Dunn v. Principi

3 Vet. App. 499, 1992 U.S. Vet. App. LEXIS 376, 1992 WL 346582
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 27, 1992
DocketNo. 91-541
StatusPublished

This text of 3 Vet. App. 499 (Dunn v. Principi) 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
Dunn v. Principi, 3 Vet. App. 499, 1992 U.S. Vet. App. LEXIS 376, 1992 WL 346582 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, Vietnam veteran John H. Dunn, appeals from a November 29, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service connection for arthritis of the spine, to an increased rating for residuals of a gunshot wound of the lower right extremity, currently rated as 20% disabling, and to an increased rating for residuals of a gunshot wound of the lower left extremity, currently rated as 10% disabling. John H. Dunn, BVA 90-40695 (Nov. 29, 1990). The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by the Court’s prece[501]*501dents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Secretary’s motion will be denied and the Board’s decision will be vacated and the matter remanded for readjudication of the appellant’s claims.

I. BACKGROUND

The veteran served on active duty in the United States Army from September 1967 to December 1974. R. at 1, 68. In June 1968, he received gunshot wounds to both legs. R. at 7. Although service medical records are incomplete, both tibias were fractured by bullets and his right ankle apparently required immediate surgery to remove a bullet. R. at 9, 10, 15, 19. Both legs incurred malunion of the lower tibia and fibula, resulting in a “fair degree of disability” according to an April 1974 report by an Army physician. R. at 15. In March 1974, the veteran suffered an additional leg injury when a chain snapped and lacerated his left leg. R. at 14. According to a June 1974 Army orthopedic report, the veteran suffered pain in his left leg and limited range of motion in his left knee, causing him to limp and rendering him unable to place weight on his left leg. R. at 20. According to an October 1974 medical profile, he was restricted to standing no more than four hours per day. R. at 24. An October 1974 Army orthopedic report gave a diagnosis of “Osteoporosis of [right] foot & lower leg from old [gunshot wound fracture] which has healed [with] malunion & early posttraumatic ankle arthritis. Recommend ... disability settlement at time of separation [with] future [Veterans’ Administration (now Department of Veterans Affairs) (VA)] benefits”. R. at 26. There is no separation examination report in the record on appeal (ROA).

According to the record of a February 1975 VA orthopedic examination, the veteran suffered pain and swelling in both legs continuously from approximately 1969. R. at 32. The examiner found the scars on both legs to be healed, and noted a full range of motion in the right leg, although he did not describe the range of motion of the left leg. He stated that the veteran walked without a limp. Ibid. In a March 1975 rating decision, the VA Regional Office (RO) granted service connection for residuals, gunshot wound, of each lower extremity, with fractures of tibia and fibula, rated as 20% disabling in the right leg and 10% disabling in the left leg, effective December 10, 1974, the day after discharge. R. at 35. According to a May 1976 physical examination conducted by the Louisiana Department of Veterans Affairs, the veteran suffered from “severe osteoporosis — cause unknown”. R. at 36. In a June 1976 letter supporting a request for a higher rating, the veteran stated that he had been told by a physician that his osteoporosis was softening the bones in his legs and back. R. at 38. A March 1976 VA medical certificate gave a diagnosis of osteoporosis, secondary to gunshot wound. R. at 43. However, a June 24, 1976, VA medical evaluation interpreted X rays as showing no osteoporosis (R. at 44); in a letter dated the same day as that evaluation, the veteran challenged the validity of the examination, stating both that the physician had failed to clinically examine his legs and that the physician had laughed at the prior VA diagnosis of osteoporosis. R. at 41. In a July 1976 decision, the VARO denied increased ratings for the veteran’s disabilities. R. at 46.

In February 1988 the veteran again requested increased ratings, this time submitting a December 1988 statement from the Alexandria, Louisiana, VA Medical Center which diagnosed “generalized osteoporosis of knee and [lumbosacral] spine”. R. at 53-58. A November 1988 VA radiologic report confirmed generalized osteoporosis of the right ankle, both knees, and the spine, and stated that the changes in the spine were “compatible with early rheumatoid arthritis”. R. at 65. An April 1989 VA physical examination gave a diagnosis of “[c]hronic low back pain, probably due to mild degenerative joint disease”; however, it did not discuss a March 1989 VA radiologic report which had noted the presence of osteoporosis in the lumbosacral spine. R. at 75, 76.

[502]*502In a June 1989 decision, the VARO denied service connection for osteoporosis and degenerative changes of the lumbosa-cral spine, and further denied increased ratings for the gunshot wounds of the legs. R. at 83. After the RO’s September 1989 confirmation of that decision, the veteran filed an appeal with the BVA. R. at 97, 99. At an October 1989 personal hearing, he stated that he suffered pain, swelling, and limited motion in his legs (R. at 102-04) and that he limped due to pain and the shortening of one leg (R. at 111-12). A December 1989 VA orthopedic evaluation performed at the request of the hearing board found only “slight shortening” of the right leg and full range of motion in both ankles and knees. R. at 125-26. Although the examiner recorded an impression of “osteoporosis of the lumbar spine on basis of x-ray reports”, it appears that additional X rays were taken prior to the final diagnosis. R. at 126-27. The examiner gave a final diagnosis of “chronic lumbosacral strain”, non-disabling, and noted: “Veteran failed to complain of back until examiner asked about his back.” R. at 127. In its November 29, 1990, decision, the BVA concluded that the appellant’s arthritis of the spine had not been incurred in or aggravated during service, and further found that the evidence of record did not satisfy the sche-dular criteria for increased ratings for residuals of gunshot wounds to the lower extremities.

II. ANALYSIS

A. Claims for Increased Ratings for Lower Extremities

As to the lower extremities, the BVA erred in failing to analyze the evidence in light of 38 C.F.R. § 4.40 (1991), the regulation that requires the Board to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. Under that regulation, “the VA has a duty to determine functional loss which includes evaluating a veteran’s pain”. Ferraro v. Derwinski, 1 Vet.App. 326, 330 (1991); see Schafrath v. Derwinski, 1 Vet.App. 589, 591-92 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). Although the ROA contains numerous medical reports documenting a history of pain in the appellant’s legs and ankles dating from 1968 to 1988 (R. at 20, 41, 58, 69) as well as the appellant’s sworn testimony that he suffered pain in his lower extremities (R. at 102, 104), in its decision the BVA failed to address the question of pain. Therefore, remand is required to allow the Board to discuss, in the context of section 4.40, all of the evidence that addresses the veteran’s functional loss due to pain.

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Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
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1 Vet. App. 164 (Veterans Claims, 1991)
Ferraro v. Derwinski
1 Vet. App. 326 (Veterans Claims, 1991)
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Bluebook (online)
3 Vet. App. 499, 1992 U.S. Vet. App. LEXIS 376, 1992 WL 346582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-principi-cavc-1992.