Brian K. Coker v. R. James Nicholson

19 Vet. App. 439, 2006 U.S. Vet. App. LEXIS 34, 2006 WL 239091
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 2, 2006
Docket02-1107
StatusPublished
Cited by35 cases

This text of 19 Vet. App. 439 (Brian K. Coker v. R. James Nicholson) 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
Brian K. Coker v. R. James Nicholson, 19 Vet. App. 439, 2006 U.S. Vet. App. LEXIS 34, 2006 WL 239091 (Cal. 2006).

Opinions

The opinion of the Court is per curiam. KASOLD, Judge, filed a concurring opinion.

PER CURIAM:

Veteran Brian K. Coker appeals through counsel a November 21, 2001, decision of the Board of Veterans’ Appeals (Board) that denied Mr. Coker’s claims for (1) an effective date earlier than February 16, 1999, for the award of service connection for hallux valgus, (2) service connection for a stomach disorder, (3) service connection for the residuals of a urinary tract infection, (4) an initial evaluation in excess of 10% for service-connected sinusitis, (5) an initial evaluation of 10% for the service-connected residuals of tonsillitis prior to October 28, 1999, and (6) a compensable disability evaluation for the service-connected residuals of tonsillitis, since October 28, 1999. For the reasons set forth below, the Board’s decision will be affirmed in part and set aside in part and the matter of the hallux valgus claim remanded for further adjudication.

I. BACKGROUND

Mr. Coker served on active duty in the U.S. Army from July 1980 to July 1983. On September 19, 1989, he submitted a claim for a stomach disorder, which was denied in April 1990. Three years later, in April 1993, he requested that his claim for disability compensation for a stomach disorder be reopened and that he be “scheduled for [a] C & P [ (compensation and pension) ] Exam ... to include complete skeletal to include arms, legs, back, ankles, feet, and all joints.” R. at 112. In August 1993, Mr. Coker submitted his service medical records (SMRs), which indicated, inter alia, that he had injured the toes of both feet on December 9,1980, and that he had stubbed his toes on September 24, 1982. In November 1993, Mr. Coker amended his claim to include urinary tract infection, sinusitis, and tonsillitis.

In rating decisions in August, October, and December 1993, a VA regional office (RO) denied entitlement to service connection for, inter alia, a stomach disorder, a urinary tract infection, “skeletal conditions,” sinusitis, and tonsillitis. Mr. Coker filed statements in support of his claims and the RO provided him a hearing in [441]*441April 1994.- At that hearing, Mr. Coker testified that he had hurt his toes in service and that he had a current diagnosis of hallux valgus. In September 1994, the hearing officer denied service connection for, inter alia, a stomach disorder and all skeletal conditions, including feet. In December 1994, Mr. Coker appealed to the Board.

In June 1996, the Board granted service connection for sinusitis and tonsillitis, and the RO subsequently assigned 10% disability evaluations for each, effective November 23, 1993. In October 1996, Mr. Coker sought an increase in his disability ratings for both sinusitis and tonsillitis. In May 1997, the Board issued a supplemental decision that remanded to the RO for further development the claims for service connection for a stomach disorder and urinary infection, as well as the claims for an increased disability ratings for sinusitis and tonsillitis. The Board also found that Mr. Coker’s claim for a generalized skeletal disability was not well grounded.

In February 1999, Mr. Coker filed a formal application for service connection for hallux valgus. An October 1999 rating decision denied service connection for a stomach disorder and urinary tract infection, and denied an increased disability rating for sinusitis. In December 1999, the RO granted service connection for hal-lux valgus with a 10% disability rating effective February 16, 1999, and the RO reduced his 10% disability rating for his tonsillitis to a noncompensable rating effective October 28, 1999. Mr. Coker appealed these decisions to the Board.

II. ANALYSIS

A. Informal Claim for Hallux Valgus

Mr. Coker argues that the Board erred in not awarding an earlier effective date for his hallux valgus claim based upon an April 1993 communication that he states was an informal claim for benefits. The Secretary asserts that the first discernable claim for compensation for hallux valgus was made in February 1999 and that an earlier effective date cannot be awarded.

The Board determined that an informal claim did not arise prior to 1999 because before then Mr. Coker had not mentioned his toes in relation to a claim for compensation. However, the Board’s decision focuses upon the text of the claim and not the content of the record. See Norris v. West, 12 Vet.App. 413, 417 (1999) (“Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims.”); Brannon v. West, 12 Vet.App. 32, 35 (1998); Suttmann v. Brown, 5 Vet.App. 127, 132 (1993) (“In determining whether a particular claim has been raised, the [Board] must consider ‘all documents or oral testimony submitted prior to the [Board] decision’ and ‘review all issues which are reasonably raised from a liberal reading’ of such documents and oral testimony.” (quoting EF v. Derwinski, 1 Vet.App. 324, 326 (1991))).

The Board did not discuss whether Mr. Coker’s April 1993 request for a compensation and pension examination for, inter alia, his feet, reviewed in the context of the entire record, reasonably raised a claim for service connection for hallux valgus. In addition, the Board did not discuss whether Mr. Coker’s April 1994 transcribed hearing testimony constituted an informal claim. At that hearing, Mr. Coker noted his belief that his April 1993 request for a compensation and pension examination constituted a claim for service connection for hallux valgus. The failure of the Board to discuss these issues is error. See Suttmann, supra; Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board is required [442]*442to consider all evidence of record and to discuss in its decision all potentially applicable provisions of law and regulation); see also Tucker v. West, 11 Vet.pp. 369, 374 (1998) (“Where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy.”); Meeks v. Brown, 5 Vet.App. 284, 288 (1993) (stating where Board fails to provide adequate statement of reasons or bases, the Court is precluded from effectively reviewing the Board’s adjudication).

B. Inadequate Notice

With regard to his remaining claims, Mr. Coker seeks remand and argues on appeal that the Secretary failed to provide the notice required by 38 U.S.C. § 5103(a). In supplemental briefing, he asserts that the Secretary “never advised through a VCAA notice letter or otherwise on what evidence would be needed to substantiate any of the aforementioned claims.” Appellant’s Supplemental Brief at 2-3. In this instance, however, the Board found that Mr. Coker had received notice “through the issuance of [Statements of the [C]ase and [Supplemental [Statements of the [C]ase,” (Record (R.) at 6), and Mr. Coker fails to provide any specificity with regard to the inadequacy of the notice that the Board found he had received.

The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant’s arguments. See U.S. Vet.App. R.

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Cite This Page — Counsel Stack

Bluebook (online)
19 Vet. App. 439, 2006 U.S. Vet. App. LEXIS 34, 2006 WL 239091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brian-k-coker-v-r-james-nicholson-cavc-2006.