Brewer v. West

11 Vet. App. 228, 1998 U.S. Vet. App. LEXIS 688, 1998 WL 276247
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 29, 1998
DocketNo. 95-1280
StatusPublished
Cited by28 cases

This text of 11 Vet. App. 228 (Brewer 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
Brewer v. West, 11 Vet. App. 228, 1998 U.S. Vet. App. LEXIS 688, 1998 WL 276247 (Cal. 1998).

Opinion

STEINBERG, Judge:

The appellant, veteran Thomas Brewer, appeals through counsel a September 27, 1995, decision of the Board of Veterans’ Appeals (Board or BVA) dismissing as not well grounded his claims for Department of Veterans Affairs (VA) service connection for back, left-knee, and left-hip disorders. Record (R.) at 4. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Following oral argument on February 3,1998, the Court ordered the parties to file supplemental briefs. The appellant filed a supplemental brief on March 5, 1998, and the Secretary filed a response brief on April 7, 1998. For the reasons that follow, the Court will affirm the decision of the Board.

I. Background

The appellant had qualifying service in the U.S. Army from August 1986 to June 1989. R. at 83. A June 1986 induction medical examination reported no complications with his lower extremities, spine, or other muscu-loskeletal systems. R. at 11-12. In September 1986, he experienced left-knee pain, reportedly without trauma, and was diagnosed with patella femoral arthralgia. R. at 16. (“Arthralgia” refers to “pain in a joint”. DoRland’s Illustrated Medical Dictionary 140 (28th ed.1994).) Records from the veteran’s separation medical examination on May 5,1989, reported his lower extremities, spine, and other musculoskeletal systems as “normal” (R. at 65) but also indicated, inter alia, that he had stated that he had experienced swollen or painful joints while in service (R. at 67).

On May 25, 1989, after the separation examination but before discharge, the veteran complained of sharp pain in his left hip and knee. R. at 50. Upon examination, an Army physician diagnosed the condition as sciatica. R. at 51. On a follow-up examination that same month, the veteran complained of pain in the left leg, left knee, and left hip. R. at 52. Although the veteran denied experiencing trauma, the examining Army physician stated that he believed that the contusion on the left thigh was related to trauma. R. at 52. The record on appeal (ROA) reveals no further complaints or treatment prior to the veteran’s discharge in June 1989. R. at 83.

On June 16, 1992, approximately three years after his discharge from service, the veteran submitted an application for VA service-connected disability compensation or non-service-connected pension for, inter alia, injuries to his back, left knee, and left hip. R. at 71-75. On the application, he reported “none” as to any post-service private or VA medical treatment for those conditions. R. at 74. In a June 1992 statement, he contended that he had injured his back and knee in service and that these conditions now precluded him from holding “any good jobs”. R. at 80.

A VA regional office (RO) provided a compensation and pension examination for the veteran on July 22, 1992. R. at 86-90. The examining VA physician reported the veteran’s medical history and contentions about in-service injuries. R. at 86-90. As to the musculoskeletal system, the examiner found no diseases, injuries, or significant joint abnormalities. R. at 87-88. Upon completion of the examination, the VA physician ordered, inter aha, a urinalysis, blood count, and electrocardiogram examination (EKG), and also recommended an x-ray examination of the veteran’s spine, left knee, and left ankle. R. at 88. The ROA indicates that an EKG was conducted on July 22, 1992 (R. at 90), and that a blood test was conducted on July 27, 1992 (R. at 89). Apparently, however, the recommended x-ray examination was never conducted.

In August 1992, the VARO denied the veteran’s claim for service connection for, inter aha, back, left-knee, and left-hip disorders. R. at 92. Noting that the veteran’s “VA examination was completely negative for all claimed conditions”, the RO found that his claimed in-service injuries were acute and had resolved while he was still in service. R. at 92. He timely appealed the disallowance of these claims to the Board. R. at 100, 111, 113.

[231]*231In the September 1995 BYA decision here on appeal, the Board dismissed the appeal of these claims as not well grounded, concluding: “There is no medical evidence in the claims file reflecting any current back, left[-]knee, or left[-]hip disorders. There is no medical evidence of any link or connection between current back, left knee, or left hip disorders, if any, and the contusion of the left thigh which the veteran had shortly before his discharge from service”. R. at 4, 6-7, 8.

II. Analysis

This appeal raises two issues: First, whether, under Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), the Court may apply the well-grounded-claim analysis set forth in cases decided after the veteran brought his claim; and, second, whether a recommendation by an examining physician that x-ray examinations be conducted requires VA to provide one or to advise the claimant to undergo one even though a well-grounded claim had not been submitted.

A. Retroactivity of the Court’s Decisions in Tirpak and Grottveit

Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” In 1990 in Murphy v. Derwinski, the Court defined a well-grounded claim as follows: “[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)].” Murphy, 1 Vet.App. 78, 81 (1990). Beginning with Tirpak (July 20, 1992) and Grott-veit (May 5, 1993), subsequent decisions by this Court have enlarged upon the requirements that a claimant must meet in order for a claim to be determined to be well grounded. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (claim must be accompanied by supportive evidence that “must ‘justify a belief by a fair and impartial individual’ that the claim is plausible”) (quoting section 5107(a)); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (requiring medical evidence to well ground claim where determinative issue involves medical etiology or medical diagnosis); Grivois v. Brown, 6 Vet.App. 136, 140 (1994) (requiring medical evidence to well ground claim where determinative issue involves medical etiology or medical diagnosis); Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit, supra); Caluza v. Brown, 7 Vet.App. 498, 504, 506 (1995) (summarizing caselaw), aff'd. per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), pet. for cert. filed, No. 97-7373 (Jan. 5,1998).

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Bluebook (online)
11 Vet. App. 228, 1998 U.S. Vet. App. LEXIS 688, 1998 WL 276247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-west-cavc-1998.