Dinsay v. Brown

9 Vet. App. 79, 1996 U.S. Vet. App. LEXIS 216, 1996 WL 176199
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 16, 1996
DocketNo. 94-149
StatusPublished
Cited by22 cases

This text of 9 Vet. App. 79 (Dinsay 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
Dinsay v. Brown, 9 Vet. App. 79, 1996 U.S. Vet. App. LEXIS 216, 1996 WL 176199 (Cal. 1996).

Opinion

STEINBERG, Judge:

The pro se appellant, World War II veteran Gerardo R. Dinsay, appeals a September 2, 1993, decision by the Board of Veterans’ Appeals (BVA or Board) denying an increased rating for residuals of a gunshot wound and of surgery of the right shoulder and arm, currently rated 40% disabling, and implicitly denying service connection for a heart condition asserted to be secondary to those service-connected residuals. Record (R.) at 9, 15. The appellant has filed an informal brief, and the Secretary has filed a brief. For the reasons that follow, the Court will affirm the Board’s decision in part, vacate it in part and remand one matter, and dismiss the appeal as to a claim of clear and unmistakable error.

I. Background

The veteran had recognized guerrilla and Philippine Army service from October 1943 to April 1945, on June 4, 1945, and from January to February 1946. R. at 43, 76. Clinical records and lay statements indicate that he was shot in the right shoulder in October 1942, remained hospitalized for an “unhealed” gunshot wound until March 1945, and was again hospitalized in January and February 1946. R. at 31, 32, 48, 57. A February 1946 station hospital discharge form gives a diagnosis of “[sjinus, right shoulder joint from unhealed [gunshot wound]”. R. at 59. His February 1946 Philippine Army discharge form indicates “[g]un-shot wound[,] right shoulder” under “[w]ounds received in service”. R. at 55-56. A June 1945 medical examination report noted an “unhealed comp[ound] fracture r[ight] [81]*81humerus due to G[un] S[hot]”. R. at 117. A July 1946 letter from a Philippine Army “provincial surgeon”, Lt. Ramos, noted that the veteran suffered from “[a]nkylosis, [s]houlder [j]oint, [r]ight”. R. at 30. (Ankyl-osis is “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint”, Stedman’s Medical Dictionary 87 (25th ed. 1990) [hereinafter Stedman’s].) In an August 1946 letter to the Veterans’ Administration (now Department of Veterans Affairs) (VA), the veteran claimed that he was “unable to land myself a job on account of my disability” and requested a “disability pension”. R. at 29. In February 1947, he filed with a VA regional office (RO) an application for VA disability compensation or pension for “[ajnkylosis” of the right shoulder, caused by an unhealed gunshot wound. R. at 23-25. The record does not indicate any development of that claim until 1949. See R. at 137-38.

A May 1949 special orthopedic examination report, requested by the VARO, gave a diagnosis of “[rjesiduals of gunshot wound” with the following complications: “Cicatrices, painful, adherent and depressed”; “[mjuscle injury, severe, Group III, with severe atrophy and unfavorable motion of shoulder-joint”; “[n]erve injury, paralysis, partial, moderate, brachial plexus, with moderate anesthesia of upper extremity”; and “[a]nkylo-sis of shoulder-joint, unfavorable”. R. at 66-67. (“Cicatrices” are scars, and “brachial plexus” is the network of nerves, blood vessels, and lymphatic vessels in the arm, Sted-man’s at 207, 306, 1217.) In a May 1949 decision, the RO denied the claim on the grounds that the veteran’s October 1942 injury was not incurred during or aggravated in service. R. at 70. In a May 27, 1949, letter to the veteran, the RO stated: “If you wish to appeal, you should so inform this office, and you will be furnished with VA Form P-9 for that purpose.” R. at 69. In a June 1949 letter to the RO, the veteran stated that he wished to “appeal for the reconsideration of my case”. R. at 72. The record does not indicate that a VA Form P-9 was ever sent to the veteran in answer to his June 1949 letter. Rather,, an August 19, 1949, reply letter from the RO to the veteran, “in reference to your claim for compensation”, recited the facts of the veteran’s case and concluded that “you are not entitled to benefits for your disabilities not incurred in or aggravated in service. Your claim, therefore, remains in a disallowed status_” Supplemental (Suppl.) R. at 1 (document transmitted to this Court on October 4, 1995, in response to the Court’s September 26, 1995, order). An October 1950 RO decision amended the May 1949 decision as to the veteran’s periods of active service, but continued the denial of service connection. R. at 82.

The veteran wrote to the RO in January 1971, stating: “I have a claim in your office pertaining to disability compensation whose status is still disallowed.” R. at 93. He submitted to the RO additional records pertaining to his World War II service and hospitalization. R. at 93-102. The RO denied his claim that month, noting that, based on all evidence of record, the injury had occurred one year before the veteran’s recognized active service began and was not aggravated during active duty. R. at 104. In a February 1971 letter to the RO, the veteran stated: “I am compelled to appeal again [and] this is your third denial”. R. at 112.

The veteran testified under oath before the RO in March 1971 that he was continuously hospitalized from 1942 to 1945. He stated:

[F]rom [the 1942 gunshot wound] until the Americans came to the Philippines I was not cured ... [;] from 1942 I was hospitalized from one place to the other. It was a time that my wound tried to heal but because there was no opportunity to cure it it did not heal completely. We went to the mountains from one place to another[;] that was why my wound was aggravated.

R. at 124-26. In April 1971, the RO, finding the evidence submitted “not new and material to warrant a favorable reconsideration”, refused to reopen the claim. R. at 129. He filed a Notice of Disagreement (NOD) the following month. R. at 132. The RO issued a June 1971 Statement of the Case (SOC) which did not indicate that any action had been taken on the veteran’s claim between the RO’s May 1949 denial and the October 1950 amended denial. R. at 135,138.

[82]*82In a January 1972 decision, the Board granted the veteran entitlement to service connection for aggravation of the residuals of a gunshot wound of the upper right extremity. R. at 158, 161. The Board explained that “the evidence submitted in connection with the veteran’s reopened claim, specifically, the testimony he offered [in March 1971] during the course of a hearing on appeal, when considered in conjunction with the other evidence of record, affords a new factual basis warranting the grant of service connection”. R. at 160. A February 1972 VA medical examination report gave a diagnosis of “[r]esiduals of G[un] S[hot] W[ound] T[hrough and] T[hrough] and surgery ... muscle injury, involving [muscle groups] III, II, and VI; complete ankylosis [of] right shoulder; loss of motion of right shoulder.” R. at 164, 167. Based on these findings, a March 1972 RO decision rated the shoulder injury 40% disabling, effective December 1970, to reflect a 50% disability evaluation per the VA medical findings, reduced by 10%, the amount judged to represent the extent of his injury upon entering active service. R. at 171-72.

In April 1972, the veteran filed an NOD, alleging that he suffered “complete ankylo-sis”, which had caused “the loss of use of my right arm _ for which reason I am refused ... employment”. R. at 174. He also requested benefits retroactive to his first claim for disability compensation, in 1949, and noted:

May I disagree with the statements in the Findings and Decision of January 13, 1972.

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Bluebook (online)
9 Vet. App. 79, 1996 U.S. Vet. App. LEXIS 216, 1996 WL 176199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinsay-v-brown-cavc-1996.