Phillips v. Brown

10 Vet. App. 25, 1997 U.S. Vet. App. LEXIS 6, 1997 WL 8951
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 13, 1997
DocketNo. 94-987
StatusPublished
Cited by43 cases

This text of 10 Vet. App. 25 (Phillips 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
Phillips v. Brown, 10 Vet. App. 25, 1997 U.S. Vet. App. LEXIS 6, 1997 WL 8951 (Cal. 1997).

Opinions

FARLEY, Judge:

The appellant, Ronnie L. Phillips, appeals a September 22, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which granted an effective date of August 25, 1987, for an award of service connection for bilateral hearing loss. The Board also found that the appellant did not raise a claim of clear and unmistakable error (CUE) in February 1971 and March 1974 regional office (RO) rating decisions. In his brief and reply brief, the appellant addresses only the CUE claim issue; therefore, any issue concerning the effective date is deemed abandoned. Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993).

The Secretary filed a brief seeking to dismiss the appeal, arguing that the appellant’s Notice of Disagreement (NOD) predates the Court’s creation. The appellant’s counsel filed a reply brief arguing that the only NOD regarding the CUE claim was filed in September 1992, and therefore met the Court’s jurisdictional requirements. Following oral argument, further briefing was ordered on the issue of whether the appellant had a disability in light of the authorities controlling at the time of the 1971 and 1974 rating decisions. For the reasons set forth below, the Court will affirm the decision of the BVA.

I.

The appellant’s active service in the United States Army from January 1969 to January 1971 included a tour of duty in Vietnam. Record (R.) at 15, 47. A July 1968 preinduction physical examination revealed some hearing loss. R. at 20-22. A December 1970 separation examination indicated that the appellant had “possible] high frequency] [hearing] loss,” but the appellant denied ear trouble or hearing loss at that time. R. at 29, 31-32.

Upon discharge, the appellant filed a claim for service connection for, inter alia, high frequency hearing loss. R. at 39-40. In February 1971, the RO denied service connection for this condition. R. at 42. The RO stated:

On examination at induction the veteran was noted to have a bilateral hearing loss in the 4000 range. There was a 35 [decibel] loss in each ear. There [is] no record of any treatment or complaint of any ear condition during service but on examination at separation there was shown a possible high frequency hearing loss with a reading of 40 [decibels] in the 4000 range. This slight change is considered normal progression.

Ibid.

The appellant attempted to reopen his claim for service connection for hearing loss in February 1974. R. at 46. To this end he submitted a January 1974 statement from Dr. C. Elford Carpenter, who wrote that the appellant had “nerve deafness with average loss of 35 per cent [in] both ears. This is permanent and will gradually get worse. This was probably caused by exposure to mortor [sic] fire.” R. at 48. The appellant [28]*28also submitted a January 1970 report concerning his award of a Bronze Star. The report stated:

[The appellant’s Company] began to receive incoming enemy mortar rounds at Fire Support Base Currahee. Private Phillips moved to his gun position amidst intense indirect fire. Although he was continuously subjected to the flying shrapnel from the hostile fire, he fearlessly continued his mission.

R. at 47. In March 1974, the RO again denied service connection, stating that Dr. Carpenter’s letter “presents no new information to link [the appellant’s] present disability with military service.” R. at 51.

The appellant attempted to reopen his hearing loss claim in August 1987. R. at 55. He submitted a report from an August 1987 hearing test conducted by Dr. D. Thomas Upchurch which revealed moderate hearing loss at 1500 Hertz and moderately severe hearing loss between 2000 Hertz and 8000 Hertz. R. at 56. In November 1987, the RO found that the appellant had not submitted new and material evidence, and concluded that his “condition preexisted service and was normal progression.” R. at 60. The appellant submitted another application for compensation for bilateral hearing loss in June 1988. R. at 64-67. The RO issued a confirmed rating decision denying the claim. R. at 69.

On October 24, 1988, the RO received a letter from the appellant [hereinafter “October 1988 Letter”] in which he stated: “I am writing in reference to the denial of Veterans benefits due to a loss of hearing which I sustained in Vietnam. I am requesting that a hearing date be set so that I might be able to present my case....” R. at 71. A hearing was conducted in November 1988, and the appellant testified that he was a gunner during service, firing “81 mm. mortar,” and that they fired the weapons every night and were in turn fired upon “just about every day.” R. at 75. He stated: “[W]hen we would get through with a fire mission, my head would feel swollen and bells would be in my ear and the guys next door they’d holler deflection and elevation and you couldn’t even, you ha[d] to read their lips because you couldn’t hear anything.” Ibid. The appellant also testified that he continued to have ear problems upon leaving the service. R. at 76.

The RO reopened the appellant’s service connection claim in December 1988, and noted that the claim to reopen was received on October 24, 1988, the date of the appellant’s letter requesting a hearing. R. at 86-87. The RO concluded that the appellant’s testimony was “not sufficient to overcome the prior decision that the slight increase in hearing loss was due to normal progression” and denied service connection for hearing loss. Ibid.

In February 1989, the appellant submitted a letter from W.H. Kirby, a hearing specialist, who wrote that the appellant had normal hearing bilaterally through 1000 Hertz, but above that had “moderately severe sensorineural hearing loss bilaterally.” R. at 89. He also stated: “These test results are certainly consistent with the high frequency hearing loss caused by exposure to loud noise. In Mr. Phillips[’] case the exposure to artillery noise in Vietnam could certainly be the culprit.” Ibid.

The RO received a statement from the appellant in July 1989 [hereinafter “July 1989 Statement”] in which he requested that he be examined for hearing loss and that VA review all his previous medical records and hearing test results. R. at 95. The RO issued a confirmed rating decision in July 1989, stating that the letter from Mr. Kirby “contains no concrete evidence that [the] veteran’s pre-service hearing [loss] was increased beyond normal progression during service.” R. at 98. In August 1989, the RO sent the appellant a Statement of the Case (SOC), which indicated that the RO had interpreted the July 1989 Statement as an NOD. R. at 102.

In September 1989, the appellant submitted a VA Form 1-9, Appeal to Boat® of Veterans Appeals [hereinafter “September 1989 Form 1-9”], which stated, inter aha, that he was appealing “the previous determination as erroneous.” R. at 107-09. He asserted that the “facts clearly show natural progression not to be the primary factor in [29]*29my hearing loss,” and that there is “clear and unmistakable evidence that the increase in disability is not due to natural progress of the condition.” Ibid. He concluded that the rating board “misconstrued [his] testimony and thereby reached an errouneous [sic] decision,” and that he was “entitled to ... benefits commensurate with the date [he] first filed in 1971.” R. at 109.

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Bluebook (online)
10 Vet. App. 25, 1997 U.S. Vet. App. LEXIS 6, 1997 WL 8951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-brown-cavc-1997.