Fanning v. Brown

4 Vet. App. 225, 1993 WL 42289
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 19, 1993
DocketNo. 91-316
StatusPublished
Cited by102 cases

This text of 4 Vet. App. 225 (Fanning 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
Fanning v. Brown, 4 Vet. App. 225, 1993 WL 42289 (Cal. 1993).

Opinion

MANKIN, Associate Judge:

Appellant, William Fanning, Jr., appeals the November 28, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to a separate (compensa-ble) rating for a tender scar in the right inguinal area secondary to the postoperative residuals of a right inguinal hernia with ilioinguinal nerve neuritis. Appellant filed a brief on September 6, 1991. The Secretary of Veterans Affairs (Secretary) filed a brief on January 6, 1992. Appellant filed a reply brief on January 21, 1992. The Court has jurisdiction pursuant to 38 U.S.C.A. § 7252 (West 1991).

I. BACKGROUND

William Fanning, Jr., served in the United States Army from January 1953 to December 1954. A herniorrhaphy (hernia operation) was performed in January 1954. A January 7, 1965, Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) rating decision amended a 1955 rating decision, to award service connection, at a noncompensable rating, for the operation residuals of a right inguinal hernia, under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7338 (1992) (hernia, inguinal). A January 4, 1967, rating decision awarded a 100% disability rating for herniorrhaphy scar, under DC 7338 and 7804 (scars, superficial, tender and painful on objective demonstration), effective October 4, 1966, due to appellant’s hospitalization, but also decreased the rating to 10% effective November 1, 1966.

Appellant underwent a second repair to the inguinal hernia in January 1967. In a September 10, 1969, rating decision, the VARO increased appellant’s disability rating for residuals of the hernia to 30% under DC 7338 and 8630 (diseases of the peripher[228]*228al nerves, neuritis). That rating decision did not continue the January 4,1967, award of a compensable rating for herniorrhaphy scar.

Appellant was hospitalized again on October 17,1969, at which time a right radical orchiectomy (surgical excision of a testis) was performed. On December 11, 1969, the rating board awarded a 100% disability rating for the residuals of hernia from October 17, 1969, but also reduced the rating to 10% effective December 1, 1969, based on improvement in pain. The rating board also granted a 10% disability rating for right radical orchiectomy.

From November 23, 1971, to December 22, 1971, appellant was hospitalized, and as a result the rating board increased his disability rating to 100% from November 23, 1971, for residuals of the right inguinal hernia with ilioinguinal nerve neuritis, but then reduced the rating to 10% effective January 1, 1972. Appellant was also hospitalized for evaluation of his disorder from April 5, 1976, to May 18, 1976; from September 3, 1980, to September 5, 1980; and from January 15,1982, to January 18,1982. Prior to the November 28, 1990, BVA decision which is the subject of this appeal, the VARO and BVA denied appellant’s claims for an increased disability rating on numerous occasions.

Appellant reopened his claim on January 29, 1990, but the February 2, 1990, rating decision found that the

medical evidence is duplicative, cumulative & repetitive. The majority of which has been previously considered.... [A]s there is no evidence of a recurrent hernia, there is no basis for an evaluation beyond current 10% evaluation.

A VA examination conducted on January 3, 1990, diagnosed right groin intractable pain. On January 24, 1990, a private physician, Dr. Matuk, reported that appellant “has a very painful and tender scar in the right inguinal area caused by 3 consecutive surgeries of recent traumatic hernia.” Appellant submitted a February 13, 1990, letter from a private physician, Dr. Heric, which concluded that appellant’s disability was closer to 100% than appellant’s current disability rating. In February and March 1990, Dr. Dodge noted that appellant had “significant and severe pain” in the right inguinal region which was related to the previous hernia surgery. On March 21, 1990, a VA consultation report diagnosed postoperative neuralgia. In April 1990, appellant was prescribed medication for anxiety and severe pain. Appellant also submitted statements from Dr. Dodge which related that the 1969 hernia operation caused a long and painful scar into the scrotum, which never healed and which continued to cause appellant severe pain.

The Statement of the Case was issued on April 13, 1990. Appellant filed his appeal to the BVA on April 18, 1990. Appellant claims the tender scar should be separately rated from the residuals of the right inguinal hernia, as it was in the January 4, 1967, rating decision. Appellant maintains that the hernia disability and the scar pertain to “two individual body systems” and thus meet the required criteria for separate ratings according to the schedule for rating disabilities. On November 28, 1990, the BVA concluded that “[a] separate (compen-sable) evaluation for a tender scar in the right inguinal area secondary to postoperative residuals of a right inguinal hernia with ilioinguinal nerve neuritis is not warranted.” William Fanning, Jr., BVA 90-40457, at 4 (Nov. 28, 1990).

II. DISCUSSION

Appellant argues that the BVA did not have jurisdiction over the issue of entitlement to a separate compensable rating for a tender and painful scar because the rating board never adjudicated this issue. The BVA’s jurisdiction extends to “[a]ll questions of law and fact necessary to a decision by the [Secretary] under a law that affects the provision of benefits by the Secretary_” 38 C.F.R. § 20.101(a) (1992); see also 38 U.S.C.A. §§ 7104(a), 511(a) (West 1991).

This Court has consistently held that the BVA “must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal.” Mingo v. Derwinski, 2 Vet.App. 51, [229]*22954 (1992) (citing to Myers v. Derwinski, 1 Vet.App. 127, 129 (1991)). The VA’s statutory “duty to assist” appellant, under 38 U.S.C.A. § 5107(a) (West 1991), to develop the facts pertinent to his claim, must extend the liberal reading given to appellant’s substantive appeal “to include issues raised in all documents or oral testimony submitted prior to the BVA decision.” EF v. Derwinski, 1 Vet.App. 324, 326 (1991). In the Statement of Accredited Representative in Appealed Case, appellant requested the BVA to assign a separate rating for a tender scar. The Court holds that the BVA had jurisdiction to decide the issue on appeal.

A. Total and Permanent Disability Rating

The BVA erred when it failed to address appellant’s claim of total and permanent disability due to individual unemployability. Appellant submitted medical statements which reported appellant as “totally disabled” and “clearly disabled for employment.” A statement from Dr. Dodge reported appellant’s complaint that the constant and severe pain kept him in bed a great deal. In a 1975 VARO hearing, appellant testified that he last worked as a postal clerk from 1967 to 1970, left this position because of his disability, and had tried unsuccessfully to obtain employment since that time. There is no evidence in the record of employment since 1970.

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Bluebook (online)
4 Vet. App. 225, 1993 WL 42289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanning-v-brown-cavc-1993.