Quarles v. Derwinski

3 Vet. App. 129, 1992 U.S. Vet. App. LEXIS 259, 1992 WL 218839
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 19, 1992
DocketNo. 90-858
StatusPublished
Cited by230 cases

This text of 3 Vet. App. 129 (Quarles 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
Quarles v. Derwinski, 3 Vet. App. 129, 1992 U.S. Vet. App. LEXIS 259, 1992 WL 218839 (Cal. 1992).

Opinion

STEINBERG, Associate Judge:

The pro se appellant, veteran James W. Quarles, challenges a July 6, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying him entitlement to an effective date prior to November 9, 1984, for an increase in the 20% service-connected disability rating he had received for “lumbo-sacral strain with degenerative joint disease”. James W. Quarles, BVA 90-22275 (July 6, 1990) [hereafter Quarles]. The Court holds that the Board’s conclusion that November 9, 1984, is the appropriate date for the assignment of a 20% disability rating was clearly erroneous, that the Board failed to consider and address properly the impact of the veteran’s pain on the severity of his low back disability prior to November 1984, and that the Board did not provide reasons or bases for its findings and conclusions adequate to permit effective judicial review. Consequently, the Court will reverse the Board’s decision and remand the matter for prompt readjudication and to assign the appropriate effective date. The Court notes that this veteran’s low back disability was the subject of three Board remands and five Board decisions before he received the BVA decision which forms the basis for this appeal, a decision which, ironically, the Board characterized as “generous”. Quarles, at 4.

I. BACKGROUND

The veteran served on active duty in the United States Army from January 1951 to February 1953. R. at 76. While in combat in Korea during the Korean conflict, he fell into a foxhole during a night air raid and, subsequently, developed knee and back problems which he attributed to that event. R. at 11, 143. The record on appeal does not contain many of the medical reports arising prior to 1982 in connection with the veteran’s back disability, but the record does contain descriptions in BVA decisions of certain pre-1982 events and medical findings relating to that disability”.

During active duty in 1952, the veteran, complaining of low back pain and discomfort, had reported to an Army medical clinic where the examining physician had recorded “slight local [back] tenderness”. R. at 139. Approximately three months after the veteran’s separation from service, a May 1953 Veterans’ Administration (now Department of Veterans Affairs) (VA) medical examination report noted a slight narrowing of the L5 interspace of his spine (R. at 139) and slight tenderness over the lumbosacral joint (R. at 104). See also R. at 144. The veteran’s first claim for service-connected disability compensation for a low back disability appears to have been granted in July 1974 by the BVA (R. at 140), and later VA Regional Office (RO) decisions make clear that at some point the veteran did receive a 10% service-connected disability rating for “lumbosacral strain” with an effective date of May 9, 1973. R. at 21.

The first definitive diagnosis of disc disease of the lumbar spine that appears in the record on appeal is contained in a 1975 medical examination report prepared by a private physician. R. at 140. During that examination, lateral bending and extension of the veteran’s back were restricted to half the normal range, and straight leg raising caused back pain. In addition, the veteran experienced tenderness to deep percussion at L4 and L5, with muscle irritability. An x-ray evaluation of the lumbar spine revealed marked narrowing of the L4-L5 disc space and a traction spur. Ibid.

On November 24, 1982, the veteran submitted to the VA a Statement in Support of Claim, seeking an increase in his then 10% disability rating for lumbosacral strain. R. at 13. Therein, he stated: “My back condition is so bad I’ve had to resort to the use of an electrical impulse devise to ease the pain.” Ibid. In support of his claim, the veteran submitted a November 18, 1982, letter prepared by his private physician, Dr. Rommel G. Childress, who the record demonstrates has treated the veteran for his back disability from, at least, August 1982. In this letter, Dr. Childress stated that he had hospitalized the veteran in August 1982 for a thorough evaluation because of the veteran’s “increasing pain in the back with pain radiating to both thighs”. R. at 11; 6.

[132]*132Dr. Childress further noted in that letter that, on November 18, 1982, he had examined the veteran, who continued to suffer from “excessive problems with back pain”. R. at 6. The August 6, 1982, CT scan report which was attached to the doctor’s letter showed, he stated, that the veteran “definite[ly]” suffered from a “focally herniated disc segment”. Ibid; R. at 9. The CT scan revealed “a Paterally] herniated disc at the L-4-5 level”, and x-rays revealed “marked narrowing of the L-4-5 space with degenerative changes”. R. at 7, 9. In addition, there existed a “diffusely bulging annulus at th[at] level”. R. at 9. An electromyogram, also administered during the August 1982 hospitalization, showed “neurogenic changes in the anteri- or tibial, gastrocsoleus[,] [sic] and hamstring levels, indicating L-4-5 and L-5-S-1 root irritation”. R. at 7. The diagnoses upon discharge from the hospital, to the extent to which they are decipherable from the record, include (1) acute and chronic low back strain, (2) L-4-5 disc degeneration, and (3) degenerative changes of the lumbar spine. Ibid. Concluding his November 18 letter, Dr. Childress stated:

In consideration of his back problem and knee problem, this patient would warrant an 85% permanent partial disability. This is based on his current pain, [his] suffering, and his very documentable disease process which is going on.

Ibid.

Dr. Childress reiterated his conclusions, with even more emphasis on the veteran’s back disability, in a September 29, 1983, letter (which was not filed with the VA until September 1987) to the United States Office of Personnel Management. R. at 126. There, based on a December 8, 1982, examination, he stated that the veteran continued “to have significant back discomforts”. He concluded:

Again, ... I maintain that this patient’s permanent partial disability is 85%. I do not expect that the patient will ever be able to do work that requires excessive or prolonged sitting or any excessive bending, stooping, or lifting.
There is a possibility that if the patient attempts to do such type activities, the ruptured disc may manifest itself to the point that the patient is forced to have surgery if there are any functional deficits or the pain becomes intractable.

R. at 126.

On December 20, 1982, in processing the veteran’s November 1982 claim for an increased rating, the VA conducted a medical examination. R. at 15. Examination of the lumbar spine revealed “disc space narrowing at the L4-5 interspace[ ] [and] [associated bony spur formation anterior aspect L4 and L5.” Based on these symptoms, the VA physician diagnosed “Regenerative disc disease L4-5”. R. at 17. However, on January 21, 1983, the VARO denied the veteran’s November 1982 claim for an increased rating for his service-connected lumbosacral strain on the basis that his then “currently diagnosed degenerative disc disease of L-4 and L-5 is not etiologi-cally related to his lumbosacral strain diagnosed in service”. R. at 21.

(In a parallel proceeding, on May 25, 1983, the Merit Systems Protection Board issued a decision with respect to the veteran’s appeal of his November 19, 1982, removal from his position as a civilian supply clerk at the Department of Defense, Defense Logistics Agency. R. at 47.

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Cite This Page — Counsel Stack

Bluebook (online)
3 Vet. App. 129, 1992 U.S. Vet. App. LEXIS 259, 1992 WL 218839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quarles-v-derwinski-cavc-1992.