Brock v. Brown

10 Vet. App. 155, 1997 U.S. Vet. App. LEXIS 258, 1997 WL 131945
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 21, 1997
DocketNo. 95-444
StatusPublished
Cited by29 cases

This text of 10 Vet. App. 155 (Brock 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
Brock v. Brown, 10 Vet. App. 155, 1997 U.S. Vet. App. LEXIS 258, 1997 WL 131945 (Cal. 1997).

Opinions

STEINBERG, Judge:

The pro se appellant, Vietnam veteran Richard M. Brock, appeals a May 3, 1995, decision of the Board of Veterans’ Appeals (Board or BVA) denying service connection for disabilities claimed as residuals of exposure to the defoliant Agent Orange during the Vietnam conflict. The BVA decision determined that he had not met the initial burden of submitting a well-grounded claim. Record (R.) at 9. The appellant has filed an informal brief and reply brief. The Secretary has filed a motion for summary affirmance. Summary disposition is not appropriate here because the outcome is “reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25 (1990). For the reasons that follow, the Court will affirm the decision of the Board.

I. Background

The veteran served on active duty in the U.S. Army from February 1964 to February 1966, with a tour of approximately four months in Vietnam. R. at 49. His induction medical examination report showed him to be healthy with no pertinent medical abnormalities. R. at 21-22. His service medical records related no relevant illnesses or injuries except for several complaints of pain in the flank and groin areas, on one occasion connected to lifting, and one complaint of “flu[-]like” symptoms. R. at 25-40. The groin pains were tentatively diagnosed as “psycho-physiological”; there is no record of the “consultation” that the attending physician had noted he would order. R. at 38-39. The veteran’s discharge examination report and report of medical history at discharge each noted no medical abnormalities. R. at 41-47.

A New York Department of Social Services Medical Report for Determination of Disability form, dated May 1981, listed a diagnosis of “severe nervous disorder”. R. at 75. An August 1982 BVA decision denied [158]*158Department of Veterans Affairs (VA) service-connected disability compensation for a “nervous condition”, concluding that “[t]he available evidence is not sufficient to render a decision on the merits” and stating that “numerous [VA] examinations have been scheduled and the veteran has failed to appear for each examination” and that he had provided only “purported reports of medical examinations”. R. at 79-80.

In October 1984, the veteran filed with a VA regional office (RO) an application for compensation or VA non-service-conneeted pension for a “nervous condition” and a “blood disorder” arising from exposure to Agent Orange. R. at 51-54. A November 1984 VA Report of Medical Examination form (Form 21-2545), apparently signed by three doctors and a reviewing officer, contained a list of medical conditions and stated a diagnosis of, inter alia, “acute psychosis”; the report showed a conclusion under “diagnosis” of: “Trace of TCDD dioxin. Patient is disable [sic] to work or take care of self’. R. at 66. The report, under medical history related by examinee, also listed VA facilities in Tuskegee, Alabama, and Washington, D.C., and a physician in Atlanta, Georgia, as hospitals or doctors from which he had received treatment for psychosis and soft-tissue sarcoma from January 1966 through December 1979, from December 1979 through June of 1983, and from June 1983 through November 1984. R. at 63. The names of the physicians are very difficult to decipher. Under musculoskeletal system, this report states the following, inter alia: “[I]nfeetion related to Agent Orange causing musculoskeletal system breakdown in tissues ---- [illegible].” R. at 65. (It is unclear whether these words relate to something that the patient was asserting or the examiner found.) The report goes on:

[N]eed assistance in the control of movement due to swelling knees ... weakness due to a disease ridden skeletal system____ Dryed [sic] skin 1/2 inch thick covering feet, blistering scars around toes right & left feet, wrapping required, daily saline solution use for aiding the blistering scars area; not able to walk at all. Use wheel chair.

