Parker v. Derwinski

1 Vet. App. 522, 1991 U.S. Vet. App. LEXIS 108, 1991 WL 209070
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 18, 1991
DocketNo. 90-284
StatusPublished
Cited by19 cases

This text of 1 Vet. App. 522 (Parker 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
Parker v. Derwinski, 1 Vet. App. 522, 1991 U.S. Vet. App. LEXIS 108, 1991 WL 209070 (Cal. 1991).

Opinion

STEINBERG, Associate Judge:

This case involves an appeal by veteran Robert Louis Parker from a Board of Veterans’ Appeals (BVA or Board) December 13, 1989, decision denying his claim for service connection for a vision deficiency due to a macular hole in his left eye. In that decision, the Board stated: “In the absence of any indication of trauma during the veteran’s period of service and [given] the reported history of left eye injury prior to service, we conclude that the presumption of soundness has been rebutted.” Robert L. Parker, BVA 89-06603, at 5 (Dec. 13, 1989). Because the Court has concluded that the evidence before the BVA did not, in fact, rebut the presumption of soundness, in 38 U.S.C. § 1111 (formerly § 311) and 38 C.F.R. § 3.304(b) (1991), the BVA decision is vacated, the Court retains jurisdiction, and the matter is remanded for proceedings consistent with this opinion.

I. BACKGROUND

The veteran served on active duty in the United States Army from May 14, 1964, to May 13, 1966. His entrance examination [523]*523report noted distant vision of “20/20” in his right eye, “20/40” in his left eye, and myopia [nearsightedness]. R. at 3. An August 27, 1964, examination of his left eye, by an Army physician, noted a macular cyst and hole that seemed to be attributed to a “trauma incurred at age 19” (as related by the veteran) and to “trauma — old”. R. at 5. However, the veteran’s April 5, 1966, separation examination report contained no reference to changes in his distance vision and did not mention the macular cyst and hole. R. at 8-9.

The veteran filed an initial claim for service connection for his left-eye injury in August 1976. The Regional Office (RO) of the Veterans’ Administration (now the Department of Veterans Affairs) (VA) denied the claim two months later. No appeal was taken. The veteran reopened his claim in September 1987 on the basis of a July 20, 1987, letter from Dr. A.D. Sakowski, Jr., a private physician, stating that although there was no evidence of macular disease at the time of the veteran’s entrance into the military, “a small macular cyst could have been missed by a non-ophthalmic examiner.” R. at 55. Dr. Sakowski further opined that a macular hole or cyst can produce “the type of 20/40 to 20/50 vision that [the veteran] had enjoyed ... and then can pursue [sic] a more devastating loss of vision at a later time”. R. at 56. The RO again denied the claim on September 30, 1987. R. at 58-59.

In December 1988, the RO denied another reopened claim after the veteran had submitted an October 25, 1988, letter from Curtis R. Robinson, D.D.S., who had served with the appellant and recalled “a conversation with him concerning [an in-service] injury ... in August or September 1965” and that Parker had “refused to see a doctor for fear of being released from the service.” R. at 62. An appeal to the BVA followed and was denied on December 13, 1989.

In a September 11, 1989, hearing before the Board, the veteran, under oath, denied that his eye injury resulted from a football accident when he was 19, and explained that it was the result of an accidental kick from an Army colleague during morning exercises. The veteran’s testimony in response to questions from his representative was as follows:

Q. And, at the time that the doctor was doing that examination, you related some information to him regarding the fact that you had played football.
A. Yes, sir.
Q. Can you tell us the nature of that statement as you related it to the doctor. We know it is a matter of record how he interpreted that statement. Would you relate to the Board, what you, in fact, said to the doctor?
A. He asked me had I ever been hurt at any time. I said, sure, I’d been hurt numerous times because I played football. And, he asked me what was the last year that I played football. I said I was 19. And, that was the extent of my question, that was the extent of our conversation.
Q. But, you are absolutely certain that you did not relate to him that you had sustained an injury to the left eye while playing football at the age of 19.
A. No, sir. I told him I played football. My last year was at 19 and I had been, I told him I had had numerous injuries at certain points, playing football. Like I told him I had sprained ankles, or, you know, bruised ribs or something like that. But, I never told. This, I didn’t tell him. I just made a statement in general that I had sustained some type of injuries but not injuries to the extent to where it was going to be disabling to me anyway.

R. at 84-85.

On October 30, 1989, the veteran submitted to the Board a letter from an ophthalmologist, Dr. Clifton L. Peay, concluding that the veteran’s left-eye vision “had deteriorated from his discharge visual acuity of 20:50 to currently an uncorrected at present of 20:200_ Funduscopic examination ... confirmed the presence of a large macular scar with a full fitness macu-la hole ... in the macula area of the left eye.” R. at 96-97.

[524]*524The appellant maintains on appeal that he is entitled to the benefit of a presumption of soundness upon entry into service and that he has presented ample evidence of an in-service injury. Furthermore, even if his injury did exist prior to induction, he contends, alternatively, that his medical records indicate that his eyesight deteriorated during service. Br. at 3. As a result, he argues, he is entitled to disability compensation, because his military service aggravated a pre-existing condition.

The Secretary argues that the BVA’s findings clearly demonstrate that the veteran’s left-eye injury existed prior to service and was not aggravated by it. Motion of Appellee at 7. In addition, the Secretary contends that the BVA correctly concluded that the presumption of soundness was rebutted by clear and unmistakable evidence as required by 38 C.F.R. § 3.304(b). Motion of Appellee at 5.

II. ANALYSIS

The applicable VA regulation reads, in pertinent part:

Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted.
(1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease.

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Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 522, 1991 U.S. Vet. App. LEXIS 108, 1991 WL 209070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-derwinski-cavc-1991.