Robinette v. Brown

8 Vet. App. 69, 1995 U.S. Vet. App. LEXIS 556, 1995 WL 416532
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 14, 1995
DocketNo. 93-985
StatusPublished
Cited by149 cases

This text of 8 Vet. App. 69 (Robinette 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
Robinette v. Brown, 8 Vet. App. 69, 1995 U.S. Vet. App. LEXIS 556, 1995 WL 416532 (Cal. 1995).

Opinion

STEINBERG, Judge:

On September 12, 1994, the Court issued an opinion vacating the Board of Veterans’ Appeals (BVA or Board) decision in this case and remanding the matter to the Board for further proceedings pursuant to 38 U.S.C. § 5103(a). The Secretary filed a timely motion for reconsideration, with five attached exhibits. On October 21, 1994, the Court granted the Secretary’s motion and ordered that that part of the Court’s opinion remanding the matter under section 5103(a), and the entry of judgment, be held in abeyance pending further order of the Court. On November 8, 1994, counsel for the appellant entered [71]*71her appearance for the formerly pro se appellant, and on December 2, 1994, the Court ordered the appellant to respond to the Secretary’s motion. The appellant responded on January 17, 1995. On March 30, 1995, and April 7, 1995, the Secretary and the appellant, respectively, filed supplemental memo-randa, in response to a March 21, 1995, Court order directing that the parties inform the Court whether the Secretary’s motion for reconsideration had become moot. Neither party contends that it has. The Court agrees.

The motion for reconsideration and the appellant’s response having been considered by the Court, and the motion for reconsideration having been granted in the respects described above, the Court vacates its September 12, 1994, opinion, and issues this opinion in its stead. The Court notes that this opinion does not differ in result from the vacated opinion, although the analysis as to the nature and extent of the Secretary’s obligation under section 5103(a) has been revised.

The appellant, veteran Louis R. Robinette, appealed pro se from an August 26, 1993, Board decision denying entitlement to service connection for diabetes mellitus [hereinafter diabetes]. The appellant moved to remand the case for further development, and the Secretary moved to dismiss the appeal on the ground of lack of a well-grounded claim. This case presents the Court with three related questions: (1) Whether this claim was well grounded when only “hearsay” medical evidence (the appellant’s statement as to what his physician told him) was offered to show a nexus between the current disability and the appellant’s period of service; (2) whether, in view of the Court’s finding that this claim was not well grounded, the Secretary nevertheless owed a duty to the appellant; and (3) whether, under the particular facts of this case, the Secretary fulfilled that duty to this appellant. For the reasons that follow, the Court holds (1) that this claim was not well grounded and that hearsay medical evidence, as transmitted by a layperson, cannot be, and is not in this ease, sufficient to render a claim well grounded; (2) that, pursuant to 38 U.S.C. § 5103(a), the actions required by the Secretary under that statutory provision depend upon the facts of each case, and that the Secretary owed a duty to this appellant under the circumstances present in this case; and (3) that, here, the Secretary did not fulfill that duty. Accordingly, the Court will remand the matter to the Board for further proceedings in accordance with section 5103(a) and this opinion.

I. Background

The veteran served on active duty in the United States Air Force from May to September 1948 and from September 1949 to June 1963. Record (R.) at 9,19. His service records are missing and presumed destroyed by a 1973 fire at the National Personnel Records Center (NPRC). R. at 19. In April 1989, he filed with a Department of Veterans Affairs (VA) regional office (RO) an application for compensation or pension (C & P), stating that he had incurred, inter alia, diabetes in October 1967. R. at 15.

The record contains a January 1989 VA medical center (MC) discharge summary that stated, as part of the veteran’s past medical history: “AODM [adult-onset diabetes melli-tus] for greater than five years, currently ... maintained on insulin.” R. at 48. A February 1989 VAMC discharge summary stated: “Adult onset diabetes, managed by pills for 10 years, now on insulin for 3 years.” R. at 46. A May 1989 VAMC discharge summary stated, under the heading “past medical history”, as follows: “[AODM] since 1967. Has been on insulin treatment for the past four years.” R. at 23. In August 1989, a VARO denied a claim for service connection for a shoulder disability and for non-serviee-con-nected pension; the decision listed diabetes under the non-service-eonnected disabilities. R. at 38-39.

