Rowell v. Principi

4 Vet. App. 9, 1993 U.S. Vet. App. LEXIS 7, 1993 WL 2208
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 6, 1993
DocketNo. 91-1052
StatusPublished
Cited by45 cases

This text of 4 Vet. App. 9 (Rowell v. Principi) 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
Rowell v. Principi, 4 Vet. App. 9, 1993 U.S. Vet. App. LEXIS 7, 1993 WL 2208 (Cal. 1993).

Opinion

STEINBERG, Associate Judge:

The appellant, veteran William G. Ro-well, appeals a March 12, 1991, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for bilateral hearing loss. William G. Rowell, BVA 91-07878 (Mar. 12, 1991). The Court will vacate the BVA decision and remand the case to the Board for proceedings consistent with this opinion.

I. BACKGROUND

The veteran served in the United States Navy from July 21, 1950, to May 12, 1954. R. at 1. His report of separation indicates that his “most significant duty assignment” was with a flight squadron. R. at 1. At induction, his ears were reported to be “normal” and his hearing was reported as “15/15”, bilaterally. R. at 23. On July 27, 1950 (one week after entering service), he was treated for pneumonia and various complaints, including earache. R. at 25. Examination of his ears at that time was negative. Ibid. His remaining service medical records contain no complaints or treatment relating to his ears or hearing. R. at 27-54. At his separation examination, his ears were reported as normal and his hearing was again measured at 15/15, bilaterally. R. at 48-49.

On April 25, 1988, the veteran filed a claim with a Regional Office (RO) of the Veterans’ Administration (now Department of Veterans Affairs) (VA) for service connection for hearing loss. R. at 2-5. In support of his claim, he submitted, inter alia, a sworn statement from his ex-wife, who is a physician (an anesthesiologist, apparently) stating that she had met the veteran in 1962; that he had at that time and ever since had a chronic ear problem involving infection and drainage; that at that time (1962) she had learned that the veter[13]*13an had been seeing Dr. Harold Alper for treatment; and that Dr. Alper had diagnosed the problem as nerve deafness, not then correctable by surgery. R. at 6. The VA requested medical records from Dr. Alper. R. at 7. The records received from Dr. Alper, which are largely illegible due to poor reproduction, indicate that he had treated the veteran from 1961 through 1970 for hearing loss. R. at 8-15. In a June 1968 notation, Dr. Alper apparently noted that the veteran had been exposed to noise from jets during the Korean War. R. at 12. These reports indicate a diagnosis of sensorineural hearing loss and recurrent external otitis. R. at 12.

In June 1988, the VA requested from the National Personnel Records Center (NPRC) “all” of the veteran’s service medical records. R. at 18. The NPRC returned the request form, noting that it had enclosed all of the veteran’s requested records. R. at 18. (See R. at 20-53.) In a July 21, 1988, decision, the RO denied the claim, noting that on examination at separation the ears were reported to have been within normal limits. R. at 55. VA documents dated in June 1988 indicate that the VA had scheduled the veteran for an audiome-tric examination in 1988 but that such examination was canceled. R. at 57-58.

In an August 3, 1988, letter, the RO informed the veteran of the denial of his claim. R. at 61. The veteran thereafter filed a Notice of Disagreement (NOD) dated August 3, 1989, and stamped as “Received” by the RO on August 7, 1989. R. at 65. He also submitted lay statements from three persons, each stating that the veteran had not had ear problems prior to service but had had serious ear problems after his service. R. at 62-64. On August 13, 1989, the RO again denied the claim. R. at 67. In an August 24, 1989, letter to the veteran enclosing a Statement of the Case (SOC) (R. at 68-72), VA treated the veteran’s August 7, 1989, NOD as valid (as evidenced by its issuance of an SOC, dated August 24, 1989, and its statement in the letter that his NOD had been filed and that He was required to file “a VA Form 1-9” (ííAppeal to the BVA”) to proceed with his appeal. R. at 68).

The veteran subsequently requested and received at least three 60-day extensions of time to file the Form 1-9. R. at 73-75, 77, 80. In granting the last of these extensions, a March 29, 1990, RO letter stated: “We will be glad to grant you an extension of time until June 1, 1990. As we advised you in our previous letter, you must complete your appeal if you intend to complete it before August 1, 1990.” R. at 80. He then submitted three additional lay statements (R. at 76, 78, 82), each stating that the veteran had not had ear problems prior to service but did have them (apparently shortly) after his service (one, from a sister, said “immediately” (R. at 78); another sister said that after his discharge he was “bothered constantly with ear problems” (R. at 76)).

