Smallwood v. Brown

10 Vet. App. 93, 1997 U.S. Vet. App. LEXIS 106, 1997 WL 43307
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 3, 1997
DocketNo. 94-609
StatusPublished
Cited by45 cases

This text of 10 Vet. App. 93 (Smallwood 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
Smallwood v. Brown, 10 Vet. App. 93, 1997 U.S. Vet. App. LEXIS 106, 1997 WL 43307 (Cal. 1997).

Opinion

NEBEKER, Chief Judge:

The appellant, Carl Smallwood, appeals two March 28,1994, decisions of the Board of Veterans’ Appeals (BVA or Board). The first decision denied (1) service connection for residuals of injuries to Muscle Groups I through IV, (2) increased ratings for residuals of gunshot wounds of the right foot and right side of the chest, and (3) a total rating based on individual unemployability (TDIU). The Board styled this decision as a “reconsideration” of two earlier Board decisions. The second decision denied (1) service connection for arthritis of the cervical spine, (2) an increased rating for osteomyelitis, and (3) an increased rating for a right sternoclavicular joint separation. For the reasons set forth below, the Court will dismiss the appeal for lack of jurisdiction with respect to the claim for residuals of injuries to the muscle groups and the claim for arthritis of the cervical spine. With regard to the remaining claims, the Court will vacate both Board decisions and will remand these matters for further proceedings.

[95]*95I. FACTUAL BACKGROUND

The appellant served in the United States Army from June. 1936 to April 1939, and from November 1939 until July 1952. Record (R.) at 32. His service included combat duty in both World War II and the Korean Conflict. Ibid. In November 1944, he was wounded by an artillery shell fragment, and received an injury to the tip of his nose, left side of his chin and left index finger. R. 179-84. In March 1945, he was shot in the right side of the chest, suffering a severe penetrating wound and multiple lacerations of the right lung. R. 188, 192. In September 1950, during his service in Korea, the appellant sustained a gunshot wound to his right foot. The shot went in at the arch of the foot and exited though the heel. After a series of examinations, x-rays, and operations, the appellant was medically retired from the Army in July 1952. R. at 476. In January 1953, a VA regional office (RO) awarded him service connection for residuals of the gunshot wounds to his chest and right foot. R. at 508-09. He received a combined 40% rating for his disabilities. Ibid. In July 1954, he was awarded service connection for osteomyelitis of the right calcaneus at the 10% level. R. at 534-35. The calcaneus is a tarsal bone of the foot and is commonly known as the heel bone. See WebsteR’s Medioal Desk DICTIONARY 93 (1986).

In February 1982, the RO awarded the appellant a 60% rating for his various service-connected disabilities. R. at 564. He disagreed with the rating and filed a claim for a 100% rating based on TDIU. R. at 575. In support of this claim, he submitted a statement from Dr. Carl Pigman, which provided the following diagnoses: (1) osteomyelitis of the right calcaneus; (2) right lung pathology; (3) right-side chest pathology; (4) osteoarthritis of the dorsal and lumbar spine and both shoulders; and (5) gastritis. R. at 568. Dr. Pigman further stated that the appellant was “totally disabled for any type of employment.” Ibid.

In January 1984, the BVA granted service connection for residuals of a right shoulder separation, denied the TDIU claim, denied increased ratings for residuals of gunshot wounds to the right side of the chest and right foot, and denied an increased rating for osteomyelitis of the right calcaneus. R. at 651. In April 1984, pursuant to the BVA’s grant of service connection for separation of the right sternoclavicular joint, the RO assigned a 20% disability rating. R. at 655. This rating brought his total combined disability rating to 70% disabling. Ibid. In November 1987, the Board denied claims for service connection for a back disability and injury to Muscle Groups I through IV, denied a TDIU claim, and denied increased ratings for the appellant’s remaining service-connected disabilities. R. at 750-56, Supplemental (Suppl.) R. at 1-12.

In March 1988, the appellant filed another claim for an increased rating for his service-connected right shoulder and right foot disabilities. R. at 761. He also filed a new claim for service connection for a cervical spine disability. Ibid. In April 1988, the RO issued a deferred rating decision and requested that the appellant “submit medical evidence in support of [his] claim, including continuous treatment records for his claimed cervical spine condition.” R. at 763. In a letter dated May 4, 1988, the RO informed the appellant that he could submit additional medical evidence, “which would support [his] claim[,] including medical evidence showing continued treatment for [his] disability to [his] cervical spine from the time of [his] discharge from the military to the present.” Second Suppl. R. at 1. In October 1988, the RO mailed the appellant the following letter:

This letter concerns your recent claim for [VA] benefits. Before final action could be taken on your claim, we needed medical evidence to include medical evidence to show continued treatment for your cervical spine from the time of your discharge to the present. This evidence was requested in our letter to you dated May 4, 1988. Our records do not show that we have received this evidence, therefore, we have disallowed your claim.
This disallowance does not mean that you cannot submit the requested evidence. You can do so at any time. However, if the evidence is not received before May 4, 1989, one year from the date of our first letter, benefits, if otherwise in order, can[96]*96not be paid prior to the date of receipt of this evidence.
If you disagree with this decision, please refer to the attached notification of your appeal rights.

R. at 790. On November 9, 1988, the appellant submitted a statement in support of his claim. He stated, in part: “This now is my Notice of Disagreement (NOD) to your October 20, 1988 disallowance of benefits.” He also enclosed medical records relating to his cervical spine disability. R. 792-93. In December 1988, the RO received an NOD with respect to the denial of his claim for increased disability ratings. R. at 817.

In February 1989, the appellant submitted a VA form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. R. at 830-32. The RO confirmed a prior rating decision which denied the appellant’s claim for TDIU. R. at 838. In April 1990, the BVA remanded to the RO for readjudieation in light of new evidence submitted after the issuance of the most recent Statement of the Case. R. 883-84. In June 1990, the Regional Office (RO) granted the appellant “[a]n increased evaluation ... for [his] osteomyelitis of the right foot at the 30% evaluation level.” R. at 907. However, the RO denied service connection “for degenerative joint disease of the neck,” and an “[i]ncreased evaluation of the service connected right shoulder disability and gun shot wound to the right foot remained denied.” Ibid. In October 1990 the appellant perfected his appeal by filing a VA Form 9, Appeal to the Board of Veterans’ Appeals (Form 9), and he requested that his claim be amended to include a TDIU claim. R. at 931-32. In November 1990, the RO issued a rating decision denying the appellant’s TDIU claim. R. at 940-42. In December 1990, the appellant filed another Form 9, for his TDIU claim. R. at 944.

In October 1991, the RO denied an increased rating for the appellant’s previously established service-connected disabilities, denied service connection for the cervical spine disability, and denied entitlement to TDIU. R. at 1003.

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Bluebook (online)
10 Vet. App. 93, 1997 U.S. Vet. App. LEXIS 106, 1997 WL 43307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smallwood-v-brown-cavc-1997.