Grivois v. Brown

6 Vet. App. 136, 1994 U.S. Vet. App. LEXIS 7, 1994 WL 5681
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 5, 1994
DocketNo. 92-289
StatusPublished
Cited by102 cases

This text of 6 Vet. App. 136 (Grivois 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
Grivois v. Brown, 6 Vet. App. 136, 1994 U.S. Vet. App. LEXIS 7, 1994 WL 5681 (Cal. 1994).

Opinion

NEBEKER, Chief Judge:

Appellant, Nelson G. Grivois, appeals an October 29, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for seven disorders, only three of which warrant our consideration. Generically, these three claims are for service connection for depression (dysthymic disorder), for hearing loss, and for residuals of a shoulder infection. The Court vacates the BVA decision as to the depression and hearing loss claims because these claims are not well grounded, and remands the shoulder claim for readjudication.

Because the initial pro se statement of issues listed the BVA’s denial of all seven claims as cause for reversal, the record on appeal contains material relevant to each. Counsel for appellant then entered an appearance and has addressed in his motion for summary reversal (which we treat as his brief) only the three claims identified above. The Secretary has opposed and countered with a motion for summary affirmance as to the three claims (which we treat as appellee’s brief)- Included in that pleading is an argument that appellant has withdrawn the presently unraised claims, and that we should declare him estopped from further argument before the Court on those issues. Counsel for appellant has not opposed that effort or sought leave to file a supplemental brief.

The present posture of this matter has evolved from the creation of a publicly funded program to secure pro bono publico representation to pro se veterans and claimants. See Pub.L. No. 102-229 (1991); Pub.L. No. 103-124 (1993). The legislation creating this program provides for the screening of most pío se appeals by an entity functioning independently from the Court. The purpose in screening the cases is to identify those best suited for representation so as not to consume the limited pro bono resources available for representation of veterans benefits Claimants.

The program operates in the nation’s capital and has called upon the organized Bar— in the District of Columbia and other jurisdictions. Its members commendably have reacted in the highest tradition of the profession. The program has planned and offered continuing legal education so bar members— most of whom have no experience in the field of veterans benefits — might become proficient in that specialty. The program also offers mentoring to the volunteer attorneys to ensure that the appeals are presented thoroughly under the statutory and regulatory complex surrounding veterans benefits, and in the best interest of the appellants consistent with the rule of law. The Court expresses its gratitude and, we are sure, that of everyone concerned with veterans benefits, for the response of the Bar and, in this case, to Stephen Shelnutt, Esq. who represents this veteran.

As to the Secretary’s argument on withdrawal and estoppel, we note that counsel for appellant, consistent with his professional duty to refrain from arguing meritless points, has been more selective than his pro se client. Since appellant’s counsel speaks for him, the issues or claims not pressed are deemed abandoned. See Treat v. Jemison, 87 U.S. (20 Wall.) 652, 22 L.Ed. 449 (1875); Bucklinger v. Brown, 5 Vet.App. 435 (1993). We render no opinion at this time on the effect abandonment of issues can have on issue or claim preclusion.

Appellant had qualifying service in the Armed Forces from October 1965 to October 1967. In 1989, the Regional Office (RO) denied appellant’s original claims, filed in 1988, for all seven disorders. R. at 93. On appeal, the BVA in 1990 remanded the case to the RO for an orthopedic examination in connection with one of the claims, that for service connection for the shoulder disorder. The RO again denied that claim in a rating decision, and consolidated it with the other six claims for BVA consideration. Because appellant presses as erroneous the BVA’s action on three claims, these claims are before this Court and will be treated separately-

First, as to appellant’s dysthymic disorder, although his 1965 entrance examination reported that he had suffered from tension, R. at 3, there is no further mention in the record of any tension or anxiety until 1969, when he was diagnosed with anxiety. R. at 40. In 1988, an outpatient psychiatric diag[139]*139nostic examination resulted in a diagnosis of dysthymic disorder. R. at 85. There is no evidence in the record to show that appellant’s dysthymic disorder was incurred or aggravated during service.

Second, appellant contests the denial of his claim for hearing loss, filed in 1988. He associates the 1988 hearing loss with his service in Vietnam. He states that in Vietnam he experienced loss of hearing for three to four days after exposure to noise from nearby howitzer fire at the fire base. R. at 68, 148-49, 159-60. Appellant argues that this event must be assumed to have occurred based on the presumptions provided under 38 U.S.C.A. § 1154 (1991) and 38 C.F.R. § 3.304(d) (1993). Appellant further argues that the VA failed in its duty to assist by not informing him what was needed to support his claim for hearing loss.

In the BVA decision denying service connection for hearing loss, the Board opined that:

There are no complaints or findings of hearing loss recorded in the service medical records and there is no objective evidence of hearing loss in the post-service medical evidence. As hearing loss has not been documented, service connection is not warranted.

Nelson G. Grivois, BVA 91-_, at 7 (Oct. 29, 1991). The BVA, however, did not comment on any causal connection between any hearing condition in service and any present hearing condition.

These two claims, for dysthymic disorder and hearing loss, present a threshold question of well groundedness. The Board expressly decided all seven claims were well grounded. It offered no rationale for that holding; but, even if it had, the Court reviews that jurisdictional issue de novo. See King v. Brown, 5 Vet.App. 19, 21 (1993).

Section 5107(a) of title 38 unequivocally places an initial burden on a claimant to produce evidence that the claim is well grounded or, as we have held, is plausible. See 38 U.S.C.A. § 5107(a) (1991); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). This statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which — as well grounded — require adjudication. This policy is starkly clear when one reads the specific reiteration of that requirement in § 5107(b) of title 38. 38 U.S.C.A. § 5107(b) (1991). There it is seen that in adopting the benefit of the doubt rule, the claimant is still not relieved of the initial burden of presenting evidence of plausibility: “Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.” Id. Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones.

To decide the legal issue of whether appellant’s claims are well grounded, it is helpful to examine their origin. The matter began as a claim for “Bilateral Hearing Loss, 1967” filed April 26, 1988. R. at 68-71.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 136, 1994 U.S. Vet. App. LEXIS 7, 1994 WL 5681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grivois-v-brown-cavc-1994.