Johnston v. Brown

10 Vet. App. 80, 1997 U.S. Vet. App. LEXIS 83, 1997 WL 33094
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 29, 1997
DocketNo. 94-651
StatusPublished
Cited by95 cases

This text of 10 Vet. App. 80 (Johnston 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
Johnston v. Brown, 10 Vet. App. 80, 1997 U.S. Vet. App. LEXIS 83, 1997 WL 33094 (Cal. 1997).

Opinions

KRAMER, Judge:

The appellant, Robert T. Johnston, appeals a May 18, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) denying increased ratings for shell fragment wound residuals of the left wrist, right thigh, and left anterior chest, each rated as 10% disabling. For the reasons that follow, the Court will affirm the BVA decision in part, vacate it in part, and remand two matters for adjudication.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from June 1967 to April 1969. Record (R.) at 63. Service medical records reflect that he sustained multiple shell fragment wounds of the left wrist, left chest, and right thigh in Vietnam. R. at 44-48. In July 1969, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) granted service connection for residuals of multiple shell fragment wounds to the left wrist and right thigh, each rated at 10% disabling, and granted a noncompensable rating for residuals of the left anterior chest wound. R. at 77. The appellant did not appeal this decision.

In March 1985, the appellant was involved in an automobile accident in which he sustained a fracture of the spine that left him paralyzed below the waist. R. at 87. In September 1985, he submitted a claim for non-serviee-conneeted pension. R. at 89-92. In November 1985, the RO issued an administrative decision that concluded that because the appellant’s blood alcohol level on the night of the accident had been .258%, his injuries were the result of his own willful misconduct. R. at 128. In December 1985, the RO notified the appellant that his claim for non-serviee-conneeted pension benefits had been denied. R. at 130. Later that same month, the appellant filed a Notice of Disagreement (NOD). R. at 132. The RO issued its Statement of the Case in April 1985. R. at 141-45. The record reflects that the appellant did not perfect his appeal.

In February 1990, the appellant requested an increase in his disability compensation. R. at 164. In a March 1991 VA examination, the examiner stated the following:

Item # 1. On the lateral surface of the right thigh, the lower l/3rd there is evidence of an entrance wound of a shell fragment. This is a circular with a circumference of a diameter of about 1 inch +. The skin itself is depressed, but not fixed to the underlying tissues. There is no edema. No foreign bodies able to be felt. There is no evidence of any herniation or infection.
Item # 2. On the dorsum of the left wrist, there is a scar from the entrance again of a shell fragment. The wrist itself is mobile without any crepitus or grating. The mobility is good. There is no evidence of infection. There is no pain on motion. Item # 3. In the left anterior chest in the mid axillary line, there is a[n] oblique scar about 1 y¿ inches long, which is just at the level of the 12th rib. This is well healed without any infection or herniation. There is no inflammation. X-rays available fail to show the evidence of any foreign body beneath this wound, which is the prime cause for consideration in this patient at this time.

R. at 194. In April 1991, the RO denied the appellant’s claim for an increase in his disability ratings. R. at 202-03. He submitted an NOD in May 1991 (R. at 207) and a substantive appeal to the BVA in August 1991 (R. at 222-24). In his appeal to the Board the appellant stated, inter alia: “I also ask to have retroactive benefits to the date of the original claim as I have retained shrapnel in my chest since [the] date of [the] original claim. A clear and unmistakable error [CUE] has been made.” R. at 222. In August 1991, the RO confirmed and continued the previously assigned disability ratings for the appellant’s service-connected conditions. R. at 230.

An October 1991 VA chest x-ray report noted “a small metallic fragment beneath the diaphragmatic surface on the left that could be related to a shrapnel wound.” R. at 237. The' examiner’s clinical impression was of a “normal chest, retained shrapnel fragment.” [83]*83Ibid. The appellant submitted a substantive appeal to the BVA in October 1991. R. at 240. In January 1992, the RO issued another decision confirming and continuing its previously noneompensable rating for the residuals of á shell fragment wound of the left anterior chest. R. at 245. In February 1992, the appellant submitted another substantive appeal to the BVA. R. at 252-53. In December 1992, the BVA remanded the case to the RO for further development and review. R. at 265-69.

In July 1993, the appellant underwent a VA examination of the joints in which the examiner noted:

[Right Thigh]; Sustained in Vietnam. He has a depressed, circular scar over the anterior/lateral distal right thigh about 3 inches above the knee. There is no significant tenderness or pain associated with this. He has a good range of motion in his knee and hip. No loss of muscle function in this area, particularly since this is mostly in the quadriceps which function normally. His hamstrings are quite weak on that side, as they are on the other side as well. LEFT WRIST; There is a scar about 1 to 1]£ cm long over the dorsal aspect of the wrist opposite the radial border of the radius near the radial styloid. Range of motion of the wrist is generally within normal limits. He seems to have good strength in all muscle groups tested. There is some minimal tenderness of the wound itself [and] the scar around the wound. There was no evidence of infection.
In the upper left ABDOMEN; He has a linear scar somewhat irregular in shape about 3 inches long, which is quite tender to pressure in the central portion. The degree of tenderness in this area suggests] he may have a neuroma in this region. The abdominal muscle function appear[s] to be normal. There is no impairment of function in his chest wall. X-rays taken of the chest, right thigh[,] and left wrist confirm the presence of small metallic fragments____
Conclusion; I do not feel that the wounds involving the wrist or thigh are giving him major problems. He seems to have some minor discomfort in the wrist, with strenuous use. This maybe [sic] associated with some sear tissue in the area which maybe [sic] impinging on the extensor carpal radialis tendon to some extent, although the muscle seems to function normally. This seems to be a very minimal degree of impairment of function, however.
I do not feel that the thigh wound is causing him any difficulty at all.
As far as the upper abdomen wound, this is the area where he complains the most of having symptoms and other than for the possibility he may have a[ ] neuroma from sear tissue in this area[,] I cannot offer any explanation for this, besides the metallic fragment is miniscal [sic]. I do not think it is a factor in his complaints at all.

R. at 307-08. In August 1993, the RO denied increased disability ratings for the appellant’s service-connected right wrist and thigh conditions; however, it granted an increase in his service-connected residuals of a shell fragment wound to the left anterior chest and assigned a 10% disability rating. R. at 325-27.

On May 18, 1994, the BVA, in its decision here on appeal, denied increased ratings for shell fragment wound residuals of the left wrist, right thigh, and left anterior chest, each rated as 10% disabling.

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Cite This Page — Counsel Stack

Bluebook (online)
10 Vet. App. 80, 1997 U.S. Vet. App. LEXIS 83, 1997 WL 33094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-brown-cavc-1997.