Ivey v. Derwinski

2 Vet. App. 320, 1992 U.S. Vet. App. LEXIS 101, 1992 WL 83916
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 28, 1992
DocketNo. 90-744
StatusPublished
Cited by45 cases

This text of 2 Vet. App. 320 (Ivey v. Derwinski) 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
Ivey v. Derwinski, 2 Vet. App. 320, 1992 U.S. Vet. App. LEXIS 101, 1992 WL 83916 (Cal. 1992).

Opinions

[321]*321MANKIN, Associate Judge, filed the opinion of the Court, in which NEBEKER, Chief Judge, joined. STEINBERG, Associate Judge, filed a separate concurring opinion.

MANKIN, Associate Judge:

Veteran, Dewey Ivey, appeals a March 22,1990, decision of the Board of Veterans’ Appeals (BVA or Board), which denied entitlement to service connection for residuals of an injury to the left scrotum. We find that the BVA erred in reviewing the case de novo, when the Department of Veterans Affairs (VA) Regional Office (RO) found that the evidence submitted by appellant created no new factual basis for allowing service connection. We find that the Secretary of Veterans Affairs (Secretary) prevented the veteran from presenting new and material evidence to reopen his claim by failing to fulfill the VA’s duty to assist the veteran in developing his claim. Accordingly, the Secretary’s motion for summary affirmance is denied, the BVA decision on appeal is vacated, and the case is remanded to the BVA for further development consistent with this Court’s opinion, the concurring opinion notwithstanding.

I. FACTUAL BACKGROUND

Dewey Ivey served in the Marine Corps from February 17, 1956, to February 16, 1958. On June 12, 1957, he ran into the comer of a lowered flap on an aircraft. He experienced sharp pain in the left scrotum and noted swelling and discoloration. Ivey was treated with ice packs, bed rest, a scrotal support, and discharged after two days. R. at 7. There was no notation of this injury made in the records of his separation from service medical examination, and his “G-U System” [genitourinary system] was noted to be “normal”. R. at Ills.

On January 17, 1984, the VA Regional Office (VARO) in Muskogee, Oklahoma received his first request for service-connected disability for the injury to his scrotum and for exposure to nuclear radiation. R. at 15-18. In the statement in support of his claim, he mentioned that he was treated at a duty station at El Toro Marine Base in Santa Ana, California and had been seeing a urologist, Dr. D.W. Buntley, for about eleven months concerning a urological problem, but had not sought medical treatment for nuclear radiation exposure. R. at 19-20. No medical examination was performed at that time, and no private medical records were obtained. The rating decision of March 22, 1984, denied service connection for the scrotal injury and for the urological problem due to radiation exposure in the absence of continuity of symptoma-tology. R. at 21.

On October 20, 1988, a VA doctor noted an old injury to the left testicle with acute problems with recurrent pain and dysuria (difficult or painful discharge of urine). Then on November 4, 1988, the appellant filed to reopen his claim for service connection, this time only for the injury to the left scrotum. This request mentioned that he had been treated by a private physician, Dr. Frank P. Michener, for pain in the urinary tract. R. at 26. On March 16, 1989, the VA doctor assessed Ivey’s condition as “epididymitis-old.” Epididymitis is defined as inflammation of the elongated mass of convoluted efferent tubes at the back of the testis. Webster’s Medical Desk Dictionary 216 (1986). On April 7, 1989, the VA determined that the evidence submitted was not new and material and no reconsideration would be given to his claim. On April 27, 1989, he was again diagnosed as having chronic left epididymitis.

A new rating decision was issued on May 9, 1989, confirming that there was no new factual basis showing service connection for the left scrotum condition. On August 31, 1989, appellant appealed to the BVA. On March 22, 1990, the Board found that, “[t]he veteran’s inservice [sic] injury was acute and transitory and resolved without identifiable residuals.” Dewey Ivey, BVA 90-13236, at 4 (Mar. 22, 1990). Thus, service connection for residuals of an injury to the left scrotum was denied. Appellant appeals that BVA decision to this Court. The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)).

[322]*322II. ANALYSIS

The Court notes at the outset that the BVA erred when it considered appellant’s claim to be reopened without an analysis as to whether the newly submitted evidence was new and material. The VA first denied service connection for residuals of an injury to the left scrotum in 1984. Appellant attempted to reopen this claim on November 4, 1988. On April 7, 1989, the VARO sent a letter to appellant stating that “the evidence [he] submitted to reopen [his] previously denied claim is not new and material. Because the evidence ... submitted does not provide a new basis for reconsideration of [his] claim, we can make no change in our previous decision.” R. at 28. After the VARO received the appellant’s VA outpatient treatment records for the period October 20, 1988, to April 27, 1989, the rating board addressed the “reopened claim,” on May 9, 1989, yet determined that “no new factual basis [was] shown allowing [service connection] for left scrotum condition.” R. at 37. The VARO never stated, however, whether the evidence submitted was new and material. Then, on June 22, 1989, when appellant requested reconsideration of his claim, the VA told him that if he had “additional medical evidence which is new and material to [his] case” to submit it. R. at 41. The BVA decision made a conclusory statement that the veteran reopened his claim in November 1988 and proceeded to evaluate the merits of appellant’s claim, without first determining whether there was new and material evidence sufficient to reopen the claim.

When a veteran attempts to reopen a previously denied claim, “the BVA must perform a two-step analysis.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).

First, the BVA must determine whether the evidence is ‘new and material’. 38 U.S.C. [§ 5108 (formerly § 3008)]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.

Id. The claimant must present “new and material” evidence to reopen his claim under 38 U.S.C. § 5108 (formerly § 3008). In this case, however, the veteran was prevented from presenting new and material evidence to reopen his claim by the Secretary’s failure to fulfill its statutory duty to assist the veteran in developing his prospective reopened claim for a service-connected scrotal injury. While the evidence submitted by veteran was inadequate to reopen his claim, it was sufficient to trigger the duty to assist.

The statutory requirement giving rise to the Secretary’s duty to assist is established by 38 U.S.C. § 5107(a):

Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The secretary shall assist such a claimant in developing the facts pertinent to the claim.

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Cite This Page — Counsel Stack

Bluebook (online)
2 Vet. App. 320, 1992 U.S. Vet. App. LEXIS 101, 1992 WL 83916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivey-v-derwinski-cavc-1992.