Schafrath v. Derwinski

1 Vet. App. 589, 1991 U.S. Vet. App. LEXIS 127, 1991 WL 250698
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 26, 1991
DocketNo. 89-114
StatusPublished
Cited by767 cases

This text of 1 Vet. App. 589 (Schafrath v. Derwinski) 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
Schafrath v. Derwinski, 1 Vet. App. 589, 1991 U.S. Vet. App. LEXIS 127, 1991 WL 250698 (Cal. 1991).

Opinion

STEINBERG, Associate Judge:

The veteran, Roger J. Schafrath, appeals the reduction of his rating for a bone spur of the right elbow from ten percent to noncompensable. The Board of Veterans’ Appeals (BVA or Board) upheld the rating reduction based upon a physician’s report indicating that there was no limitation of motion in the right elbow. The Board erroneously failed to apply the provisions of 88 C.F.R. § 4.40 to determine whether the appellant’s compensable rating should be continued because of “functional loss” due to pain, and the provisions of other regulations requiring that the entire recorded history of the disability be considered. Hence, the BVA decision was void ab initio and it is reversed with instructions that the Board order reinstatement of the 10-per-cent rating. The Board also breached its statutory duty to assist the appellant in developing facts pertinent to the claim and to provide an adequate statement of reasons or bases for aspects of its decision.

I. BACKGROUND

The following facts are drawn from secondary sources in the record since no service records are included in the record on appeal. The veteran served in the United States Navy from December 1974 to July 1977. At some point during service, he injured his right wrist and elbow while playing football at a Naval station in Alaska. He was medically discharged with a 20-percent service-connected disability, consisting of disability ratings of 10 percent for the right wrist and 10 percent for the right elbow. R. at 3. An X-ray taken three months after the injury revealed a bone spur on the elbow at the tip of the right olecranon (point of the elbow). R. at 3. The veteran was “advised against excision” of the spur on the grounds that the resulting scar tissue would be “worse than the spur.” R. at 3. Consequently, the veteran chose to receive no treatment for the spur. Br. of Appellant at 1.

In 1984, the veteran apparently had surgery on his right wrist to correct the carpal tunnel syndrome which had deprived him of feeling in his right hand and fingers. R. at 3. In 1985, a fusion was apparently performed in which a metal plate and screws were inserted in his wrist, and bone from his hip was grafted into his wrist. The veteran had no motion in his right wrist. R. at 3. On May 1,1986, a Regional Office (RO) of the Veterans’ Administration (now the Department of Veterans Affairs) (VA) increased the rating for his service-connected disability of the right wrist to 40 per[591]*591cent, leaving his elbow at 10 percent. R. at 6. In September 1986, the plate and screws were surgically removed from his wrist when they came loose, and the veteran has reported an increase in pain in his right wrist since that time. Supp. Br. of Appellant at 11.

In September 1988, a VA physician, Dr. Zorn, examined the veteran and reported that the right elbow exhibited “a full range of motion and flexion and extension of the elbow as well as pronation and supination.” R. at 3. The physician also noted that the olecranon tip was “sensitive to pressure”, and reported that the veteran “states that the wrist is not painful now” and “is working in construction as a carpenter.” Ibid. Subsequent to this examination, the RO reduced the veteran’s disability rating for his right elbow from 10 percent to non-compensable, effective January 1, 1989. The rating board stated that the 10-percent disability evaluation was no longer supported because the right elbow “reveals a full range of motion and flexion and extension” and “fails to indicate any abnormality other than [the] spur formation”. R. at 5.

On appeal to the BVA, the veteran claimed that his elbow was in constant pain, which prevented him from performing his work as a carpenter. R. at 7, 12. In a November 15, 1988, Statement in Support of Claim, the veteran stated: “My elbow has not gotten better but has worsen [sic] as I can not lean on it or stand to have anything hit it. I am in constant pain from my elbow & wrist right arm as well as my left shoulder.” R. at 7. The VA’s December 29, 1988, Statement of the Case reiterated that his elbow was capable of a full range of motion and that the rating schedule (38 C.F.R. § 4.71a, DC 5206) requires a rating of noncompensable status when flex-ion of the forearm is greater than 100 degrees. R. at 10.

In his January 10, 1989, Notice of Disagreement, the veteran stated: “I am now having pain from my elbow-right-down through my thumb. I was at the VAOPC/ ORL. 1-9-89 about this because I could not do the work I am assigned to do.” R. at 12. The veteran also stated that, upon examining his arm in January 1989, an unnamed VA physician “believefd] that something [was] wrong [and] want[ed] me to return”. R. at 12. The veteran specifically requested the Board to obtain the records of that examination from the VA Outpatient Clinic (OPC) in Orlando, Florida. R. at 12. The veteran’s statement to the BVA also indicated that he had seen Dr. Zorn at least two more times. The veteran’s request for the Orlando records was presented to the Board on two other occasions by his representative. R. at 13, 15.

On July 7, 1989, the Board held that the veteran was not entitled to a compensable rating for his elbow condition because his forearm flexion exceeded the compensable limit under the rating schedule. In its “Discussion and Evaluation”, the Board stated:

The veteran’s right elbow disability is evaluated on the basis of limitation of motion. In the instant case, the recent [VA] examination demonstrated that the veteran has no limitation of motion in the right elbow. In the absence of current evidence of such limitation, we must conclude that the veteran’s right elbow disability has improved and that it does not meet the criteria for a compensable evaluation. In reaching this decision we have considered the provisions of 38 C.F.R. 4.7 and the doctrine of reasonable doubt, but can find no basis on which to allow this case.

Roger J. Schafmth, BVA 89-07830 at 3 (July 7, 1989).

II. ANALYSIS

The BVA decision contains four errors: (1) failure to apply applicable regulations (part A, below); (2) failure to provide reasons or bases for aspects of its decision (part A, below); (3) failure to obtain certain requested VA medical records (part B, below); and (4) failure, on its own, to obtain prior treatment records and to order a contemporaneous medical examination (part C, below).

A.

The veteran repeatedly asserted to the BVA that the pain in his arm due to the [592]*592service-connected injury to his elbow prevented him from working as a carpenter. In his submissions to the BVA he stated that he was “in constant pain” from his right elbow and wrist, and due to the pain he “could not do the work [he was] assigned to do.” R. at 7, 12. Under 38 C.F.R. § 4.40, functional disability due to pain may be the basis of a compensable rating. That section provides:

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.

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Bluebook (online)
1 Vet. App. 589, 1991 U.S. Vet. App. LEXIS 127, 1991 WL 250698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schafrath-v-derwinski-cavc-1991.