Curry v. Brown

7 Vet. App. 59, 1994 U.S. Vet. App. LEXIS 825, 1994 WL 539200
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 5, 1994
DocketNo. 91-504
StatusPublished
Cited by50 cases

This text of 7 Vet. App. 59 (Curry 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
Curry v. Brown, 7 Vet. App. 59, 1994 U.S. Vet. App. LEXIS 825, 1994 WL 539200 (Cal. 1994).

Opinion

STEINBERG, Judge:

The pro se appellant, World War II veteran James Curry, appeals a July 19, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service connection for chronic obstructive pulmonary disease (COPD). Supplemental (Suppl.) Record (R.) at 3-10. (The appellant is also referred to in the record on appeal (ROA) as “James Currey”. See, e.g., R. at 1, 6, 9.) The appellant has filed an informal brief. The Secretary has filed a motion for summary affirmance in lieu of a brief. Because the Court finds that the outcome is “reasonably debatable”, see Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990), the case is not appropriate for summary disposition. For the reasons that follow, the Court will affirm the Board’s decision.

I. Background

The veteran served on active duty in the U.S. Army from July 1942 to December 1945. R. at 1. Except for the report of a September 1943 “Physical Examination for Flying”, which recorded no relevant disabilities (R. at 39^0), his service medical records (SMRs) are missing and presumed destroyed. See R. at 17-18. Between June and August 1974, he was hospitalized three times at the Shreveport, Louisiana, Veterans’ Administration (now Department of Veterans Affairs) (VA) medical center (MC), at which time a history of “shortness of breath since 1946” and a discharge diagnosis of chronic obstructive lung disease were recorded. R. at 3-5, 96-100. In August 1974, the veteran filed with a VA regional office (RO) an application for compensation or pension, describing the claimed disability as follows: “Chok[]ing in lower neck & upper chest — 1950[.] Emphysema. Diagnosed as same as above but worse now.” R. at 7. In decisions dated September and December 1974, the RO denied entitlement to non-service-conneeted pension; those decisions did not address the issue of service connection. R. at 10-12.

In June 1975, the veteran submitted to the RO a medical record from the Travis Clinic Association, a private institution, detailing treatment between July 1947 and September 1956. R. at 13-14. A May 1955 entry contains the earliest reference to “esophageal spasm”, and a September 1956 entry stated as follows:

Recurrent episodes of a choking sensation. The onset of this illness was about 3 months ago when he first began to notice a feeling of choking and a lump in his throat. [61]*61These were rather disturbing sensations[,] often awakening him in the night. Since then he has had pain through his chest, increased severity of the choking sensation. He has been examined by several physicians all of whom gave the opinion that it was nervousness.

R. at 13. Later in June 1975, the RO informed the veteran that his SMRs could not be located, listed several types of evidence that would support his claim, and requested that he submit any such evidence. R. at 15. The veteran then submitted statements from two of his sisters (both nurses) (R. at 22-23, 28-29, 31-33) and three friends (R. at 25-27) stating that he had been in good health prior to service but upon discharge had suffered from a choking sensation and breathing problems. In February 1976, the RO denied service connection for nervousness. R. at 19.

Subsequently, the RO received medical records, dated December 1976, made by W.D. Thames, M.D., a private physician. R. at 35-38. Those records stated, inter alia: “Longstanding case of [COPD] and [asthma].” R. at 35. In an October 1977 letter to the RO, the veteran’s wife stated that he had been in good health before service, but after receiving flu shots prior to separation he had experienced “choking in the lower neck”. R. at 43. She further stated that a doctor at the San Antonio, Texas, Army separation center had opined that the choking had been caused by the shots and had advised the veteran to never take another flu shot. Ibid. She stated that in February 1946 the veteran sought treatment from Dr. J.M. Travis, who prescribed medication to relieve choking; however, she asserted, no records of that treatment exist. Ibid. She further asserted that her husband subsequently sought treatment at the Shreveport VAMC and that in 1956 he sought treatment from a Dr. George Hilliard after the choking moved from the lower throat into the chest. Ibid. In an August 1978 decision, the Board found that chronic obstructive lung disease had not been shown to be present until many years after service and denied service connection. R. at 45-48.

