Lowe v. Derwinski

2 Vet. App. 495, 1992 U.S. Vet. App. LEXIS 150, 1992 WL 139536
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 19, 1992
DocketNo. 91-107
StatusPublished
Cited by2 cases

This text of 2 Vet. App. 495 (Lowe v. Derwinski) 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
Lowe v. Derwinski, 2 Vet. App. 495, 1992 U.S. Vet. App. LEXIS 150, 1992 WL 139536 (Cal. 1992).

Opinion

MEMORANDUM DECISION

The appellant, Frances B. Lowe, appeals from a November 29, 1990, decision of the Board of Veterans’ Appeals (Board or BVA) denying her husband, a World War II veteran, service-connected disability compensation for ankylosing spondylitis. Because the Court finds no “plausible” basis in the record for the BVA’s determination that the veteran’s ankylosing spondylitis was not service-connected, that decision will be reversed and the record remanded for assignment of an appropriate service-connected disability rating.

The veteran served on active duty in the U.S. Army from July 30, 1942, to November 5, 1945. While serving in Europe during World War II, a plane carrying the veteran was shot down on July 25, 1944, and he was forced to escape by parachute. He reported that he was forced to exit the plane quickly because it was on fire, and that he jumped from the aircraft holding his parachute in his hands and was able to put only one arm through the harness before having to pull the ripcord. He stated that he suffered a “vicious snap” to his back when his parachute opened. R. at 85. An August 22,1945, Army Physical Examination for Flying reported that he suffered an acute lumbar strain as a result of this incident. R. at 65. The veteran apparently was a prisoner of war of the German government from July 25, 1944, until April 30, 1945, although the BVA stated that his period as a prisoner of war had not been officially verified. Samuel F. Lowe, Jr., BVA 90-40609, at 2 (Nov. 29, 1990).

In 1979, the veteran submitted a claim for service-connected disability compensation for, among other things, ankylosing spondylitis, which he reported had first been diagnosed in August 1969. R. at 39. He submitted private medical records indicating findings in 1969 of symptoms consistent with “ankylosing spondylitis (Marie-Strumpel arthritis of the spine)”, and a diagnosis of “probable rheumatoid spondyl-itis”. R. at 75. An August 1974 hospital record indicates a diagnosis of “Marie Strumpell ankylosing spondylarthritis involving the thoracic and lumbar spine”. R. at 82. Veterans’ Administration (now Department of Veterans Affairs) (VA) records indicated that the veteran had received treatment for lumbar strain from November 1946 to November 1947. R. at 24-25.

In 1979, the veteran also submitted several physician’s letters in support of his claim for service connection of ankylosing spondylitis. He submitted a 1979 letter from Dr. Hoyt Trimble stating that he had treated the veteran for a spinal disorder in the 1950s. R. at 68. A 1979 letter from Dr. Wells Riley stated that he had treated the veteran from August 1960 to August 1973, at which time the veteran was trou[497]*497bled by backache, and that in November 1966 the veteran’s X-rays had revealed ank-ylosing arthritis in the lumbosacral spine. R. at 69. Dr. Riley further stated: “It is my opinion that your current back problems with spondylitis is [sic] probably related to your back injury sustained in 1944.” R. at 69. Also in a 1979 letter, Dr. J.C. Tanner, Jr., who had examined the veteran in 1974, stated: “It is my professional opinion that you have been suffering since 1967 with ankylosing spondylitis (Marie-Strum-pel Spondylitis). It is my professional opinion that this is directly and proximately the result of a parachute jump which I am advised occurred in July of 1944 and resulted in your imprisonment in a prisoner-of-war camp in Germany.” R. at 79.

The veteran’s claim was denied by a VA rating decision on March 21, 1980, and the veteran did not appeal. R. at 105.

In 1988, the veteran sought to reopen his claim, and submitted several items of evidence. He submitted a 1988 letter from Dr. William B. Trimble, stating that, on several occasions in the 1950s, he had treated the veteran for lower back problems “which we now recognize as the prelude to Ankylosing Spondylitis but did not so recognize in the 1950’s”. R. at 109. Dr. Trimble stated: “It is my medical opinion, that [the veteran] has suffered from Ankylosing Spondylitis and will suffer from the disease itself for the rest of his life.... It is my opinion that this problem had its beginning while [the veteran] was in the military service and has progressed to its present state of disability.” Ibid. In October 1989, the veteran was evaluated by a physician, Dr. William P. Maier, a rheumatologist who was, for that purpose, apparently under contract with YA, and who stated:

The patient’s ankylosing spondylitis was not diagnosed until 1974 but clearly was present many years prior to this with the diagnosis apparently hampered by lack of medical knowledge and inadequate medical documentation. Ankylos-ing Spondylitis has only been a recognized disease for approximately 15 to 20 years.
It is well known that ankylosis spon-dylitis and other spondyloarthropathies, although associated with genetic predisposition^] are initiated by external stimuli such as infection and/or trauma. After examining Mr. Samuel Lowe and reviewing his medical history, I am convinced that this [veteran], an ex POW, has a legitimate claim for disability from injury and resulting problems sustained while being shot down in the line of duty for his Country.

R. at 226. The veteran also submitted a February 1990 letter to the veteran from Dr. Joseph I. Miller, Jr., who stated:

Your back and spine X-rays, when I examined you in November 1984, in addition to your lung lesion showed progression of ankylosing spondylitis up the cervical spine from the area of the hips and into the lower neck. This most likely resulted from your parachute jump on July 25, 1944 which resulted in your original injury to your lower back.... I feel it is fair to say this is all probably related to your original injury and progression although one must take into account that a number of years have passed since your original injury. However, it would be fair to say it most probably was related to it.

R. at 260.

In its November 29, 1990, decision, the Board stated:

Because of the lack of continuity of symptomatology from the time of the injury to the appearance of ankylosing spondylitis many years later, and because of the nature of ankylosing spon-dylitis as a systemic disease most likely of genetic etiology, we cannot concur with the opinions of several physicians that trauma in service resulted in the veteran’s ankylosing spondylitis.

Lowe, Jr., BVA 90-40609, at 5.

The Court holds that the statements of Drs. Trimble, Maier, and Miller constituted “new and material” evidence requiring VA to reopen the veteran’s previously denied claim. See 38 U.S.C. §§ 5108, 7104(b) (formerly §§ 3008, 4004); Jones v. Derwinski, 1 Vet.App. 210, 213-15 (1991); Colvin v. [498]*498Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). These medical opinions clearly buttress the case for direct service connection under 38 C.F.R. § 3.303(d) and also relate to continuity of symptomatology for a chronic condition and the possibility that the veteran’s condition resulted from trauma in service.

The Court is required to “hold unlawful and set aside” any “clearly erroneous” findings of fact made by the BVA. 38 U.S.C.

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Related

Wollman v. United States
108 Fed. Cl. 656 (Federal Claims, 2013)
Lowe v. Derwinski
3 Vet. App. 227 (Veterans Claims, 1992)

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Bluebook (online)
2 Vet. App. 495, 1992 U.S. Vet. App. LEXIS 150, 1992 WL 139536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-derwinski-cavc-1992.