Butts v. Brown

5 Vet. App. 532, 1993 U.S. Vet. App. LEXIS 466, 1993 WL 356785
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 16, 1993
DocketNo. 91-1688
StatusPublished
Cited by216 cases

This text of 5 Vet. App. 532 (Butts 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
Butts v. Brown, 5 Vet. App. 532, 1993 U.S. Vet. App. LEXIS 466, 1993 WL 356785 (Cal. 1993).

Opinions

IVERS, Judge:

Chester L. Butts appeals a July 11, 1991, decision of the Board of Veterans’ Appeals (BVA. or Board) denying service connection for (1) defective hearing in the left ear, (2) residuals of an injury to the right index finger, (3) pseudofolliculitis barbae, and (4) a bilateral foot disorder; and denying entitlement to an increased (compensable) rating for (1) a perianal abscess with periur-ethral extension, (2) recurrent lumbosacral strain, and (3) chronic vasomotor rhinitis with tinnitus. Chester L. Butts, BVA 91-21122 (July 11, 1991). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. The Court has jurisdiction of the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). For the reasons set forth below, the Court affirms in part and vacates in part the decision of the BVA and remands the matter for readjudication consistent with this opinion.

I. Factual Background

Appellant served in the United States Air Force from May 17, 1971, to March 2, 1978 (R. at 1-2), and from December 4, 1981, to July 17, 1985 (R. at 3). An August 9, 1985, Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) rating decision granted service connection for a perianal abscess with periur-ethral extension (rated as 0% disabling), but denied service connection for status post hemorrhoidectomy. See R. at 49. On February 10, 1988, appellant applied to the RO for service connection for a deviated nasal septum, a lumbosacral strain, rhinitis, [535]*535sinusitis, hearing loss of the left ear, tinnitus, residuals of a cut on the right index finger, bilateral foot problems, and a facial rash; he also sought an increased (compen-sable) disability rating for the perianal abscess and sought to reopen a claim for service connection for status post hemor-rhoidectomy. See R. at 43. He also sought the assignment of a disability rating under 38 C.F.R. § 3.324 (1988). See R. at 49. On May 10, 1988, the RO granted service connection for a deviated nasal septum (rated as 0% disabling), recurrent lum-bosacral strain (rated as 0% disabling), and chronic vasomotor rhinitis (rated as 0% disabling). R. at 44. Additionally, the RO denied service connection for the other conditions, denied an increased disability rating for the perianal abscess condition, and did not reopen the claim for service connection for status post hemorrhoidectomy. Ibid. On December 6, 1988, appellant, through his service representative, filed a Notice of Disagreement. R. at 47. Following a February 21, 1989, personal hearing, the RO hearing officer granted service connection for tinnitus (rated as 0% disabling) and for status post hemorrhoidectomy (rated as 0% disabling). R. at 69. On January 18, 1990, the BVA remanded the matter to the RO for verification of appellant’s dates of active service. R. at 75. After the requested development had been completed, the RO issued a rating decision on October 31, 1990, granting an increased rating for the deviated nasal septum due to trauma (now rated as 10% disabling) and continuing the noncompensable disability rating for status post hemorrhoidectomy; the rating decision also coded tinnitus as a complication of rhinitis under the diagnostic code (DC) for rhinitis and continued the 0% disability rating for tinnitus. R. at 96-97. In its July 1991 decision, the Board denied service connection for (1) defective hearing of the left ear, (2) residuals of an injury to the right index finger, (3) pseudo-folliculitis barbae, and (4) a bilateral foot disorder; and denied an increased (compen-sable) disability rating for (1) a perianal abscess with periurethral extension, (2) recurrent lumbosacral strain, and (3) chronic vasomotor rhinitis with tinnitus. Butts, BVA 91-21122, at 10-11. The Board also stated that the claim for an increased rating for a deviated nasal septum was no longer at issue because appellant had not voiced disagreement with the October 1990 increase in the rating. Id. at 3. In addition, the Board stated that the claim for consideration under 38 C.F.R. § 3.324 was moot because “consideration of such benefits is predicated on the existence solely of noncompensable service-connected disabilities.” Butts, BVA 91-21122, at 3 (underlining in original).

The Court notes initially that appellant has not appealed the RO determinations regarding the claims for status post hemor-rhoidectomy or the deviated nasal septum. See 38 C.F.R. § 20.200 (1992) (“If the Statement of the Case [SOC] and any prior Supplemental [SOCs] addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed.”) Therefore, neither of these claims was before the Board; nor are they currently before the Court.

II. Appellant’s Claims

The Court reviews the Board’s findings of fact regarding new claims under a “clearly erroneous” standard of review. 38 U.S.C.A. § 7261(a)(4) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Proscelle v. Derwinski, 2 Vet.App. 629, 631-32 (1992) (claim for increase is new claim). Under the “clearly erroneous” standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, supra. The Board must base its decisions on “all evidence and material of record,” 38 U.S.C.A. § 7104(a) (West 1991), and must provide a “written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record,” 38 U.S.C.A. § 7104(d)(1) (West 1991). See Douglas v. Derwinski, 2 Vet.App. 435, 438-39 (1992) [536]*536(en banc); Gilbert, 1 Vet.App. at 56-57. Pursuant to these statutory requirements, the Board must “account for the evidence which it finds to be persuasive or unpersuasive,” and provide reasons or bases for rejecting evidence submitted by or on behalf of the claimant. Gilbert, 1 Vet.App. at 57.

A. Claims for Service Connection

The Court holds that the Board did not discuss all of the evidence of record concerning defective hearing of the left ear. The Board discussed the diagnosis of mild high frequency hearing loss appearing on appellant’s January 1985 discharge examination. R. at 13. The Board then pointed to an April 1988 audiological evaluation indicating “[essentially normal hearing bilaterally” (R. at 35) and to a September 1990 audiological evaluation stating that “[sjpeech results do suggest that patient’s hearing in the [left ear] is adequate for normal conversational speech” (R. at 90). However, the Board did not discuss the statement appearing in the September 1990 evaluation that the “test results for the [left ear] were incomplete and are inconclusive in view of patient’s lack of cooperating and his attending behaviors.” Ibid. Moreover, the Board failed to discuss a VA physician’s (Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
5 Vet. App. 532, 1993 U.S. Vet. App. LEXIS 466, 1993 WL 356785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butts-v-brown-cavc-1993.