Miller v. Derwinski

3 Vet. App. 201, 1992 U.S. Vet. App. LEXIS 299, 1992 WL 230675
United States Court of Appeals for Veterans Claims·Decided September 22, 1992·No. No. 91-858·Published·Cited by 4 cases

Opinion

MEMORANDUM DECISION

FARLEY, Associate Judge:

This is an appeal from a March 25, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied appellant’s claim for service connection for degenerative changes of the lumbosacral spine with referred hip pain. A timely appeal to this Court followed. The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). On December 11, 1991, appellant through counsel filed a brief. On March 11, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for summary affirmance, for acceptance of the motion in lieu of a brief, and for a stay of proceedings pending a ruling on this motion. Appellant filed a response to the motion on March 30, 1992.

I. THE FACTS

The record reflects that appellant, who served from April 1942 to October 1945, was treated several times during service for a chronic pilonidal cyst. R. at 11, 32, 41-44, and 49. Appellant has stated that at one point the area became gangrenous due to the bandage not being changed, requiring debridement down close to the bone. R. at 135-36. His discharge examination noted “spien (sic) trouble caused from hauling coal, England—painful when lifting and some drainage and marked weakness in back—symptomatic.” R. at 58. It also noted “Back function is normal” and a “Pi-lonidal scar W.H.” Id.

On discharge, appellant was granted service connection for a postoperative scar, pilonidal cyst with a rating of 0%. R. at 59. An April 23, 1948, rating decision, which continued the 0% rating for the pilonidal cystectomy scar, found that a “back and spine condition, if existent,” was “not service incurred or aggravated.” R. at 60. In December 1988, appellant sought to reopen his claim, stating that his condition had worsened, and to add a claim for secondary service connection for arthritis in the lower hip area. R. at 67. He submitted copies of some service medical records (not duplicated in the record on appeal), reports of medical examinations while in the reserves (including one which temporarily disqualified him because of a draining pilonidal sinus), medical reports of treatment in the 1970’s, his application for disability retirement from the civil service, letters from fellow servicemen and friends attesting to his injury at judo and his injury hauling coal, and a letter from a previous employer. See, generally, R. at 69-81. A report of X-rays taken in 1977 which revealed arthritic changes was also submitted. R. at 83.

A Department of Veterans Affairs (VA) examination was performed on April 24, 1989. R. at 91. The examining physician reported that, based on the history provided by Miller—and despite the veteran’s firm belief that the pilonidal cyst and the lower back pain were related—“Pilonidal cyst and residuals are not related to hip or spine discomfort or changes. Lumbosacral spine changes as documented may reasonably be related to injuries veteran claims to have sustained as documented. These changes could be causing pain (referred) to [203]*203hips.” R. at 97. The VA Regional Office (RO) raised the rating for the service-connected pilonidal cystectomy scar to 10% but denied service connection for degenerative changes, lumbosacral spine, with referred hip pain. R. at 102.

Appellant filed a Notice of Disagreement, asked for a panel of three to consider the issue, and submitted a medical opinion dated August 8, 1989, from a private doctor, Raymond H. Smith, M.D., that he had “some disability secondary to surgery on the coccyx and his war injury aggravating a pilonidal cyst and its attempted resection in World War II.” R. at 109-10. Appellant clarified he was claiming “secondary” arthritis and submitted a supporting article by the Arthritis Foundation on the causes and treatments of osteoarthritis. R. at 112. The RO denied the claim (R. at 113) and advised appellant in the Statement of the Case sent on October 11, 1989 (R. at 115-18), that “it would be speculative to conclude that the degenerative changes in the veterans [sic] low back were caused by his pilonidal cyst.” R. at 117.

Appellant continued to note his disagreement and requested a personal hearing. R. at 119. By letter dated November 8, 1989, appellant submitted a copy of an examination report and an opinion by Dr. John T. Lynn dated November 6, 1989, that his “advanced osteoarthritis may have been initiated by the significant fall he took during a judo match during his Army training.” R. at 122. A personal hearing was held on December 19, 1989. R. at 130-40. Appellant testified to his theory that the judo fall caused the cyst and surgery for the cyst caused the arthritis. R. at 133. The hearing officer denied the claim because, despite the recently added opinions of Drs. Smith and Lynn, there was no demonstration of chronic lumbosacral spine disorder in service or shortly thereafter. R. at 142.

In a decision dated September 13, 1990, the BVA remanded the claim with a direction that the RO issue a supplemental Statement of the Case with information about the prior denial. R. at 146. The Supplemental Statement of the Case was transmitted on September 28, 1990. R. at 148. On October 19, 1990, appellant’s representative submitted a letter from appellant which included updated reports from Drs. Smith and Lynn. R. at 154-63. Dr. Smith stated that appellant’s “chronic arthritis started with the fall and subsequent surgeries to his coccyx and sacrum, which he incurred in 1942-1945.” R. at 161. Dr. Lynn expressed his belief “that the pain is the result of osteoarthritis from prior de-bridement of a pilonidal cyst that had caused gangrene during World War II. The sacral area was debrided surgically for treatment.” R. at 163. The RO found this evidence, while new, was not material and denied the claim. R. at 164.

On March 25, 1991, the BVA apparently determined that appellant had submitted sufficient new and material evidence to warrant reopening his claim, which had been finally denied in 1948, because it proceeded to determine that the evidence presented a “new factual basis ... to warrant a grant of service connection for a back disorder classified as degenerative changes of the lumbosacral spine with referred hip pain.” Russell W. Miller, BVA 91-09427, at 4 (Mar. 25, 1991). The Board decision continued:

This evidence shows that degenerative changes of the lumbosacral spine were first reported by the VA in 1977, more than 30 years subsequent to the veteran’s separation from active service. The veteran’s testimony that he sustained traumatic injury to the back as a result of his participation in a judo match has not been corroborated or substantiated by the service medical records.... No new factual basis has been presented upon which to warrant a grant of service connection for degenerative changes of the lumbosacral spine with referred hip pain nor that a disorder of the back is causally related to the service-connected postoperative scar, pilonidal cyst, rated as 10 percent disabling.

Id. For these reasons, the BVA denied appellant’s claim.

II. THE LAW

A final, unappealed claim may be reopened only upon the submission of “new and material evidence.” 38 U.S.C. § 5108 (formerly § 3008) (1991). See Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991). In [204]*204Manio v. Derwinski, 1 Vet.App.

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Miller v. Derwinski, 3 Vet. App. 201, 1992 U.S. Vet. App. LEXIS 299, 1992 WL 230675 (Cal. 1992).

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