Suttmann v. Brown

5 Vet. App. 127, 1993 WL 158775
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 18, 1993
DocketNo. 90-1138
StatusPublished
Cited by113 cases

This text of 5 Vet. App. 127 (Suttmann 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
Suttmann v. Brown, 5 Vet. App. 127, 1993 WL 158775 (Cal. 1993).

Opinion

STEINBERG, Associate Judge:

The appellant, World War II veteran Aloysius T. Suttmann, appeals a June 13, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying increased ratings for his service-connected peripheral neuro-pathies of the right and left legs, each rated as 10% disabling. Aloysius T. Suttmann, BVA 90-_(June 13, 1990). The appellant’s primary contention on appeal is that the Board erred in failing to award a service-connected rating for beriberi or beriberi heart disease. The Secretary of Veterans Affairs (Secretary) seeks affirmance of the BVA decision. The Court will vacate the BVA decision and remand the case to' the Board for proceedings consistent with this opinion.

I. Background

The veteran served in the U.S. Army from January 20, 1942, to September 3, 1946. R. at 1. He was a prisoner of war (POW) of the Japanese government from April 9, 1942, to September 8, 1945. R. at 51. His separation report states that he was wounded in action in April 1942 and that he received the Purple Heart, in addition to other decorations, but does not specify the nature of his injuries. R. at 1. There are no service medical records in the record on appeal before the Court.

In October 1946, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) awarded the veteran a 10% service-connected disability rating for “Ulcers on left leg from shrapnel burns” and denied claims for service connection for “[rjesiduals of malnutrition, beri-beri, scurvy, pellagra, worms and [diphtheria]” because those conditions had not been found on the last examination. R. at 2. The veteran was required to waive his VA disability compensation when he entered active duty with the Ohio National Guard in June 1949. R. at 3. In February 1965, the veteran notified the RO that he had retired from the Ohio National Guard on December 31, 1961, and requested reinstatement of his service-connected disability benefits. Ibid. In September 1965, the RO informed the veteran by letter of its decision that his service-connected left-leg condition was not then disabling and, hence, awarded a noncompensable service-connected rating. R. at 5.

The veteran subsequently submitted to the RO a March 1974 letter from a private physician, Dr. John Worthman, who stated:

I have taken care of Mr. Suttmann since 1956. His past history prior to that time is significant in that he was in a Japanese [POW] camp in World War II and there contracted Beri-Beri and [Diphtheria] _ He had an acute postero-lateral myocardial infarction in 1958 from which he made an uneventful recovery. In 1965 he was again hospitalized with chest discomfort of lesser degree. At [130]*130that time he was found to have a left bundle branch block with no evidence of any active infarction being present. He was seen in consultation and was placed on dilantin as an antiarrhythmic drug and has been on that since then.

R. at 6. In a January 1975 statement, Dr. Worthman listed the veteran’s disabilities as “Acute myocardial infarction[,] 1958 at age 38[;] Left bundle branch block[,] 1965”, and concluded that those conditions were “probably secondary to Beri-beri in Japanese POW camp as as [sic] medical reports [none cited] to date substantiate an increased incidence of myocardial infarction at an early age in POW’s who had severe nutritional and vitamin deficiencies”. R. at 7.

In a September 1975 letter, the veteran requested that the RO reinstate the disability payments that he had waived upon entry into the Ohio National Guard, and asserted that his heart disability was the result of his POW incarceration. R. at 8, 10. He submitted to the RO three lay statements from persons who had served with him and had been with him in the POW camp. R. at 13-17. Those persons stated that most of the persons in the POW camp had suffered from malnutrition, starvation, beriberi, dysentery, and other conditions, and that the veteran in January 1943 had suffered a severe attack of “dry” beriberi, resulting in paralysis in his extremities, loss of most of his eyesight, and severe weight loss (to less than 100 pounds). Ibid. In a March 1976 letter to the veteran, the RO mischaracterized the veteran’s claim as a “claim for an increase in your service connected heart condition ” and denied that claim. R. at 18 (emphasis added). The record reveals that service connection had previously been established only for “scars, left leg, shrapnel burns and ulcers”. R. at 5.

In 1981, the veteran again requested “reinstate[ment]” of his compensable service-connected disability and submitted evidence which, he stated, showed that his heart disability could have been related to his beriberi. R. at 19. In a January 1982 letter, the RO informed him that his only service-connected condition was his left-leg condition, rated noncompensable, and that service connection for a heart condition had been denied in 1965. R. at 21. The record on appeal does not reflect any 1965 decision denying service connection for a heart disability.

On a November 1984 VA “Former POW Medical History” form the veteran described his POW experience and stated that he had been malnourished and had suffered from many diseases, including beriberi, during his captivity. R. at 22-25. He stated that he was then currently in generally good health “other than 2 heart attacks and eventual need for [a] pacemaker”. R. at 25. In September 1985, pursuant to a VA POW protocol examination (a report of which is not in the record), the RO denied claims for service connection for, inter alia, beriberi and beriberi heart disease, because neither condition had been shown on the most recent examination. R. at 26-27.

In September 1988, the veteran was provided with a VA medical examination for disability evaluation. R. at 29. The report of that examination indicated that the veteran attended a VA pacemaker clinic every three months and had a monthly pacemaker checkup through a VA phone hookup, and that the veteran’s “present complaint” was “[continuing hypertension” and “[n]eed to keep check on pacemaker”. R. at 29. The VA report states that the examination was “limited to only peripheral neu-ropathy”. R. at 31. The VA examining neurologist stated that the veteran had had beriberi during his POW experience, had had tingling and intense pain in his feet since that time, had lost some mobility, and had not noticed any change in motor function. R. at 32. The diagnosis was “peripheral neuropathy ... etiology [unknown], probably residual from beri-beri”. Ibid. There is no indication that the veteran was examined for a heart condition.

In a December 19, 1988, decision, the RO awarded 10% service-connected disability ratings for peripheral neuropathy of each lower extremity, resulting in a combined 20% disability rating. R. at 38. That award was made pursuant to 38 U.S.C.A. [131]*131§ 312(b)(13) (now § 1112(b)(13)), establishing a presumption of service connection for peripheral neuropathy becoming manifest in a former POW to a degree of 10% or more at any time after service. See also 38 C.F.R. § 3.303(c) (1992). The RO gave the VA diagnostic code (DC) number under which the disability ratings were assigned as “8599-8621”. R. at 38.

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Bluebook (online)
5 Vet. App. 127, 1993 WL 158775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suttmann-v-brown-cavc-1993.