Hodges v. Brown

5 Vet. App. 375, 1993 U.S. Vet. App. LEXIS 323, 1993 WL 298722
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 3, 1993
DocketNo. 91-1093
StatusPublished
Cited by17 cases

This text of 5 Vet. App. 375 (Hodges 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
Hodges v. Brown, 5 Vet. App. 375, 1993 U.S. Vet. App. LEXIS 323, 1993 WL 298722 (Cal. 1993).

Opinion

MANKIN, Judge:

Appellant appeals an April 3, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied an increased rating for residuals of a fracture of the sixth thoracic (T-6) vertebra (currently rated 10% disabling), denied entitlement to an increased (compensable) rating for occlusion of the right internal carotid artery, denied entitlement to a total rating based on individual unemployability, and denied entitlement to service connection for light-headedness, vertigo, numbness of the left leg, and lumbar spine disability. On February 9, 1991, appellant filed a motion for remand to determine whether lightheadedness or other symptoms are related to his carotid artery condition. On January 28, 1992, the Secretary of Veterans Affairs (Secretary) submitted a motion for summary affirmance. The Court has jurisdiction over the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991).

I. Background

Appellant served in the United States Marine Corps from January 1973 to July 1974. In December 1973, he was injured and rendered unconscious during a motorcycle accident. Appellant was admitted to the Naval Regional Medical Center in San Diego, California, with numerous injuries to the head, neck, and back. As a result, appellant suffered episodic frontal headaches. An arteriogram showed right frontal parietal subdural hematoma and two aneurysms of the right internal carotid artery (either of two main arteries that supply blood to the head, Webster’s Medical Desk DICTIONARY 101 (1986)). At the time of his discharge from the hospital, appellant’s only remaining problem was two false aneurysms high in the internal carotid artery. R, at 6. An angiogram performed in December 1973 again revealed two aneurysms of the right internal carotid.

In April 1974, the results of a retrograde selective right carotid study indicated that appellant’s right carotid artery had spontaneously blocked without his suffering any neurologic sequelae. He began to experience intermittent symptomatic double vision which was corrected with glasses. R. at 8. A medical board determined that appellant was medically unfit for duty because he was at risk of developing a neuro-logic deficit if he sustained any injury to one of his unaffected cerebral vessels. R. at 9. Appellant’s case was referred to the Physical Evaluation Board which found him medically unfit for service and evaluated his service-connected disabilities as 40% disabling. R. at 11-12.

In June 1974, appellant submitted an application for compensation. R. at 15. He was granted a prestabilization rating of 100%, effective July 14, 1974. In April 1975, appellant received a Veterans’ Administration (now Department of Veterans Affairs) (VA) disability examination. He complained that he had experienced a “black out spell” and had difficulty breathing. An x-ray showed a normal spine with the exception of an old compression fracture of the vertebral body of T-6. The skull appeared normal. The diagnosis was “[pjostoperative right subdural hematoma with full recovery of neurologic function secondary to head injury with basal skull fracture.” R. at 35. In May 1975, appellant’s 100% rating was reduced to a combined 50% rating for service-connected disabilities, effective August 1, 1975.

Appellant submitted a letter dated June 17, 1975, from R. Pierce Foster, M.D., stating that, although appellant “is generally doing remarkably well for his initial injuries,” “there are few, if any, companies today that hire any personnel without a thorough physical examination,” and that,

under no circumstances could I recommend appellant for employment in any capacity with his history of one of his carotid arteries being occluded, likewise his history of a neck fracture, and he could automatically be ruled out when [377]*377we picked up the compression fracture of his back on x-ray.

R. at 38. Appellant received a VA rating examination in August 1975. The Report of Medical Disability Evaluation from the examination states that appellant’s condition had improved slightly since the April examination. Appellant stated that he felt well, except that he experienced throbbing in the head, a slightly sore area in the thoracic area, and slight weakness of the right wrist. Appellant’s standing posture was within normal limits. Upon bending forward there was normal reversal of the lumbar curve. There was no limitation of motion of the cervical spine. R. at 39. Appellant’s neurological examination findings were normal. Palpation of the spine was normal except for a prominence of the spinous process of T-6. The bony projection was not tender and showed no evidence of mobility. An x-ray of appellant’s thoracic spine showed marked compression and anterior wedging of T-6 and slight infero-lateral aspect of T-6. The disc spaces above and below T-6 show relatively slight narrowing. R. at 46. The examining physician diagnosed “postoperative subdural hematoma right, with recovery and with no residual neurologic signs or symptoms, with also spontaneous occlusion of the right carotid artery secondary to false aneurysms.” R. at 45. During the examination appellant stated that he did not have any particular physical problems, but that he couldn’t get a job because he was ineligible for insurance coverage. R. at 43. In a decision dated May 13, 1976, the BVA denied appellant’s claims for service connection for fracture of the neck, denied entitlement to an increased (compen-sable) evaluation for occlusion of the right internal carotid artery, and denied entitlement to a rating greater than 10% for a compression fracture of T-6 vertebra. R. at 53.

In April 1976, appellant applied to the VA for educational assistance in order to enroll in a vocational welding program. R. at 61. Appellant’s application was approved. In August 1977, appellant requested a program change to enroll in a program for electronics communication. R. at 64. In June 1980, he submitted a request for approval to enroll in an electronics correspondence course. On the request form he indicated that he had obtained employment with Texas Instruments. R. at 68. VA work history records from January 1981 show that appellant worked, either with or without compensation, continuously from September 1979 to January 1981. R. at 73. In June 1982, appellant requested another program change to study to be an electrician and indicated that he had entered into an on-the-job training agreement with Hunt Plywood Company, Inc. R. at 80. In a Statement in Support of Claim, appellant stated, “... my disabilities do not have any effect on my job performance.” R. at 83.

In April 1989, appellant applied for an increased rating for a back disorder, for service connection for arthritis, secondary to his service-connected back and neck problems, and for service connection for occlusion of his right internal carotid artery (although the record shows that this disability was previously service connected at a noncompensable level as of October 1, 1975). R. at 37. Appellant claimed to suffer lightheadedness and vertigo as a result of the occlusion and complained of numbness of his left leg. He also requested consideration of his claim for individual unemployability. R. 85. Along with his statement in support of claim appellant submitted a letter from the Port Allen Marine Service informing appellant that he did not pass a preemployment physical examination because an an x-ray of his back showed degenerative disc disease at L-3 and L-4. R. at 92.

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Bluebook (online)
5 Vet. App. 375, 1993 U.S. Vet. App. LEXIS 323, 1993 WL 298722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodges-v-brown-cavc-1993.