Fisher v. Principi

4 Vet. App. 57, 1993 U.S. Vet. App. LEXIS 13, 1993 WL 5258
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 14, 1993
DocketNo. 91-1816
StatusPublished
Cited by102 cases

This text of 4 Vet. App. 57 (Fisher 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
Fisher v. Principi, 4 Vet. App. 57, 1993 U.S. Vet. App. LEXIS 13, 1993 WL 5258 (Cal. 1993).

Opinion

HOLDAWAY, Associate Judge:

Appellant, Raymond H. Fisher, appeals a July 9, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which de[58]*58nied an increased rating for hypertensive cardiovascular disease, currently evaluated as 30% disabling, and a total rating for compensation purposes based on individual unemployability. The Secretary of Veterans Affairs filed a motion for summary affirmance. The Court affirms that part of the decision denying an increased rating for hypertensive cardiovascular disease, and vacates and remands that part of the decision denying a total rating for individual unemployability. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a) (formerly § 4052(a)).

BACKGROUND

Appellant served in the Army from March 1953 to April 1954. Appellant has had a 30% rating for hypertensive cardiovascular disease since October 1972. He sought an increased rating in 1988. On April 1, 1988, the BVA issued a decision denying an increased rating, stating that the veteran’s symptoms at that time constituted no more than a moderate disability. Raymond H. Fisher, BVA 87-30528 (Apr. 1, 1988).

Appellant requested a physical examination on June 22, 1988. The examination was conducted at the Veterans’ Administration (now Department of Veterans Affairs) (VA) Medical Center in Dallas, Texas. The examining physician diagnosed appellant with hypertensive cardiovascular disease, and noted that his blood pressure was well-controlled with present medication. His blood pressure readings for the period of November 1987 to July 1989 were as follows: 150/110, 130/80, 130/90, 130/82, 136/84,140/94,152/80,134/84,126/80, and 144/76. In October 1988, another physician recommended that the veteran not lift over 20 pounds, not work near machinery or above ground, and not change positions quickly because he had severe blood pressure requiring high doses of medicine. In November 1988, appellant requested that his claim be reopened. A rating decision on December 2, 1988, denied an increased rating.

On March 5, 1989, appellant’s claim was referred to a VA Vocational Rehabilitation Panel (VRP) for consideration of medical feasibility for training. Based upon a letter from a vocational counselor which stated, “[T]he veteran is not medically capable of successfully pursuing a program of vocational rehabilitation or subsequent employment, and he does not meet the criteria for independent living,” the chairman of the VRP recommended that “the VRP concur in the decision of medical infeasibility for training.” The VRP concluded that appellant had “extremely low retraining potential,” and that “he had an unrealistic assessment that he could train successfully to be a frontloader operator.” The VRP found that training was not reasonably feasible due to the “severity” and “generalized nature” of appellant’s various deficits. The VRP stated that its finding “must” be on a permanent basis.

In May 1989, appellant made an application for increased compensation based on unemployability. A hearing was held on July 12, 1989. The hearing officer requested that another examination be performed. The examination was performed on August 9, 1989. The VA examining physician took readings three times and reported appellant’s blood pressure to be 150/90, 150/90, and 148/90. The examination showed a regular heart rhythm with an occasional irregularity discerned, ascribed to premature ventricular contractions. There was a showing of a systolic apical murmur. However, the heart appeared to be normal in size. The diagnosis was hypertensive cardiovascular disease, moderately severe, but fairly well-controlled with considerable medication. After consideration of the examination, the hearing officer denied an increased rating. The VA confirmed this rating decision on November 6, 1989. Appellant appealed the decision to the BVA in April 1990.

The BVA denied an increased rating as well as a total rating for compensation purposes on July 9, 1991, in a decision which is the subject of this appeal. The Board considered the following evidence: the August 1989 examination which showed diastolic pressure readings of 90, the heart being normal in size, regular [59]*59heart rhythm, hypertensive cardiovascular disease, moderately severe, and blood pressure fairly well-controlled with considerable medicine; the November 1987 to July 1989 blood pressure readings which showed diastolic pressure readings of between 76 and 110; and the October 1988 statement which recommended that the veteran not lift over 20 pounds or change positions quickly. The Board relied on the pertinent YA diagnostic criteria, 38 C.F.R. § 4.104, Diagnostic Code (DC) 7007 (1991), which provides that increased compensation (to 60%) is appropriate upon a showing of: a marked enlargement of the heart, diastolic pressure readings of 120 or more, which may later have been reduced, dyspnea on exertion, and the preclusion of more than light manual labor. The Board concluded that the evidence did not show the presence of the requisite manifestations to warrant a 60% increase, namely, marked heart enlargement, diastolic pressure readings of 120 or more, and exertional dyspnea.

Regarding the decision as to a total rating for compensation purposes, the Board noted 38 C.F.R. § 4.16 (1991), which provides for total disability ratings for compensation based on unemployability of the individual. No distinction was made in the Board’s decision as to the dichotomy between § 4.16(a) and (b). The Board merely stated that the dispositive issue is not whether the veteran is currently unemployed, but rather, “the critical factor is the impact of service-connected disorders on his ability to work.” Raymond H. Fisher, BVA 90-24829, at 4 (July 9, 1991). The Board found that:

[T]he evidence does not demonstrate that this disorder [the hypertension], in and of itself, is so debilitating as to preclude him from securing or maintaining a substantially gainful occupation consistent with his education and employment background. While his hypertensive cardiovascular disease may preclude more than light manual labor, the evidence does show that the veteran is able to engage in some physical activities.

Id. The Board discounted the VRP memorandum by stating, “[T]hat memorandum indicates that this conclusion [the VRP recommendation that training was not reasonably feasible] was based on a review of the history of his service-connected and nonser-vice-connected [sic] disorders ...,” and that “the effect of any nonservice-connected [sic] disorders on the veteran’s industrial adaptability cannot be considered in determining entitlement to a total rating for compensation purposes.” Id. at 5. Accordingly, the BVA denied a total rating for, compensation purposes.

ANALYSIS

This Court must affirm the factual findings of the BVA unless those determinations are “clearly erroneous.” See Gilbert v. Derwinski, 1 Vet.App. 49, 52-63 (1990). “[I]f there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them.” Id. at 53.

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Bluebook (online)
4 Vet. App. 57, 1993 U.S. Vet. App. LEXIS 13, 1993 WL 5258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-principi-cavc-1993.