Rhodes v. Brown

4 Vet. App. 124, 1993 U.S. Vet. App. LEXIS 33, 1993 WL 17207
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 28, 1993
DocketNo. 91-594
StatusPublished
Cited by4 cases

This text of 4 Vet. App. 124 (Rhodes 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
Rhodes v. Brown, 4 Vet. App. 124, 1993 U.S. Vet. App. LEXIS 33, 1993 WL 17207 (Cal. 1993).

Opinion

MANKIN, Associate Judge:

Jeffrey M. Rhodes appeals the January 28, 1991, Board of Veterans’ Appeals (BVA or Board) decision which denied service connection for right thoracic outlet syndrome. The Secretary of Veterans Affairs (Secretary) filed a motion for summary af-firmance on December 2, 1991. The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). The Court remands the matter to the Board for proceedings consistent with this opinion. Appellant’s request for oral argument is denied.

I. FACTUAL BACKGROUND

Veteran served on active duty in the U.S. Army from August 1983 to December 1983, and from November 1984 to May 1987. His entrance medical examination was essentially normal, but included remarks concerning depression. During service veteran was diagnosed as having mild ocular hypertension, gastroenteritis, and an ulcer. In January 1987, he complained of recurring pain in his right hand from an injury which had occurred the previous year. Veteran’s medical history, recorded in March 1987, revealed swelling of the right hand for two to three years duration, an ulcer for which veteran had received treatment, and problems with veteran’s right thumb that had required it be put in a cast.

In June 1987, veteran filed a claim for service connection of a left leg injury. A Veterans’ Administration (now Department of Veterans Affairs) (VA) orthopedic consultation, performed in August 1987, diagnosed veteran’s condition as left compartment syndrome with fascial defect. A VA Regional Office (RO) awarded service connection for compartment syndrome with fascial defect of the left lower leg, at a noncompensable rating, effective from May 15, 1987.

Veteran filed a Substantive Appeal (Form 1-9), and in a statement in support of his claim veteran added a claim for a right shoulder disability. After complaints of swelling and paresthesia in the right hand, veteran was examined on February 1, 1989, and a manifestation of mild carpal tunnel syndrome was diagnosed. On February 13 and 27, 1989, veteran was diagnosed with right thoracic outlet syndrome. The examination report stated that veteran had complained of numbness and tingling in his right upper extremity of three years’ duration, occurring occasionally. Veteran was hospitalized from March 1 to March 15, 1989, with the primary diagnosis of right thoracic outlet syndrome, and on March 8,1989, he underwent exploration of the right brachioplexus with resection of the first rib. The doctor assessed his postoperative disability as likely to last for approximately four to six months. Veteran applied for service connection for his right shoulder condition on March 7, 1989, but his claim was denied on May 15, 1989.

Veteran filed another Substantive Appeal on September 1, 1989, and he noted that he had been treated for numbness of the right hand while serving in Germany. In January 1990, he added claims for entitlement to service connection for a hand disability, ulcer, and hypertension. On March 27, 1990, veteran was examined and diagnosed with thoracic outlet syndrome, right decreased tactile sensation, diminished grip of [126]*126right hand, and peptic ulcer. The neurological examination of April 3, 1990, revealed that veteran had severe pain due to permanent nerve damage which prevented him from performing strenuous work. The examination report stated: “This is a 26 y/o white male that had decrease[d] strength and numbness of the right arm for several years and was discovered to have thoracic outlet syndrome (compression at vessels and nerve) which due to the amount of pressure and time produce[d] permanent damage to nerves and [there] was little recovery after surgery.” Veteran’s medical record revealed that his prognosis for recovery was provisional muscle strength of the right arm diminished to 30-40%. The report also indicated veteran’s severe pain would prevent him from work because he is right handed.

The BVA remanded appellant’s claims to the VARO on February 9, 1990, for adjudication. The RO rating decision, dated April 18, 1990, denied service connection for residuals of a right hand injury involving the fourth digit, hypertension, stomach condition (claimed as an ulcer), and postoperative right thoracic outlet syndrome with right upper extremity involvement.

In further support of his claim, veteran submitted a letter he sent to his parents while in service, dated July 9, 1986, which had mentioned his arm and shoulder problems. He also submitted his mother’s statement attesting to veteran’s condition immediately after service, and which pointed out that veteran’s disorder was not diagnosed until 1988. In addition, veteran presented a medical report from his service in Germany indicating complaints of a swollen right hand for two to three years. On January 28, 1991, the BVA denied entitlement to service connection for right thoracic outlet syndrome. Jeffrey M. Rhodes, BVA 91-02767 (Jan. 28, 1991).

II. ANALYSIS

A. Right Thoracic Outlet Syndrome

Right thoracic outlet syndrome is not a chronic disease subject to presumptive service connection. See 38 U.S.C. §§ 1101, 1112 (formerly §§ 301, 312). To establish service connection for this kind of condition, a showing of continuity of symp-tomatology after discharge is required to support veteran’s claim. See 38 C.F.R. § 3.303(b) (1991); Ivey v. Derwinski, 2 Vet.App. 320, 323 (1992); Sanchez v. Derwinski, 2 Vet.App. 330, 333 (1992); Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). The BVA never considered whether there was continuity of symptomatology after discharge from service that eventually led to the clinical diagnosis of right thoracic outlet syndrome a year and a half later. The Court holds that a remand is necessary because veteran’s current medical records fail to indicate whether there was continuity of symptomatology. The BVA shall provide veteran with a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment, and results in an examination report which includes a medical opinion as to whether there is any possible relationship between veteran’s past hand and shoulder problems incurred in service and veteran’s current thoracic outlet syndrome. See Green v. Derwinski, 1 Vetpp. 121, 124 (1991); Moore v. Derwinski, 1 Vet.App. 401, 405 (1991). Upon completion of a new medical examination, the Board shall address veteran’s claim for thoracic outlet syndrome, considering all relevant law and regulations.

The BVA also erred in concluding that the following situation was conclusive in defeating veteran’s claim: although “postservice clinical evidence establishes that veteran has symptomatology due to right thoracic outlet syndrome, there is no clinical evidence substantiating such a disability until early 1989.” Rhodes, BVA 91-02767, at 5 (emphasis added). The regulations do not require that veteran establish service connection through medical records alone, but allow for proof through lay evidence. 38 C.F.R. § 3.303 (1991); Cartright v. Derwinski, 2 Vet.App. 24, 25-26 (1991); see also 38 U.S.C.

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Bluebook (online)
4 Vet. App. 124, 1993 U.S. Vet. App. LEXIS 33, 1993 WL 17207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhodes-v-brown-cavc-1993.