Goodsell v. Brown

5 Vet. App. 36, 1993 U.S. Vet. App. LEXIS 145, 1993 WL 127612
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 23, 1993
DocketNo. 91-1074
StatusPublished
Cited by5 cases

This text of 5 Vet. App. 36 (Goodsell 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
Goodsell v. Brown, 5 Vet. App. 36, 1993 U.S. Vet. App. LEXIS 145, 1993 WL 127612 (Cal. 1993).

Opinion

STEINBERG, Associate Judge:

The appellant, World War II era veteran Lewis E. Goodsell, appeals from a February 21, 1991, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for pulmonary tuberculosis (PTB). The Secretary of Veterans Affairs (Secretary) has moved for summary affir-mance.

I. Background

The veteran served on active duty in the U.S. Army from October 1942 to November 1945. R. at 1. Service medical records do not reveal any complaints or findings of pulmonary problems during service. According to histories related in later medical reports, the veteran in September 1950 either applied to the National Guard or was “called back” to active duty with the National Guard. R. at 61, 71. X rays taken in conjunction with a September 16, 1950, medical examination prior to his entry into the Guard revealed active PTB. R. at 50, 61, 71. The veteran was diagnosed with chronic PTB, active, and hospitalized at a Veterans’ Administration (now Department of Veterans Affairs) (VA) hospital from November to December 1950 and at the Fitzsimons Army Hospital (FAH) from December 1950 to December 1951. R. at 63, 69, 70-71.

The medical records, including X-ray reports, from the 1950 VA hospitalization and the 1950-51 year-long FAH hospitalization do not indicate the date of onset of PTB. In the December 1951 FAH discharge report, the examiner noted:

EXPOSURE to TUBERCULOSIS: Patient states that in 1946 and 1947 he was working in a filling station with a man who later found that he had [PTB] at that time. Therefore, patient was more or less exposed during that period.

R. at 70. However, the examiner did not express any conclusion as to the cause or date of onset of PTB.

In September 1951, the veteran applied to a VA regional office (RO) for service-connected disability compensation for PTB. R. at 65. In December 1951, the RO obtained a medical opinion from the FAH Office of the Chief of Chest Disease Section based on review of several X rays of the veteran taken between 1942 and 1951. R. at 73-74. That opinion stated that no evidence of primary or reinfection-type tuberculosis was shown on X rays from 1942, 1943, and 1945, but noted that the 1945 separation X ray was “of rather poor quality and somewhat hazy”, and that the 1943 X ray revealed “a slight exaggeration of bronchial vascular markings towards both lung bases”. R. at 73. The opinion concluded that the first evidence of PTB had been on November 21, 1950, VA X rays, which had revealed a “moderately advanced reinfection type of tuberculosis”. R. at 74. (“Primary” tuberculosis is a tuberculosis that manifests when the patient is first infected; “reinfection” or “postpri-mary” tuberculosis is a “[f]resh infection (a reinfection) of the lungs of a person who has had an earlier and probably subclinical attack of tuberculosis”, DoRLANd’s Illustrated Medical Dictionary 1770 (27th ed. 1988).) No opinion was expressed as to cause or date of onset. The opinion did not mention any September 1950 X rays.

On January 9, 1952, the RO denied service connection for PTB. R. at 77-78. The veteran did not appeal that decision. X rays taken by VA in 1954 revealed “chronic, moderately advanced, inactive” PTB. R. at 85. PTB was again noted on VA X rays in 1983. R. at 95. In 1989, the veteran sought to reopen his claim for service-connected disability compensation for PTB. He submitted an April 1989 letter from Dr. George Bedell, a University of Iowa physician specializing in pulmonary diseases, who opined:

[I]t would appear that there was no radi-ographic evidence of reactivation tuberculosis at the time you left the service. However, reactivation could have been present and could have been radiographi-cally nondeterminable in 1945.
As an expert in tuberculosis I find it difficult to pinpoint the exact time of your reactivation tuberculosis. I think it most likely reactivated during the period 1945 to 1950, but I think there is a possibility that the reactivation occurred during the 1942-1945 time period, [sic] Al[40]*40though it was not radiographically apparent at the time of your discharge in 1945. I am not the individual who makes a decision regarding service[-]connected disability for the VA, but my recommendation to that individual would be that on the basis of probable evidence that you developed reactivation tuberculosis during the time that you served in the army from 1942-1945 that your reactivation tuberculosis should be regarded as a service[-]connected problem.

R. at 113-14. The veteran also submitted an April 1989 letter from Dr. Craig Bain-bridge, a private pulmonary physician, who concluded:

[A]s I read the report of your chest film on 11-21-1950, there was a moderate amount of “caseo-nodose” disease present in the apical regions of both lung fields. Further, there was a lesion on the right above the level of the second anterior rib and a lesion on the left which was within the circle of the first rib. This, of course, suggests active tuberculosis which had recurred sometime in the interval.
In my medical opinion, it is somewhat probable that you probably did have the tuberculosis at the time of your separation, although I cannot say that with 100% accuracy.

R. at 115.

In May 1989, the RO denied the claim. R. at 119. The veteran thereafter submitted an October 1989 letter from Dr. John Spurzem, a pulmonary physician at the University of Nebraska, who stated:

[T]here is no way to predict with any certainty when the active infection with tuberculosis was acquired. Often times a patient will be able to pinpoint a specific exposure to other infected persons. It is conceivable that you acquired the tuberculosis infection during your period of service in 1943-1945. However, without further data, data which likely [do] not exist such as tuberculosis skin testing, it is impossible to state when your active infection was acquired.

R. at 129. In January 1990, the veteran testified under oath at a hearing before the RO. At the hearing, he testified, inter alia, that he had been a meat and dairy inspector in service, and that he believed that his tuberculosis had been incurred in service. R. at 142-49.

In the February 1991 decision currently here on appeal, the BVA denied the veteran’s claim, concluding that the evidence received since 1952 did not present a “new factual basis” for allowing the claim. Lewis E. Goodsell, BVA 91-_, at 5 (Feb. 21, 1991). The Board stated:

The Board notes that the evidence clearly establishes the presence of [PTB] in September 1950. While it is likely that the disorder had an earlier onset, that onset is not shown to be at such a time or under such circumstances that it may be presumed to have been incurred in service ... The Board also finds it significant that, in [FAH] records received by the VA after the January 1952 rating action, it was noted that the veteran re-' ported having been exposed to an individual with [PTB] at some time in 1946 or 1947 while he was working in a filling station. Thus, this strongly indicates that the veteran may have developed [PTB] as a result of that exposure. Hence, such evidence would clearly rebut any presumption of inservice incurrence.

Goodsell, BVA, 91-_, at 4 (emphasis added).

II. Analysis

A.

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Bluebook (online)
5 Vet. App. 36, 1993 U.S. Vet. App. LEXIS 145, 1993 WL 127612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodsell-v-brown-cavc-1993.