Seaton v. Derwinski

2 Vet. App. 606, 1992 U.S. Vet. App. LEXIS 159, 1992 WL 147361
United States Court of Appeals for Veterans Claims·Decided July 17, 1992·No. No. 90-1284·Published

Opinion

MEMORANDUM DECISION

IVERS, Associate Judge:

James M. Seaton appeals an August 10, 1990, decision of the Board of Veterans’ Appeals (BVA or Board). In that decision, the BVA denied the appellant’s claim for service connection for herpes, hiatal hernia, Barrett’s esophagus, duodenal ulcer, lung cancer, and Zenker’s diverticulum; denied an increased rating for the veteran’s service-connected dermatitis, currently rated at ten percent; and denied a compensable [607] rating for the veteran’s service-connected bronchogenic cyst. The Secretary of Veterans Affairs (Secretary) has moved the Court for summary affirmance. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a) (formerly § 4052(a)). Because the Court finds that the BVA committed neither factual nor legal error in its adjudication of the veteran’s claims for an increase for his dermatitis, for a compensa-ble rating for his bronchogenic cyst, or for service connection for lung cancer, the Court affirms the decision of the Board denying these claims. However, for the reasons set forth in this decision, the Court vacates that portion of the Board’s decision denying the veteran’s claims for service connection for herpes, hiatal hernia, Barrett’s esophagus, duodenal ulcer, and Zenker’s diverticulum, and remands those matters for readjudication consistent with this decision.

The veteran served in the United States Army from February 1942 to January 1945. R. at 1. Shortly after entering the service, he was diagnosed as having a benign “mass” or “tumor” of the mediastinum which was monitored regularly by Army doctors during his years in service. R. at 4,12,16,18, 38-39, 41-44, 47, 52, 54, 56-58, 61, 74-75, 77-78, 80, 86, 90, 93, 99, 102-03, 113, 116-18, 120, 122. (The mediastinum is the space in the chest between the pleural sacs of the lungs that contains all the viscera of the chest except the lungs and pleurae. Webster’s Medical Desk Dictionary 417 (1986).) In addition to the follow-up examinations for the tumor, the veteran underwent treatment in service for a skin disease of the feet (R. at 19-21, 24-29, 73) and was referred for psychiatric evaluation. R. at 92. The impression of the psychiatrists was “schizoid personality, mild.” R. at 97, 122-23.

In January 1945, the veteran was found unfit for military service because of the benign tumor, which was judged not to have existed prior to service but to have been incident to service and incurred in the line of duty. R. at 127. After his discharge from service, the veteran’s tumor was often characterized and diagnosed by doctors as a benign bronchogenic cyst. R. at 141, 149-50, 154, 157, 171. The earliest rating sheet of record, dated April 4, 1947, showed him to be service-connected from January 13, 1945, for “brochogenic [sic] cyst, benign”. R. at 161. The rating sheet also showed the veteran as having a “schizoid personality”, which was uncompensated because the “[c]ondition is ... a constitutional or developmental abnormality, not a disability within the meaning of Title I, Public No. 2, 73d Congress WW II V R 1(a), Part I, Par. 1(a).” Id.; see 38 C.F.R. § 4.9 (1991). A May 1950 rating decision granted service connection at thirty percent from January 1, 1950, for “[a]nxiety reaction, superimposed upon [c]yst [m]ediasti-num.” R. at 172. The rating board noted that a Veterans’ Administration (now Department of Veterans Affairs) (VA) examination and a doctor’s statement showed “that the veteran has developed anxiety reaction, superimposed upon cyst mediasti-num[;] the latter is service-connected.” Id.

Over the years, the veteran’s thirty-percent rating for anxiety reaction, superimposed upon cyst mediastinum [which was called “bronchogenic cyst” again after 1970] has remained unchanged despite numerous examinations and claims for increase. R. at 186,188,193-94, 200, 220-21, 225, 241, 302-13. In 1986, the BVA evaluated the veteran’s service-connected anxiety reaction and bronchogenic cyst separately, holding that the anxiety reaction should be continued at thirty percent but that the cyst was not shown to produce symptoms and did not warrant a compensa-ble rating. R. at 302, 312. Furthermore, over the years, the veteran has had a service-connected rating for chronic dermatitis, which rating has fluctuated between ten percent and thirty percent. R. at 220-21, 225, 241, 245-50, 255-58, 273-76, 301-13.

To evaluate the veteran’s most recent claims, i.e., those which are the subject matter of this appeal, the VA did not order an examination for the veteran, although it appears that, between the time of the Regional Office decision and the BVA decision, the veteran requested such an examination. R. at 345. Instead, the Board considered a summary of the findings of a 1989 private medical examination submitted by the veteran in support of his claim; [608] the Board also considered other evidence, including the report of a VA examination conducted in October 1985, VA outpatient treatment reports from the 1980’s, and other older reports from both VA and private sources. James M. Seaton, BVA 90-27505, at 2-3 (Aug. 10, 1990). The 1989 private medical report from the Mayo Clinic, Jacksonville, Florida, was the first of many examinations over the years, including the 1985 VA examination, to show diagnoses for “diaphragmatic hernia, reflux esophagitis, probable Barrett’s esophagus and a duodenal ulcer.” R. at 330. (A “[p]robable hiatal hernia with esophageal reflux” was listed as an “[i]mpression” of a VA examining physician in 1983. R. at 269.) Other findings of the 1989 examination included “[a] small Zenker’s diverticu-lum” and “[h]erpes [s]implex II.” R. at 330-31. The report did not show a diagnosis of lung cancer and instead stated that biopsies revealed no evidence of cancer, although it was unclear whether the biopsies were taken in order to determine the presence of cancer of the lung or of other areas, such as the esophagus. R. at 330-31. There was no evidence at all in the record of a diagnosis of lung cancer.

In denying the veteran’s claim for service connection for the ailments diagnosed in 1989, the BVA found that “[t]he post[-]service[-]reported herpes, hiatal hernia, Barrett’s esophagus, duodenal ulcer, and Zenker’s diverticulum are not causally related to a service-connected disability.” Seaton, BVA 90-27505, at 6. The DISCUSSION AND EVALUATION section of the decision articulated this finding in more detail: “The post[-]service[-]reported herpes, hiatal hernia, Barrett’s esophagus, duodenal ulcer, and Zenker’s diverticulum developed independently and irrespective of the service-connected disabilities reported as anxiety reaction, dermatitis, and bron-chogenic cyst.” Id., at 5. However, the Court finds no clinical or medical evidence in the record, including the 1989 report from the private clinic, to support this finding.

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Seaton v. Derwinski, 2 Vet. App. 606, 1992 U.S. Vet. App. LEXIS 159, 1992 WL 147361 (Cal. 1992).

2 Vet. App. 606 (Seaton v. Derwinski) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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