Tobin v. Derwinski

2 Vet. App. 34, 1991 U.S. Vet. App. LEXIS 146, 1991 WL 272397
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 18, 1991
DocketNo. 90-1053
StatusPublished
Cited by21 cases

This text of 2 Vet. App. 34 (Tobin 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
Tobin v. Derwinski, 2 Vet. App. 34, 1991 U.S. Vet. App. LEXIS 146, 1991 WL 272397 (Cal. 1991).

Opinion

IVERS, Associate Judge:

Appellant, William H. Tobin, appeals from a June 4, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied service connection for arthritis of the left knee, secondary to a service-connected cavus deformity of the left foot. The BVA found that the evidence submitted since its prior decision (August 1986) failed to present a new factual basis for allowing service connection. The Court finds that the evidence submitted by appellant is new and material under 38 C.F.R. § 3.156 (1991) and Colvin v. Derwinski, 1 Vet.App. 171 (1991). Therefore, the claim should have been reopened pursuant to Manio v. Derwinski, 1 Vet.App. 140 (1991). However, after a careful reading of the BVA decision, it is apparent that appellant’s claim was not reopened and fully reviewed in accordance with applicable requirements. Therefore, we remand the case to the BVA for reconsideration of all relevant evidence, issues, and regulations and readjudication in a manner consistent with this opinion.

I. BACKGROUND

Appellant was on active duty in the United States Army from January 4, 1943, to February 21, 1946. He was listed on Daily Sick Reports from June 5, 1943, to July 15, 1944, from September 2, 1944, to October 24, 1944, and from December 19, 1944, to April 10, 1945, as receiving dispensary treatment for undisclosed ailments. R. at [36]*3614. Appellant was also hospitalized from December 1944 to January 1945, and again from January 1945 to February 1945, for unidentified conditions which were identified as having existed prior to service. Id.

Appellant has had a number of prior rating decisions and BVA decisions leading up to the decision currently before this Court. In December 1975, a rating decision denied service connection for a disability described only as arthritis. R. at 11. In a later BVA decision, dated June 9, 1977, the Board remanded appellant’s arthritis claim to the Regional Office to gather additional information. Id. at 11-12. After further development, appellant’s claim came back before the Board and, on April 21, 1978, was again denied, this time service connection was denied for multiple joint arthritis. R. at 16.

After reopening his claim in either 1981 or early 1982, appellant was awarded service connection for pes cavus deformity of the left foot in a BVA decision dated March 5, 1982. R. at 34. He was subsequently granted a twenty-percent disability rating by a rating decision dated May 3,1982. Id. Appellant gathered additional medical information which suggested that his osteoarthritis of the spine, hips, knees, and feet were related to the pes cavus deformity of the left foot. However, appellant was denied service connection for osteoarthritis, multiple joints, and varicose veins in his left leg, all of which appellant contended were secondary to the left pes cavus. R. at 22-23.

Appellant was afforded a Veterans’ Administration (now Department of Veterans Affairs) (VA) examination which took place in September and December 1984. R. at 28. Dr. Petro Karanasias, a VA neurologist, did not think that appellant’s symptoms “reflected primary neurological pathology” but expressed the opinion that “[i]t is possible that [appellant’s] back, knee and foot problems are related.” R. at 35. In attempting to reopen his claim, appellant submitted a statement made by Dr. J.E. O’Neil, dated June 1983. Dr. O’Neil could not positively determine whether appellant's pain was related to his pes cavus deformity of the left foot, but he did state that it was possible that secondary stress changes could occur from a poor gait. R. at 28. In addition to Dr. O’Neil’s statement, appellant submitted treatment records dating from May 1985, and provided personal testimony at a hearing at the VA regional office in August 1985. Id. An August 12, 1986, BVA decision, denied service connection for a ruptured muscle of the left leg, a left-hip disorder, a left-knee disorder, and a back disorder. Again all were claimed to be secondary to appellant’s pes cavus deformity of the left foot. R. at 31.

On June 27, 1988, appellant attempted to reopen his claim, seeking secondary service-condition for his left-knee condition. He did this because, without service connection for his left-knee condition, he could not obtain a knee cage from the VA’s prosthetic services. R. at 79. Appellant claims that both of his VA treating doctors said that his left-knee condition resulted from his service-connected left foot condition. Appellant submitted the progress notes made by his treating VA physicians, Dr. Bayley and Dr. Candace Jennings. Both are doctors employed at the Davis Park VA Medical Center in Providence, Rhode Island. Dr. Bayley’s report, dated April 4, 1988, stated “[osteoarthritis] knee [due to left] foot condition.” R. at 39. Dr. Jen-ning’s report, dated May 16, 1988, stated:

[Appellant] tried to get knee cage as requested by Dr. Bayley but had some difficulty about coverage. The [left] knee [osteoarthritis] is thought to be secondary to an abnormal gait caused by his [left] foot deformity. The [osteoarthritis] will progress [and] when [appellant’s knee is] sufficiently disabling, [appellant] will need [a total knee replacement].

R. at 41. Prosthetics were again requested for appellant but, because the VA has continued to deny service connection for his left-knee condition, he has not been able to obtain them. R. at 79-80. At the time these reports were made appellant was receiving cortisone injections for his pain. R. at 41, 78. Appellant also submitted progress notes made by Dr. Bayley, dated June 27, 1988, and by Dr. O’Neil, dated [37]*37August 3, 1988. R. at 43. Along with his treating VA physicians’ progress notes, appellant resubmitted Dr. Karanasias’ report as well as a letter written by Dr. Jame D.C. Gowans, Medical Director of the Arthritis Foundation. The letter, which was dated July 1, 1985, was not previously submitted to the VA. Dr. Gowans stated:

Osteoarthritis is very common and with aging affects a large proportion of the population. The actual cause is not known, but we do know that the osteoarthritis can be aggravated by such things as obesity and unusual stress on certain joints because of limping or other stresses. In this way, your club foot might be an aggravating factor.

R. at 36. A VA orthopedic examination took place on August 22, 1988. Dr. Henry A. Essex, the VA examining physician, gave the following impression:

(1) Cavus deformity of the left foot with some arthritic changes in the joints of the feet.
(2) Osteoarthritis of the left knee manifested by narrowing of the joint space, marked and minimal osteophyte formation as well as atrophy of the thigh.

R. at 46. Dr. Essex then stated “I feel that the osteoarthritis of the left knee has been accelerated somewhat and is partly due to the strain on the left knee occasioned by the foot deformity.” R. at 47. Appellant also submitted a radiological report dated September 12, 1988. R. at 48. In addition to the above-mentioned doctors, appellant states that he also received treatment from Dr. Bush, another VA physician; however, none of his reports are found in the record.

By a deferred or confirmed rating decision, dated November 14, 1988, the rating board confirmed and continued the prior disallowance of service connection for appellant’s left-knee condition.

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Bluebook (online)
2 Vet. App. 34, 1991 U.S. Vet. App. LEXIS 146, 1991 WL 272397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobin-v-derwinski-cavc-1991.