Jones v. Derwinski

1 Vet. App. 210, 1991 U.S. Vet. App. LEXIS 29, 1991 WL 146424
United States Court of Appeals for Veterans Claims·Decided April 10, 1991·No. No. 90-58·Published·Cited by 127 cases

Opinion

STEINBERG, Associate Judge:

On October 10, 1989, the Board of Veterans Appeals (BVA or Board) issued a decision on a reopened claim by the appellant, [212]*212McArthur Jones, for service-connected disability compensation for chronic prostatitis. The BVA concluded that its prior “denial of entitlement ... in January 1988 is a final determination; and the evidence received subsequently does not present a new factual basis for a grant of service connec-tion_” McArthur Jones, loc. no. 929115, at 8 (BVA Oct. 10, 1989).

The issue is whether certain material findings of fact by the BVA in its October 10, 1989, decision should be held unlawful and set aside because they are “clearly erroneous” under 38 U.S.C. § 4061(a)(4) (1988). We hold that they are not but that remand of the case to the Board is required because the decision fails to provide adequate “reasons or bases” for certain findings of material fact and conclusions of law. We also address the standard of review that the Department of Veterans Affairs (VA or the Department) is required by 38 U.S.C. §§ 4004(b) and 3008 (1988) to apply to a reopened claim.

A second major issue was presented in this appeal pertaining to the payment of attorney fees to the veteran’s attorney for services rendered in representing the veteran before VA, the BVA, and this Court. Those attorney-fee issues have been separated from the substantive appeal and re-docketed in a separate case, In the Matter of the Fee Agreement of William G. Smith in Case Number 90-58, U.S.Vet. App. No. 91-619 (Notice of Appeal filed Feb. 2, 1990), as an appeal by the appellant’s attorney, William G. Smith, Esquire, from the BVA’s decision on the fees provided for in a fee agreement between the attorney and the appellant. Those issues are still under submission. In the future, in view of the possibility that an attorney and an appellant may not have an identity of interests on attorney-fee questions, the Court will, at the outset of the appeal, very likely separate attorney-fee issues from issues in the substantive appeal, so that the issues will be separately considered.

I. BACKGROUND

Mr. Jones served in the Army from July 1965 to June 1968, including service in Germany. His 1965 Army enlistment examination did not indicate any medical problems. He first sought treatment from the Army on August 15, 1966, for urethral discharge, mild dysuria, and painful urination. On several occasions over the next four months, he sought Army treatment in Germany for these urinary problems, as well as frequency of urination (see the first seven paragraphs of the Appendix to this opinion); on January 7, 1967, an Army treating physician concluded that the veteran’s “complaints [had] subsided” and made a final diagnosis of “prostatitis-cystitis”. R. at 18. There is no record of any other medical complaints for the remaining 17 months of his service; however, the veteran testified under oath at a February 16, 1989, hearing at the Regional Office (RO) of the Veterans’ Administration (the VA), the predecessor of the Department, that he was able to control his urinary problem in service by drinking less fluid. R. at 123.

In March 1987, the veteran first applied for compensation from the VA for a urinary problem. In support of his claim, he submitted medical records showing private treatment of, among other conditions, urinary discharge, urgency, and frequency over the 15 years from 1972 to 1987. {See the Appendix.) A medical examination by the VA in May 1987 assessed his problem as either “possible neurogenic bladder, or possible chronic interstitial cystitis.” R. at 42. On January 26, 1988, the BVA denied service connection based on its findings that the “various genitourinary symptoms [treated] while on active duty ... resolved without chronic residuals prior to separation from the service” and that “medical finding[s] suggestive of chronic pathology of the urinary tract first appear[ed] several years after discharge from the service.” McArthur Jones, loc. no. 801647, at 4 (BVA Jan. 26, 1988) (emphasis added). This decision was not appealable to this Court because the Notice of Disagreement pertaining to the claim was filed prior to November 18,1988. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, Div. A, § 402, 102 Stat. 4105, 4122 (1988); Skinner v. Derwinski, 1 Vet.App. 2 (1990).

[213]*213In February 1988, the veteran reopened his claim at the RO on the basis of his submission of “new and material evidence”. R. at 100. See 38 U.S.C. §§ 3008, 4004(b) (1988). He submitted previously omitted outpatient medical records from the VA that showed treatment for urgency, frequency, and prostatitis by the VA between May and November 1987; an April 1988 medical report from a private physician stating that it was “within reasonable doubt that the condition which he has currently may at first have appeared during the time the patient was in active duty in 1966-1968”; and an April 1988 medical report from another private physician stating that the appellant had a “long standing problem of chronic prostatitis with acute exacerbation.” R. at 101-105, 107, 112. The remainder of the new evidence submitted was the veteran’s testimony under oath at the February 16, 1989, personal hearing that he had been treated for urinary frequency by a physician in Vicksburg, Mississippi, within six months after discharge from service and in Los Angeles, California, in either late 1969 or early 1970. R. at 118, 120, 122.

The RO denied the reopened claim on December 23, 1988, and on October 10, 1989, the BVA affirmed the RO’s denial. A timely appeal to this Court followed. Jurisdiction here is founded on 38 U.S.C. § 4052 (1988).

II. ANALYSIS

A. Reopening a Claim

38 U.S.C. § 4004(b) (1988) provides:

Except as provided in section 3008 of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.

(Emphasis added.) 38 U.S.C. § 3008 (1988) provides:

If new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Secretary] shall reopen the claim and review the former disposition of the claim.

Under section 3008, when a claimant seeks a reopening of his or her claim by submitting what is asserted to be “new and material” evidence, a “two-step analysis” must be performed: if the evidence is determined by the regional office or the BVA to be “new and material”, the claim is to be reopened; then a review is made to determine whether the former disposition of the claim should be altered. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).

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Jones v. Derwinski, 1 Vet. App. 210, 1991 U.S. Vet. App. LEXIS 29, 1991 WL 146424 (Cal. 1991).

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