Holland v. Brown

9 Vet. App. 324, 1996 U.S. Vet. App. LEXIS 695, 1996 WL 494674
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 29, 1996
DocketNo. 94-1046
StatusPublished
Cited by10 cases

This text of 9 Vet. App. 324 (Holland 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
Holland v. Brown, 9 Vet. App. 324, 1996 U.S. Vet. App. LEXIS 695, 1996 WL 494674 (Cal. 1996).

Opinions

STEINBERG, Judge:

The appellant, veteran Sterling R. Holland, on November 16, 1994, filed a Notice of Appeal (NOA) fi'om an August 25, 1994, deci[325]*325sion of the Board of Veterans’ Appeals (BVA or Board) granting an increased rating from 10% to 20% for residuals of a service-connected left-ankle fracture [hereinafter ankle residuals] and not addressing the veteran’s claim for a disability rating greater than 10% and an earlier effective date for a service-connected back condition. In his NOA, the appellant stated that “Nashville changed [his] original disagreement letter”, that he has been “disagreeing with the 10% on [his] back condition”, and that he “ha[d] 3 conditions” which he “originally appealed” but that the Department of Veterans Affairs (VA) now states that he “only requested an increase on [his] left ankle”.

In April 1995, the appellant filed an informal brief in which he states that he had “attempted to get the VA to service-connect the shortening of the leg and back problems” and that a VA regional office (RO) “recently awarded service[] connection on [his] back, but failed to include this information for the BVA to see”. He further states that his claim “is not for an increased rating for [his] ankle” but that he seeks service connection for the shortening of his left leg and back problems as secondary conditions caused by his left ankle. He requests the Court to grant service connection for his left leg and back “at the highest possible rating”.

In May 1995, the Secretary filed a motion to dismiss, citing Bentley v. Derwinski, 1 Vet.App. 28 (1990), in support of his assertion that the issues of the appellant’s back and leg disabilities are not appropriately before the Court. The Secretary advises that the only possible issue before the Court is an increased rating for the appellant’s service-connected ankle disability. Because the appellant has advised the Court that he does not wish to pursue that issue before this Court, the Court will grant the Secretary’s motion as to that claim and dismiss it. See Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). The Court will also dismiss for lack of jurisdiction the appeal as to the issue regarding left-leg shortening. As to the appellant’s contentions that the Board erred in its decision not to adjudicate the back-disability claim, the Court will reverse the BVA decision as to that claim and remand that matter to the Board for adjudication.

I. Background

The veteran served on active duty in the United States Army from March 1951 to March 1954. Record (R.) at 29, 32. In September 1966, a VARO decision granted service connection for ankle residuals and assigned a 0% rating and an effective date from June 27, 1966 (R. at 96-97); the non-compensable rating was affirmed by the Board in an August 1968 final decision (R. at 138). The veteran’s claim for service connection for shortening of his left leg as secondary to service-connected ankle residuals was denied in an April 1968 final Board decision. R. at 128-30. In July 1984, a final RO decision increased the rating for ankle residuals to 10%, effective from June 1983. R. at 204, 206.

On March 8, 1991, the veteran sought an increased rating for his service-connected ankle residuals and service connection for a back disorder caused by his ankle residuals. R. at 264-65, 267. The record on appeal (ROA) contains the following documents showing actions taken thereafter on the veteran’s three claims: (1) An April 1991 RO decision denying a rating greater than 10% for ankle residuals and denying service connection for a back disorder claimed to be due to the veteran’s service-connected ankle residuals (R. at 280, 283); (2) a May 1991 Notice of Disagreement (NOD) as to that decision (R. at 285); (3) a June 1991 Statement of the Case (SOC) identifying the issues on appeal as “[i]ncreased evaluation for his service-connected residuals, fracture, left ankle, postoperative”, and “[s]ervice[ ]conneetion for a back disorder directly due to and proximately the result of service-connected [ankle residuals]” (R. at 289); (4) a July 1991 statement from the veteran requesting “a 90-day extension so [the RO] can reconsider [its] decision of denial based on the attached evidence”; noting that the “whole point over all these years was to include shortening of left leg and back problems”; and stating that the RO “keep[s] ignoring these problems and foeus[ing] on the ankle only” and that he “was not asking for an increase for [the] ankle” but “was asking for compensation of [326]*326leg and back, which is confirmed by [two doctors]” (R. at 305-06); and (5) a July 1991 RO decision confirming and continuing the April 1991 RO decision and granting the veteran’s “request for a 90[-]day extension of his appeal to the [Board]” (R. at 308-09, 311).

In September 1991, the veteran gave sworn testimony before a hearing officer of the Nashville, Tennessee, RO concerning his “pending appeal” for an increased rating for ankle residuals and “also service[ Connection for a back disorder” (R. at 325), stating that his back problems started shortly after 1966 (R. at 327), and referring to his desire to seek service connection for his left leg (R. at 333-34). A January 1992 decision by the hearing officer denied the back claim and the claim for an increased rating for the ankle residuals. R. at 337. In January 1992, the RO issued a Supplemental SOC (SSOC) identifying both of these claims as issues on appeal. R. at 340. A March 1992 RO letter informed the veteran that his request for a 60-day extension of time within which to file his substantive appeal to the Board was being granted. R. at 348. In a May 1992 VA Form 1-9 (Substantive Appeal to the Board), he stated that he disagreed with the RO’s January 1992 decision as to, inter alia, his claim for service connection for a back disorder. R. at 357.

In a February 1993 BVA decision, the Board identified the issues on appeal as “service connection for a low back disorder as being proximately due to, or the result of, a service-connected disability” and “an increased rating for postoperative residuals of a fracture of the left ankle, currently evaluated as 10[%] disabling”. R. at 366. The decision also noted that the veteran had raised the issue of service connection for his left leg, stated that that issue was “ ‘inextricably intertwined’ with the issues currently certified on appeal”, and “remanded” the matter to the RO. R. at 368-69. The Board directed the RO (1) to arrange for a comprehensive examination of both the veteran’s low back and left lower extremity, (2) “to review the claim” and to “include a determination as to whether the veteran is entitled to service connection for shortening of the left lower extremity”, and (3) then to furnish the veteran with an SSOC. Ibid. The February 1993 Board decision also stated: “Thereafter, subject to current appellate procedures, the case should be returned to the Board for further consideration. The veteran need take no action until so informed.” Ibid.

In April 1993, the RO issued a decision on remand granting service connection for the veteran’s back condition, classifying it as “in-tervertebral disc disease of the lumbar spine”, and assigning a 10% disability rating and an effective date of March 8, 1991, and denying an increased rating for ankle residuals. R. at 385-86. A May 13, 1993, SSOC identified the issue on appeal as an increased rating for service-connected ankle residuals. R. at 390.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mai De Hart v. Denis McDonough
Veterans Claims, 2024
Holland v. Gober
10 Vet. App. 433 (Veterans Claims, 1997)
Smith v. Brown
10 Vet. App. 330 (Veterans Claims, 1997)
Garlejo v. Brown
10 Vet. App. 229 (Veterans Claims, 1997)
Holland v. Brown
10 Vet. App. 42 (Veterans Claims, 1997)
Phillips v. Brown
10 Vet. App. 25 (Veterans Claims, 1997)
In re the Fee Agreement of Cox
10 Vet. App. 14 (Veterans Claims, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
9 Vet. App. 324, 1996 U.S. Vet. App. LEXIS 695, 1996 WL 494674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holland-v-brown-cavc-1996.