Smith v. Brown

10 Vet. App. 44, 1996 WL 785603
United States Court of Appeals for Veterans Claims·Decided September 4, 1996·No. No. 94-1031·Published·Cited by 4 cases

Opinions

NEBEKER, Chief Judge:

The appellant, Bernard R. Smith, appeals an August 31, 1994, Board of Veterans’ Appeals (Board or BVA) decision denying entitlement to service connection for a varicocele. (Varicocele is “a varicose enlargement of the veins of the spermatic cord producing a soft compressible tumor mass in the scrotum.” Webster’s Medical Desk Dictionary 751 (1986).) The Board’s decision also denied entitlement to service connection for residuals of a hemorrhoidectomy, but the appellant has not appealed that issue. The appellant has submitted a motion for remand in lieu of a brief. The Secretary has filed a response in opposition of the motion. After consideration of the record on appeal and the pleadings of the parties, the Court will vacate the [45]*45BVA’s decision and remand the matter for the following reasons.

I. FACTS

The appellant served in the U.S. Army from June 1944 to April 1946. Record (R.) at 21. He initially claimed entitlement to service connection for a varicocele in January 1978. R. at 24-27. He submitted a diagnosis dated March 1978 of a varicocele above his left testicle. R. at 38. The regional office (RO) discovered that his service medical records had been lost in a fire at the National Personnel Records Center in 1973. R. at 31. The RO denied his claim on March 1, 1978. R. at 34. A couple of weeks later, the appellant submitted a statement explaining that he had been kicked in the groin during basic training at Camp Blanding, after which he was unable to complete basic training due to the injury. R. at 41-42. He reported that he had been treated for this condition by Dr. Paul K. Good, but no treatment records were available. Ibid. The RO sent the appellant a letter requesting that he furnish the dates he was treated at Camp Blanding and any medical evidence which established the continuity of treatment from separation from service to the present. R. at 46. The appellant responded that he had not been able to obtain hospitalization records from Camp Blanding and that he was treated after discharge by Dr. Paul K. Good, but that those records were not available. R. at 48. A May 1978 RO decision referred to the appellant’s claim for service connection for a varicocele as an attempt to reopen and stated, ‘Vet[eran]’s claim is a duplicate of that denied by 3-1-78 rating due to not being shown in any service records. No new [and] material evidence submitted. Confirm prior denial.” R. at 51. The RO sent the appellant a letter dated May 24, 1978, stating:

The application which you recently filed for disability benefits is essentially a duplicate of a claim previously filed by you.
Our records show that we notified you on March 9, 1978 that your claim for varicose veins, left testicle was disallowed and that you were permitted to appeal this decision within one year from that time, otherwise that decision would become final unless you could submit new and material evidence. Since you have not presented any new and material evidence, no change in our previous decision is warranted and no action on your duplicate claim will be taken.

R. at 53.

The appellant then wrote the RO a letter stating it had always been his belief that the Army “keep[s] very detailed records,” but that his Camp Blanding records were not available. R. at 56. He attached a form dated May 29, 1945, which informed the commanding officer at Camp Blanding that the appellant was to report for physical examination on June 1, 1945. R. at 58. The RO again decided that the appellant had not submitted any new and material evidence. R. at 61, 63.

In May 1985, the appellant submitted another statement reiterating that he had been kicked in the groin and, as a consequence, had not finished basic training. R. at 70-71. The RO determined that no new and material evidence had been submitted to reopen his claim for service connection. R. at 78. In December 1988, the appellant submitted copies of daily sick reports which noted that in August 1944 he had undergone treatment for an unspecified condition which preexisted service. R. at 114-19. The RO again found that the appellant had not submitted any new and material evidence to warrant reopening his claim. R. at 124.

In a personal hearing in July 1989, the appellant alleged that after he had been kicked in the groin in August 1944, his service records had been changed to show that the varicocele preexisted service to protect the officer who had kicked him. R. at 149. He also testified that the injury he sustained at that time had persisted over the years and had interfered with his sex life. R. at 151. The hearing officer found that no new and material evidence had been submitted. R. at 157-58. The appellant appealed that decision to the BVA which, in a March 1990 decision, considered the claim on a de novo basis and determined that a varicocele was not incurred in or aggravated by service. R. at 170-74.

[46]*46The appellant appealed that decision to this Court. Smith v. Derwinski, 2 Vet.App. 147 (1992). We held that the Board had improperly required objective medical evidence to corroborate the appellant’s testimony and had not complied with its duty to provide adequate reasons and bases for its denial of service connection; we vacated the Board’s decision and remanded the matter. On remand from this Court, the BVA issued another decision which relied on medical treatises to deny entitlement to service connection. R. at 252-58. The appellant again appealed to this Court, and on February 14, 1994, we granted the parties’ joint motion to vacate and remand for the Board to comply with Thurber v. Brown, 5 Vet.App. 119 (1993).

On remand, the appellant submitted a sworn statement from his wife in which she stated:

I am intimately familiar with the physical capacity of my husband, being married to him prior to him entering into the service. Upon his discharge, I truly affirm, that my husband suffered from a service related disability which interfered with sexual activity for the past 48 years; that I have personally witnessed discomfort, pain, anxiety, and occasional dysfunction as a result of such injury; that there is no treating physician, friend or person knowledgeable with the condition who is any longer alive.

R. at 266. On June 9, 1994, the BVA sent the appellant’s attorney a letter explaining that the BVA proposed to rely on “ ‘evidence developed or obtained by it subsequent to the issuance of the most recent’ Statement of the Case.... ” R. at 270. The letter went on to state:

A period of 60 days from the date of this letter is allowed for you to submit any additional argument or comment____
The Board will consider additional .evidence in this appeal only on written motion for good cause for its submission at this time and if the evidence is accompanied by a waiver of consideration by the agency of original jurisdiction.

R. at 270-71. Attached were a statement of the reliance the Board proposed to place on the evidence and excerpts from the pertinent treatises. R. at 272-92. No response was received to the invitation to submit within 60 days additional argument or comment, although apparently the White House forwarded to VA a copy of a letter the appellant had written to President Clinton regarding his quest for benefits. See R. at 294, 296. The Board’s decision now on appeal followed.

II. ANALYSIS

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Smith v. Brown, 10 Vet. App. 44, 1996 WL 785603 (Cal. 1996).

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