Kessel v. West

13 Vet. App. 9, 1999 U.S. Vet. App. LEXIS 989, 1999 WL 729126
United States Court of Appeals for Veterans Claims·Decided September 20, 1999·No. No. 98-772·Published·Cited by 5 cases

Opinions

[12]*12FARLEY, Judge, filed the opinion of the Court, STEINBERG and KRAMER, Judges, filed a dissenting opinion.

FARLEY, Judge:

This is an appeal from an April 8, 1998, decision of the Board of Veterans’ Appeals (BVA or Board) which denied the appellant’s claim for service connection for residuals of a head injury with syncope (a faint or swoon), and possible brain lesion. Record (R.) at 2; see also Dorland’s Illustrated Medioal Dictionary (Dorland’s) 1628 (27th ed.1988). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). Oral argument was held on July 27, 1999, and the matter was submitted to a panel of this Court. During the internal circulation of the panel decision in this matter, a judge requested en banc consideration which was subsequently granted. See the Court’s Internal Operating Procedures at V.(a)(3). For the reasons that follow, the Court will affirm the BVA decision.

I. FACTS

The appellant had active military service from January 1944 to April 1946, including service during World War II in the Asian Pacific theater. R. at 11. His service medical records (SMRs) reflect that he had an appendectomy for chronic appendicitis in July 1945, while aboard the U.S.S. New Mexico. R. at 27-28. His separation examination of April 1946 listed his only physical defect as an appendectomy scar. R. at 31. The only other available SMRs consist of his entrance examination, his dental records, and immunization records. R. at 26, 28, 30-34, 179. The appellant filed an initial claim for service connection for a head injury with brain tumor in July 1986. See R. at 44. It was denied by an unappealed rating decision in September 1986. R. at 44, 46. He asserted that he had suffered head trauma on the U.S.S. Neto Mexico when he was thrown 6-8 feet into the air and hit his head on a wall during a kamikaze attack on the ship. He further asserted that he incurred a shrapnel injury to the left leg in the same incident. Service connection was granted for residuals of a shrapnel wound to the left leg based on a private medical examination which revealed a scar medial to the left patella and showed black metal that appeared to be shrapnel embedded in the skin beneath the scar and its verification by a VA examination. R. at 75,137.

In a rating decision of November 1994, the VA regional office (RO) confirmed and continued the denial of the appellant’s claim for service connection for residuals of a head injury on the basis that no new and material evidence had been submitted. R. at 72-73. In December 1994, the appellant filed a Notice of Disagreement (NOD) with the rating decision. R. at 84. He also submitted photos of the U.S.S. New Mexico under attack. R. at 79-81. A March 15, 1985, letter from Dr. John E. McAllister, a neurological surgeon, to Dr. Thomas S. Peck, the appellant’s referring physician, was submitted. Dr. McAllister stated that his examination of the appellant was “normal except for an old cyclo-plegia of the left iris causing his left pupil to be greater than the right, but that is from an injury in the second world war.” He added that:

I reviewed his [computerized tomography (CT) ] scan ... and indeed he does have a calcified lesion in the right medial inferior temporal lobe which is probably an old blood clot which is calcified from his war injuries. I don’t think it is causing any trouble whatsoever. It looks static. It causes no mass effect and has probably been there since the second world war....

R. at 107. The March 11, 1985, CT scan report, which also appears from the record to have been prepared by Dr. McAllister, showed “a 1.35 cm. mass in the right temporal lobe medially, which [was] partially calcified and quite round, and very dense.” R. at 108. It appeared to be “quite old.” Id. Contrast enhancement provided no additional information concerning etiology. [13]*13Dr. McAllister’s impression was an old calcified lesion of the right temporal lobe, which could be a calcified hematoma, or an intraventricular meningioma. An old hemorrhage, which is calcified, was mentioned as another possibility. R. at 108-09. A repeat CT scan in October 1985 showed that the calcified old hematoma or old clot was static. R. at 110. A statement from one of the appellant’s shipmates indicated that he remembered the appellant getting hurt on a 40 mm. mount, but that he did not remember what battle it was in. R. at 120. The appellant presented an excerpt from the “Dictionary of Naval American Fighting Ships” which documented his account of the U.S.S. New Mexico’s having been attacked by two Japanese suicide-bombers in May 1945, wounding 115 and killing 54. R. at 125-26.

A magnetic resonance imaging (MRI) of the brain performed in April 1995 showed a 3 cm. mass on the right medial temporal lobe, identified by the staff physician as an arteriovenous malformation (AVM) which was stated to be unchanged from 1991. R. at 128. A VA neurological examination performed by Dr. S. Oraee in September 1995 reported no neurological abnormalities “except for anisocoria with the right pupil being smaller than the left.” R. at 133. Dr. Oraee interpreted the 3 cm. mass shown on the 1995 MRI as most consistent with a calcified cavernous angioma versus a small AVM. R. at 134. He stated: “There is no surrounding edema and there is no mass effect. This lesion has not changed from the MRI in 1991 and reports of a [CT] scan that were done previous to 1991.” Id. He further stated that “[c]av-ernous angiomas or small [AVMs] are congenital abnormalities and one would have difficulty relating them to a brain injury.” Id. He noted that the anisocoria was old and opined that it may be due to an old injury as well as other possible causes. Id. Dr. Oraee recalled that he had seen the appellant previously on April 10 of that year at the outpatient clinic when the appellant came in complaining of headaches. R. at 133. He observed that the appellant had been evaluated by Dr. McAllister in 1985 at which time the appellant had been told that a calcified mass “may be due to a blood clot indeed after the injury.” Id. Dr. Oraee then stated:

This statement has been fixed in his mind, and he was very resistant to any new differential diagnosis. He got very disgusted when I told him my opinion. At that time, he had completely normal neurological examination except for ani-socoria with the right pupil being smaller than the left. His attitude is exactly the same as then and continues to search for an answer.

Id.

A BVA decision of March 1997 reopened the appellant’s claim and remanded it to the RO for additional development and readjudication. Specifically, the Board ordered that:

The veteran should be afforded a VA neurological examination, by a neurologist who has not examined him previously, to determine the nature and etiology of any brain pathology found. The examiner should provide a diagnosis for any brain pathology found and an opinion as to whether it is at least as likely as not that such pathology resulted from a head injury in service. The clinical findings and reasoning which form the basis for the diagnosis and opinion should be clearly set forth.... The claims folder must be available to the examiner for review in conjunction with the examination. The examiner’s attention is particularly directed to the March 1985 letter from [Dr.] McAllister ... to [Dr.] Peck ...

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Kessel v. West, 13 Vet. App. 9, 1999 U.S. Vet. App. LEXIS 989, 1999 WL 729126 (Cal. 1999).

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