Chipego v. Brown

4 Vet. App. 102, 1993 U.S. Vet. App. LEXIS 26, 1993 WL 11296
United States Court of Appeals for Veterans Claims·Decided January 25, 1993·No. No. 90-639·Published·Cited by 10 cases

Opinion

IVERS, Associate Judge:

Appellant, Daniel G. Chipego, appeals from an April 6, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to service connection for appellant’s back disorder. On June 24, 1991, appellant filed an informal brief. Appellant contends that the BVA decision is clearly erroneous. On August 28, 1991, the Secretary of Veterans Affairs (Secretary) filed a motion for summary affir-mance, for acceptance of the motion in lieu of a brief, and for a stay of proceedings pending a ruling on the motion. For the reasons set forth below, the Secretary’s motion for summary affirmance is denied, and the BVA decision is vacated and remanded for further proceedings consistent with this opinion.

I. BACKGROUND

Appellant served in the United States Army from April 2, 1941, until September 3, 1945. From the record, it appears that appellant first injured his back in a parachute jump on October 19, 1943. R. at 11. This occurred at parachute school, while appellant was stationed at Fort Benning, Georgia. R. at 17, 64. Then, according to appellant, he re-injured his back on June 29, 1944, while stationed at Camp Forrest, Tennessee. There, he strained his back when he attempted to pick up the tail of a 75mm gun. The gun was too heavy to lift, and he dropped the tail of the gun on his toes. R. at 14,150-52. Appellant contends that his back was re-aggravated during a practice parachute jump in Swindon, Eng[103] land, in late summer, or early fall 1944, and again when he made a parachute jump over the Rhine River in March 1945. R. at 92, 145-46. Appellant claims that he made approximately 13 to 14 parachute jumps during his military career. Id. In addition to his back injury, appellant injured his right thumb and suffered from frozen feet while in Belgium in 1944. R. at 17.

It appears that appellant is service-connected for residuals of his right thumb injury and for his frozen feet. No reference will be made to medical documents found in the record that relate solely to these disorders.

Appellant probably filed his initial claim with the Veterans’ Administration (now Department of Veterans Affairs) (VA) sometime in 1951. Appellant’s claim for service connection for a back disorder was initially denied in a May 1951 rating decision. R. at 101. Appellant underwent a VA examination on January 2, 1952. R. at 17-21. Appellant was diagnosed with having “[rjesid-uals back injury — subjective complaints only.” R. at 20. However, from the record, it does not appear that X rays were taken. The earliest back X ray found in the record was an X ray of appellant’s lumbar spine taken on March 8, 1974. The March 12, 1974, X-ray report stated, “Examination of the lumbar vertebrae shows early hypertrophic arthritic changes with narrowing of the lumbosacral joint.” R. at 65. On June 11, 1979, Dr. W.H. Lambert filed an Attending Physician’s Report with the VA. Dr. Lambert stated that he treated appellant “off and on” from 1947 to June 1979. R. at 66. In giving a history of appellant’s back condition, Dr. Lambert stated that appellant injured his back in 1943, while in the U.S. Army at Fort Ben-ning, Georgia, but then fell at work in 1972. Id. Dr. Lambert diagnosed appellant as having hypertrophic arthritis of the lumbar spine and stated that the “[hjyper-trophic arthritis of [appellant’s] spine [was] caused by [the] trauma [of] 1972 [to] 1973.” Id.

On August 23, 1979, appellant attempted to reopen his claim for service connection for his back injury. He submitted a “buddy letter,” dated April 30, 1980, which attested to a parachute jump in England. R. at 69-70. Statements from appellant’s wife and Dr. Lambert were received by the VA in September 1981. R. at 72-75. On October 22, 1981, the VA received a report by Dr. Lambert which traced the history of appellant’s back disability back to 1945, soon after appellant’s discharge. Dr. Lambert stated that he had begun treating appellant in early 1946 and had continued to do so to the present. R. at 77.

On April 19, 1982, the BVA denied service connection for a back disorder, including spinal arthritis. R. at 79-84. Affidavits by two members of appellant’s Army unit were submitted to the VA, attesting to parachute jumps made by appellant. Additionally, a letter from Dr. Charles J. Aquili-na was submitted wherein Dr. Aquilina concluded that appellant’s current back condition was related to the parachute accidents he suffered during service. R. at 86-90. On April 12, 1983, Dr. Lewis L. Rogers, after reviewing a number of appellant’s records, sent a letter to the VA Regional Office expressing his belief “that the narrowing of the L-5 S-l disc is the major problem here and it probably is associated with [appellant’s two] injuries [suffered in service] ... The arthritic changes of course have occured [sic] from that injury to the present date.” R. at 94. Letters from an Army surgical technician and an Army battalion surgeon regarding the practice jump in Swindon, England, were submitted to the VA in April 1984. On October 16, 1985, the BVA again denied service connection for appellant’s back disorder. R. at 100-06.

Appellant reopened his claim in 1986. A report by Dr. Vincent J. Digiovanni was submitted. R. at 107-09. Dr. Digiovanni diagnosed appellant as having “[spondylo-sis of the lumbar spine, probably secondary to recurrent trauma from military trauma.” R. at 109. A June 15, 1988, BVA decision denied service connection for appellant’s back disability on the grounds that the evidence received in support of the veteran’s claim did not provide a new factual basis warranting service connection. R. at 111-17.

[104] On July 12, 1988, appellant attempted to reopen his back claim. He filed a statement in support of claim and requested a personal hearing; he further requested the VA to research any available records from the National Research Council. R. at 118. On October 27, 1988, a one-page computer printout generated from “Hospital Admission Card data files (1942-1945; 1950-1954), created by the Office of the Surgeon General Department of the Army,” was sent from the Office of the Surgeon General (SGO) to the VA. R. at 121. Appellant also submitted a statement from Dr. Earnest B. Carpenter, who treated appellant after he injured himself in the 1944 jump in England. Dr. Carpenter stated the following:

As a Battalion Surgeon with the 17th Airborne Division, Headquarters Division: I distinctly remember treating [appellant] following a practice jump in England in the late Summer or early Fall. He injured his back and I sent him to the nearest U.S. Army hospital. [Appellant] later returned to the 17th A[irborne] division but continued to have complaints with his back.

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Chipego v. Brown, 4 Vet. App. 102, 1993 U.S. Vet. App. LEXIS 26, 1993 WL 11296 (Cal. 1993).

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