In a January 1990 letter to the RO, the veteran asserted that he had first been afflicted with diabetes while in service. He stated that the condition was first diagnosed four years after his discharge, at the Kaiser Permanente Hospital [hereinafter Kaiser] in San Francisco, through the use of a computer. R. at 62. He asserted that the condition “could not be recognized by tests/procedures used by the military”. Ibid. “[A]ll the information I am able to obtain indicates the [72]*72condition began much earlier by as much as 10 years.” Ibid. In September 1990, the RO denied the claim, finding that diabetes was not shown until many years after service and stating: “On May 8, 1990, the veteran was requested to furnish evidence of the existence of diabetes to a compensable degree within one year after service. He has not responded to this request.” R. at 69.

In October 1990, the veteran filed a Notice of Disagreement (NOD) asking the RO where records of his June 1963 discharge physical conducted at Travis Air Force Base would be kept; he also requested a copy of his “DD 201 file[,] both personal and divisional”. R. at 72.

In November 1990, the RO received from an unidentified source treatment notes and records, dated from September 1971 through November 1974, kept by Dr. Merton Shelton, a private physician. R. at 75-90. Those records contain the following November 1973 notation: “Used Orinase 1957 [this apparently should be 1967, see R. at 103]. Recovered after 6 months. D[iseharge]d at Kaiser Hospital].... Rx: DBI.” R. at 87. (Ori-nase is a brand of tolbutamide, an oral anti-diabetes agent. DBI is a trade name for phenformin hydrochloride, an oral medication for treatment of diabetes. Physicians’ Desk REFERENCE 1463, 731 (26th ed. 1972).) A December 1973 insurance company “Diabetic Questionnaire” completed by Dr. Shelton stated that the veteran’s diabetes had been first discovered in November 1973. R. at 84. According to a July 1974 letter from Dr. Shelton to another insurance company, he had seen the veteran since September 1971 and a May 1972 urinalysis on the veteran was “normal and free of glycosuria”. R. at 77. Dr. Shelton further reported:

In November of 1973 the patient appeared with a red patchy dermatosis.... He gave a history of having been on Ori-nase, as prescribed by [Kaiser], and had recovered after about six months. A glucose tolerance test was run at that time revealing a fasting sugar of 128; one-half hour 193; one hour 269; with 2 ± glycosu-ria. ...
Blood sugar of 107 in January of 1974 indicated good response to treatment with DBI T-D.

Ibid.

The RO subsequently obtained treatment records, dated October 1967 to September 1970, from Kaiser. R. at 92-104.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

200506-82482
Board of Veterans' Appeals, 2021
200817-104152
Board of Veterans' Appeals, 2021
200221-65030
Board of Veterans' Appeals, 2020
16-40 141
Board of Veterans' Appeals, 2019
181201-1461
Board of Veterans' Appeals, 2019
180921-417
Board of Veterans' Appeals, 2019
16-61 717
Board of Veterans' Appeals, 2018
11-34 086
Board of Veterans' Appeals, 2016
05-13 994
Board of Veterans' Appeals, 2016
12-35 484
Board of Veterans' Appeals, 2015
12-34 113
Board of Veterans' Appeals, 2014
10-08 215
Board of Veterans' Appeals, 2014
06-14 287
Board of Veterans' Appeals, 2011
07-40 179
Board of Veterans' Appeals, 2010
Victor C. Davis v. Eric K. Shinseki
22 Vet. App. 352 (Veterans Claims, 2009)
Pekular v. Mansfield
21 Vet. App. 495 (Veterans Claims, 2007)
Mayfield v. Nicholson
444 F.3d 1328 (Federal Circuit, 2006)
Michael A. Stankevich v. R. James Nicholson
19 Vet. App. 470 (Veterans Claims, 2006)
JAMES A. W ASHINGTON v. R. James Nicholson
19 Vet. App. 362 (Veterans Claims, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 69, 1995 U.S. Vet. App. LEXIS 556, 1995 WL 416532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinette-v-brown-cavc-1995.