A September 1978 statement from the Travis Clinic stated: “It is possible that [the veteran] was seen in the Travis Clinic prior to 1947 and no notation made in the record to that effect. No record is available and we have no way of knowing.” Second (Sec.) Suppl. R. at 4. In February 1979, the RO received an October 1978 statement from Dr. Thames that the veteran “has been treated for [COPD] since 1963” (R. at 49), and a January 1979 statement from L.L. Travis, M.D., a private physician, that the veteran had been seen by that physician’s father, J.M. Travis, M.D., for “respiratory trouble” on three occasions in January and February 1946. R. at 53.

In August 1979, the RO received the following statement, dated that same month, from Dr. L.L. Travis:

This is a follow-up of the previous letter dated January 25, 1979, stating that [the veteran] was seen by Dr. J.M. Travis, Sr.[,] in January and February 1946. The progressive obstructive lung disease that [the veteran] suffers from today, is the same condition he was treated for on those dates and can only be treated, not cured.

R. at 74. Also in August 1979, the veteran and his wife testified under oath at a hearing held at the RO. R. at 76-83. He stated that in December 1945, while at Fort Sam Houston in San Antonio, he had suffered from choking and coughing and that in January 1946 he had sought treatment from Dr. J.M. Travis (R. at 76-77); that Dr. Travis had treated the condition as asthma and referred him to Dr. Hilliard, who in turn had referred him to the Shreveport VAMC in 1950; that he was also referred to a Dr. Lewis and a Dr. Abbington (R. at 78); and that records made by Drs. J.M. Travis, Lewis, and Hilliard had either been destroyed or misplaced. R. at 82. In October 1979, the RO again denied service connection for a lung disability. R. at 84. After an appeal to the Board, it concluded, in an April 1980 decision, that the August 1978 Board decision did not contain obvious error and that the evidence received subsequent to that decision did not constitute a “new factual basis” for an award of service connection. The BVA, therefore, denied entitlement to service connection for chronic obstructive lung disease. R. at 89.

[62]*62The ROA contains an August 1980 letter to the RO from Daniel Jenkins, M.D., professor of medicine at Baylor College of Medicine, who stated that he had examined the veteran in June 1970 and June 1980 and further stated:

It is quite evident from the history and examination and from the pulmonary function studies ... that [the veteran] suffers from chronic bronchitis with marked obstructive features and from co-existing pulmonary emphysema....
From the history given by [the veteran] it appeal's evident that symptoms of breathing difficulty began prior to his sep-eration [sic] from the [Army] Air Force[s] in December of 1945. The physician, Dr. J.N. [sic] Travis, who saw him following his discharge made a diagnosis of chronic obstructive airway disease....

Free access — add to your briefcase to read the full text and ask questions with AI

Related

15-34 318
Board of Veterans' Appeals, 2021
210510-159040
Board of Veterans' Appeals, 2021
190820-27585
Board of Veterans' Appeals, 2020
190130-3219
Board of Veterans' Appeals, 2020
190129-7495
Board of Veterans' Appeals, 2019
08-35 583
Board of Veterans' Appeals, 2019
181219-1284
Board of Veterans' Appeals, 2019
190306-5831
Board of Veterans' Appeals, 2019
181129-1370
Board of Veterans' Appeals, 2019
181106-1218
Board of Veterans' Appeals, 2019
181107-832
Board of Veterans' Appeals, 2019
09-37 257
Board of Veterans' Appeals, 2017
13-340 97
Board of Veterans' Appeals, 2017
13-19 684
Board of Veterans' Appeals, 2017
12-08 136
Board of Veterans' Appeals, 2017
10-42 804
Board of Veterans' Appeals, 2017
08-33 436
Board of Veterans' Appeals, 2017
12-13 100
Board of Veterans' Appeals, 2016
09-37 983
Board of Veterans' Appeals, 2016
14-18 374
Board of Veterans' Appeals, 2016

Cite This Page — Counsel Stack

Bluebook (online)
7 Vet. App. 59, 1994 U.S. Vet. App. LEXIS 825, 1994 WL 539200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-brown-cavc-1994.