Moore v. Derwinski

1 Vet. App. 401, 1991 U.S. Vet. App. LEXIS 69, 1991 WL 149870
United States Court of Appeals for Veterans Claims·Decided July 22, 1991·No. No. 90-41·Published·Cited by 85 cases

Opinion

STEINBERG, Associate Judge:

The appellant veteran appeals a decision of the Board of Veterans’ Appeals (Board or BVA) denying him service-connected disability compensation for arthritis in his heels which he contends was caused by a condition, trench foot, which he incurred in service in World War II. We vacate the BVA decision and remand the matter for readjudication and prompt compliance with 38 U.S.C. §§ 5107(b) (formerly § 3007) and 7104(d)(1) (formerly § 4004) regarding, respectively, the obligation of the Department of Veterans Affairs (VA) to assist a VA claimant in developing the facts of his or her case and the requirement that the Board include in its decisions reasons or bases adequate to explain to both the veteran and the Court its findings of fact and conclusions of law.

I. BACKGROUND

The veteran, Howard C. Moore, served in the United States Army from September 1942 to October 1945. A reconstruction of his Army medical records (necessitated because his medical records were apparently destroyed in the 1973 St. Louis Federal Records Center fire) shows that he was hospitalized in January 1945 for 69 days and diagnosed with a condition “due to reduced temperature: trench foot”. R. at 23. Trench Foot is “a painful foot disorder resembling frostbite and resulting from exposure to cold and wet.” Webster’s Medical Desk Dictionary 729 (1986). According to the reconstruction of the veteran’s military medical records, his “physical exams cannot be reconstructed.” R. at 16. This obviously includes his termination physical examination.

In applying for compensation for “Frozen Feet” on July 13, 1988, the veteran stated that in the winter of 1944 in northern Italy he “was taken to the U.S. Army 54th General Hospital in Leghorne, Italy where [he] was hospitalized for approximately three months with frozen feet.” R. at 5. In an August 3,1988, followup statement in support of his claim and in response to an inquiry from the VA Regional Office (RO), the veteran advised: “I did not seek treatment for my frozen feet until just recently ... [at the] V.A. Medical Center, Marion, Illinois.” R. at 9.

In connection with his application for compensation, he was examined by a VA physician on October 3, 1988, and also had a consultation with a VA radiologist. The physician conducting the physical examination reported that the veteran “claimed at this time he could hardly walk a block, ankle & knees bothered him with swelling & pain. His feet at times swell up & could hardly wear his shoes.” R. at 19. The physician concluded:

Extremities: No varicosities. Plantar arch intact. No swelling & deformities of the joints. Range of joints movement [403]*403intact & normal. No edema. [Illegible! normal.
Final diagnosis:
1) History of frozen feet with DEG, arthritis, lumbar & plantar surface of the calcaneal tuberosities, scoliosis, lumbar spine, concavity to [illegible!.

R. at 20.

The examining physician requested a radiology report stating, as the reason, that the veteran had a history of “Frozen feet, with no residual except possible post traumatic arthritis lumbar, knees, ankles & feet.” R. at 21. The radiologist reported as to the veteran’s feet:

BILATERAL FEET: Examination reveals about 2 mm. sized calcaneal spur at the plantar aspect of the calcaneal tuber-osities. There is no evidence of any recent fracture dislocation or articular ero-sions.
R. at 22.

On January 25, 1989, the VARO Rating Board denied service connection for degenerative joint disease and residuals of frozen feet, respectively. R. at 25. On January 30, the rating board continued the denial for the residuals of frozen feet. R. at 26. The veteran, in his appeal to the Board of Veterans’ Appeals (BVA), filed on April 17, 1989, stated:

I was discharged from the Separation Center, Ft. Sheridan, Illinois. The doctor wanted to keep me in the Army for further treatment on my foot condition, right and left. I had been away from home for so long, I would not sign up to stay in the service for this further treatment. I can only believe that when I would not stay in, the doctor did not show this condition in my records at time of my separation.
I have always been bothered with this condition. But I have not tried to service-connect the condition until recently. I am doing so now, because the condition has become so much worse.
R. at 40.

In a July 28, 1989, decision, the BVA denied service connection for disabilities of the feet, finding in part:

2. In service the veteran was hospitalized for 69 days for trenchfoot.
3. The skin on the veteran’s feet is normal, no edema is present, and no residuals of the 1945 cold injury is demonstrated.
4. Degenerative arthritis of the plantar surface of the calcaneal tuberosities was not shown until October 1988, more than 40 years after separation from service, and is not related to the history of frozen feet.

Howard C. Moore, BVA 90-07842, at 3-4 (July 28, 1989).

As its “CONCLUSION OF LAW”, the BVA stated:

A foot disability was not the result of a disease or injury incurred or aggravated in service, and arthritis of the feet may not be presumed to have been incurred therein. (38 U.S.C. 301, 310, 312, 313; 38 C.F.R. 3.307, 3.309).

Id. at 4.

The appellant contends on appeal that he should not be punished for not seeking compensation earlier because he did not want to be a “a burden sooner” and therefore managed to take care of himself. Br. of Appellant at 3, 5. He supports his contention that his degenerative arthritis of the heels is not too remote in time to be service-connected by referring to “medical authority which supports the proposition that ... degenerative arthritis[ ] is related to his in service injury, trench foot.” Id. at 6; see also id. at 7, 8. He further contends that, since the evidence is equivocal on the issue of causation, the reasonable doubt should be given to him as a combat veteran so that the issue of service connection is resolved in his favor, citing 38 U.S.C. § 354(b) (1988) (requiring that “every reasonable doubt” be resolved in favor of a combat veteran in determining service connection).

The Secretary responds that the appellant has failed to corroborate his assertions of a connection between his current arthritis and his in-service cold injury by the submission of “objective clinical findings”. Br. of Appellee at 11. The Secretary fur[404]*404ther points out that the condition of the veteran’s feet, as shown on his 1988 examination, is not consistent with the symptoms which would be present, according to the appellant’s medical evidence submitted on appeal to this court, had his arthritis been related to his trench foot. Ibid.

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Moore v. Derwinski, 1 Vet. App. 401, 1991 U.S. Vet. App. LEXIS 69, 1991 WL 149870 (Cal. 1991).

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