Landicho v. Principi

4 Vet. App. 96, 1993 U.S. Vet. App. LEXIS 22, 1993 WL 9771
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 19, 1993
DocketNo. 90-1150
StatusPublished
Cited by1 cases

This text of 4 Vet. App. 96 (Landicho v. Principi) 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
Landicho v. Principi, 4 Vet. App. 96, 1993 U.S. Vet. App. LEXIS 22, 1993 WL 9771 (Cal. 1993).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The veteran, Agustín S. Landicho, appealed from an August 27,1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service connection for hypertensive heart disease, hy-pertrophic degenerative disease, hemorrhoids, beriberi, and a goiter, and for entitlement to an increased rating for peptic ulcer disease (currently rated as 10% disabling). Agustín S. Landicho, BVA 90-29202 (Aug. 27, 1990). The veteran died on December 31, 1991. By order dated June 11, 1992, the Court substituted the veteran’s widow in these proceedings pursuant to Rule 43(a)(2) of the Court’s Rules of Practice and Procedure. The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. Summary disposition is appropriate in this case because it is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990).

The veteran’s claims for service connection for goiter and hemorrhoids were denied by a prior final decision of a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) in January 1972, R. at 49-50, and claims for hypertensive heart disease and beriberi were denied by a prior final BVA decision in July 1985, R. at 121. Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid. If the evidence is new and material, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). Whether [98]*98evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992).

It is unclear whether the Board found the evidence not new and material or whether it reopened the goiter, hemorrhoid, hypertensive heart disease, and beriberi claims and denied them on the merits. In any event, the Court holds that the appellant has not submitted new and material evidence since the prior final denials of those claims. None of the newly submitted evidence relates the onset of those disabilities to the veteran’s service, and thus the evidence is not material. Since there was no new and material evidence, those claims should not have been reopened, and any error attendant on the BVA’s August 1990 denial of those claims was harmless error. See 38 U.S.C. § 7261(b) (formerly § 4061); Kehoskie v. Derwinski, 2 Vet.App. 31, 34 (1992); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991); Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991).

In 1981, the veteran filed a claim for entitlement to service connection for “rheumatism”. R. at 58. The evidence submitted to the VA included an October 1981 physician’s statement that gave impressions of “Hyperthropic [sic] osteoarthritis, mild, leftshoulder [sic]” and “Negative evidence for bone abnormality in the left thigh”. R. at 62. In March 1982, the RO denied service connection for “arthritis (rheumatism)” because there was no evidence of a diagnosis of that disease within the one-year presumption period under 38 U.S.C. § 1112(a)(1) (formerly § 312); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1991). See R. at 68-69. During a 1988 former prisoner-of-war (ex-POW) protocol examination conducted by the VA, the veteran was found to be suffering from hypertrophic degenerative disease in the cervical spine and lumbosacral spine (right tibiofemoral and both tibiofibular joints). R. at 144, 158-59. Because this evidence failed to establish that the veteran’s hypertrophic degenerative disease was incurred in or aggravated during service or within one year after separation therefrom, the Court holds that the new evidence was not material. If this was the same claim that was denied in March 1982 (which is not entirely clear), the claim should not have been reopened, and any error attendant on the BVA’s October 1990 denial of the claim was harmless error. See 38 U.S.C. § 7261(b); Kehoskie, supra; Godwin, supra; Thompson, supra.

If this was a new claim (since it now seems to involve right-side joints), then it is reviewed by this Court under a “clearly erroneous” standard; “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... [the Court] cannot overturn them”. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); 38 U.S.C. § 7261(a)(4) (formerly § 4061). Under that standard, the Court holds that there is a plausible basis in the record for the Board’s denial of the claim.

Although the BVA decision analyzes the veteran’s condition in light of statutes and regulations covering post-traumatic osteoarthritis as well as hypertrophic degenerative disease, Landicho, BVA 90-29202, at 4, 7-8, there is no medical evidence that the veteran suffered from post-traumatic osteoarthritis, nor does it appear that either the veteran or the appellant ever filed a claim for such a disability. The former type of arthritis is subject to the one-year presumption period in 38 C.F.R. § 3.307(a)(3), whereas the latter is presumed service connected if manifested in certain ex-POWs to a degree of at least 10% at any time after separation from service. 38 U.S.C. § 1112(b)(12) (formerly § 312); 38 C.F.R. § 3.309(c) (1991). The distinction between degenerative arthritis and post-traumatic arthritis was discussed in Myers v. Derwinski, 3 Vet.App. 11, 14 (1991) (mem. decision), and Mullins v. Derwinski, 2 Vet.App. 522, 524 (1992) (mem. decision).

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Bluebook (online)
4 Vet. App. 96, 1993 U.S. Vet. App. LEXIS 22, 1993 WL 9771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landicho-v-principi-cavc-1993.