In a March 19, 1990, Statement in Support of Claim, he requested a hearing. R. at 79. On June 5, 1990, he appeared at a hearing at the RO and testified under oath that he had developed a hearing problem in the Navy in 1953 due to his constant exposure to jet aircraft noise for three years (R. at 84); that he had received treatment for his ear problems in 1953 aboard the U.S.S. Boxer while stationed in the Sea of Japan (R. at 84-85); that he had received treatment for that condition up until his discharge (R. at 85-86); that he had received treatment from private physicians within one week after his separation from service and regularly thereafter (R. at 86-89); that his hearing problems had continued and worsened since service (R. at 86-89); and that his service medical records appeared to be incomplete because they did not reflect several instances when he had received treatment for hearing problems and other conditions during service (R. at 90-91). At the hearing, the VA hearing officer stated that he had discussed the Form 1-9 with the veteran’s representative and that the representative had requested that the appeal be left open to allow the Form 1-9 to be submitted at a later date. R. at 83.

In a June 28, 1990, decision, the hearing officer denied the claim. R. at 99. On July 25, 1990, the veteran filed what he stated [14]*14was an NOD with an RO rating “decision dated 18 July 1990”. R. at 100. Written on that purported NOD (by someone other than the veteran — presumably VA personnel) is the notation “IN LIEU OF 1-9”. R. at 100. In an August 7, 1990, decision, the RO denied service connection and indicated that the veteran had filed a “reopened claim” on March 20, 1990. R. at 101. On August 17, 1990, the RO issued a Supplemental SOC, listing the date of the original SOC as August 24, 1989, and again stating that the veteran had submitted a “reopened claim” on March 20, 1990. R. at 103-04.

In an October 15, 1990, Statement in Support of Claim, the veteran requested that VA “make a more diligent search for my medical records". R. at 107. On October 25, 1990, the RO informed him that his appeal was being certified to the BVA. R. at 110. In a statement dated November 7, 1990, the veteran requested that the RO arrange for an audiological examination. R. at 111.

In its March 12, 1991, decision on appeal to this Court, the BVA stated, under “items RELATING TO PRESENT APPELLATE STATUS”:

Although the veteran’s [NOD] was not filed within the applicable one-year period from the date of notification of the denied claim, it appears that the originating agency has proceeded with a de novo review of the veteran’s claim. The Board of Veterans [sic] Appeals will likewise determine the veteran’s claim on a de novo basis.

Rowell, BVA 91-07878, at 2. The Board then concluded:

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

Related

06-38 935
Board of Veterans' Appeals, 2017
09-33 589
Board of Veterans' Appeals, 2015
James I. Evans v. Eric K. Shinseki
25 Vet. App. 7 (Veterans Claims, 2011)
Robert v. Posey v. Eric K. Shinseki
23 Vet. App. 406 (Veterans Claims, 2010)
M.C. Percy v. Eric K. Shinseki
23 Vet. App. 37 (Veterans Claims, 2009)
Leland E. Gibson v. James B. Peake
22 Vet. App. 11 (Veterans Claims, 2007)
Anthony Hunt v. R. James Nicholson
20 Vet. App. 519 (Veterans Claims, 2006)
Orland R. Marsh v. R. James Nicholson
19 Vet. App. 381 (Veterans Claims, 2005)
JAMES A. W ASHINGTON v. R. James Nicholson
19 Vet. App. 362 (Veterans Claims, 2005)
German L. Matthews v. Anthony J. Principi
19 Vet. App. 23 (Veterans Claims, 2005)
Merritt I. Anderson v. Anthony J. Principi
18 Vet. App. 371 (Veterans Claims, 2004)
Virginia S. Crain v. Anthony J. Principi
17 Vet. App. 182 (Veterans Claims, 2003)
Gonzales-Morales v. Principi
16 Vet. App. 556 (Veterans Claims, 2003)
Sears v. Principi
16 Vet. App. 244 (Veterans Claims, 2002)
Morgan v. Principi
16 Vet. App. 20 (Veterans Claims, 2002)
Valasco v. West
12 Vet. App. 172 (Veterans Claims, 1999)
Fenderson v. West
12 Vet. App. 119 (Veterans Claims, 1999)
Marsh v. West
11 Vet. App. 468 (Veterans Claims, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
4 Vet. App. 9, 1993 U.S. Vet. App. LEXIS 7, 1993 WL 2208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowell-v-principi-cavc-1993.