Molloy v. Brown

9 Vet. App. 513, 1996 U.S. Vet. App. LEXIS 880, 1996 WL 641612
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 6, 1996
DocketNo. 93-749
StatusPublished
Cited by12 cases

This text of 9 Vet. App. 513 (Molloy v. Brown) 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
Molloy v. Brown, 9 Vet. App. 513, 1996 U.S. Vet. App. LEXIS 880, 1996 WL 641612 (Cal. 1996).

Opinions

NEBEKER, Chief Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed dissenting opinion.

NEBEKER, Chief Judge:

The appellant, John E. Molloy, appeals from a June 7, 1993, decision of the Board of Veterans’ Appeals (Board), which determined that new and material evidence had not been submitted to reopen a claim for a back disability. For the following reasons, the Court will vacate the Board’s decision and remand this matter for further proceedings consistent with this opinion.

I.

The appellant, a World War II veteran, had active service in the U.S. Navy from October 1944 to June 1946. Record (R.) at 16. An enlistment examination was negative for any relevant abnormality. R. at 46. Service medical records do not contain any reference to a back injury. The discharge examination did not note any defects; his “[sjpine and extremities” were described as normal. R. at 41, 49. In July 1946, immediately after his separation from service, he filed his initial claim for a back injury incurred in service. R. at 18-19. In March 1947, Dan Mercier, one of the appellant’s shipmates, submitted the following sworn statement:. “I recollect a time back in Aug[ust] 1945 ... on board the U.S.S. Rox-ane (AKA-37) that [the appellant] complained of pains in his back; and also [of] having difficulty in performing his job as Coxswain-” R. at 24-25. Another shipmate, Henry Petel, submitted a March 1947 letter, stating that he was present when the appellant injured his back in August 1945, aboard the U.S.S. Roxane. R. at 28. A September 1947 VA special orthopedic examination report stated, “No orthopedic disease or residuals of injury found.” R. at 70. An August 1947 record of x-ray findings contains the following notation:

The lumbar spine shows a normal alignment. The bodies of the vertebrae show cup-shaped concavities on their inferior surfaces indicative of Schmorl’s nodes. No acute destructive or productive changes are noted in any of the vertebrae.. The lumbo-sacral and sacro-iliac joints are within normal limits. Question of minimal increase of density along the right sacroiliac joint.

R. at 71. A “Schmorl’s node” is “a spinal defect characterized by protrusion of the nucleus pulposus into the spongiosa of a vertebra.” Webster’s Medical Desk Dictionary 640 (1986). An October 1947 rating decision by a VA regional office (RO) denied the claim, concluding that a back injury was “not shown by the evidence of record.” R. at 74.

In February 1952, the appellant was hospitalized for back pain, diagnosed as chronic lumbosacral sprain. R. at 79. Hospital records show that the back condition was attributed, by history, to the alleged in-service back injury in August 1945, “when he was thrown against the wall when a load being hoisted swung against him injuring him in the lower tip of the spine.” Ibid. This hospital report also contains the following notation: “X-ray of lower spine showed some roughening of the upper surface of the body of L2 with sharpening of the anterior margins suggesting an old injury, otherwise bones and joints as far as can be seen appear to be normal.” Ibid. In a January 1955 letter to the RO, the appellant referred to the physician from the U.S.S. Roxane who had allegedly treated him for the back injury. The appellant stated, “I also wrote to Dr. J_ [spelling unclear], who is a civilian now. He remembered my accident but said without records he couldn’t do anything.” R. at 81-84. (The Court notes that a Lieutenant W.S. Jordan made entries in the appel[515]*515lant’s medical records during his service aboard the U.S.S. Roxane. R. at 39-41.) The record does not indicate that any written response from the ship’s physician was submitted to the RO, or that any further attempt was made to contact him.

