Kellar v. Brown

6 Vet. App. 157, 1994 U.S. Vet. App. LEXIS 26, 1994 WL 14378
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 24, 1994
DocketNo. 92-1223
StatusPublished
Cited by29 cases

This text of 6 Vet. App. 157 (Kellar 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
Kellar v. Brown, 6 Vet. App. 157, 1994 U.S. Vet. App. LEXIS 26, 1994 WL 14378 (Cal. 1994).

Opinion

IVERS, Judge:

Harry L. Kellar appeals a June 3, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying an increased evaluation for chronic lumbosacral strain with nerve root irritation (currently rated as 40% disabling). Harry L. Kellar, BVA 92-13690 (June 3, 1992). The Secretary has filed a motion to dismiss, or alternatively, for summary affirmance. The Court has jurisdiction over the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). For the reasons set forth below, the Court vacates the June 1992 decision of the BVA and remands the case for readjudication consistent with this opinion.

I. FACTUAL BACKGROUND

Appellant served on active duty in the United States Navy from August 18,1959, to August 14, 1962, and from April 9, 1963, to January 10,1968. R. at 16-17; see R. at 122, 126. On June 10, 1969, a VA regional office (RO) granted service connection for a meni-scectomy of the right knee. R. at 123. Appellant applied for service connection for a back condition on several occasions. On August 4, 1980, pursuant to a BVA remand on one of those claims, the RO granted service connection for chronic lumbosacral strain with nerve root irritation secondary to his service-connected right knee condition and rated as 10% disabling. R. at 217-18. By a letter dated August 28, 1981, appellant sought an increased evaluation for his service-connected disabilities, including his lum-bosacral strain condition. R. at 232-33. On October 28, 1981, the RO denied a claim for an increase in the 10% disability rating assigned to the lumbosacral strain condition. R. at 250.

On January 24, 1990, appellant sought an increase in the disability ratings for his service-connected disabilities. R. at 286. On July 11, 1990, the RO increased the rating for his service-connected lumbosacral strain condition to 40% disabling, but denied his claim for an increase in the 10% disability rating for his service-connected meniscecto-my. R. at 341. On July 27, 1990, appellant filed a Notice of Disagreement regarding the 40% disability rating for the service-connected lumbosacral strain condition. R. at 342. On October 22, 1990, he filed a claim for a total disability rating based on individual un-employability (TDIU). R. at 354. On November 14,1990, a hearing officer for the RO continued the denial of a disability rating above 40% for appellant’s back condition. R. at 410. On February 22, 1991, appellant wrote to the RO that medical records indicat[160]*160ing early urinary incontinence due to his service-connected condition warranted consideration of an increased evaluation based on neurological findings. R. at 427. A June 27, 1991, rating decision indicates that the RO continued its denial of an evaluation above 40% for appellant’s low back condition. R. at 449. On June 3, 1992, the Board denied an increased evaluation for chronic lumbosacral strain with nerve root irritation. Kellar, BVA 92-13690, at 8. The Board also returned to the agency of original jurisdiction (AOJ) appellant’s claims for service connection for urinary incontinence as secondary to a back disability and for a TDIU rating. Id. at 2.

II. ANALYSIS

The Court notes that the Board did not err in returning the claims for service connection for urinary incontinence and TDIU. See Bernard v. Brown, 4 Vet.App. 384, 393-94 (1993) (not inappropriate for Board to remand case to AOJ for further development of issues that have not previously been considered). Therefore, these claims are not before the Court at this time.

In his motion to dismiss, the Secretary argues that appellant’s claim for an increased evaluation for his service-connected chronic lumbosacral strain is inextricably intertwined with his claim for secondary service connection for urinary incontinence and should therefore be dismissed because the urinary incontinence claim is still pending at the AOJ. In Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), the Court dismissed an appeal of the Board’s denial of an increased rating for service-connected anxiety neurosis where the claim was “inextricably intertwined” with a claim for service connection for a heart disorder which the Board had referred back to the AOJ. In that case, the Court stated:

A decision by the RO to grant appellant’s referred heart disorder claim could have a significant impact upon appellant’s claims for an increased rating for anxiety neurosis. This, in turn, could render any review by this Court of the decision on the anxiety neurosis claim meaningless and a waste of judicial resources.

Ibid.; see also Hoyer v. Derwinski, 1 Vet.App. 208, 210 (1991). In the case presently on appeal, however, disposition of appellant’s claim for service connection for urinary incontinence is not so “inextricably intertwined” with his claim for an increased evaluation for chronic lumbosacral strain. The urinary incontinence condition may be rated under a separate code from the Schedule for Rating Disabilities. In addition, the disability rating for appellant’s lumbosacral spine condition, regardless of the diagnostic code (DC) under which it is rated, does not vary based on service connection for urinary incontinence. See 38 C.F.R. § 4.71a, DCs 5292, 5293, 5295 (1993). Therefore, the Court will deny the Secretary’s motion to dismiss the instant appeal.

Appellant’s claim for an increased evaluation for his service-connected chronic lumbosacral strain with nerve root irritation is a new claim, and the Court reviews the Board’s findings of fact regarding new claims under a “clearly erroneous” standard of review. 38 U.S.C.A. § 7261(a)(4) (West 1991); Butts v. Brown, 5 Vet.App. 532, 535 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990) (determination of degree of impairment is question of fact). 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.

Appellant’s service-connected chronic lum-bosacral condition is currently rated under the DCs for limitation of motion of the lumbar spine and lumbosacral strain. 38 C.F.R. § 4.71a, DCs 5292, 5295. The maximum allowable disability rating under either DC is 40%.

Appellant argues that the Board failed to consider adequately the issue of pain. The Board, however, reviewed the medical records referring to pain and found that the severely disabling rating currently assigned to the condition encompassed the appellant’s pain. Kellar, BVA 92-13690, at 7. [161]*161The Court holds that the Board discussed appellant’s pain and provided adequate reasons or bases for its findings on that issue.

In an effort to obtain a higher disability rating, appellant argues that his condition should be rated under the DC for intervertebral disc syndrome. In a July 18, 1991, letter, a neurologist noted that, on examination of appellant, that there was “[n]o objective evidence of lumbosacral radiculopathy or myelopathy.” R. at 454. (“Radiculopathy” is defined as “any pathological condition of the nerve roots.” DoRLANd’s Illustrated Medioal DICTIONARY 1405 (27th ed.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 157, 1994 U.S. Vet. App. LEXIS 26, 1994 WL 14378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellar-v-brown-cavc-1994.