R. at 65.

A November 1984 VA medical form listed under “illness or injury for which patient received treatment”: “soft[-]tissue sarcoma, nervous disorder, porphyria lutahae [sic] tarda liver disease, acute psychosisf,] memory loss, illness affecting patientf’s] nervous system, museulo[-]skeletal [system,] and epilepsy attack weekly”. R. at 61. (Porphyria cutanea tarda, associated with liver disease, is characterized by “cutaneous photosensitivity” that produces a number of skin disorders, Dorland’s Illustrated Medical Dictionary 1335 (28th ed. 1994) [hereinafter Dorland’s].) Under the subheading ‘Was illness or injury connected with employment” is recorded: “Agent Orange Chemicals[,] 2,4-D and 2,4,5T.” Ibid. The form appears to have been filled out on “11/26/84” and signed by the veteran and also appears to bear the signature of a doctor with a “date signed” of “11/30/84”. Ibid. In December 1984, an RO decision concluded that there was insufficient evidence for rating purposes because the veteran had “failed to prosecute claim” and “did not complete exam”. R. at 68.

In October 1990, he submitted a new application for compensation, claiming disability— including hepatobiliary ailments, immunological abnormalities, gastrointestinal ulcer, altered lipid metabolism, and soft-tissue sarcoma — from exposure to Agent Orange. R. at 83-86. (“Hepatobiliary” refers to the liver and the bile or biliary ducts. Dorland’s at 754.). In the application, he claimed to have been treated for immunological abnormalities and altered lipid metabolism while in an infirmary in Vietnam, and he listed the VA hospital in New York City and a VA hospital in Alabama as locations where he had received treatment for these ailments at various times between 1969 and 1990. R. at 84-85. In a December 1990 statement in support of claim, he reported two locations where records of his treatment for Agent-Orange-related illnesses would be available: The “[VA] Regional Office Medical Facility located at site 7th Avenue” in New York City and Metropolitan Hospital in New York City. R. [159]*159at 101. Also attached to this statement is an undated form, labelled “division of disability determination”, without a space for a doctor’s signature but apparently bearing one, which lists a variety of bodily systems in one column (e.g., stomach, blood pressure, stool, and heart) and, apparently, diagnostic impressions in the parallel column; that form records the veteran as “treated for soft[-]tissue Sarcoma for exposed [sic] to Agent Orange”, and further records, in the spaces parallel to “stool”, “stomach”, and “blood pressure”, symptoms of bloody stool, inability to hold down food, and controlled high blood pressure. R. at 102. The finding is noted as: “Patient is chronic disable[d,] unable to work”. Ibid.

In February 1991, the RO scheduled a medical examination. R. at 106. In June 1991, after the veteran failed to appear for the examination, the RO denied service connection, explaining that “[t]he veteran’s claim for service connection due to Agent Orange exposure cannot be properly resolved wihtout [sic] a current examination.... ” R. at 109-11. The veteran filed a Notice of Disagreement in July 1991, requesting review before a travelling section of the BVA. R. at 113.

While review was pending, the Metropolitan Hospital responded to a VA request for records as to the veteran with a September 1991 letter stating: “[P]atient is not known to Metropolitan Hospital.” R. at 127. In September 1991, the veteran filed a VA Form 1-9 (Substantive Appeal to BVA). R. at 131-32.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

191226-58536
Board of Veterans' Appeals, 2020
190827-43075
Board of Veterans' Appeals, 2019
181107-956
Board of Veterans' Appeals, 2019
181024-754
Board of Veterans' Appeals, 2018
03-28 779
Board of Veterans' Appeals, 2018
10-26 600
Board of Veterans' Appeals, 2017
09-33 868
Board of Veterans' Appeals, 2017
10-09 570
Board of Veterans' Appeals, 2016
09-14 183
Board of Veterans' Appeals, 2016
14-36 669
Board of Veterans' Appeals, 2015
10-19 537
Board of Veterans' Appeals, 2015
13-11 649
Board of Veterans' Appeals, 2015
12-34 113
Board of Veterans' Appeals, 2014
09-41 131
Board of Veterans' Appeals, 2014
04-37 821
Board of Veterans' Appeals, 2011
Theodore J. Segars v. Erik K. Shinseki
23 Vet. App. 290 (Veterans Claims, 2009)
James P. G Utierrez v. Anthony J. Principi
19 Vet. App. 1 (Veterans Claims, 2004)
Hensley v. Principi
16 Vet. App. 491 (Veterans Claims, 2002)
Neumann v. West
Veterans Claims, 2000
Kessel v. West
13 Vet. App. 9 (Veterans Claims, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
10 Vet. App. 155, 1997 U.S. Vet. App. LEXIS 258, 1997 WL 131945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brock-v-brown-cavc-1997.