Stanton v. Brown

5 Vet. App. 563, 1993 U.S. Vet. App. LEXIS 665, 1993 WL 452240
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 5, 1993
DocketNo. 91-1868
StatusPublished
Cited by29 cases

This text of 5 Vet. App. 563 (Stanton 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
Stanton v. Brown, 5 Vet. App. 563, 1993 U.S. Vet. App. LEXIS 665, 1993 WL 452240 (Cal. 1993).

Opinion

IVERS, Judge:

Jesse M. Stanton appeals an August 7, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for a chronic low back disorder and left shoulder impingement syndrome and denying an increased evaluation for right shoulder injury with rotator cuff tendinitis and impingement syndrome (major) (rated 30% disabling). Jesse M. Stanton, BVA 91-29548 (Aug. 7, 1991). The Secretary has filed a brief, seeking affirmance of the BVA decision regarding the low back disorder and right shoulder claims and remand of the BVA decision regarding the left shoulder impingement syndrome claim. The Court has jurisdiction of the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). For the reasons set forth below, the Court affirms in part and vacates in part the August 1991 decision of the BVA and remands the matter for read-judication consistent with this opinion.

I. FACTUAL BACKGROUND

Appellant served on active duty in the United States Navy from June 24, 1948, to March 17, 1952 (R. at 1-2); the United States Air Force from March 18, 1952, to March 17, 1956 (R. at 3); and the Air National Guard at various times from June 1, 1972, to October 11, 1979 (R. at 5, 151-52). On May 6, 1977, while on active duty for training, he slipped and fell, tearing a rotator cuff in his right shoulder. R. at 35-44. (A rotator cuff is “a supporting and strengthening .structure of the shoulder joint” consisting of various tendons and muscles. WEBSTER’S MEDICAL DESK DICTIONARY 626 (1986).) On December 4, 1978, again while on active duty for training, appellant reported having aggra[565]*565vated a preexisting sciatic muscle injury while lifting a power cable. R. at 153, 214-16. On July 30, 1979, he applied to a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) for service connection for a right shoulder rotator cuff tear, a back injury, high blood pressure, a prostate condition, and a permanent and total disability rating for pension purposes. R. at 7. On February 8, 1980, the RO granted service connection for the right shoulder condition (rated as 20% disabling), but denied service connection for the other conditions, including a low back injury. R. at 167. On February 23, 1981, the Board denied an increased evaluation for the service-connected right shoulder condition and denied service connection for the other conditions, including low back strain. R. at 187-88. On October 28, 1981, appellant sought an increased evaluation for the right shoulder condition and requested clarification of the denial of service connection for a low back injury. R. at 191. On November 16, 1981, the RO denied an increased evaluation for the right shoulder condition and referred appellant to the February 1981 BVA decision regarding the denial of service connection for a low back injury. R. at 194.

On December 29, 1988, appellant sought an increased evaluation for the right shoulder condition, resubmitted his claim for service connection for a low back condition, and sought service connection for a left shoulder condition. R. at 196. On June 20, 1989, the RO increased the evaluation of the right shoulder condition to 30% disabling but denied secondary service connection for left impingement syndrome; the RO also denied service connection for, inter alia, a low back injury with residuals of a low back strain. R. at 198-99; see also R. at 200. On January 4, 1991, the Board remanded the case to the RO for consideration of appellant’s December 1978 period of active duty for training because neither the RO nor the BVA in 1981 had considered this period of service and because the RO in 1989 had denied reopening the claim due to a lack of new and material evidence. R. at 255. The Board also remanded the right shoulder condition claim for reconsideration because the RO had assigned a 30% disability rating and labelled that evaluation the “maximum evaluation assignable for this condition,” whereas a 40% disability rating is the maximum evaluation assignable under the relevant diagnostic code (DC). Ibid. A January 1991 Supplemental Statement of the Case (SSOC) sent to appellant indicates that the RO denied an increased evaluation for the right shoulder condition and denied service connection for the low back condition. R. at 262-63. On August 7, 1991, the Board denied service connection for residuals of a low back injury and for left shoulder impingement syndrome and denied an increased evaluation for the service-connected right shoulder condition. Stanton, BVA 91-29548, at 8.

II. ANALYSIS

A. Right Shoulder Condition Claim

Appellant’s claim for an increased evaluation for his service-connected right shoulder condition is a new claim, and the Court reviews the Board’s findings of fact regarding new claims under a “clearly erroneous” standard of review. 38 U.S.C.A. § 7261(a)(4) (West 1991); Proscelle v. Derwinski, 2 Vet.App. 629, 631 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990) (determination of degree of impairment is question of fact). Under the “clearly erroneous” standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, supra.

Appellant’s service-connected right shoulder condition is currently rated as 30% disabling. R. at 199. Under 38 C.F.R. § 4.71a, DC 5201 (1992), a 30% rating is warranted for a major condition when motion of the arm is limited to “[mjidway between side and shoulder level.” When such motion is limited to 25 degrees from the side, a 40% rating is warranted. Ibid. In its August 1991 decision, the BVA pointed to a May 17, 1989, VA examination in [566]*566support of its determination that the right shoulder condition warranted a 30% rating. Stanton, BVA 91-29548, at 6-7. In the report from that examination, a VA physician wrote:

[The veteran’s] right shoulder shows gross atrophy of the deltoid, supraspina-tus and infraspinatus muscles. He is tender over the right acromial edge. He has forward flexion to 40 degrees, extension to 20 degrees, external rotation to 30 degrees and internal rotation to 50 degrees. He can abduct to only 60 degrees before pain and he is limited with active and passive abduction to 90 degrees total abduction.

R. at 133. Because the May 1989 examination indicates that appellant could abduct his right arm to 60 degrees, the Board’s determination that a 30% rating was warranted has a plausible basis and is not clearly erroneous. The Court will thus affirm the Board’s denial of an increased evaluation for the service-connected right shoulder condition.

Before the Board and in his brief before the Court, appellant argued that his right shoulder condition should be rated under 38 C.F.R. § 3.321(b)(1) (1992). R. at 265; Appellant’s Br. at 6. Under 38 C.F.R. § 3.321(b)(1), the VA’s Chief Benefits Director or the Director of the Compensation and Pension Service is authorized to approve

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Bluebook (online)
5 Vet. App. 563, 1993 U.S. Vet. App. LEXIS 665, 1993 WL 452240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanton-v-brown-cavc-1993.