Richard S. Brokowski v. Eric K. Shinseki

23 Vet. App. 79, 2009 U.S. Vet. App. LEXIS 983, 2009 WL 1586901
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 8, 2009
Docket07-0349
StatusPublished
Cited by63 cases

This text of 23 Vet. App. 79 (Richard S. Brokowski v. Eric K. Shinseki) 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
Richard S. Brokowski v. Eric K. Shinseki, 23 Vet. App. 79, 2009 U.S. Vet. App. LEXIS 983, 2009 WL 1586901 (Cal. 2009).

Opinion

SCHOELEN, Judge:

The appellant, Richard S. Brokowski, through counsel, appeals a January 11, 2007, Board of Veterans’ Appeals (Board) decision in which the Board found service connection for peripheral neuropathy was warranted, but denied an effective date for the award of service connection earlier than February 15, 1994. In the same decision, the Board remanded the issue of entitlement to a disability rating in excess of 40% for peripheral neuropathy of the right and left lower extremities. 1 Record (R.) at 1-31. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will affirm the Board’s decision.

I. BACKGROUND

A. Service History and Medical Evidence

The appellant served in the U.S. Navy from February 1965 to September 1969. R. at 32. In December 1976, he was hospitalized with complaints of pain in his right foot radiating into his calf, and burn *81 ing and numbness on the bottom of his right foot. R. at 244-45. On physical examination, the appellant’s right foot was discolored and cool to the touch. Id. A specialized radiograph showed that the appellant’s superficial femoral artery, located in his thigh, was totally blocked and that the artery located over his knee had deposits of calcium obstructing blood flow. These conditions resulted in weakness in his leg. R. at 244-45. Dr. Robinson, one of the appellant’s private physicians, noted that

[t]he patient had many unusual aspects of his pain in that he did have tenderness to touch along the area of the lateral aspect of his right foot. It was my impression that it is possible that the patient did have some other neurological problem that would be accounting for this pain other than on a vascular basis. It is quite surprising to see pain to touch without any evidence of rest pain at all. The patient did definitely have a vascular lesion, did have symptoms of claudi-cation. 2

R. at 245. Dr. Robinson recommended that if the appellant received no relief from this surgery, he undergo further neurological and orthopedic consultations to rule out the possibility of some other neurological or orthopedic disease as a source of the appellant’s pain. R. at 246.

In January 1977, the appellant underwent surgery in his lumbar region in an effort to relieve his pain. R. at 242. At that time, Dr. Robinson noted that the appellant suffered from both pain resulting from the obstructed blood flow and a “second pain which could possibly be secondary to” a neuroma (tumor) growing from a nerve. R. at 241. Dr. Robinson diagnosed the appellant with “arterial vascular insufficiency, right lower extremity with lesion of his right superficial femoral artery, possible Morton’s neuroma,[ 3 ] right metatarsal area, and status postop right lumbar sympathectomy.” R. at 242.

The appellant’s pain persisted after the January 1977 surgery. In February 1977, radiographs of the spine were performed, and the appellant was diagnosed with compression and disease of the L5 nerve root with herniated disc at L4-5 and L5-S1 and L5-S1 radiculopathy. 4 R. 232-33. The appellant underwent an operation to remove a portion of his vertebrae. Id. The appellant’s pain persisted after this surgery, and in April 1977, he was hospitalized again by Dr. Robinson to treat the blocked arteries in his right leg. R. at 262-65. The appellant underwent a surgery that involved “excision of right greater saphenous vein[ 5 ] with ligation of its tributaries; right femoral anterior tibial bypass using the patient’s saphenous vein; right femoral arteriograft.” Id.

At the time of the appellant’s discharge from the hospital, Dr. Robinson diagnosed him with “peripheral vascular disease[ 6 ] *82 manifested by complete occlusion[ 7 ] of the right superficial femoral, right popliteal and right posterior tibial arteries; status postop right lumbar sympathectomy; status postop right femoral anterior tibial bypass using patient’s own saphenous vein.” R. at 263. Unlike Dr. Robinson’s January 1977 diagnosis, his April 1977 diagnosis did not mention Morton’s neuroma as a possible disorder, and there was no suggestion that Dr. Robinson continued to suspect that the appellant had an unidentified neurological or orthopedic disorder.

B.Pension Claim

In January 1977, the appellant filed a claim for non-service-connected pension benefits. In August 1977, the RO granted the claim. 8 R. at 250, 285.

C.Anxiety Disorder Claim

In June 1978, the appellant filed a statement in support of claim stating: “I would like to claim service connection for my present condition of acute depression [and] anxiety. I have had this condition since discharge from service and was treated for this condition.” R. at 299. He indicated that he had “received treatment in the service as follows: Acute [depression San Diego, California and] anxiety Service School Command approximately] 1968.” Id. He also stated: “This is also a claim for service[ ] connection for all disabilities of record.” Id. No other documents accompanied his statement in support of claim. In July 1978, the RO denied benefits based on anxiety and depression. R. at 305. No other disabilities were mentioned in the rating decision. R. at 306. The notice letter that was sent to the appellant only discussed denial of service connection for a nervous condition. R. at 305. The appellant did not appeal that RO decision.

D.Peripheral Vascular Disease Claim

In October 1989, the appellant filed a claim for VA benefits for “severe peripheral vascular disease” that he claimed began in 1976. R. at 310-13. In support of the claim, the appellant submitted medical evidence indicating that he had been diagnosed and treated for peripheral vascular disease. R. at 319-22. In February 1990, the RO denied the claim after concluding that the appellant’s peripheral vascular disease was not incurred or aggravated in service. R. at 333-35. The appellant filed a timely Notice of Disagreement (NOD). R. at 337. However, the RO did not process the appeal by issuing a Statement of the Case (SOC).

E.Retention of Counsel and Peripheral Neuropathy Claim

In April 1993, the appellant retained his present counsel who notified the RO by letter that the appellant was filing a claim for benefits based on peripheral vascular disease. R. at 345-46. The appellant’s counsel attached an application for VA benefits to his correspondence. Id.

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Bluebook (online)
23 Vet. App. 79, 2009 U.S. Vet. App. LEXIS 983, 2009 WL 1586901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-s-brokowski-v-eric-k-shinseki-cavc-2009.