Eddy v. Brown

9 Vet. App. 52, 1996 U.S. Vet. App. LEXIS 194, 1996 WL 152879
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 3, 1996
DocketNo. 94-1067
StatusPublished
Cited by65 cases

This text of 9 Vet. App. 52 (Eddy 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
Eddy v. Brown, 9 Vet. App. 52, 1996 U.S. Vet. App. LEXIS 194, 1996 WL 152879 (Cal. 1996).

Opinion

STEINBERG, Judge:

The appellant, World War II veteran Earl E. Eddy, appeals a September 15,1994, decision by the Board of Veterans’ Appeals (BVA or Board) denying a claim based on his assertion of clear and unmistakable error (CUE) in a September 19, 1946, Veterans’ Administration (VA) (now Department of Veterans Affairs) regional office (RO) decision. Record (R.) at 8. For the reasons that follow, the Court will affirm the decision of the Board.

I. Background

The veteran served on active duty in the U.S. Army from May 1945 to August 1946. R. at 82. His April 1945 induction medical examination report indicated that his muscu-loskeletal system was normal. R. at 42. He was hospitalized for back pain on May 18, 1946, at the 42nd General Hospital in Japan, transferred to Letterman General Hospital in California on July 5, 1946, and transferred to Mayo General Hospital on July 10, 1946. R. [54]*54at 36-37, 39, 101, 103-04. A May 20, 1946, “History of the Present Illness” stated:

In 1942, [the veteran] was working on a grain wagon on a Wisconsin farm and after lifting some heavy grain bags he had onset of constant dull aching pains in the lower back — he has some pain all of the time on extensive walking or doing any heavy work. Since coming into the Army he has been able to do most duty [without] severe pain, but since January he has been driving a truck and he thinks his lower back has pained him more severely and he is unable to [do] duty [without] severe discomfort. He was x-rayed at the 161st Station Hospital in January but not hospitalized although several abnormalities were found. He was put on light duties but without relief of symptoms. Now comes to hospital for complete evaluation and disposition.
Imp. (1) Congenital abnormalities of vertebral column.
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Vertebral Column — Straight and [without] muscular spasm — moderate tenderness from [illegible] to lumbosacral joint — forward bending limited and lateral flexion painful — Straight] L[eg] R[aising] tests negative. Vertebral rotation negative. Extremities — negative[.]

R. at 115-16. A May 21, 1946, x-ray report stated:

There is a rotoscoliosis of the lumbar spine with the convexity to the right. There is asymmetry of the articular facets between L — 4 and L-5 and there is some developmental variation from the normal of L-5 which I believe is of no clinical significance. The intervertebral spaces appear normal. The sacroiliac joint appears normal.

R. at 55. A June 3,1946, clinical note stated: “Soldier unimproved during hospital stay— disposition Board saw soldier and [illegible] him for transfer to the Zone of the Interior and further medical care.” R. at 56, 103.

A June 20, 1946, clinical record stated a diagnosis of: “Malformation, congenital — ro-toscoliosis of the lumbar spine and asymmetry of the articular facets between L4 and L5 manifested by low back pain, chronic, moderate severe, and aggravated by military service.” R. at 45. The form also stated “L[ine] 0[f] D[uty]: Yes (EPTS-Aggravated) Unimproved”. Ibid. A June 20, 1946, hospital record stated: “Diag[nosis]: Rotoscoliosis lumbar spine[.] Assymetry [sic], articulating Facets spina bifida acculta [sic] 1st sacral L[ine] 0[f] D[uty] No E[xisted] P[rior] T[o] S[ervice].” R. at 46. Handwritten below was the following notation: “Diagnosis: (1) Malformation, congenital — Rotoscoliosis of the lumbar spine and asymmetry of the articular facets between L4 & L5 — manifested by low back pain, chronic, moderate severe, and aggravated by military service.” Ibid. The block titled “Line of Duty” on the form had the notation ‘Tes (EPTS — aggravated)”.

An undated Mayo General Hospital record (apparently made on or about July 12, 1946, given that it refers to “admission”, and admission to Mayo General Hospital was on July 12,1946, see R. at 126-27), stated:

Pertinent history, chief complaint, and condition on admission. In 1942, this patient appreciated the precipitous onset of constant dull aching pain in the low back while lifting heavy grain bags. Since that time he has had some degree of pain all the while, during extensive walking or heavy work. However, he has been able to tolerate his general Army duties without much personal distress. Since January 1946 he has been driving a truck and has appreciated an aggravation of the severity of pain since that time, being unable to do duty without severe discomfort. Roentgeno-graphic studies of the low back was [sic] done at the 151st Station Hospital at which time a rotoscoliosis of the lumbar spine with convexity to the right was found with associated asymmetry of the articular facet between L-4 and L-5 and also concomitant developmental variations from the normal of L-5. Light duty did not give relief of symptoms. 15 May 46 the patient states that a bench fell on his back and for approximately two weeks following this he appreciated “numbness” on the lateral aspect of the right thigh. There is no other associated hypesthesia or hyperthesia.
PHYSICAL EXAMINATION IS NEGATIVE EXCEPT FOR mild degree of low [55]*55sacrospinalis spasm bilaterally and tenderness over the spine of L-5.
Impression: (1) Malformation, lumbar spine, congenital, with rotoscoliosis and asymmetry of the articular facet between L-4 and L-5, manifested by low back pain, chronic, moderately severe, aggravated by military service. (2) ? Herniation of inter-vertebral disc.
Immediate Program: Refer to neurosurgery to [sic] re-evaluation of roentgeno-graphic studies with check-up films of the lumbar spine.

R. at 51. This report was signed by “Albert E. Posthuma”, who was identified as a first lieutenant in the medical corps. Ibid. A July 19, 1946, x-ray report stated: “Spine: There is a slight dextro-scoliosis of the lumbar spine; L5 is transitional in type and is slightly asymmetrical. There is a spina bifi-da occulta of SI.” R. at 117.

An undated record, which refers to a July 12,1946, admission to Mayo General Hospital and gives a patient history very similar to that reported in the July 12, 1946, record, stated:

Physical findings: Negative except for mild degree of low sacrospinalis spasms, bilaterally, with tenderness over spine of L-5. There is also associated limitation of flexion and rotation of the lumbar spine. Patient was admitted to Mayo GH 12 July 1946.
Clinical Course and Disposition: Check-up films of the lumbar spine have been taken for comparison with the previous films. Diagnosis: 1. Malformation, lumbar spine, congenital, with rotoscoliosis and asymmetry of the articular facet between L-4 and L-5.
2. Low-back pain, chronic, moderately severe, aggravated by military service.

R. at 59-60. The name and title “A. E. POSTHUMA, 1st Lt., M[edical] C[orps]” appears at the bottom of the page. Ibid.

A July 18,1946, “Opinion of consultant” by the Chief of Neurosurgery stated:

History and records reviewed. Patient dates the onset of symptomatology to 1942, at which time he strained his back while working on the farm and lifting wheat. Symptoms are not disabling but he continues to have intermittent low-back pain.

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Bluebook (online)
9 Vet. App. 52, 1996 U.S. Vet. App. LEXIS 194, 1996 WL 152879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eddy-v-brown-cavc-1996.