Buckley v. West

12 Vet. App. 76, 1998 U.S. Vet. App. LEXIS 1523, 1998 WL 834358
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 3, 1998
DocketNo. 96-1764
StatusPublished
Cited by46 cases

This text of 12 Vet. App. 76 (Buckley 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
Buckley v. West, 12 Vet. App. 76, 1998 U.S. Vet. App. LEXIS 1523, 1998 WL 834358 (Cal. 1998).

Opinion

STEINBERG, Judge:

The appellant, veteran Everett L. Buckley, appeals through counsel an October 1, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying an increased rating [79]*79for Department of Veterans Affairs (VA) service-connected disability compensation for bilateral pes planus, currently rated as 30% disabling, and denying service connection for diabetic neuropathy of the lower extremities and degenerative joint disease (DJD) of the left knee, both as secondary to the service-connected pes planus. Record (R.) at 3. The appellant has filed a brief, and the Secretary has filed a motion for affirmance by a single judge. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will deny the Secretary’s motion and will affirm the BVA decision in part and remand a matter for further proceedings.

I. Background

The appellant had active duty in the U.S. Army from September 1941 to November 1945. R. at 15. In 1946, he was awarded service connection for pes planus rated at 0%, effective the day after his separation from service. (“Pes planus” is flat feet. DoRland’s Illustrated Medical Dictionary 1268 (28th ed.1994).) Since that determination, the veteran has on several occasions submitted medical evidence in support of claims for an increased rating for his pes planus, much of which describes pain in the veteran’s legs and feet. See, e.g., R. at 58 (July 1952 VA examination report describing “pain” in veteran’s “arches and legs”), 231 (June 1990 VA examination report indicating that veteran complained of leg cramps). After several VA regional office (RO) decisions on the matter (see, e.g., R. at 68 (VARO decision granting 10% rating for service-connected pes planus), 214 (RO denial of claim for increase)), the veteran received in September 1990 a rating of 30%, effective January 29, 1990 (R. at 236). The September 1990 decision noted that the veteran suffered “cramping and pain in legs” attributed to non-service-connected diabetes. Ibid. The veteran has continued to apply for increases above 30% for his pes planus and to submit evidence in support thereof. See, e.g., R. at 258 (rating decision denying increase), 307 (confirmed rating decision).

In October 1990, the veteran filed with the RO a claim for “service connection” for his “legs and thighs as proximately due to or the result of [his] service[-]connected pes pla-nus”. R. at 239. He stated: “Please consider this a claim for increased benefits to include the [leg and thigh] disabilities”; he described “pain” in the “lower half of [his] body” (ibid.) but did not describe or refer to any diagnosis or specific condition (see ibid.). A February 1991 RO decision on the issue of “SC for bilateral lower-extremity conditions as secondary to bilateral pes planus” denied service connection “for bilateral lower degenerative joint disease of It. lower leg and diabetic neuropathy of BIL lower extremities”. R. at 258. Subsequently, the RO received a December 1990 letter from Dr. Pyle that described “tenderness” in the veteran’s left calf but Dr. Pyle “[could] not say definitively whether or not the foot problems aggravate the left calf problems but this is possible”. R. at 261. The RO addressed Dr. Pyle’s letter in a March 18, 1991, confirmed decision that stated: “The evidence does not show that [the] veteranas] left leg and arthritis are secondary to [service-connected] pes planus”. R. at 266.

The veteran’s service organization representative submitted a Notice of Disagreement (NOD) dated March 26, 1991, that included the statement: “[P]lease accept this memo[randum] as a Notice of Disagreement on behalf of Mr. Buckley relative to the bilateral lower-extremity condition pertaining to the left leg” (R. at 268); attached thereto was a document signed by Mr. Buckley that included the statement: “Please accept this as a total disagreement to the [February 1991] decision.... I feel that the pes planus ... has caused my lower extremities to develop[ ] to their present condition and not the diabetes alone.” (R. at 269). The veteran then filed in May 1991 a VA Form 1-9, Substantive Appeal to the BVA (Form 1-9), regarding “[e]ntitlement to bilateral lower[-]extremity conditions as secondary to ... pes planus” (R. at 280) in which he alleged cramps in both of his knees and calves. Ibid. In June 1991, a private podiatrist noted that the veteran suffered “overuse syndrome” in his leg muscles due to an irregular gait which compensated for pronation of the foot due to pes planus. R. at 285. Later that month, the RO denied service connection for “bilateral lower leg conditions”, specifically dis[80]*80cussing D JD, diabetic neuropathy, and “overuse syndrome”. R. at 295. A VA medical examination in February 1992 noted swelling in the veteran’s lower leg due to “an element of diabetic neuropathy” and “also that his ... pes planus deformity do[es] contribute to his symptomatology” (R. at 337), and in January 1993 a private chiropractor opined that the veteran’s “obvious pronation of both feet” directly influenced “the mechanical integrity of the lower extremities” (R. at 374).

In June 1995, the Board remanded the matter of “a lower[-]extremity disability, manifested as diabetic neuropathy and degenerative joint disease of the left knee, developed secondary to service-connected pes planus” for further factual development, specifically noted previous medical findings of “overuse” (R. at 397-98), and ordered that the matter be returned to the Board thereafter “if in order” (R. at 400) (“The appellant need take no action unless otherwise notified”). An August 1995 VA examination report noted that, in addition to diabetic neuro-pathy, “some of’ the veteran’s leg cramping “may be related to abnormal foot posturing while walking”. R. at 408. The case was subsequently returned to the Board which, in the October 1, 1996, BVA decision here on appeal, denied an increased rating above 30% for the veteran’s service-connected pes pla-nus and denied service connection for diabetic neuropathy and DJD as secondary to pes planus. R. at 3.

II. Analysis

A. Rating Increase

A claim for an increased rating is a new claim, not subject to the provisions of 38 U.S.C. § 7104(b) prohibiting reopening of previously and finally disallowed claims except upon new and material evidence. See Proscelle v. Derwinski, 2 Vet.App. 629, 631-32 (1992). “[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”. 38 U.S.C. § 5107(a); see also Robinette v. Brown, 8 Vet.App. 69, 73 (1995). A well-grounded claim is “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 v. Derwinski, 1 Vet.App. 78, 81 (1990). A claim for an increased rating is generally well grounded when an appellant indicates that he has suffered an increase in disability.

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Cite This Page — Counsel Stack

Bluebook (online)
12 Vet. App. 76, 1998 U.S. Vet. App. LEXIS 1523, 1998 WL 834358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-west-cavc-1998.