Godwin v. Derwinski

1 Vet. App. 419, 1991 U.S. Vet. App. LEXIS 82, 1991 WL 163344
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 19, 1991
DocketNo. 90-654
StatusPublished
Cited by119 cases

This text of 1 Vet. App. 419 (Godwin 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
Godwin v. Derwinski, 1 Vet. App. 419, 1991 U.S. Vet. App. LEXIS 82, 1991 WL 163344 (Cal. 1991).

Opinion

STEINBERG, Associate Judge:

Wallace B. Godwin served in the Army in World War II from November 12, 1942, to December 29, 1945. For approximately seven months, from September 1944 to late April 1945, he was held as a prisoner of war by the German Government. This appeal is from a March 19, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying entitlement to service connection for residuals of an alleged left-shoulder injury and for bilateral defective hearing as well as an increased rating above 20-per-cent for peptic-ulcer disease. We remand the case for further proceedings at the Board with respect to the left-shoulder arthritis. As to the ulcer and hearing-loss issues, we find a failure on the part of the Department of Veterans Affairs to assist the claimant by requesting certain private and Army medical records which the veteran requested be sought and which he alleges would show information relevant to his respective claims. In the event that such records are located, the evidence should be evaluated on remand as to its sufficiency to warrant reopening of the claim on each issue and, if found so sufficient, that claim should be readjudicated in accordance with this opinion. If no such records are located with respect to the claim, the Board’s decision with respect to that particular claim will stand affirmed.

I. BACKGROUND

At the veteran’s separation examination on November 28, 1945, no complaints or disabilities were noted. R. at 1. He first filed a claim with the Veterans’ Administration (now the Department of Veterans Affairs) (VA) in September 1978. He alleged a hearing loss due to noise from heavy bombing during an air raid while he was a prisoner of war in Germany and that he had received treatment in service in 1945 in Aberdeen, Maryland, for that condition. R. at 15-18. A report of an October 18, 1978, VA examination indicated “bilateral sensorineural hearing loss of moderate degree.” R. at 21. A VA Regional Office (RO) rating board decision denied service connection for hearing loss on December 19, 1978, stressing twice the absence of notation of hearing disability or complaints about hearing disability at the time of the veteran’s separation. R. at 23.

In early 1980, the veteran sought to reopen his hearing loss claim and added a claim for an ulcer condition. In support of reopening, the veteran submitted lay state[422]*422ments from two other ex-POWs who recalled the veteran and others being caught in an open area during an air raid after which he was bleeding from his ears and nose and that the veteran thereafter complained of ringing in his ears. Second Supp.R. at 16, 17. These statements also alleged that the veteran’s ulcer problem was due to the eating of decayed food and having inadequate food while a POW. Ibid. The veteran also submitted 4 statements, dated December 1979, from persons alleging they had known him since his return from service in 1945, that he was experiencing hearing problems immediately upon his return, and that the problem had “steadily worsened” over the years. Id. at 18-21. (Although these four statements do not refer to stomach problems, the BVA in an April 1, 1983, decision on these claims referred to “[s]everal lay statements of December 1979 ... revealpng] that the veteran had problems with his stomach and his hearing since 1945”. R. at 62 (emphasis added).) The VARO rating board on January 23, 1980, denied the hearing-loss claim again as well as the ulcer claim. While stating that it did “not doubt the sincerity of the lay statements”, the rating board found that “the evidence fails to establish that the veteran had any complaints of a hearing loss or stomach condition during his active military duty.” R. at 28-29.

In December 1981, after the veteran had sought again to reopen his claim in October of that year, he was given a POW protocol examination, which diagnosed anxiety neurosis with depressive features, bilateral deafness, osteoarthritis of the left shoulder and both hands shown by X-ray, and stomach problems with large hiatal hernia. R. at 35. A January 28, 1982, VARO rating board decision then granted a 10-percent rating for anxiety neurosis (pursuant to Pub.L. No. 97-37, 95 Stat. 935 (1980), which had established presumptive service connection for “any of the anxiety states” in an ex-POW of 30 or more days captivity (38 U.S.C. § 312(b)(9) (1988)) and denied service connection for the other disabilities. R. at 50-51. On appeal to the BVA, the Board, in an April 1, 1983, decision denied service connection for hearing loss and stomach disorder, relying on the lack of complaints during service and for several years thereafter. R. at 59-67. The veteran’s request for an increased rating for anxiety neurosis was also denied. Arthritis was not discussed, since the veteran had not expressed disagreement with the rating board decision as to arthritis.

On January 13,1987, the veteran’s representative requested to have the veteran’s arthritis considered under a new law enacted on October 28, 1986, which granted a rebuttable presumption of service connection for ex-POWs with “post-traumatic osteoarthritis”. Pub.L. 99-576, § 108, 100 Stat. 3248, 3252; 38 U.S.C. § 312(b)(12) (1988). A VA POW protocol exam, conducted from February 5,1987, to August 3, 1987, recorded the veteran’s complaints of hearing and stomach problems and nervousness. R. at 85. The report noted that the veteran stated he did “not have any problems with the left shoulder.” R. at 84. A September 4, 1987, VARO rating board decision denied service connection for post-traumatic osteoarthritis under Pub.L. No. 99-576. R. at 102-04. (There is no indication that the veteran’s left shoulder was X-rayed in connection with this examination even though in 1981 osteoarthritis of the left shoulder had been shown by X-ray. R. at 35.) A BVA appeal was initiated (an extensive statement of the ease being provided on October 29, 1987, R. at 106-10) but apparently was abandoned.

On November 30,1988, the veteran again sought to reopen the ulcer claim. R. at 111. The VARO rating board awarded him a 10-percent disability rating for “peptic ulcer disease” (R. at 118) for which a rebut-table presumption of service connection for ex-POWs had been established in Pub.L. 100-322, § 312, 102 Stat. 487, 534, enacted on May 20, 1988. See 38 U.S.C. § 312(b)(15) (1988). Along with his 10-per-cent rating for anxiety neurosis, which was continued, the veteran was given a 20-percent combined disability rating effective May 20, 1988. R. at 119. His claims for defective hearing and left-shoulder arthritis were denied again. On January 16, 1989, [423]*423the veteran filed a Notice of Disagreement on all issues. R. at 121. Another rating board decision was issued on March 7, 1989, to the same effect. R. at 122-23.

In an April 21, 1989, response to the Statement of the Case of March 9, 1989, the veteran three times requested that the VA check Army medical records in connection with his assertion that he was on sick call with regard to a complaint about hearing while stationed for a week in Aberdeen, Maryland, at the end of his service. He also seemed to request that VA examine German Government medical records used at the Nürnberg war trials. R. at 131. He had also apparently requested in March 1989 that the RO obtain his military medical records. Supp.R. at 5.

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Bluebook (online)
1 Vet. App. 419, 1991 U.S. Vet. App. LEXIS 82, 1991 WL 163344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godwin-v-derwinski-cavc-1991.