Browder v. Brown

5 Vet. App. 268, 1993 U.S. Vet. App. LEXIS 203, 1993 WL 217494
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 23, 1993
DocketNo. 91-1209
StatusPublished
Cited by41 cases

This text of 5 Vet. App. 268 (Browder 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
Browder v. Brown, 5 Vet. App. 268, 1993 U.S. Vet. App. LEXIS 203, 1993 WL 217494 (Cal. 1993).

Opinion

MANKIN, Associate Judge:

Appellant appeals a May 8,1991, decision of the Board of Veterans’ Appeals (Board or BVA) which denied service connection for a right eye disability. The Court has jurisdiction pursuant to 38 U.S.C.A. § 7252(a) (West 1991).

This case was previously before the Court on appeal from a December 28, 1989, BVA decision in which the Board denied service connection for appellant’s preser-vice right eye disability because it found appellant’s condition was not aggravated by service. In Browder v. Derwinski (Browder I), the Court held that appellant’s right eye visual acuity had decreased during service and remanded the matter to the BVA with the instruction that the Board apply the presumption of service connection for aggravation of a preexisting injury found in 38 U.S.C.A. § 1153 (West 1991) and 38 C.F.R. § 3.306 (1992), or explain why the presumption did not apply. 1 Vet. App. 204, 207 (1991). In addition, the Court ordered the Board to apply 38 C.F.R. § 3.303(c) and to provide “reasons or bases” for its decision, as well as a written statement of the Board’s findings and conclusions as required under 38 U.S.C.A. § 7104(d)(1) (West 1991). Browder, 1 Vet.App. at 208.

I. FACTUAL BACKGROUND

Appellant served in the U.S. Army in Vietnam from March 1968 to March 1970. Appellant’s preinduction physical examination revealed corneal scarring and slight deformity of the right pupil. R. at 2. The diagnosis was defective vision, scarring of the right cornea, and iris adhesion. R. at 3. Uncorrected visual acuity for the right eye was 20/300. Corrected visual acuity was 20/40 for the same eye. Appellant’s separation examination showed corneal leuko-ma with iris adhesion and myopic astigmatism in the right eye. Uneorrected visual acuity in appellant’s right eye was 20/400 and his corrected acuity reading was 20/40. In February 1972, appellant was reexam-' ined for reenlistment purposes. Appellant’s uncorrected visual acuity was evaluated as 20/20 for both eyes. R. at 11.

In April 1988, appellant submitted a Veteran’s Application for Compensation or Pension. R. at 14. His claim was denied by rating decision on December 3, 1988. The Veterans’ Administration (now Department of Veterans Affairs) (VA) rating board found that appellant’s eye condition had existed prior to service, and that there was no evidence of aggravation during service. Appellant filed a Notice of Disagree[270]*270ment on January 23, 1989, followed by a VA Form 1-9 appeal to the BVA. Appellant contended that his preexisting right eye injury was aggravated by dust, dirt, and sand while he was operating machinery in a quarry in Vietnam. In a decision dated December 28, 1989, the Board denied service connection for a right eye disability. An appeal to this Court followed. On April 5, 1991, the Court issued its opinion in Browder I, remanding the matter to the BVA for a new decision. The Board rendered a new decision on May 8, 1991. The Board found that “[sjince it has not been shown that there was any in-service worsening of the preexisting right eye condition, the presumption of aggravation of the condition does not apply.” George A. Browder, BVA 91-16601, at 7 (May 8, 1991).

II. ANALYSIS

A.

In the May 1991 decision now on appeal, the Board stated the issue in the case as “whether the pre-service right eye disorder was aggravated by. military service.” Browder, BVA 91-16601, at 5. When a preexisting condition is properly found, as it was in this case, the presumption of aggravation found in 38 U.S.C.A. §1153 provides:

A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.

Furthermore, 38 C.F.R. § 3.306(b) states that, as to veterans of wartime service “[cjlear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation.”

In Browder I, the Court held that the presumption of aggravation may apply “where there was a worsening of the disability regardless of whether the degree of worsening was enough to warrant compensation,” and that the record “clearly revealed] that the vision in appellant’s right eye did worsen during service.” 1 Vet. App. at 206-07 (emphasis added). As a result, the Court set aside the BVA’s finding of fact that appellant’s right eye condition did not increase in severity during service and ordered the BVA to apply and discuss 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306, or explain why the presumption should not be applied. Browder, 1 Vet.App. at 207.

The BVA’s finding on remand that “there was no increase in severity of the pre-service eye disorder” directly contravenes the Court’s holding in Browder I. Browder, BVA 91-1661, at 6. In his brief, the Secretary of Veterans Affairs (Secretary) asserts that the Court did not decide any issues of fact in Browder I which became the “law of the case.” Br. at 12. Under the doctrine of “law of the case,” questions settled on a former appeal of the same case are no longer open for review. The U.S. Supreme Court stated the rule with regard to its own opinions:

When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution according to the mandate.

In re Sanford Fork & Tool Co., 160 U.S. 247, 255-56, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895). See generally 32 Am.Jur.2d, Federal Practice and Procedure, § 354. The principle of “law of the case” has been applied to the application of the law in decisions of federal courts in cases remanded to administrative agencies. See, e.g., In re Wella A.G., 858 F.2d 725, 728 (Fed.Cir.1988); City of Cleveland v. Federal Power Commission, 561 F.2d 344 (D.C.Cir.1977). A body subject to the decision of a federal appellate court

is without power to do anything which is contrary to either the letter or spirit of the mandate construed in light of the opinion of the court deciding the case.... These principles, so familiar in operation within the hierarchy of judicial [271]*271benches, indulge no exception for reviews of administrative agencies.

City of Cleveland, 561 F.2d at 346.

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Bluebook (online)
5 Vet. App. 268, 1993 U.S. Vet. App. LEXIS 203, 1993 WL 217494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browder-v-brown-cavc-1993.