In 1982, the appellant submitted a second, more detailed letter from his shipmate, Mr. Petel, who stated,

In 1945, [the appellant] and I were in the Navy aboard [a] cargo ship, Roxane AKA 37, as Seamen. We helped load and unload the ship when in Port.
On the occasion in question, we were loading heavy five inch shells. As the shells were being lowered from the boom to the deck, they started swinging back and forth. They swung toward [the appellant] and knocked him at least ten feet against the bulkhead. [He] yelled “grab hold of it,” but it was too late.
Because of severe back pains that occurred from the accident, [he] had to see the doctor and was unable to do any work for sometime after.

R. at 86.

A May 1983 letter from Dr. George Res-mevic stated that x-rays of the appellant’s spine showed “some early osteo arthritic changes.” R. at 91. His impression was osteoarthritis of the lower dorsal and lumbar spine. Ibid. Dr. Eugene Permanente submitted a May 1983 letter, which noted the history of a back injury in 1945, and stated, “The [appellant] is 56 years old and it is possible that the original injury in 1945 predisposed [him] to earl[ier] osteoarthritis than would be expected ordinarily.” R. at 97. At an RO hearing in June 1984, the appellant testified that at the time of his injury he was serving on an “attack-cargo amphibious” ship. He stated,

It carried troops, cargo and we used to deliver supplies to troops on the island. I was in the South Pacific most of the time, and this one time we were loading ammunition from the dock side [on to] ... the ship. This one load happened to be swinging back and forth, quite [a] bit ... I go to stop it and ... it knocked me about 8-10 feet against the steel bulkhead.

R. at 118. He testified that he was treated in sick bay, and that he would have been sent to the base for x-rays, but the ship put out to sea the next day. Ibid. He also testified that he has suffered from chrome back pain since the injury. R. at 124. A March 1985 Board decision denied reopening of the claim because the evidence submitted since the 1947 rating decision did not provide a “new factual basis” warranting service connection for a back disability. R. at 136-42. The Board considered Dr. Permanente’s opinion that “it is possible” that the osteoarthritis is related to the alleged 1945 injury, but rejected this evidence due to its “conjectural” nature, the lapse of time between service discharge and the examination upon which the opinion was based, and the lack of confirmatory clinical evidence from service. R. at 141.

In support of his current attempt to reopen the claim, the appellant submitted additional evidence, including the following February 1992 statement by Dr. Manoel A. Falcao:

Apparently the [appellant’s] complaints date back to an injury sustained in August, 1945, while he was serving on board a ship, the Roxane AKA37. He further states that since his original injury he has experienced low back pain off and on and has never been completely symptom free. Recently the [appellant] was treated in my office for recurrence of his symptoms. X-rays of the lumbosacral spine and MRI of the same region revealed multiple levels of degenerative disc disease worse at the L5S1 level with narrowing of the neurofor-amina. X-rays of the lumbosacral spine implicated that his condition has existed for many years although the length of duration is difficult to determine. His injury sustained in August 1945, when he was apparently struck by a pallet containing fifty 40 lb.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lopez v. Wilkie
Federal Circuit, 2018
Sandra K. Hupp v. R. James Nicholson
21 Vet. App. 342 (Veterans Claims, 2007)
Mattern v. West
12 Vet. App. 222 (Veterans Claims, 1999)
Hicks v. West
12 Vet. App. 86 (Veterans Claims, 1998)
Wallin v. West
11 Vet. App. 509 (Veterans Claims, 1998)
Hernandez-Toyens v. West
11 Vet. App. 379 (Veterans Claims, 1998)
Hickson v. West
11 Vet. App. 374 (Veterans Claims, 1998)
Shockley v. West
11 Vet. App. 208 (Veterans Claims, 1998)
Bostain v. West
11 Vet. App. 124 (Veterans Claims, 1998)
Rucker v. Brown
10 Vet. App. 67 (Veterans Claims, 1997)
Smith v. Brown
10 Vet. App. 44 (Veterans Claims, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
9 Vet. App. 513, 1996 U.S. Vet. App. LEXIS 880, 1996 WL 641612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molloy-v-brown-cavc-1996.