Stozek v. Brown

4 Vet. App. 453
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 1, 1993
DocketNo. 91-585
StatusPublished

This text of 4 Vet. App. 453 (Stozek 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
Stozek v. Brown, 4 Vet. App. 453 (Cal. 1993).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The pro se appellant, World War II era veteran Richard H. Stozek, appeals from the December 18, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying his reopened claims for entitlement to service connection for bilateral hammertoe deformities and a back disorder. Richard H. Stozek, BVA 90-45422 (Dec. 18, 1990). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. Summary disposition is appropriate here because the case is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Secretary’s motion will be denied and the Board’s decision will be vacated and the matter remanded for readjudication of both claims.

I. BACKGROUND

The veteran served on active duty in the United States Army from May 1946 to March 1947. R. at 37. His service records are missing and presumed destroyed by a 1973 fire at the National Personnel Record Center. R. at 12, 27, 37. In June 1982, the veteran filed a claim for service-connected disability compensation for hammertoes, tendon damage, and painful bunions. R. at 4. In November 1982, he amended that claim to include compensation for an allegedly service-connected back disability. R. at 17. He submitted letters from four physicians who stated that they had treated him for a back condition in 1964 and 1971-72, as well as evidence indicating that his personal physician’s records had been destroyed in 1972. R. at 20-25. In January 1983, the veteran submitted statements from six lay witnesses, all of whom stated that he had been in good physical condition prior to service but at discharge had been suffering from back and foot disabilities. R. at 30-35. A June 1983 Veterans’ Administration (now Department of Veterans Affairs) (VA) physical examination report resulted in diagnoses of hammertoes and “chronic back pain, possibly secondary to herniated nucleus pulposus, with chronic and recurrent symptoms”. R. at 11. According to that report, the veteran related the onset of his hammertoes to the Army’s issuing to him “ ‘shoes that were too tight’ ”, and stated that he had incurred the sudden onset of lower back pain in the Army after lifting his duffel bag. R. at 10. The veteran’s claim was denied by the Board in November 1984. R. at 71-76.

In December 1985, the veteran sought to reopen his claim, submitting statements from two service comrades, George Fisher-[459]*459ing and Raymund [sic] Pease. Mr. Pease stated that he recalled the veteran’s “having experienced problems with his back, legs, and feet” during service, adding: “[H]e was hospitalized for medical treatment relating to the aforementioned [back] problem inasmuch as I recall visiting him in the hospital on one occasion.” R. at 79. Mr. Fishering stated that during their service at Fort Belvoir, Virginia, the veteran had been hospitalized “on three occasions for his back injury.” R. at 78. In November 1987, Mr. Fishering and Mr. Pease each submitted an additional statement; Mr. Fishering reported that when he had visited the veteran in the Fort Belvoir hospital in 1946 the veteran “was secured to the bed by a traction devise [sic] and unable to sit up or leave the bed.” (R. at 91), and Mr. Pease stated that when he had visited the veteran during his in-service hospitalization “he was immobile ... and seemed to have been in traction at that time to relieve the back pain he was experiencing” (R. at 90). In a September 1988 hearing before the BVA, the veteran testified under oath that the shoes he had been issued upon induction were too small and had deformed his feet, causing him continuous pain and ultimately requiring corrective surgery at a VA medical center in November 1982. Supp.R. at 2-5, R. at 18. In addition, he testified that he had injured his back on the first day of service when, while lifting a heavy duffel bag, he caught his foot on a fellow soldier’s duffel bag and fell to the ground, landing on his back. Supp.R. at 6, 15. He testified further that two days after the accident he had been placed in traction for five days at Fort Belvoir’s infirmary, that he had again been admitted to the infirmary at a later, unspecified, date for approximately one week, and that he had been visited by Messrs. Fishering and Pease during this second hospitalization. Supp.R. at 7-8. In a November 1988 decision denying the veteran’s claims, the Board found that the evidence submitted subsequent to the Board’s November 1984 decision was “not sufficient to alter the factual basis” of that decision. R. at 110.

In August 1989, the veteran sought reopening of his claims for service-connected disability compensation for hammertoes and a back disorder. R. at 114. This resulted in the adverse BVA decision here on appeal.

II. ANALYSIS

A. New and Material Evidence

Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). In considering claims to reopen previously and finally disallowed claims, the Board must first determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Evidence is “new” if it is not “merely cumulative” of evidence already in the record; it is “material” if it is “relevant [to] and probative of the issue at hand” and there is a “reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The determination as to whether evidence is “new and material” is a question of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 213 (1991); Colvin, supra.

It is unclear whether the Board found the evidence not new and material and thus did not reopen the claims or whether it reopened the claims and denied them on the merits. The Board concluded as a matter of law that the evidence received since its November 1988 decision “does not establish a new factual basis” showing that the veteran’s disabilities were incurred in or aggravated during service. Stozek, BVA 90-45422, at 7. For the reasons set forth below, the Court holds that the veteran did submit “new and material” evidence to reopen both claims.

[460]*460Specifically, the veteran submitted copies of service sick call reports and morning reports indicating that in May, September, and October 1946 he had been hospitalized at Fort Belvoir, Virginia, after having taken sick in the line of duty. R. at 135-36, 139, 145-46, 148-48, 153, 155. Although the Board stated that “[s]ome of these records were previously on file”, nothing in the record on appeal, including the two prior BVA decisions, indicates that the sick call reports and morning reports had been previously in the record before the Board. Additionally, the veteran submitted an August 1989 statement by Harold Thompson, who stated that he had known the veteran since 1945, that prior to service the veteran “showed no signs of injury”, but that in 1947, after discharge, “I noticed his walk [and] movements had changed.

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Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
Green v. Derwinski
1 Vet. App. 121 (Veterans Claims, 1991)
Manio v. Derwinski
1 Vet. App. 140 (Veterans Claims, 1991)
Colvin v. Derwinski
1 Vet. App. 171 (Veterans Claims, 1991)
Jones v. Derwinski
1 Vet. App. 210 (Veterans Claims, 1991)
EF v. Derwinski
1 Vet. App. 324 (Veterans Claims, 1991)
O'Hare v. Derwinski
1 Vet. App. 365 (Veterans Claims, 1991)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
Moore v. Derwinski
1 Vet. App. 401 (Veterans Claims, 1991)
Godwin v. Derwinski
1 Vet. App. 419 (Veterans Claims, 1991)
Cousino v. Derwinski
1 Vet. App. 536 (Veterans Claims, 1991)
Cartright v. Derwinski
2 Vet. App. 24 (Veterans Claims, 1991)
Masors v. Derwinski
2 Vet. App. 181 (Veterans Claims, 1992)
Quarles v. Derwinski
3 Vet. App. 129 (Veterans Claims, 1992)
Russell v. Principi
3 Vet. App. 310 (Veterans Claims, 1992)
Mata v. Principi
3 Vet. App. 558 (Veterans Claims, 1992)

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Bluebook (online)
4 Vet. App. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stozek-v-brown-cavc-1993.