Vanderpool v. Derwinski

3 Vet. App. 273, 1992 U.S. Vet. App. LEXIS 311, 1992 WL 240806
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 24, 1992
DocketNo. 90-657
StatusPublished

This text of 3 Vet. App. 273 (Vanderpool 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
Vanderpool v. Derwinski, 3 Vet. App. 273, 1992 U.S. Vet. App. LEXIS 311, 1992 WL 240806 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, veteran Enoch Vander-pool, appeals from a May 23,1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for headaches, and denying increased ratings for his service-connected residuals of an injury to the supraorbital nerve (currently rated at 10% disabling), for residuals of a lumbar fracture (currently rated at 10%), and for pes planus (currently rated at 10%). Enoch Vanderpool, BVA 90-16536 (May 23, 1990). The Board’s decision will be affirmed in part, and vacated and the matter remanded in part.

I. BACKGROUND

The veteran served in the U.S. Army from August 1942 to October 1943, and in the U.S. Air Force from February 1952 to January 1953. Service connection for pes planus was established after his first period of service. R. at 56-57. On November 26, 1952, he was injured in an automobile accident, resulting in, among other things, [276]*276a brain concussion, fractured lumbar vertebrae, and severance of the supra orbital nerve in the forehead above the right eye. R. at 28. In June 1953, a Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) awarded service connection for residuals of an injury to the supraorbital nerve, at a 10% rating, and for residuals of a fracture of the lumbar vertebrae, at a 0% rating, and denied service connection for residuals of a head injury. R. at 56-57. The RO also assigned a 0% rating for the veteran’s pes planus, which had been rated at 10% disabling prior to his second term of service. R. at 56-57.

In 1975, the veteran’s service-connected ratings for his pes planus and residuals of a lumbar fracture each were increased to a 10% rating, and his 10% rating for residuals of an injury to the right supraorbital nerve was maintained. In September 1989, the RO maintained those ratings, and denied service connection for headaches, which the veteran claimed had resulted from the head trauma suffered in the in-service auto accident. R. at 206-07. On appeal, the BVA concluded that the veteran was not entitled to more than a 10% rating for any of the three service-connected conditions appealed. As to the headache condition, the Board stated that the 1953 RO decision denying service connection for residuals of a head injury was final, and that the evidence submitted since that decision did not demonstrate that the condition was related to his service. Vanderpool, BVA 90-16536, at 8-9. Appeal to this Court followed.

II. DISCUSSION

A. Disorder Manifested by Headaches

In denying service connection for a headache condition, the Board apparently failed to apply the proper legal standard for reopening a previously and finally denied claim. Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously and finally disallowed claim must be reopened by the Secretary of Veterans Affairs (Secretary) when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. If it is, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991).

“New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). For evidence to be “material”, it must be “relevant and probative” and “there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid; Jones, supra. The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. For the reasons set forth below, the Court concludes that the veteran submitted new and material evidence to reopen his claim for service connection for a headache condition.

The veteran suffered a brain concussion as a result of the in-service auto accident on November 26, 1952. R. at 32. On December 16, 1952, when the veteran was transferred from a private hospital to an Air Force Hospital, the concussion was stated to have been “[hjealed on admission”. R. at 32. At his January 15, 1953, separation physical, the veteran indicated that he did not suffer from frequent or severe headaches or dizziness. R. at 45. On May 21, 1953, at a VA examination for disability evaluation, the veteran reported having frequent nervous spells, dizziness, and headaches since the accident. R. at 49, 53. The examiner at that time stated that there was no evidence of serious brain inju[277]*277ry. R. at 55. In its June 1953 decision, the RO denied service connection for residuals of a head injury. R. at 57.

Private and VA medical reports from 1955, 1957, and 1958 reflect the veteran’s continued complaints of constant headaches and dizziness. R. at 58, 62, 64, 67. A VA special neurological examination in 1958 revealed no neurological disease other than the injury to the supraorbital nerve. R. at 67. On a December 28, 1964, VA medical certificate, however, the examining physician diagnosed the veteran as suffering from “Chronic Brain Syndrome, post traumatic manifested by psychosomatic complaints”. R. at 69. VA medical records from 1975 and 1984 also reflect the veteran’s complaints of headaches and dizziness. R. at 72, 74, 91, 100. On the report of an October 26, 1987, VA neurological examination, the examiner noted an impression of “post-traumatic headache”. R. at 105. At a November 4, 1988, hearing before the RO, the veteran testified under oath that he had suffered headaches since the auto accident, and that they had gotten gradually worse each year. R. at 110.

Because the evidence submitted since the prior final RO decision in 1953 included diagnoses of post-traumatic chronic brain syndrome and post-traumatic headaches, and evidence that the veteran has suffered headaches continually since the in-service accident, that evidence is relevant and probative and creates a reasonable possibility of changing the outcome of the prior denial of his claim. Therefore, that evidence was “new and material” and the Secretary was required to reopen the claim and adjudicate it on the basis of all the evidence, both old and new. See Jones, supra; Manio, supra.

In adjudicating that claim, the BVA was required to base its decision on “consideration of all evidence and material of record and applicable provisions of law and regulation.” 38 U.S.C. § 7104(a) (formerly § 4004); see also 3

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3 Vet. App. 273, 1992 U.S. Vet. App. LEXIS 311, 1992 WL 240806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanderpool-v-derwinski-cavc-1992.