Gilbert v. Derwinski

1 Vet. App. 49, 1990 U.S. Vet. App. LEXIS 16, 1990 WL 303138
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 12, 1990
DocketNo. 89-53
StatusPublished
Cited by2,829 cases

This text of 1 Vet. App. 49 (Gilbert v. Derwinski) 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
Gilbert v. Derwinski, 1 Vet. App. 49, 1990 U.S. Vet. App. LEXIS 16, 1990 WL 303138 (Cal. 1990).

Opinions

FARLEY, Associate Judge, filed the opinion of the Court, in which NEBEKER, Chief Judge, joined.

KRAMER, Associate Judge, filed a concurring opinion.

FARLEY, Associate Judge:

This case presents the Court with its first occasion to consider three statutory provisions of Title 38, United States Code, and their interrelationship. Section 4061(a)(4) provides that the Court may set aside a finding of material fact by the Board of Veterans’ Appeals (BVA) only if such finding is “clearly erroneous.” Section 3007(b) gives a veteran “the benefit of the doubt” when there is an approximate balance of positive and negative evidence [51]*51on a material issue. Section 4004(d)(1) requires that the BYA shall include a written statement of the Board’s findings and conclusions, and the “reasons or bases” for those findings and conclusions, in its decisions.

The veteran seeks benefits for a disability which he claims resulted from a back injury sustained when he fell with a machine gun in his arms while serving in Korea in 1956. The BVA upheld the denial of the veteran’s claim (Norman Gilbert, loc. no. 927766 (BVA Sept. 28, 1989)), finding that he had not demonstrated that any back injury occurred during military service, that even if such an injury did occur it was “apparently acute and transitory in nature and resolved without leaving any residual disability” (Gilbert at 7), and that he was not entitled to the “benefit of the doubt”. However, the BVA decision includes neither an analysis of the credibility or probative value of the evidence submitted by and on behalf of the veteran in support of his claim nor any explanation for the bare conclusion that “the Board does not find that [the] doctrine [of reasonable doubt] would warrant allowance of the benefit sought on appeal.” Gilbert at 8. The decision thus fails to comply with the requirement of 38 U.S.C. § 4004(d)(1) (1988) that there be a “written statement of the ... reasons or bases for” factual findings and conclusions of law. Accordingly, while we retain jurisdiction, we remand the matter to the Board pursuant to 38 U.S.C. § 4052(a) (1988) for action consistent with this opinion.

I.

The Court has jurisdiction to hear this appeal pursuant to 38 U.S.C. § 4052 (1988). In order to demonstrate entitlement to benefits for a disability claimed to have originated during peacetime active military service, a veteran must show that the disability resulted from either an “injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty”. 38 U.S.C. § 331 (1988). (Presumptions created by various statutes and regulations do not apply to the type of injury and disability alleged in this case. See, e.g., 38 U.S.C. §§ 301, 312, 337 (1988); 38 C.F.R. § 3.307, 3.309(a) (1989)).

The Court, like the Secretary of Veterans Affairs, adopts the statement of facts contained in the brief submitted by the veteran. For the purpose of this opinion the relevant facts may be summarized as follows: The veteran first filed a claim for benefits with the Veterans’ Administration (VA) [now the Department of Veterans Affairs] in 1971 for disability allegedly resulting from a back injury incurred while he was stationed in Korea in 1956. The St. Petersburg, Florida, Veterans’ Administration Regional Office denied the veteran’s claim and he did not appeal the decision. Subsequently, the veteran reopened his claim which was again denied. In 1985, this denial was affirmed by the BVA. In 1988, the veteran once again reopened his claim which resulted in the ratings decision of July 12, 1989, denying “service connection for a back condition, legs condition and feet condition.” On September 28, 1989, the BVA again affirmed the denial of the veteran’s claim due to the absence of any entry in the veteran’s medical service records which documented that a back injury was incurred by the veteran while in the service. The Board also concluded that even if the veteran had been injured, the injury was only transitory in nature and did not result in the current disability.

The veteran filed a timely appeal. He asks that we reverse the decision of the Board denying him entitlement to service connection for his current back disability on the ground that the BVA’s finding that he did not suffer an injury to his back while in the military service was clearly erroneous. The veteran argues that, because a preponderance of the available evidence is in favor of granting service connection for his current back disability, the Board erred in relying on the absence of clinical documentation in his medical service records.

The Secretary in turn urges the Court to uphold the BVA’s decision. The Secretary argues that the BVA’s finding of fact that [52]*52the veteran had not demonstrated that he suffered a back disability, which was initially reported to the VA many years after discharge, due to an injury incurred during his military service is not clearly erroneous.

II.
The “Clearly Erroneous” Standard of Review
Congress has provided that this
Court ... to the extent necessary to its decision and when presented, shall ... in the case of a finding of material fact made in reaching a decision in a case before the [Department of Veterans Affairs] with respect to benefits under laws administered by the [Department of Veterans Affairs], hold unlawful and set aside such finding if the finding is clearly erroneous.

38 U.S.C. § 4061(a)(4) (1988).

A “[m]aterial fact is one upon which [the] outcome of litigation depends.” Black’s Law Dictionary, 881 (5th ed. 1979). Under § 4061(a)(4), in order for a finding of material fact made by the BVA to be set aside, this Court must conclude that the finding is “clearly erroneous.” The Supreme Court has defined the “clearly erroneous” standard as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The Supreme Court provided further explanation of this standard in Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985):

This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.

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Bluebook (online)
1 Vet. App. 49, 1990 U.S. Vet. App. LEXIS 16, 1990 WL 303138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-derwinski-cavc-1990.