Chavarria v. Brown

5 Vet. App. 468, 1993 U.S. Vet. App. LEXIS 562, 1993 WL 403916
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 5, 1993
DocketNo. 92-738
StatusPublished
Cited by8 cases

This text of 5 Vet. App. 468 (Chavarria 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
Chavarria v. Brown, 5 Vet. App. 468, 1993 U.S. Vet. App. LEXIS 562, 1993 WL 403916 (Cal. 1993).

Opinion

MANKIN, Judge:

Appellant appeals a February 14, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) which determined that there was no new and material evidence presented to reopen his claim for entitlement to service connection for the residuals of a jaw injury and for hearing loss. This Court has jurisdiction pursuant to 38 U.S.C.A. § 7252(a) (West 1991). Because appellant has not submitted new and material evidence since the BVA’s final disallowance of his claim in January 1975, this Court will affirm the February 1992 BVA decision.

I. Facts

Appellant served on active duty in the United States Army from December 21, 1942, to November 13, 1945. On October 11, 1944, he was involved in an incident in which he sustained a comminuted compound fracture of the mandible symphysis area (the articulation of the jaw bone) and lost several of his teeth. His service medical records (SMRs) do not mention any hearing problems and his November 1945 discharge examination found his hearing to be normal. An investigative report of the October 1944 incident by Colonel Ulmont W. Holly found that appellant’s injury resulted after he and a companion, Corporal Walter Brown, overpowered a guard and stole a truck that appellant subsequently drove into a ditch. The report found that appellant was under the influence of intoxi[470]*470cants and that the incident was due to gross carelessness or negligence. In a sworn statement by appellant made on December 1, 1944, appellant admitted that he was behind the wheel of the truck when it swerved into the ditch and that he was “kind of drunk at the time all of this happened.” He also added that he “had no business taking the truck.” Appellant’s commanding officer signed a certificate which asserted that the injuries appellant sustained on October 11, 1944, “were not incurred while engaged in the performance of a military duty.” Further, the Chief of Surgical Service at the hospital where appellant was taken after the incident certified that the admitting officer found appellant to be “intoxicated due to alcohol” although no blood alcohol test was taken.

In November 1966, an administrative decision by the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) regarding the October 1944 incident found that the appellant was drinking, driving recklessly, and acting with disregard for his own safety. Further, the RO concluded that appellant was involved in willful misconduct and that his injuries were not incurred in the line of duty.

In August 1973, appellant filed an Application for Compensation or Pension for broken right and left jaws, deafness of the left ear, and the loss of teeth. In November 1973, the RO reviewed appellant’s SMRs and denied entitlement to service connection for these disabilities. The RO concluded that appellant’s broken jaw was the result of his own willful misconduct stemming from the October 1944 truck incident and that there was no evidence that appellant’s alleged deafness was service connected since his hearing was normal on his discharge examination.

In January 1975, the BVA affirmed the denial of appellant’s claim for entitlement to service connection for the residuals of a broken jaw and defective hearing. In July 1976, appellant submitted a statement alleging that he was coerced by the Military Police to plead guilty to the charges emanating from the October 1944 incident, and that it was his companion who stole the truck and ordered appellant to drive it. In May 1977, appellant took a polygraph test in which he averred that he did not know how to drive when he steered the truck into a ditch on October 11, 1944. A sworn statement from appellant’s sister dated August 1976 was submitted which stated that appellant does not currently know how to drive, nor did he know how to drive when he entered the Army in 1942. Appellant also submitted a letter from his dentist, Dr. E.C. Spellman, dated May 1978, which described appellant’s missing teeth and noted that he was told by appellant that they were lost during World War II.

After appellant submitted these records, reports, and statements to reopen his claim, he was informed by letter in December 1978 that these documents did not constitute new and material evidence. In December 1989, appellant submitted a letter from Dr. Antonio Andrade, dated November 16, 1989, which stated that appellant was deaf in his left ear and that this condition “seems to be related to [an] accident while in the service.” Another dentist, Dr. Selso Martinez, also submitted a letter in December 1989 which again described appellant’s missing teeth and stated that “patient say [sic] teeth were lost in military service years.” In January 1990, the RO issued a confirmed rating decision denying appellant service connection for the residuals of his jaw injury and his loss of hearing, stating that he had failed to submit new and material evidence to reopen his claim.

In July 1990, after appellant filed a Notice of Disagreement with the January 1990 rating decision, a hearing was held before a hearing officer where appellant stated that at the time of the October 1944 incident he had been drinking, but was not drunk. At the hearing, appellant also submitted a statement written by himself which chronologically summarizes his years in the service. The hearing officer concluded that the testimony and the additional evidence were cumulative in nature and did not “offset the previous determination that the accident was due to the veter[471]*471an’s own willful misconduct and not in the line of duty.”

On February 14, 1992, the BVA issued its decision which is the subject of the instant appeal. The BVA determined that appellant had failed to submit new and material evidence to reopen his claim to establish that the injuries he sustained in the October 1944 incident were in the line of duty and not the result of his own willful misconduct or that his hearing loss was service connected. Amalio G. Chavarria, BVA 92-3119, at 2 (Feb. 14, 1992).

II. Analysis

Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary must reopen a previously and finally disallowed claim when “new and material evidence" is presented or secured with respect to that claim. To reopen previously and finally disallowed claims, the BVA must conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior disallowance of the claim is “new and material.” Second, if the evidence is new and material, then the case is reopened and the Board must evaluate appellant’s claim in light of all the evidence, both new and old. Id.

The determination as to whether evidence is “new and material” is a question of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). This Court’s most recent statement of the law provides that:

“New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.

Cox v. Brown, 5 Vet.App. 95, 98 (1993).

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Bluebook (online)
5 Vet. App. 468, 1993 U.S. Vet. App. LEXIS 562, 1993 WL 403916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavarria-v-brown-cavc-1993.