Cochran v. Derwinski

2 Vet. App. 649, 1992 U.S. Vet. App. LEXIS 206, 1992 WL 177003
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 29, 1992
DocketNo. 91-490
StatusPublished
Cited by1 cases

This text of 2 Vet. App. 649 (Cochran v. Derwinski) 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
Cochran v. Derwinski, 2 Vet. App. 649, 1992 U.S. Vet. App. LEXIS 206, 1992 WL 177003 (Cal. 1992).

Opinion

MEMORANDUM DECISION

MANKIN, Associate Judge:

Appellant seeks reversal of a December 21, 1990, Board of Veterans’ Appeals (BVA or Board) decision which refused to grant service connection for postoperative residuals of a laminectomy, entitlement to an increased rating for a duodenal ulcer (currently evaluated as 20% disabling), and entitlement to an increased (compensable) rating for residuals of a postoperative piloni-dal cyst. The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). The Secretary of Veterans Affairs (Secretary) filed a motion for summary affirmance to which appellant filed a motion in opposition. The Court grants the Secretary’s motion as to entitlement to an increased rating for a duodenal ulcer and the residuals of a postoperative pilonidal cyst, but denies the motion as to the issue of service connection for postoperative residuals of a laminectomy.

Pursuant to 38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4)), the Court reviews Board findings of fact under a “clearly erroneous” standard. “[I]f there is a ‘plausible’ basis in the record for the factual [651]*651determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them.” Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Accordingly, the BVA’s finding that “[i]t is not shown that the veteran experiences impairment of health manifested by anemia and weight loss associated with ulcer disease, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year, such as would constitute ‘moderately severe’ disability” is not clearly erroneous. Cofer G. Cochran, BVA 90-, at 6-7 (Dec. 21, 1990). The evidence clearly presents a plausible basis for the Board’s conclusion that appellant’s duodenal ulcer disease is not more than the current 20% disabling under the criteria of 38 C.F.R. § 4.114a, Diagnostic Code (DC) 7305 (1991).

Likewise, appellant does not meet the criteria for a compensable disability rating for the residuals of a postoperative pilonidal cyst under 38 C.F.R. § 4.118, DC 7805 (1991). Thus, the BVA’s finding that “[t]he scar at the site of a pilonidal cyst excision is not shown to be tender and painful on objective demonstration, nor is there any discernible functional impairment associated with that region of the body” must be upheld. The Court is also satisfied that the BVA decision satisfies the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)), and the benefit of the doubt doctrine of 38 U.S.C. § 5107(b) (formerly § 3007(b)) as to the issues of entitlement to an increased rating for a duodenal ulcer and the residuals of a postoperative pilonidal cyst. See Gilbert, 1 Vet.App. 49.

On January 9,1973, the BVA denied service connection for postoperative residuals of a laminectomy with spondylolysis of L-5. That decision became a final decision and is not subject to review by this Court. 38 U.S.C. § 7105 (formerly § 4005); 38 C.F.R. § 3.104(a) (1991) and 57 Fed.Reg. 4112-13, 4126 (1991) (to be codified at 38v C.F.R. §§ 20.302, 20.1104). The exception to the rule of finality is 38 U.S.C. § 5108 (formerly § 3008) which states:

If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

When a veteran attempts to reopen a previously denied claim based upon new evidence, “the BVA must perform a two-step analysis.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).

First, the BVA must determine whether the evidence is “new and material”. 38 U.S.C. [§ 5108]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.

Id. Here, the BVA first failed to determine whether the evidence submitted was new and material before it proceeded to reopen appellant’s claim and find that it did not establish a new factual basis to support appellant’s claim for service-connected residuals of a back operation. Cochran, BVA 90-, at 5.

The issue of whether “new and material” evidence was submitted is a legal question that this Court reviews de novo, without deference to the BVA’s findings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). New evidence is “not that which is merely cumulative of other evidence on the record.” Id. Material evidence “is relevant and probative of the issue at hand.” Id. The evidence submitted consists primarily of various medical records from both private physicians and from the Veterans’ Administration (now the Department of Veterans Affairs) (VA) dated since the last BVA decision, and the veteran’s testimony given at a September 11, 1990, personal hearing before the BVA. The Court finds as a matter of law that appellant submitted new and material evidence, as there was “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin, 1 Vet.App at 174.

The Court further finds that the Secretary failed to acquire certain medical [652]*652records of which he had notice. Where a well-grounded claim has been presented, the statutory duty to assist requires the VA to obtain all pertinent medical records which have been called to its attention by the veteran and the evidence of record. See Ivey v. Derwinski, 2 Vet.App. 320, 323 (1992); Murincsak v. Derwinski, 2 Vet.App. 363, 372 (1992). In his sworn testimony before the BVA, the veteran gave a detailed account of an accident that occurred while serving in a jet squadron of the 1st Marine Air Wing in South Korea in late 1954 to early 1955 in which he injured his spine and underwent back surgery and subsequent hospitalization. S.R. at 4-6. The veteran also mentioned that in 1970, Dr. James H. Wiley stated, after examining the surgery scars on his back, that some bones were missing from his spine. R. at 160. After a mining accident in October 1970, the veteran was seen by Dr. Wiley and Dr. Geary B. Edminston, both of whom described the 1970 back injury as a superimposed sprain type injury indicating a previous back injury. R. at 26, 52, 79. Appellant has consistently claimed that the back surgery performed in Korea weakened his back, making him more susceptible to the 1970 mining injury and is the cause of the subsequent back surgeries. See R. at 54, 87, 102, 111, 131, 132.

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Related

Cochran v. Brown
8 Vet. App. 557 (Veterans Claims, 1996)

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Bluebook (online)
2 Vet. App. 649, 1992 U.S. Vet. App. LEXIS 206, 1992 WL 177003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cochran-v-derwinski-cavc-1992.