South v. Derwinski

3 Vet. App. 121, 1992 U.S. Vet. App. LEXIS 258, 1992 WL 197844
Procedural entryThis page is a short order in South v. Derwinski. Read the opinion of the Court — 2 Vet. App. 414
United States Court of Appeals for Veterans Claims·Decided August 19, 1992·No. No. 90-574·Published

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

This matter is before the Court on the June 3, 1992, motion by the Secretary of Veterans Affairs (Secretary) requesting that the Court grant reconsideration, or review by a panel, in order to vacate the Court’s May 20, 1992, memorandum decision in this case and on the appellant’s July 17, 1992, response in opposition to that motion. In that prior memorandum decision, the Court had reversed a February 14, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying the veteran’s claim for a total service-connected disability rating based on individual unemploy-ability. South v. Derwinski, 2 Vet.App. 414 (1992) (memorandum decision designated for publication).

The appellant, veteran Joseph B. South, had appealed the 1990 BVA decision denying him entitlement to a total 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 had 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 had moved for a remand and to stay further proceedings. The Court had reversed the 1990 BVA decision as to a total rating for unemployability and ordered the award of such a rating.

Summary disposition remains 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 Court will grant the Secretary’s motion for reconsideration, deny as moot his motion for review, vacate its prior decision insofar as individual unemployability is concerned, and vacate the 1990 BVA decision and remand the record for readju-dication of the appellant’s claim with respect to individual unemployability, as well as for adjudication of the question of his entitlement to a schedular disability rating above 30% for his pulmonary emphysema.

The Court takes note of the following concern raised by the appellant, in his July 17, 1992, response to the Secretary’s motion for reconsideration:

By failing to provide the Court with a full brief, timely filed, in response to the Appellant’s brief, the Secretary is using the motion for reconsideration improperly as a vehicle to “shore up” the BVA’s decision.

Response to Secretary’s Motion for Reconsideration, at 3. The Court shares this concern about which the Court previously had stated over 18 months earlier:

Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.

[123]*123Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990). Here, the Secretary’s September 18, 1991, motion for remand failed to address the appellant’s specific contention (Appellant’s Brief, at 3, 7-15) that reversal was required. See Appellee’s Motion for Remand. It is long since past time for the Secretary to cease the rote filing of motions for summary disposition without full briefing of all issues raised by an appellant and the record on appeal.

Just recently, the Court has specifically addressed this practice and pointedly emphasized to the Secretary the need for full compliance with Rule 28(b)(2) of this Court’s Rules of Practice and Procedure (“If the Secretary wishes to confess error as to any issue or issues raised by appellant, but not as to all the issues raised, and the relief the Secretary deems appropriate as to the confession of error is different from that sought by the appellant, the Secretary shall include a statement of concession in the brief and identify the relief thereunder that is deemed appropriate.”). See MacWhorter v. Derwinski, 2 Vet.App. 133 (1992).

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 or Department) 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) “[c]hronic obstructive pulmonary disease” and (2) “[ath-erosclerotic 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 to a total rating based on individual unemployability, which was denied by the VA Regional Office (RO) on August 29, 1988. R. at 27; see 38 C.F.R. § 4.16(a). In November 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.

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