Seals v. Brown

8 Vet. App. 291, 1995 U.S. Vet. App. LEXIS 800, 1995 WL 638634
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 1, 1995
DocketNo. 93-686
StatusPublished
Cited by10 cases

This text of 8 Vet. App. 291 (Seals 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
Seals v. Brown, 8 Vet. App. 291, 1995 U.S. Vet. App. LEXIS 800, 1995 WL 638634 (Cal. 1995).

Opinions

[293]*293IVERS, Judge, filed the opinion of the Court in which NEBEKER, Chief Judge, joined.

STEINBERG, Judge, filed an opinion concurring in part and dissenting in part.

IVERS, Judge:

William Seals, Jr., appeals a March 25, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which denied his claim for (1) an increase in rating for fusion of the right ankle with arthrodesis and traumatic arthritis (currently rated as 30% disabling); (2) an increase in rating for chronic osteo-myelitis of the right foot and ankle (currently rated as 20% disabling); and (3) an extension beyond January 31, 1990, of a temporary total disability evaluation under the provisions of 38 C.F.R. § 4.30. William Seals, Jr., BVA 93-05550 (Mar. 25, 1993). Each party filed a brief. The Court has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will vacate the decision of the BVA as to the issues of entitlement to increased ratings for fusion of the right ankle with arthrodesis and traumatic arthritis and osteomyelitis, will reverse as to the issue of entitlement to a temporary total disability evaluation, and will remand the case for readjudication consistent with this opinion.

I. Factual Background

The appellant served in the United States Army from November 1968 to April 1970. R. at 72. He injured his ankle and, in December 1968, underwent a closed reduction of the right lateral malleolus. R. at 31, 35. “Malleolus” is a general term for the protuberance on either side of the ankle joint. Dorland’s IllustRated MediCal Dictionaey 975 (27th ed. 1988) [hereinafter Dorland’s]. It appears from the record that while the appellant was being treated for his ankle injury, he removed the leg east and the foot healed improperly. R. at 49, 55-56. The appellant was discharged due to physical disability as a result of the ankle injury. R. at 49, 72.

In October 1970, the VA regional office (RO) granted service connection (rated as 0%) for a fracture of the right ankle, but concluded that the malunion of the fractured ankle was the result of willful misconduct by the appellant because he had removed the cast against medical advice. R. at 77. In August 1980, a BVA decision determined that the residuals of the appellant’s ankle problems were not due to his own willfiil misconduct. R. at 89. In October 1980, the RO granted service connection for malunion of the fracture of the right ankle with traumatic arthritis rated 100% from February 1, 1979, to March 31, 1979; rated 20% from April 1, 1979, to August 31, 1979; rated 100% from September 1, 1979, to December 31, 1979; and then rated 20% from January i, 1980. R. at 93.

In April 1982, the appellant underwent surgery for arthrodesis of the right subtalar joint with an iliac bone graft. R. at 112-14. “Arthrodesis,” is the “surgical fixation of a joint by a procedure designed to accomplish fusion of the joint surfaces by promoting the proliferation of bone cells.” Dorland’s at 148. “Subtalar” means beneath the talus, the ankle. Id. at 1602, 1661. The “iliac” pertains to the ilium which is the “expansive superior portion of the hip bone.” Id. at 816-17. A medical report dated June 1982 noted that the appellant had had three right tibial talar fusions. R. at 125-28. In May 1983, the RO granted service connection for postoperative fusion of the right ankle with triple arthrodesis and traumatic arthritis rated at 100% from April 1982 and 30% from July 1983. R. at 170-71. In October 1986, the BVA denied an increased rating for residuals of a fusion of the right ankle, and denied an award of a temporary total disability rating based upon convalescence beyond January 31, 1984. R. at 173-79. In October 1988, the BVA again denied an increased rating for residuals of a fusion of the right ankle. R. at 183-90.

The appellant filed a December 1986 informal claim for total disability based on individual unemployability (TDIU) and an October 1988 TDIU application for increased compensation for his ankle disability. R. at 184, 192-94. In January 1989, the appellant requested a temporary 100% convalescence rating because he had been placed in an ankle cast. R. at 200. In February 1989, the RO granted a 100% rating based on the [294]*294need for convalescence from January 12, 1989, to March 1, 1989, and denied a TDIU rating. R. at 203. The RO granted several more extensions of the appellant’s temporary 100% rating for the periods January 12,1989, to May 1, 1989, June 20, 1989, to October 1, 1989, June 20, 1989, to November 1, 1989, and June 20, 1989, to February 1, 1990. R. at 234, 243, 257, 264. The appellant had surgery on his right foot and ankle in June 1989. R. at 238. In December 1989, the RO deferred, pending a VA examination, review of a claim for disability based upon osteo-myelitis. R. at 264. Osteomyelitis is inflammation of a bone caused by a pus-producing organism. DoRLANd’s at 1200, 1395.

In a VA medical progress report dated February 1990, it was noted that the appellant had permanent osteomyelitis of the right ankle. R. at 276. The RO on March 12, 1990, granted sendee connection for chronic osteomyelitis of the right foot and ankle (rated as 20% disabling), and continued the 80% rating for fusion of the right ankle. R. at 290. A March 26, 1990, medical notation indicates that the appellant is “totally disabled to attend any job.” R. at 296. A March 27, 1990, medical notation indicates that the appellant had continued drainage of the ankle and required additional convalescence time. R. at 300. A May 29, 1990, medical notation states that the appellant was not able to return to work while there was drainage from the ankle. R. at 319.

In August 1990, the RO denied an increase in the rating for the right ankle fusion and osteomyelitis, and any need for convalescence due to surgery. R. at 322. The appellant filed a Notice of Disagreement (NOD). R. at 324. A Statement of the Case (SOC) was issued. R. at 325. A September 1990 RO decision confirmed the August 1990 decision. R. at 331. The appellant filed an NOD, and a supplemental SOC was issued. R. at 333-35. The appellant appealed to the BVA. R. at 337. In September 1990, the appellant underwent surgery for removal of “hardware” of the right foot, and irrigation and debridement of the right foot. R. at 344. An October 1990 medical notation indicates that he would require six months of convalescence. R. at 341. On October 23, 1990, the RO granted a temporary 100% rating from September 21, 1990, until November 1, 1990, for fusion of the right ankle, arthrodesis, and traumatic arthritis. R. at 349. The appellant filed an appeal claiming that VA did not address the issue of his entitlement to a 100% rating from February 1990. R. at 356, 358.

In November 1990, the RO extended the temporary 100% rating for the right ankle fusion until December 1,1990. R. at 365. In January 1991, the RO extended the temporary 100% rating through January 1, 1991. R. at 371. In March 1991, the RO noted that the appellant walked with “support shoes,” and denied any increase in his permanent ratings. R. at 380. A supplemental SOC was issued. R. at 382. The appellant submitted a letter, dated April 1991, which stated that he was not wearing a “support shoe” but rather a “Low Profile Walker” which enabled him to walk. R. at 385.

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Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 291, 1995 U.S. Vet. App. LEXIS 800, 1995 WL 638634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seals-v-brown-cavc-1995.