South v. Derwinski

2 Vet. App. 414, 1992 U.S. Vet. App. LEXIS 126, 1992 WL 105065
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 20, 1992
DocketNo. 90-574
StatusPublished
Cited by1 cases

This text of 2 Vet. App. 414 (South v. Derwinski) 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
South v. Derwinski, 2 Vet. App. 414, 1992 U.S. Vet. App. LEXIS 126, 1992 WL 105065 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, veteran Joseph B. South, appeals a February 14, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying him entitlement to service-connected disability compensation based on individual unemployability, under 38 C.F.R. § 4.16(a) (1991), resulting from service-connected coronary artery disease, pulmonary emphysema, and bilateral defective hearing. Joseph B. South, BVA 90-04523 (Feb. 14,1990). On July 15,1991, he submitted a brief requesting that the Court find the Board’s conclusions of fact clearly erroneous, or, in the alternative, that the Court remand the case to the BVA. On September 19, 1991, the Secretary of Veterans Affairs (Secretary) moved for a remand and to stay further proceedings. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the BVA decision will be reversed on the issue of the veteran’s entitlement to disability compensation based on unemployability and remanded for adjudication of the question of whether the veteran is entitled to a schedu-lar disability rating above 30% for his pulmonary emphysema.

I.

The veteran, honorably discharged from the military in 1969, served on active duty for over 20 years. South, BVA 90-04523, at 2. He underwent two years of college education and obtained a law school education. Ibid. From 1971 through February 1982, he worked in the field of accounting, but, he contends, has been too disabled to work since the Spring of 1982. R. at 19. He is presently entitled to receive service-connected disability compensation for coronary artery disease, evaluated as 60% disabling, for pulmonary emphysema, evaluated as 30% disabling, and for defective bilateral hearing, evaluated as 20% disabling. R. at 51. Together, the veteran’s service-connected disabilities are evaluated as 80% disabling. South, BVA 90-04523, at 2; see 38 C.F.R. § 4.25 (1991).

On July 16, 1987, the veteran received a medical examination from the Veterans’ Administration (now Department of Veterans Affairs) (VA) upon his request. R. at 7. On the request form, he noted that he was unable to exert “any effort” and became “completely out of breath” when walking or engaging in any movement. R. at 8. In recording the veteran’s medical history, the VA examining physician noted: “For at least 15 years he has been short of breath getting gradually worse.... 1 flight of stairs will get him completely out of breath”. R. at 15. The VA physician diagnosed the veteran as suffering from, inter alia (1) “[cjhronic obstructive pulmonary disease” and (2) “[atherosclerotic coronary artery disease with history of probable myocardial infarction without angina with mild congestive heart failure”. R. at 16. The veteran’s “regular rhythm” was “considerably compromised” and the prognosis was “guarded”. Ibid. The physician made no statements regarding the veteran’s ability to work.

On March 25, 1988, the veteran submitted an application to the VA for an increase in disability compensation based on individual unemployability, which was denied by the Regional Office (RO) in a rating decision dated August 29, 1988. R. at 27; see 38 C.F.R. § 4.16(a). In Novem[416]*416ber 1988, he filed a Notice of Disagreement with the RO’s decision, asserting that he had tried to work since 1982, but would become “exhausted and [could not] continue”. R. at 28. In his substantive appeal to the BVA, filed on January 4, 1989, he requested that he be awarded disability compensation based on his unemployability and stated that his “breath gives out with the slightest amount of physical activity” and that “[i]t is difficult for [him] to walk more than a very short distance without stopping to rest”. R. at 33. In closing his appeal, he reiterated that he was “not able to work and should be rated as total and permanent”. Ibid. In support of his contention, the veteran submitted letters from two private treating physicians.

In the first, a letter dated January 18, 1989, Dr. Henry A. Liberman described the veteran as suffering from “coronary artery disease including an extensive anterior myocardial infarction and severe chronic lung disease with emphysema as well as several other less complicated medical conditions”. R. at 34. He stated that the veteran developed “chest discomfort with rather minimal provocation” and became “easily fatigued” and “short of breath with minimal exertion”, all because of his service-connected heart and lung diseases. He concluded: “I believe that Mr. South is totally and permanently disabled and it would be hazardous for him to seek employment.” Ibid.

In a similarly definitive letter, dated January 20, 1989, Dr. Gerald W. Staton, Jr., wrote that he had been following the veteran for several years for chronic obstructive pulmonary disease and that he was writing in support of the veteran’s contention that he is totally disabled. R. at 35. He stated that then-recent pulmonary function tests showed that the veteran suffers from “a severe and irreversible obstructive defect that clearly places him in a totally disabled category”. Ibid.

In March 1989, the veteran requested a VA medical examination, registering previously mentioned complaints and adding that he tires so much from bathing that he must lie down for 45 minutes to an hour afterwards. R. at 38. Within the March 14, 1989, report of this examination are conflicting medical opinions as to the severity of the veteran’s pulmonary disease. The radiologist, who performed the chest x-ray, stated that the veteran suffered from “moderate COPD” (chronic obstructive pulmonary disease) and “mild aortic atherosclerosis”. R. at 43. The examining physician, who performed the examination without the veteran’s claims file, and, thus, without the veteran’s history, stated in his report that the veteran suffered from “chronic obstructive pulmonary emphysema, severe”, and “organic heart disease”. R. at 49 (emphasis added). The cardiac status and prognosis were “[moderately compromised; fair with therapy”. Ibid. As with the 1987 VA examination report, this report contained no discussion of the veteran’s ability to work.

In a rating decision dated May 5, 1989, VA denied the veteran’s request for a finding of total disability based on individual unemployability under 38 C.F.R. § 4.16(a). However, the RO did increase from 10% to 30%, for which rating the disability must be “moderate”, the veteran’s schedular disability rating for pulmonary emphysema, even though the veteran had not explicitly raised that issue in his claim form. R. at 50; see 38 C.F.R. § 4.97, Diagnostic Code (DC) 6603 (1991).

II.

On February 14, 1990, the BVA rendered a decision denying the veteran’s claim for total disability compensation based on his unemployability. South, BVA 90-04523.

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Related

South v. Derwinski
3 Vet. App. 121 (Veterans Claims, 1992)

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Bluebook (online)
2 Vet. App. 414, 1992 U.S. Vet. App. LEXIS 126, 1992 WL 105065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-v-derwinski-cavc-1992.