Russo v. Brown

9 Vet. App. 46, 1996 U.S. Vet. App. LEXIS 192, 1996 WL 147613
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 2, 1996
DocketNo. 93-814
StatusPublished
Cited by56 cases

This text of 9 Vet. App. 46 (Russo 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
Russo v. Brown, 9 Vet. App. 46, 1996 U.S. Vet. App. LEXIS 192, 1996 WL 147613 (Cal. 1996).

Opinion

IVERS, Judge:

The appellant, Patsy C. Russo, appeals a May 6, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for residuals of frozen feet. Patsy C. Russo, BVA 93-08404 (May 6, 1993). The Court has jurisdiction over the ease pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will vacate the Board’s decision denying service connection and remand the matter for further adjudication consistent with this opinion.

I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Army from November 1942 until December 1945. Record (R.) at 16. In January 1945, while engaged in combat operations in Germany, the appellant was wounded in the left foot by artillery shrapnel. R. at 45. The appellant’s service medical records (SMRs) for the period are unavailable, apparently destroyed in the 1973 fire at the National Personal Records Center (NPRC). See R. at 28.

On February 14,1990, the appellant filed a Veteran’s Application for Compensation or Pension seeking benefits for frostbite of the feet and a shrapnel wound on the left heel. R. at 18-21. Upon receipt of the application, the VA regional office (RO) requested that the appellant submit medical evidence to support his claim. R. at 23. The appellant responded by submitting a VA Form 21-4138, Statement in Support of Claim, in which he stated that he “could not come up with the paperwork of proof from the convalescent hospital” and that he could not recall the names of any physicians he had seen except for Dr. James Trilli, his current podiatrist. R. at 25.

In April 1990, VA requested medical records from Dr. Trilli. R. at 33. The records submitted by Dr. Trilli documented a five-year history of complaints from the appellant about painful feet from March 1985 to February 1990. R. at 34^41. In the record, Dr. Trilli noted that the appellant described the pain as “sharp and throbbing.” Id.

In June 1990, the appellant submitted to the RO an authorization for VA to obtain records from “Dr. Matthews, Philadelphia Avenue, Chambersburg, PA, 17201.” R. at 64. A July 5, 1990, VA request for medical records was addressed to Dr. Matthews without any street in the address. On July 23, 1990, the appellant was given a VA physical examination. R. at 68-78. The VA physician noted hyperpigmentation and “discoloration of both feet.” R. at 70. The VA physician’s diagnoses were: (1) atherosclerotic heart disease; (2) hypertension; (3) history of shrapnel wounds left heel with scar formation; (4) history of frozen feet; (5) rule out arthritis of both ankle joints; (6) venous insufficiency of both feet and stasis dermato-sis of both feet and both legs; and (7) minimal varicosity of both legs. R. at 71, 76. A July 1990 x-ray report stated that abnormalities found in the feet were “most likely due to gouty arthritis.” R. at 78.

In a letter mailed to the appellant in August 1990, the RO disallowed the appellant’s claim because he had failed to submit medical evidence either from Dr. Matthews, the appellant’s previous physician, or Dr. Trilli (a fact that was incorrect). R. at 82-3. The RO notified the appellant that his claim could be reactivated by submitting other documents. Id. In response, the appellant submitted a copy of appointment dates from Dr. Trilli’s office. R. at 87-88.

In September 1990, the RO acknowledged that it had been incorrect in issuing an adjudication letter disallowing the claim on the basis of appellant’s failure to submit Dr. Tril-li’s records but continued to deny service connection for residuals of frostbite because the appellant had not submitted service verification. R. at 91. The appellant mailed the RO proof of service which was received February 4,1991. R at 94.

On February 11, 1991, an RO rating decision granted the appellant service connection for the shrapnel wound scar on the left heel. R. at 98-99. The sear was rated at 0% disabling because it was not found to be painful or tender. Id. Service connection for residuals of frostbite, however, was denied “as there is no medical evidence to show that the veteran suffered from this condition while on active military duty.” R. at 99.

[49]*49On April 15, 1991, the RO sent another letter to the appellant confirming a 0% rating for residuals of the shrapnel wound but disallowing service- connection for residuals of frostbite. R. at 101. Also in April 1991, the RO requested the appellant’s medical records from the NPRC. R. at 104. ' The NPRC responded by sending some information obtained from the Hospital Admission Card data files from the Office of the Surgeon General. R. at 106. These records showed that the appellant had been hospitalized for 119 days beginning in January 1945 for a shell fragment wound of the foot. Id. The record contained no diagnosis for frozen feet.

On June 18, 1991, the appellant filed a Notice of Disagreement (NOD) contesting the rating decision issued on April 15, 1991. R. at 109-10. The appellant also submitted a letter from Dr. William Kilpatrick which stated that the appellant suffered from “an element of peripheral neuropathy” in his heels. R. at 112. Neuropathy is a “disorder affecting any segment of the nervous system.” Stedman’s Medical Dictionary, 1204 (26th ed.1995). Dr. Kilpatrick stated that “[t]he real question is — what is the cause of his peripheral neuropathy; whether it is old damage from the frostbite he had in his feet, or whether or not it is related to other problems acquired later in life.” R. at 112.

On December 10, 1991, the RO issued another rating decision which continued the 0% evaluation for the scar and denied service connection for the residuals of frozen feet. VA issued a Statement of the Case (SOC) on December 18, 1991. R. at 118-26. The appellant filed an appeal with the BVA on January 23,1992. R. at 128.

A personal hearing was held for the appellant on March 26, 1992. R. at 135-57. During the hearing, the appellant and his wife both testified that the appellant’s feet have been sore every winter since leaving the service. R. at 144-48. The appellant testified that Dr. Matthews “hasn’t submitted nothing” and that the only evidence he had relating to treatment with Dr. Matthews was his appointment cards. R. at 154. The appellant also testified to a conversation that he had with a physician, Dr. Corry, during an examination in which she made some comments about his foot condition. The transcript from the hearing contained the following testimony:

MR. ALVEREZ:
Q: Dr. Corry examined you. What did she say about your foot?
MR. RUSSO:
A: She ... she had some kind of an instrument that she was running along the . sear and she said, “That’s very sensitive,” which made me jump. I didn’t yell or scream at her. And she said, “That’s very sensitive.” I said “Yes it is.” And she says ... she looked at it and she said, “The reason why they couldn’t stitch it is because you had frozen feet.” And I said, ‘Well that’s what I am here to prove that I had frozen feet. I guess that’s the purpose of this here exam.”

R. at 145. An April 1992 RO decision, following the decision of the hearing officer, assigned a 10% evaluation for the scar on the left heel but continued the denial of service connection for the residuals of frozen feet. R. at 164.

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Bluebook (online)
9 Vet. App. 46, 1996 U.S. Vet. App. LEXIS 192, 1996 WL 147613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russo-v-brown-cavc-1996.