Link v. West

12 Vet. App. 39, 1998 U.S. Vet. App. LEXIS 1333, 1998 WL 812111
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 18, 1998
DocketNo. 97-459
StatusPublished
Cited by59 cases

This text of 12 Vet. App. 39 (Link v. West) 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
Link v. West, 12 Vet. App. 39, 1998 U.S. Vet. App. LEXIS 1333, 1998 WL 812111 (Cal. 1998).

Opinion

KRAMER, Judge:

The appellant, Peter P. Link, appeals a January 28, 1997, decision of the Board of Veterans’ Appeals (BVA or Board) that (1) denied service connection for left ear hearing loss; (2) determined that a claim for service connection for right ear hearing loss was not well grounded; (3) determined that a claim for service connection for a back disability was not well grounded; and (4) denied entitlement to an effective date prior to March 25, 1991, for service connection for retinitis pigmentosa. Record (R.) at 9, 21. The appellant and the Secretary have filed briefs, and the appellant has filed a reply brief. Because the appellant, in his brief, explicitly abandoned the claims regarding hearing loss and a back disability (Appellant’s Brief (Br.) at 1), the Court will not review the BVA decision with respect to those claims. See Ford v. Gober, 10 Vet.App. 531, 535 (1997); Grivois v. Brown, 6 Vet.App. 136, 138 (1994); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the decision of the Board. The Court will also dismiss any appeal as to claims for pension benefits and special monthly compensation.

I. BACKGROUND

The appellant served on active duty in the U.S. Air Force from January 1955 to April 1958. R. at 69. According to the report from an enlistment examination, dated in January 1955, the appellant was noted to have myopia and an uncorrected visual acuity of 20/100. R. at 24-25. After further examination, it was also noted that he had failed a color vision test. R. at 26. His service medical records (SMRs) reflect that, during service, he sought treatment for various visual difficulties (R. at 33, 34, 49-51) and that, in January 1958, he was diagnosed with retinitis pigmentosa (R. at 51). The condition was noted to have existed prior to service. R. at 51. SMRs further reveal that an examiner, in January 1958, stated that “the diagnosis of retinitis pigmentosa is established” and “[i]f there is any progression during his service it would be normal progression since no known duty would cause undue progression.” R. at 52. In addition, the examiner opined that the appellant, due to the restriction in his visual fields, was unfit for military service. R. at 52. A medical board subsequently recommended that the appellant be disqualified for full military duty. R. at 60.

In August 1963, the appellant filed an application for compensation or pension for, inter alia, retinitis pigmentosa. R. at 71-74. A VA regional office (RO), in September 1963, denied service connection for retinitis pigmentosa, stating, inter alia, that it is a constitutional abnormality and thus not a disability under the law. R. at 87-88, 90. In that decision, the RO also noted that the appellant’s eye condition had not been exacerbated during service. R. at 87. In addition, the RO notified the appellant that his income was “excessive for pension purposes.” R. at 90. In July 1978, the appellant submitted another application for compensation or pension for retinitis pigmentosa (R. at 101) and, in response, was notified by the RO that he must submit new and material evidence in order to reopen his claim (R. at 109). In July 1982, the appellant again submitted an application for compensation or pension, apparently seeking non-service-conneeted pension. R. at 113-16.

[42]*42In February 1988, the appellant sought to reopen his claim for service connection for retinitis pigmentosa, stating, inter alia, that the claim should be evaluated in accordance with VA General Counsel Precedent Opinion [G.C. Prec.] 1-85 (March 5,1985). R. at 120-22. An RO decision, dated in March 1988, denied service connection, finding that the appellant’s eye condition had existed prior to service and was not aggravated by service. R. at 129-30, 132. The appellant filed a Notice of Disagreement (NOD) (R. at 134); a confirmed RO decision was issued (R. at 140); and a Statement of the Case (SOC) was issued (R. at 143-47). After a hearing before the RO (R. at 180-93), the hearing officer, in February 1989, issued a decision determining that new and material evidence had not been presented to reopen the appellant’s claim for service connection for retinitis pigmentosa. R. at 195-96. The hearing officer stated, inter alia, that “[e]ven if we consider the disease to be nonhereditary ... [t]he symp-tomatology the [appellant] experienced in service is considered to be a natural progression of a preexisting disease process.” R. at 196. In response to that decision, the appellant’s representative submitted a letter to the RO requesting that the hearing officer reconsider the appellant’s claim in light of G.C. Prec. 1-85 and revisions to the VA ADJUDICATION PROCEDURE MaNual, M21-1 [hereinafter Manual M21-1], R. at 202. A confirmed RO decision was issued in June 1989, noting, inter alia, that the hearing officer, in denying the appellant’s claim, had considered G.C. Prec. 1-85 and corresponding Manual M21-1 revisions. R. at 207. A subsequent Board decision, dated in December 1989, determined that the appellant had not submitted new and material evidence to reopen his claim for service connection for retinitis pig-mentosa. R. at 218, 222-23. The Board also concluded that the evidence showed “that his disability clearly and unmistakably existed prior to service” and that any increase in disability was due to the natural progression of the disease. R. at 223.

In January 1990, the appellant submitted to the Board a motion for reconsideration of the Board’s December 1989 decision, contending, inter alia, that the Board had failed to consider G.C. Prec. 1-85 and corresponding modifications to the Manual M21-1 regarding the service eonnectability of congenital disorders. R. at 226-30. The Board granted the motion (R. at 234) and, in a December 1990 reconsideration decision (R. at 289-94), determined that “[a] new factual basis ha[d] not been presented to allow service connection for retinitis pigmentosa since the unappealed rating action in September 1963.” R. at 294. The Board, in the reconsideration decision, also noted that the appellant had argued “that the September 1963 rating action was clearly and unmistakably erroneous in both interpretation of the laws and regulations and in interpretation of the evidence of record.” R. at 290; see also "R. .at 280. The Board then determined that the 1963 RO decision did not contain clear and unmistakable error (CUE), essentially stating that the RO’s determination that retinitis pigmentosa had preexisted service and was not aggravated during service was supported by the evidence of record at the time. R. at 293-94. The appellant did not appeal the Board’s January 1990 decision.

In March 1991, the appellant submitted a statement in support of claim seeking to have his claim for service connection for retinitis pigmentosa reopened. R. at 318. A confirmed rating decision was issued in April 1991, stating, inter alia, that the appellant was “again raising] the point that service connection cannot be denied as to retinitis pigmentosa solely on the basis that it is a congenital or developmental abnormality, citing General Counsel opinions to that effect.” R. at 325, 327. The appellant filed an NOD as to the denial of reopening (R.

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Bluebook (online)
12 Vet. App. 39, 1998 U.S. Vet. App. LEXIS 1333, 1998 WL 812111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/link-v-west-cavc-1998.