Smith v. Brown

8 Vet. App. 546, 1996 U.S. Vet. App. LEXIS 62, 1996 WL 66110
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 14, 1996
DocketNo. 92-1369
StatusPublished
Cited by31 cases

This text of 8 Vet. App. 546 (Smith 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
Smith v. Brown, 8 Vet. App. 546, 1996 U.S. Vet. App. LEXIS 62, 1996 WL 66110 (Cal. 1996).

Opinions

IVERS, Judge, filed the opinion of the Court. KRAMER, Judge, filed a concurring opinion.

IVERS, Judge:

George A. Smith, Jr., appeals from a July 23, 1992, Board of Veterans’ Appeals (BVA or Board) decision which denied his claim for [548]*548service connection for a seizure disorder as a residual of a concussion or gunshot wound. George Smith, BVA 92-17472, (July 23, 1992). The appeal presents two questions. First, can the BVA Chairman’s sua sponte grant of reconsideration of a Board decision, precipitated by a Notice of Disagreement (NOD) predating November 18, 1988, and thus beyond the jurisdictional reach of this Court, defeat the right of judicial review of a later Board decision with an NOD permitting judicial review? We hold that the right of judicial review may not be so defeated. The second question is whether the Board erred in denying the appellant’s claim on the merits. We hold that it did err in the four ways set forth in part II.B. of this opinion.

I. Facts

The appellant served in the United States military from February 1942 until July 1945. Record (R. at 48, 221). The service medical records (SMRs) indicate that he served in the European Theater of Operations and was wounded in action on five occasions: on November 3, 1943, he was wounded in the right upper arm, elbow, and wrists (R. at 22); on December 30, 1943, he suffered a cerebral concussion and minor abrasions (R. at 27, 48); on September 3, 1944, he sustained a gunshot wound through the left cheek which penetrated the neck (R. at 25, 29); on January 8, 1945, he received abrasions to the right arm and back (R. at 31); and on January 10, 1945, he suffered a sprained back after being knocked down by a shell explosion (R. at 33-34). He was awarded the Purple Heart five times. R. at 50. A December 1943 SMR contained a diagnosis of “concussion [illegible].” R. at 27; see R. at 43. The record also noted that in February 1944 the appellant was hospitalized with “psychoneurosis, anxiety state, chronic, recurrent, severe” incurred in the “line of duty.” R. at 43-44. The July 1945 separation examination noted the cerebral concussion as a “[p]resent physical defeet[ ]”, but it also noted that his neurological diagnosis was “normal.” R. at 48. In August 1945, he was denied service connection for a cerebral concussion and a back sprain. R. at 54.

A March 1984 physician’s note indicated that the appellant was being prescribed anti-seizure medications and had had neurological problems since 1980. R. at 62-64. Dr. Douglas McNinch, a neuropsyehologist, and Dr. David Wilson, a psychology intern, noted that his neurological problems had resulted in episodic confusion, disorientation, and memory loss. R. at 64.

A January 1985 VA Regional Office (RO) decision denied the appellant service connection for a cerebral concussion, cere-brovascular disease with partial complex seizure disorder, and status post bilateral carotid endarterectomy. R. at 110-12. Endarterectomy is the surgical removal of the inner layer of an artery which has thickened or occluded. Webster’s Medi-oal Desk Dictionary 210 (1986) (hereinafter Webster’s). He filed a timely NOD, a Statement of the Case (SOC) was issued (R. at 113-15), and the appeal progressed (R. at 117). In May 1985, the appellant testified that his current medical problems were directly related to his service injuries, pointing out that he was diagnosed with psychoneurosis following an episode where he was buried in a foxhole with the body of another soldier on top of him. R. at 122-23, 126. He also testified in May 1985 that, although physicians have asked him whether he had had any head injuries subsequent to service, “the only injuries that I have ever had that I could relate to this problem were the concussions that I suffered back in military service.” R. at 124. In November 1985, the BVA denied service connection for both disorders. R. at 140. The veteran requested reconsideration (R. at 142), and in January 1987 the BVA denied service connection because the appellant did not provide any medical opinions associating the cerebrovascular disease with the concussion reported in service (R. at 170).

