Isenbart v. Brown

7 Vet. App. 537, 1995 U.S. Vet. App. LEXIS 305, 1995 WL 231642
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 20, 1995
DocketNo. 92-1320
StatusPublished
Cited by40 cases

This text of 7 Vet. App. 537 (Isenbart 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
Isenbart v. Brown, 7 Vet. App. 537, 1995 U.S. Vet. App. LEXIS 305, 1995 WL 231642 (Cal. 1995).

Opinion

HOLDAWAY, Judge:

The appellant, Warren H. Isenbart, appealed a July 2, 1992, decision of the Board of Veterans’ Appeals (BVA or Board), which denied the appellant’s increased rating claims for chronic dermatitis and peptic ulcer, and also denied reopening of a claim for entitlement to service connection for a psychiatric disorder. Upon joint motion of the parties, this Court on July 20, 1994, ordered that the July 2, 1992, BVA decision be vacated and that the appellant’s claims as described above be remanded. The Court also ordered the parties to submit supplemental memoranda addressing the issue of whether the appellant had filed a jurisdiction-conferring Notice of Disagreement (NOD) on a separate claim of entitlement to a total disability rating based upon individual unemployability (TDIU). With the latter limited issue now before the Court, the Court holds that, under the facts in the present case, the appellant’s January 10, 1990, NOD sufficiently encompassed the TDIU claim.

I. BACKGROUND

The appellant served on active duty with the U.S. Army from February 5, 1965, to August 18, 1967. He was discharged from service due to physical disability and was granted a 30% rating for dermatitis on June 12, 1967. A January 23, 1968, regional office (RO) rating decision granted a 10% rating for peptic ulcer and continued the 30% dermatitis (chronic eczema) rating. The appellant’s skin was noted to be sensitive to sunlight, and his condition was manifested by a rash on his hands, arms, and back of the neck. An April 8, 1968, RO decision continued the latter ratings and denied service connection for a neuropsyehiatric disorder. A February 15, 1971, RO decision continued the eczema and peptic ulcer ratings at 30% and 10%, respectively. On December 23, 1971, the RO received an NOD wherein the appellant stated that his skin condition “hindered” his job performance. Subsequent RO decisions denied any rating increases.

The appellant on July 11, 1972, requested that his claim be amended to include service connection for a nervous disorder. The VA on August 7, 1972, responded that the ner[539]*539vous disorder claim had been previously denied and required new and material evidence in order to be reopened. A July 31, 1972, RO decision continued the 30% and 10% ratings for chronic dermatitis and peptic ulcer. An NOD was received on November 14, 1972. The appellant appealed to the BVA on December 14, 1972, and stated in his VA Form 1-9, Appeal to the BVA, that he had been laid off from employment “time and again” due to his skin condition. The BVA on April 17, 1973, denied service connection for a nervous condition and denied rating increases for chronic eczema and peptic ulcer.

RO decisions from December 1973 through January 1983 addressed the appellant’s chronic eczema and peptic ulcer conditions, resulting in varying modifications of the appellant’s ratings. On March 11,1983, the RO received an NOD wherein the appellant stated that he had not worked for eight months due to his eczema condition. RO decisions on March 16, 1983, April 1983, and May 31, 1984, found no material change in the appellant’s condition.

The appellant on June 17, 1989, sought to amend his claim, asserting residuals of Agent Orange exposure. The RO responded that exposure to herbicides was not a disease or disability, and that he needed to specify a disability and submit supporting medical evidence. The appellant on August 29, 1989, requested reopening his claim for an increased skin condition rating. The RO on September 8, 1989, continued the prior ratings.

The appellant submitted a letter dated September 12, 1989, from his employer, who stated that the appellant had missed 28 days over the prior three months, and that the appellant would lose his job if he could not work. The RO increased the eczema rating to 30% on October 27, 1989. The appellant then submitted a letter, dated November 27, 1989, from an employer who stated that the appellant had “made an excellent hand until his skin problems would flare up and he was often in so much pain he was unable to work.” The RO on December 21, 1989, denied a rating increase for the appellant’s chronic eczema. On January 10, 1990, the RO received an NOD which disagreed with the chronic eczema rating increase denial. The appellant stated in this NOD that his skin condition had caused the loss of seven jobs in twenty years, including some part-time jobs. He further stated that he could not find a job because of his skin reaction to sunlight, chemicals, and fluorescent light, and that he could not support his family. The appellant also stated in his NOD that both his skin and ulcer conditions had caused him to miss “a lot of work,” and that he had not worked since August 25, 1989.

The RO on January 23,1990, denied rating increases for the appellant’s chronic eczema and peptic ulcer, and also denied service connection for passive-aggressive personality disorder. The RO noted that a statement from VFW Post members requesting review for total disability compensation was considered. The VFW letter, dated January 15, 1990, stated that the appellant could no longer hold a job and should be awarded total disability compensation.

The RO’s January 26, 1990, Statement of thé Case (SOC) noted the appellant’s contentions that he was severely disabled due to his skin, ulcer, and psychiatric problems, and therefore that he should be considered “totally disabled.” The SOC decision addressed the chronic eczema, ulcer, and personality disorder claims. A January 30, 1990, letter from the adjudication officer to the appellant stated that the appellant’s claim for a “total disability evaluation” due to his service-connected conditions was being deferred pending receipt of evidence and enclosed a TDIU application for the appellant to complete. The appellant submitted a formal TDIU application on February 2, 1990. In his February 2, 1990, VA Form 1-9, the appellant requested that his skin condition, ulcer, and personality disorder claim be rated at the maximum disability percentage. The appellant also related his employment problems, which he said had resulted in retirement because of his conditions.

An April 24, 1990, hearing addressed the chronic eczema, peptic ulcer, and nervous condition claims. The appellant related his ulcer problems, and stated that he “cannot work in this condition.” He referred to the three claims noted above and said there were “no additional issues.” A September 19, [540]*5401990, RO decision denied service connection for a heart condition, a claim which the RO noted had been raised at the personal hearing. The hearing officer’s November 13, 1990, decision stated that additional issues raised, including entitlement to non-service-connected pension, individual unemployability, and service connection for a chronic neurosis, were referred to the RO rating board for consideration. The RO’s December 24, 1990, Supplemental SOC (SSOC) noted the appellant’s contention that he should be entitled to total disability.

A December 26, 1990, RO decision maintained the appellant’s 30% chronic eczema rating and 20% peptic ulcer rating, and awarded non-service-eonnected ratings of 30% for chronic heart disease, 30% for passive-aggressive personality disorder, and 10% for asthma. The RO denied the existence of post-traumatic stress disorder and dysthy-mia, and also denied a rating for chronic obstructive pulmonary disease.

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Bluebook (online)
7 Vet. App. 537, 1995 U.S. Vet. App. LEXIS 305, 1995 WL 231642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isenbart-v-brown-cavc-1995.