Gahman v. West

12 Vet. App. 406, 1999 U.S. Vet. App. LEXIS 450, 1999 WL 360756
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 4, 1999
DocketNo. 96-1303
StatusPublished
Cited by1 cases

This text of 12 Vet. App. 406 (Gahman v. West) 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
Gahman v. West, 12 Vet. App. 406, 1999 U.S. Vet. App. LEXIS 450, 1999 WL 360756 (Cal. 1999).

Opinion

HOLDAWAY, Judge:

The appellant, Kenneth E. Gahman, appeals a June 1996 decision of the Board of Veterans’ Appeals (BVA) which denied service connection for a chronic respiratory disorder. The appellant has filed a brief and the Secretary has filed a motion for summary affirmance. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the BVA.

I. FACTS

The appellant served in the U.S. Navy from June to November 1963. In February 1963, the appellant attended a preinduction examination and completed a medical history report. On this report, he characterized his present health as “good,” but checked the appropriate box to indicate that he previously had suffered from whooping cough. The appellant did not indicate that he had suffered from any other respiratory condition or that he had been treated by a doctor for any condition in the past five years. Dr. C.R. Brown then performed the preinduction physical examination which did not reveal that the appellant suffered from any respiratory condition. In March 1963, the appellant completed a second medical history report. Again, he checked the box to note that he previously had whooping cough but did not report that he had suffered from any other respiratory condition or that he had been treated by a doctor in the past five years. In April 1963, the appellant completed a third medical history report. This time, the appellant did not report that he had ever suffered from a respiratory condition, including whooping cough. An April 1963 medical examination by Dr. R.D. Skinner found the appellant physically qualified for service. In June 1963, Dr. George D. Belcher performed a physical examination of the appellant and [408]*408did not report that the appellant suffered from any respiratory ailments. A photofluo-graphic examination taken during this examination revealed an “essentially negative chest.”

In July 1963, the appellant sought treatment for severe chest pains and “hard breathing.” After the appellant was admitted to the hospital, Dr. C.W. McClary diagnosed him with bronchopneumonia. After the appellant was treated for 23 days in the hospital, Dr. W.J. Cassidy wrote a report summarizing the appellant’s condition and treatment. In his report dated August 1963, Dr. Cassidy stated:

The patient ... was in good health until four weeks prior to admission when he noticed the onset of cough which was productive of thick, occasionally blood tinged sputum. There was an additional complaint of recurrent chest pains of a pleuritic variety on the left related to a rib fracture which had been there apparently two years.... The past history revealed pneumonic [sic] twice in the past with hospitalization being required for a period of two weeks in 1961. The previous episode was in 1968 and was treated at home. There was also a history of pertussis as a child and he had been rejected for a job in the past on the basis of an x-ray in 1960. The patient also reportedly had been in the Army prior to his enlistment in the Navy. He admitted to frequent expectoration during the three months prior to admission and to recurrent abdominal pains which were weekly and due to what he felt was a nervous upset.

The appellant was then released from the hospital as fit for duty. Later that month, an x-ray of the appellant’s chest revealed a “semi-confluent infiltrate at the left lung base, with there being pleural reaction.” However, in September 1963, the appellant again was admitted to the hospital for a respiratory ailment.

By November 1963, the appellant’s condition had not improved and Dr. R.J. Trettel recommended that the appellant be discharged from service. A Board of Medical Survey was convened to determine whether or not the appellant in fact should be discharged from service. The panel of three doctors found:

[The appellant] was admitted to the U.S. Naval Hospital ... on 17 September 1963 with the diagnosis of PNEUMONIA, LOBAR, ORGANISM and CAUSE UNDETERMINED.
Approximately two days prior to admission, the patient noted the onset of chills, fever, generalized malaise, headache, and cough productive of mucopurulent sputum. Following an examination at his local dispensary, hospitalization was advised. He had also noted a moderate increase in his usual degree of shortness of breath. The patient was previously hospitalized at this hospital from 23 July 1963 until 15 August 1963, because of bronchopneumonia, involving the left lower lobe. There was an additional past history of pneumonia in 1959, and again in 1962. Since the age of fifteen[,] the patient has considered himself to have “pleurisy”, characterized by shortness of breath, some wheezing, and intermittent cough; these symptoms seemed to be most prevalent during the wintertime of the year. Since the age of fifteen, the patient has consulted with private physicians because of these symptoms.... On systemic review, the patient gives a history of shortness of breath, especially on exertion. At ordinary activity, the patient was not aware of any shortness of breath. This symptom has been present throughout the year.
[During the course of his treatment at the hospital,] chest x-rays revealed a progressive clearing of the pneumonic process and the final chest x-ray was considered normal. Pulmonary function studies were obtained and changes compatible with a moderately severe, restrictive ventilatory defect were noted. The maximum breathing capacity was 27 per cent [sic] of normal; the timed vital capacity at one second of expiration was 78 per cent [sic]. Repeat pulmonary function studies were obtained prior to discharge from the hospital and did not change significantly from those obtained earlier in the patient’s hospitalization ....
[409]*409In view of the patient’s past history, there appeared to be adequate evidence of chronic lung disease, which existed prior to enlistment and was of the degree, which would be considered disqualifying for enlistment. Although some of the findings are suggestive of pulmonary fibrosis and/or obstructive emphysema, clinically at this time, the syndrome is most compatible with bronchial asthma.
The Board of Medical Survey is of the opinion that this patient does not meet the minimum standards for enlistment or induction as set forth by AR40-501. The patient is unfit for further Naval Service by reason of physical disability. The physical disability was neither incurred in, nor aggravated by, a period of military service. It is the recommendation of the Board that he be discharged from the U.S. Naval Service.
[The appellant] has been informed of the findings of the Board and does not desire to submit a statement in rebuttal.

In February 1975, the appellant filed a claim for compensation with the YA for his lung condition. In April 1975, a YA regional office (VARO) denied his claim on the basis that his condition preexisted and was not aggravated by military service. In March 1981, the appellant unsuccessfully attempted to reopen his claim. In support of his claim, he submitted medical treatment reports from Dr. Wilton Anderson which indicated that Dr. Anderson had treated the appellant for various respiratory conditions, including pneumonia, between January 1975 and February 1981.

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Related

Gahman v. West
13 Vet. App. 148 (Veterans Claims, 1999)

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Bluebook (online)
12 Vet. App. 406, 1999 U.S. Vet. App. LEXIS 450, 1999 WL 360756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gahman-v-west-cavc-1999.