Horowitz v. Brown

5 Vet. App. 217, 1993 U.S. Vet. App. LEXIS 189, 1993 WL 196360
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 11, 1993
DocketNo. 91-1565
StatusPublished
Cited by33 cases

This text of 5 Vet. App. 217 (Horowitz 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
Horowitz v. Brown, 5 Vet. App. 217, 1993 U.S. Vet. App. LEXIS 189, 1993 WL 196360 (Cal. 1993).

Opinion

IVERS, Associate Judge:

Barry Horowitz appeals a July 19, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for Meniere’s syndrome, denying an increased (compensable) evaluation for epidi-dymitis, and denying entitlement to a total disability rating for purposes of individual unemployability (IU). Barry P. Horowitz, BVA 91-30011 (July 19, 1991). The Court has jurisdiction of the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). For the reasons set forth below, the Court vacates the decision of the BVA and remands the case for readjudication consistent with this opinion.

FACTUAL BACKGROUND

Appellant served in the United States Army from December 27, 1973, to May 20, 1983. R. at 1-2, 104. In January 1978, a medical board proceeding noted appellant’s “recurrent chronic epididymitis” and judged appellant qualified for active duty, but restricted his activities to exclude crawling, stooping, running, jumping, or marching for more than 15 minutes, strenuous physical activity, and handling heavy materials. R. at 8. On January 15,1980, a medical board noted appellant’s “chronic persistent mild to moderate right hemiscro-tal discomfort” and recommended that appellant would be more effective if he were restricted to sedentary activity. R. at 16. In March 1983, a medical board noted that appellant was experiencing pain on his right side whenever he engaged in “any type of physical activity besides bed rest and sitting activities.” R. at 93. The medical board also stated that he was suffering from bilateral sensory hearing loss secondary to trauma sustained when observing tank and field artillery fire without hearing protection. Ibid. On April 12, 1983, an Army physical evaluation board found appellant unfit for duty and recommended that he be “[permanently retired from the service.” R. at 102. The Physical Evaluation Board indicated that appellant had bilateral hearing loss (rated as 20% disabling), neuralgia of the left ilio-inguinal nerve secondary to repeated acute episodes of epididymitis with chronic pain and intermittent swelling in the scrotum (rated under Diagnostic Code (DC) 7599-8730 as 10% disabling), and status post right orchiecto-[220]*220my (although the orchiectomy was actually on the left side) (rated as 10% disabling). Ibid.

On May 12, 1983, appellant applied to a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) for service connection for hearing loss and for epididymitis. R. at 110-11. On November 16,1983, the RO granted service connection for bilateral hearing loss (rated as 20% disabling) and for status post left orchiectomy (rated as 10% disabling). R. at 128. However, the RO denied service connection for right epididymitis because an August 24, 1983, examination failed to reveal the presence of that condition. Ibid. After appellant filed a Notice of Disagreement (NOD) with the November 1983 rating decision, R. at 129, the RO granted service connection for right epididymitis (rated as 10% disabling by analogy to a DC for scars of the skin that are superficial, tender, and painful on objective demonstration, 38 C.F.R. § 4.118, DC 7804 (1992)). R. at 137. In April 1985, the BVA increased to 20% the disability rating for appellant’s right epididymitis. R. at 147.

On July 5,1985, appellant sent an “Application for Increased Compensation Based on Unemployability,” seeking a total'rating for IU purposes. R. at 150. On August 19, 1985, the RO denied a total disability rating for IU purposes. R. at 152. On August 25, 1986, the BVA also denied a total disability rating for IU purposes on the basis that “appellant’s service-connected disabilities are not so incapacitating as to prevent him from obtaining and maintaining some form of substantially gainful employment.” R. at 165. On August 29, 1986, appellant resubmitted his claim for a total rating for IU purposes. R. at 166. Following the RO’s decision that no change was warranted in the prior decision, R. at 185, appellant appealed to the BVA on this issue on October 14, 1987. R. at 194. On November 30, 1988, appellant’s service representative requested that appellant also be considered for service connection for Meni-ere’s syndrome (“a disorder of the membranous labyrinth of the inner ear that is marked by recurrent attacks of dizziness, tinnitus, and deafness.” Webster’s Medical Desk DICTIONARY 422 (1986) [hereinafter Webster’s]). R. at 213. On January 27, 1989, the BVA remanded the matter for the purpose of conducting a field investigation of the effect of appellant’s service-connected disabilities on his industrial adaptability. R. at 216. On August 25, 1989, the RO denied service connection for Meniere’s syndrome. R. at 262. In addition, the RO reduced the rating for appellant’s service-connected bilateral hearing loss to 0% disabling and reduced the rating for right epididymitis (still rated under DC 7599-7804) to 0% disabling on the basis that any pain that appellant was suffering was the result of his post left orchiectomy and not the right epididymitis, which was supposedly “cured.” Ibid. The RO also denied a total rating for IU purposes. Ibid.

In April 1990, appellant’s service representative wrote to the BVA, seeking a new and impartial evaluation of appellant’s conditions because of appellant’s continuing inability to obtain or maintain gainful employment. R. at 294. On June 19, 1990, the BVA remanded the case for further evaluation. R. at 296. On November 8, 1990, appellant testified at a personal hearing. R. at 327-28. On January 11, 1991, the hearing officer denied service connection for Meniere’s syndrome. R. at 343. On February 5, 1991, the RO denied a total rating for IU purposes. R. at 372. The BVA’s July 19, 1991, decision continued the denial of service connection for Meniere’s syndrome, denied an increased (compensa-ble) rating for right epididymitis, and denied a total rating for IU purposes. Horowitz, BVA 91-30011, at 8-9.

ANALYSIS

This appeal presents several issues: whether the Board’s denial of service connection for Meniere’s syndrome was clearly erroneous; whether the Board’s denial of an increased (compensable) rating for service-connected right epididymitis was clearly erroneous; and whether the Board’s denial of a total rating for IU purposes was clearly erroneous.

[221]*221The Court reviews the BVA’s finding under the “clearly erroneous” standard of review. 38 U.S.C.A. § 7261(a)(4) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Under the “clearly erroneous” standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, supra. The Board must base its decisions on “all evidence and material of record,” 38 U.S.C.A. § 7104(a) (West 1991), and must provide a “written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record,” 38 U.S.C.A. § 7104(d)(1) (West 1991). See Douglas v. Derwinski, 2 Vet.App. 435, 438-39 (1992) (en banc); Gilbert, 1 Vet.App. at 56-57. Pursuant to these statutory requirements, the Board must “account for the evidence which it finds to be persuasive or unpersuasive,” and provide reasons or bases for rejecting evidence submitted by or on behalf of the claimant. Gilbert, 1 Vet.App. at 57.

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Bluebook (online)
5 Vet. App. 217, 1993 U.S. Vet. App. LEXIS 189, 1993 WL 196360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horowitz-v-brown-cavc-1993.