Grose v. Brown

4 Vet. App. 144, 1993 WL 17810
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 29, 1993
DocketNo. 91-407
StatusPublished

This text of 4 Vet. App. 144 (Grose 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
Grose v. Brown, 4 Vet. App. 144, 1993 WL 17810 (Cal. 1993).

Opinion

IVERS, Associate Judge:

Carl Grose appeals from a November 23, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied his claim for service connection for multiple sclerosis. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a) (formerly § 4052(a)). For the reasons set forth below, we affirm the decision of the BVA.

FACTS

The veteran served in the United States Army for fifty-three days, from December 6, 1960, to January 27, 1961. R. at 1. Notes on his enlistment examination show that he had suffered, inter alia, from the following: Undulant fever, at age four or five years from raw milk on a ranch, no complications or sequelae; frequent indigestion; bleeding for two weeks after tonsillectomy; and occasional worry. R. at 3, 5. Undulant fever, also known as brucello-sis, is

a disease caused by bacteria of the genus Brucella; a disease of man of sudden or insidious onset and long duration caused by any of four organisms found in goats, hogs, cattle, and dogs, characterized by great weakness, extreme exhaustion on slight effort, night sweats, chills, remit-tent fever, and generalized aches and pains, and acquired through direct contact with infected animals or animal products or from the consumption of milk, dairy products, or meat from infected animals.

Webster’s Medical Desk Dictionary 88 (1986). The veteran’s service medical records reveal that in December 1960 he suffered from a “couple of episodes of diarrhea” and that he reported feeling “bad generally.” R. at 6. The clinical notes from December 1960 also show that the veteran “claims he can eat only natural foods (apples, oranges, nuts & cherries),” that he “[cjannot eat meats, potatoes, eggs, butter, [or] cheese,” and that he “[r]efuses to take medication.” Id. Another medical examination report shows that the veteran “[r]efuses to eat anything but raw fruit” and “has done so for over a year because ‘the Bible says so.’ ” R. at 7. He was subsequently referred to the mental hygiene clinic where the examiner recommended that he be discharged from service. R. at 8. The veteran’s separation examination report in January 1961 showed that Mr. Grose had been “[s]een by psychiatric clinic” where he was diagnosed as “schizoid personality with religious preoccupation.” R. at 12.

The veteran filed his original claim for service connection for multiple sclerosis in October 1968, alleging that multiple sclerosis was “[fir]st diagnosed [a]bout September] 1962.” R. at 15. A Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) rating board denied his claim on November 1, 1968, noting as follows: “He alleges multiple sclerosis but there is no definite neurological diagnosis of this although l[ocal] m[edical] d[octor] statement states he has some sort of neurological disorder.” R. at 24. The veteran did not appeal this decision. The record shows, however, that a few weeks after the rating decision, on November 21, 1968, the RO received additional evidence regarding the veteran’s claim, specifically hospital reports dated April 1963, October 1963, and March 1966. R. at 27-30. There is nothing in the record to show that the VA responded to this evidence.

In August 1989, the veteran’s representative wrote to the VA on the veteran’s behalf, stating that evidence received by the VA shortly after the November 1,1968, rating decision established the veteran’s claim for service connection for multiple sclerosis. R. at 32. Furthermore, the veteran’s representative stated that the VA “never acted on this [evidence]” and alleged that such inaction constituted clear and unmistakable error on the part of the VA. Id. On August 8, 1989, an RO rating board confirmed the previous denial of service connection for multiple sclerosis and, [146]*146referring to the evidence submitted after the November 1968 rating decision, noted,

Medical records rec[eive]d ... [in 1968] did not receive rating board consideration. 1963 records note a central nervous system disorder with the impression that it was a cord tumor. M[ultiple] S[clerosis] was # 3 on the list of probable causes, behind folic acid-B-12 deficiency and the cord tumor. 1966 report did not diagnose MS. SC for MS remains denied.

R. at 33 (emphasis added).

The RO received three letters after the August 8, 1989, rating decision including one from a private physician, Dr. Nakishi-ma, who stated in a letter dated September 11, 1989, that he had practiced medicine from 1955 to 1984 and cared for Carl Grose over several years. He also stated that “because I had not seen Carl for a few years prior my retirement [sic], all of his medical records have been destroyed.” R. at 34. Dr. Nakishima also stated, “Information received showed that I had first seen Carl Gross [sic] as a patient in December 1962 with a diagnosis of Multiple Sclerosis.” Id.

On October 4, 1989, the RO rating board issued a deferred rating decision, stating, inter alia, with regard to Dr. Nakishima’s letter, “What ‘information’ did he receive? We need copies of this information.” R. at 39. The VA subsequently received another letter from Dr. Nakishima dated October 30, 1989, which stated in its entirety as follows:

As I have stated in my previous letter, I have retired 5 years ago from my medical practice in Lodi. Though I had seen Carl S. Gross [sic] as a patient in the past, I had not seen him for many years prior to my retirement. At the time of my retirement, I had destroyed all records of patients whom I had not seen for many years.
I have checked with Dr. Corey Colla, who has taken over my practice, but as expected, he could find no records of Carl S. Gross [sic].

R. at 40.

On November 4, 1989, the RO rating board confirmed the denial of the veteran’s claim, stating that the “statement of vet[eran]’s wife (dated 9-20-89), a chiropractor’s statement (undated), and [two] letters from Dr. Nakashima simply are not sufficient to establish [service connection] for MS_ [The] statements are not sufficient ... to diagnose MS within the presumptive period.” R. at 42 (emphasis added).

The veteran filed a Notice of Disagreement, which was received on February 16, 1990, contending that he should have been granted service connection for multiple sclerosis “which falls under the extended presumptive period of seven years." R. at 43. A Statement of the Case was subsequently sent to the veteran, the veteran filed a VA Form 1-9, and an RO hearing was scheduled. R. at 47-54.

The hearing was held on June 4, 1990, during which the hearing officer explained to the veteran that, in accordance with 38 C.F.R. § 3.307, “there is a requirement that the veteran must have served [ninety] days or more during a war period or after December 31, 1946,” in order to be entitled to the benefit of the presumption relating to multiple sclerosis provided by 38 U.S.C. § 1112(a)(4) (formerly § 312(a)(4)). R. at 89. The veteran explained at the hearing that he thought that the provisions of 38 U.S.C. § 1137

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4 Vet. App. 144, 1993 WL 17810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grose-v-brown-cavc-1993.