Savage v. Gober

10 Vet. App. 488, 1997 U.S. Vet. App. LEXIS 1007, 1997 WL 688154
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 5, 1997
DocketNo. 94-503
StatusPublished
Cited by136 cases

This text of 10 Vet. App. 488 (Savage v. Gober) 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
Savage v. Gober, 10 Vet. App. 488, 1997 U.S. Vet. App. LEXIS 1007, 1997 WL 688154 (Cal. 1997).

Opinion

KRAMER, Judge:

The appellant, Frank B. Savage, appeals a March 16, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) that denied a claim of service connection for a right hip disability after determining that new and material evidence had been submitted to reopen the claim (claim 1); denied service connection for arthritis of multiple joints, other than the right hip (claim 2); and found not well grounded a claim of secondary service connection due to service-connected malaria for arthritis of multiple joints other than the right hip (claim 3). For the reasons that follow, the Court will affirm the Board decision.

I. BACKGROUND

The appellant had active military service in the U.S. Army ¡from April 1940 to July 1945. Record (R.) at 32, 35, 133, 140. His service medical records (SMRs) show, inter alia, several bouts of malaria (R. at 36, 38, 41, 53, 59, 61, 63-64, 66-67, 69). In July 1941, his SMRs noted a strain of the lumbar region as a result of a fall while descending a companionway. R. at 58. Hospital records from April 1942 reported that the appellant complained of back pain and was given heat treatments to the lumbar region. R. at 77, 79. Examinations in April 1942 and June 1943 reported no abnormalities of the bones, joints, or muscular system. R. at 75, 101. In February 1944, the appellant was admitted to the orthopedic clinic with complaints of back pain of two years’ duration. R. at 120-21. A history of injury to the back two years earlier and re-injury two weeks earlier was noted. Id. An x-ray of the lumbar spine [490]*490was negative. Id. The appellant’s July 1945 separation examination reported musculoskeletal defects as “none.” R. at 131.

In February 1947, the appellant filed with a VA regional office (RO) a claim of service connection for, inter alia, malaria. R. at 136. The RO granted service connection at 0% disabling for malaria. R. at 146.

A December 1978 x-ray report noted that bones in the right wrist were mildly osteoporotic. R. at 163. A March 1981 x-ray report noted a five-year history of a septic right ankle and an impression of severe degenerative disease in the right ankle. R. at 167. An April 1981 x-ray report revealed findings consistent with gouty arthritis of the right elbow. R. at 170. A May 1981 VA hospital report noted that the appellant had developed bursitis following trauma to the right elbow approximately five years earlier. R. at 172, 176. In August 1981, the RO denied an increased rating for the appellant’s service-connected malaria and denied service connection for a hip injury, although the record does not reflect that the appellant ever filed a claim with respect to the latter. R. at 181. An October 1981 x-ray report noted a history of right hip pain for several months, which was noted to be possibly post status to an injury in 1947. R. at 185. The x-ray report noted mild degenerative spurring in the lumbar spine; however, x-rays of the hip and pelvis were normal. Id. In an August 1984 VA examination, the examiner reported, inter alia, limited external rotation of the left hip. R. at 252. A February 1985 x-ray report noted symmetrical mild degenerative arthritis in both hips. R. at 257. In August 1985 VA progress notes, the examiner noted that right hip pain had begun approximately two or three weeks earlier. R. at 263. Later that same month, an x-ray report of the right hip noted that “[t]he lateral margin of the ilium is indented suspicious of possibly some old trauma.” R. at 262. The x-ray report of the lumbosacral spine noted, inter alia, “an old compression fracture of the vertebral body of L-2” and “areas of degenerative spondylosis with some rather prominent bony spurring.” Id. Later that same month, VA progress notes reported that the appellant had a long history of low back and right hip pain since an injury in the service. R. at 265. In December 1985, VA progress notes revealed a long history of right hip, knee, and foot pain and indicated that there was history of trauma. R. at 269. The notes described the hip and knee pain as rare and mild. Id.

