. Vet. App. LEXIS 1335, 1998 WL 800033 (Cal. 1998).

Opinion

HOLDAWAY, Judge:

The appellant, Joseph C. Brannon, appeals the March 1996 decision of the Board of Veterans’ Appeals (Board or BVA) that determined he was entitled to a 50% disability rating for his skin disorder and to service connection for his asthma condition. The appellant has not challenged the Board’s decision with respect to the 50% disability rating for his skin condition or with respect to the asthma claim. Instead, he argues, through counsel, (1) that the Board failed to adjudicate a claim for secondary service connection for a psychiatric disorder etiologically related to his skin condition and (2) that the Board’s decision not to submit his skin condition claim for an extraschedular rating was error. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board.

I. FACTS

The appellant served in the U.S. Army from July 1979 to March 1982. He suffers from a severe service-connected skin disease. In October 1990, a physician diagnosed him with possible history of schizophrenia and noted that his skin condition was affecting his psychological functioning. He was diagnosed with schizophrenia by a VA physician in February 1991. In May 1991, the appellant reported that he heard voices when his rash became worse. A July 1991 VA examination report stated, “[N]o psychosis noted.” In March 1995, the appellant was afforded a VA skin examination for rating purposes, and the doctor noted that the appellant was suffering from “[tjremendous anxiety secondary to itching.” Neither the appellant nor his authorized representatives ever expressed, before the Board or a VA regional office, an intention to seek service connection for the [34]*34appellant’s mental problems secondary to his skin disorder.

II. ANALYSIS

A. Secondary Service Connection

The appellant contends that the Board failed to address an implicit claim for secondary service connection of a psychiatric disorder that may have been caused by his service-connected skin disorder. In order for this Court to have jurisdiction of an issue, generally there must be a Board decision on the issue and a Notice of Disagreement (NOD), encompassing the issue, must have been filed, on or after November 18, 1988. See 38 U.S.C. § 7252(a); Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Ledford v. West, 136 F.3d 776, 779 (Fed.Cir.1998). To initiate appellate review of a VA regional office decision to the Board, a claimant must submit an NOD. See 38 U.S.C. § 7105(a). An NOD is “[a] written communication from a claimant ... expressing dissatisfaction or disagreement with an adjudicative determination by the [VA regional office (VARO) ] and a desire to contest the result.” 38 C.F.R. § 20.201 (1997). “[A]n NOD relates to a specific ‘adjudicative determination’ on a specific date.” Ledford, supra. An NOD may also encompass a claim that a VARO failed to adjudicate but that was reasonably raised to it. See Isenbart v. Brown, 7 Vet.App. 537, 540-41 (1995); see also Collaro v. West, 136 F.3d 1304, 1309 (Fed.Cir.1998) (stating that an NOD is not limited to issues framed in the Statement of the Case, but a rough-hewn (generally worded) NOD may contain the radices of issues (undeveloped constitutional and rulemaking challenges) that may be raised to the Board (even on motion for BVA reconsideration)).

Once a timely NOD has been filed, appellate review to the Board is completed by submitting a substantive appeal after the Secretary has issued a Statement of the Case. See 38 U.S.C. § 7105(a). “The [substantive] appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case. The benefits sought on appeal must be clearly identified.” 38 U.S.C. § 7105(d)(3). “The Board ... may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.” 38 U.S.C. § 7105(d)(5). The Court has held that the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant’s substantive appeal, including all documents and oral testimony in the record prior to the Board’s decision. See Solomon v. Brown, 6 Vet.App. 396, 402 (1994); EF v. Derwinski, 1 Vet.App. 324, 326 (1991). “Where such review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the [VARO] for development and adjudication of the issue; however, the Board may not simply ignore an issue so raised.” Suttmann v. Brown, 5 Vet.App. 127, 132 (1993). On the other hand, the Board is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed. See Talbert v. Brown, 7 Vet.App. 352, 356-57 (1995) (holding that the BVA is not required to do a “prognostication” but to review issues reasonably raised by the substantive appeal).

The appellant contends on appeal that the Board failed to adjudicate a claim for a psychiatric condition secondary to his skin condition. He argues that the claim was reasonably raised by the medical evidence of record. Even assuming that the medical evidence established a well-grounded claim for such a condition, the appellant has not filed a claim for secondary service connection. “A specific claim in the form prescribed by the Secretary ... must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.” 38 U.S.C. § 5101(a); see also 38 C.F.R. § 3.151(a) (1997). A claim “means a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (1997) (emphasis [35]*35added). “Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs ... may be considered an informal claim. Such informal claim must identify the benefit sought.”

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Bluebook (online)
12 Vet. App. 32, 1998 U.S. Vet. App. LEXIS 1335, 1998 WL 800033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannon-v-west-cavc-1998.