In January 1988, in an attempt to reopen his claim, the appellant submitted to the RO several articles relating seizures to head trauma. R. at 182, 197. Reopening was denied for lack of new and material evidence. R. at 202. In March 1988, the appellant appeared at a hearing before the RO where he contended, inter alia, that his rating decision of June 1946 (R. at 54-55), which af[549]*549firmed the August 1945 RO decision (R. at 53), did not include the back disorder and the cerebral concussion, and therefore, this error should have “amended” or “corrected” his claim. R. at 207. VA treated this as an NOD, an SOC was issued, and he filed an appeal to the BVA. R. at 222-23. A December 1988 BVA decision remanded the case to the RO to adjudicate the question of the gunshot wound to the face in relation to a seizure disorder. R. at 232. The Board stated:

Thus, strictly speaking, the prior Board decisions were not “final” adjudicatory actions on this particular point. The veteran is therefore entitled to a decision “on the merits” for at least this aspect of his claim rather than having it simply addressed as a reopened claim after final adjudication as was done in this ease.

Id. The RO reviewed the matter and held that “it is not within the realm of possibility much less probability that seizures commencing about 1983 are due to the left cheek wound in 1944.” R. at 234. An SOC was issued (R. at 238), and the appellant appealed to the BVA. In December 1989, the BVA requested an Independent Medical Expert opinion, and presented two questions to the expert. R. at 247. In February 1990, Dr. Calvin Calhoun, a neurologist, examined the appellant’s medical records (including his SMRs) and submitted his response as follows:

[BVA:] What is the likelihood that the veteran’s seizure disorder may be independently attributable to head injury?
[Dr. Calhoun:] It is statistically unlikely that the veteran’s seizure disorder may be “independently” attributable to closed (none [sic] penetrating) head injury 30 years after the events. Most research on the subject indicates subsequent seizure occurrence greatest in the first year and at most 5% after 20 years. There are no good documented 30 year (or more) studies at this time.
On the other hand, small undetected areas of vascular damage and some gliotic areas with impaired neurons may become irrita-tive foci with subsequent decrease in perfusion with transient ischemia and/or hy-poxemia. [R. at 254.]
[BVA:] If the seizure disorder may reasonably be related to head injury, what is the likelihood that the disorder is a sequela of: (a) the gunshot wound of the face in service; or (b) the cerebral concussion(s) in service; or (c) a combination thereof? [Dr. Calhoun:] The seizure disorder may be related to subclinical brain injury with precipitation by subsequent cerebrovascu-lar disease which developed over the years since the closed head injuries (concussion). It may be noted that the “gunshot wound of the face in service” (with attending fracture of the mandible and neck injury) of its self [sic] may not be related to the seizures which emanate from the brain parenchy-ma. On the other hand, there was accompanying loss of consciousness which is the chief sign of concussion.

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

Related

13-32 948
Board of Veterans' Appeals, 2015
Rita L. Dicarlo v. R. James Nicholson
20 Vet. App. 52 (Veterans Claims, 2006)
Barney O. Padgett v. Anthony J. Principi
18 Vet. App. 223 (Veterans Claims, 2004)
John R. Gallagher v. Anthony J. Principi
17 Vet. App. 386 (Veterans Claims, 2003)
Browne v. Principi
16 Vet. App. 278 (Veterans Claims, 2002)
Webb v. Principi
15 Vet. App. 139 (Veterans Claims, 2001)
Gallegos v. Gober
14 Vet. App. 50 (Veterans Claims, 2000)
Kessel v. West
13 Vet. App. 9 (Veterans Claims, 1999)
Vargas-Gonzalez v. West
12 Vet. App. 321 (Veterans Claims, 1999)
Elkins v. West
12 Vet. App. 209 (Veterans Claims, 1999)
Valasco v. West
12 Vet. App. 172 (Veterans Claims, 1999)
Link v. West
12 Vet. App. 39 (Veterans Claims, 1998)
Marsh v. West
11 Vet. App. 468 (Veterans Claims, 1998)
Harris v. West
11 Vet. App. 456 (Veterans Claims, 1998)
Marlow v. West
11 Vet. App. 53 (Veterans Claims, 1998)
Chisem v. Gober
10 Vet. App. 526 (Veterans Claims, 1997)
Donovan v. Gober
10 Vet. App. 404 (Veterans Claims, 1997)
Marciniak v. Brown
10 Vet. App. 198 (Veterans Claims, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 546, 1996 U.S. Vet. App. LEXIS 62, 1996 WL 66110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-brown-cavc-1996.