In February 1990, the appellant filed a claim of service connection for arthritis of multiple joints as secondary to his service-connected malaria, and requested that his claim of service connection for a right hip disability be reopened. R. at 284. In March 1990, the RO denied service connection for arthritis of multiple joints, secondary to the service-connected malaria, and determined that new and material evidence had not been submitted to reopen the claim of service connection for a right hip disorder. R. at 288-89. The appellant filed a timely Notice of Disagreement (R. at 293) and a VA Form 1-9, Appeal to the Board of Veterans’ Appeals (Form 1-9) (R. at 303-04).

In a January 1991 hearing at the RO, the appellant testified that during service he had fallen down stairs on a ship, landed on his hip and back, and was hospitalized for approximately 10 days. R. at 307-08. He reported that he was limping at the time of his discharge (R. at 309) and had received heat treatments and massages over the years, although not through the VA system (R. at 311). He further contended that his multiple-joint problems had developed as a result of his service-connected malaria. R. at 314-15. In February 1991, a VA hearing officer confirmed the denial of service connection for arthritis of multiple joints, secondary to the service-connected malaria, and determined that no new and material evidence had been submitted to reopen the claim of service connection for a right hip disorder. R. at 321-23. In an August 1991 decision, the BVA remanded the multiple-joint arthritis and right hip claims for further evidentiary development and readjudication and referred a claim of service connection for residuals of a back injury to the RO for further development. R. at 351-354.

In August 1991, a VA outpatient treatment record noted arthritis of the right hip, knees, and ankles. R. at 358. In a statement in support of claim dated March 1992, which referred, inter alia, to claims for hip and back [491]*491disabilities, the appellant stated that he “need[ed] comp exam.” R. at 384. In May 1992, the RO denied, inter alia, service connection for a back condition, determined that no new and material evidence had been submitted to reopen the claim of service connection for a right hip disorder, and confirmed the denial of service connection for arthritis of multiple joints. R. at 391-92. In a June 1992 Form 1-9, the appellant noted “[b]ack problem of 2/44 [and] hip at same time still bothers me and I walk with a limp.” R. at 420-21.

In a July 1992 statement, Robert G. Haling, a chiropractor, reported that he had initially seen the appellant in September 1980 for complaints of low back and hip pain. Dr. Haling noted the appellant’s history of an injury incurred by the appellant’s falling down steel steps on a ship in 1941, and he recorded the appellant’s statement that he had walked with a limp ever since. Supplemental (Suppl.) R. at 1. In a September 1992 hearing, the appellant and his wife testified that he had experienced bouts of malaria over the years (R. at 424-28) and continual hip pain (R. at 428-30). Later that same month, a VA hearing officer confirmed the denial of service connection for arthritis of multiple joints, and determined that no new and material evidence had been submitted to reopen the claim of service connection for a right hip disorder. R. at 434-36.

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

Related

200518-84523
Board of Veterans' Appeals, 2021
190510-20691
Board of Veterans' Appeals, 2021
201020-113953
Board of Veterans' Appeals, 2021
200222-66378
Board of Veterans' Appeals, 2021
200819-105250
Board of Veterans' Appeals, 2020
191030-65667
Board of Veterans' Appeals, 2020
181113-893
Board of Veterans' Appeals, 2019
10-31 148
Board of Veterans' Appeals, 2018
14-16 384
Board of Veterans' Appeals, 2018
12-15 063
Board of Veterans' Appeals, 2017
13-11 846
Board of Veterans' Appeals, 2017
17-13 836
Board of Veterans' Appeals, 2017
10-19 056
Board of Veterans' Appeals, 2017
10-43 052
Board of Veterans' Appeals, 2017
10-29 487
Board of Veterans' Appeals, 2017
06-12 124
Board of Veterans' Appeals, 2016
07-29 105
Board of Veterans' Appeals, 2016
11-00 108
Board of Veterans' Appeals, 2016
10-34 819
Board of Veterans' Appeals, 2016

Cite This Page — Counsel Stack

Bluebook (online)
10 Vet. App. 488, 1997 U.S. Vet. App. LEXIS 1007, 1997 WL 688154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savage-v-gober-cavc-1997.