Wade v. Derwinski

3 Vet. App. 70, 1992 U.S. Vet. App. LEXIS 312, 1992 WL 239498
United States Court of Appeals for Veterans Claims·Decided September 25, 1992·No. No. 91-1861·Published

Opinion

MEMORANDUM DECISION

FARLEY, Associate Judge:

This is an appeal from a June 28, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying appellant’s claim to a total rating based on individual unem-ployability due to service-connected disability. A timely appeal to this Court followed. The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a) (1991) (formerly § 4052(a)).

I.

Appellant filed a brief on April 6, 1992. On May 11, 1992, the Secretary filed a motion for a 30-day extension of time to respond to appellant’s brief; the motion was granted by the Clerk on May 12, 1992. On June 10, 1992, the date the response brief was due to be filed, the Secretary filed a second motion for an additional 30-day extension of time. On June 16, 1992, appellant filed an opposition urging that the Secretary failed to demonstrate good cause for an additional extension, that the motion be denied, and that the BVA decision be reversed. By order dated June 22, 1992, the Court granted the Secretary’s [71] motion but stated that no further extensions would be granted absent “extraordinary circumstances.”

On July 10, 1992, the date the Secretary’s response was due, the Secretary moved for a one-day extension, until Saturday, July 11, 1992, to file the response; the sole ground for the motion was that “counsel was unable to meet to [sic] the July 10, 1992, filing deadline.” Appellee’s Third Motion, at 1. On July 13, 1992, the Court received the Secretary’s motion for summary affirmance, for acceptance of the motion in lieu of a brief, and for a stay. On July 15, appellant filed an opposition, noting that the Secretary failed to meet his own self-imposed deadline of July 11, 1992, and failed to provide any grounds for the extension, much less the “extraordinary circumstances” required by the Court’s June 22, 1992, order. In an order dated July 15, 1992, the Court denied the Secretary’s motion for an extension and directed that the Clerk return the Secretary’s motion for summary affirmance, etc., which had been received by, but not filed with, the Court on July 13, 1992. On July 29, 1992, the Secretary filed a motion for reconsideration which will be denied. We turn now to the merits of this appeal.

II.

Appellant, Nathaniel C. Wade, served on active duty from July 12, 1954, to August 27, 1954, and again from January 4, 1955, to December 11, 1957. R. at 69. In a rating decision dated November 16, 1967, the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) awarded appellant service connection for disability due to bronchial asthma, then evaluated at 30%. R. at 191. Based upon a December 1989 VA examination which found a “severe obstructive ven-tilatory defect” (R. at 186), the RO awarded appellant a 60% rating in a February 13, 1990, decision. R. at 190.

On March 29, 1990, appellant submitted claims for increased compensation and for a total rating based on individual unem-ployability, which the RO denied on May 30, 1990. R. at 210-11. A hearing was held on September 11,1990, at which appellant testified as to his inability to maintain gainful employment because of his deteriorating service-connected respiratory condition. R. at 229-38. The appellant testified that his deteriorating respiratory disability requires him to be on oxygen “ten or twelve hours per day” (R. at 234), and seriously interferes with his sleep. R. at 234, 236. The appellant continued that because of his respiratory disability, “[T]here is not job that I could hold....” R. at 236. He also testified that he must work in a dust free, non-stressful, non-carpeted environment (R. at 231-232, 235-236), that his last employment was in 1989 (R. at 231) and that his previous employer made “special allowances” for him because of his respiratory condition. R. at 237. The VA Hearing Officer denied appellant a 100% evaluation either on a schedular basis or by reason of individual unemployability in an October 31, 1990, decision (R. at 252-53) despite the appellant’s personal testimony.

In a decision dated June 28, 1991, the BVA affirmed the denial of appellant’s claims for an increased rating and for a total rating based upon individual unem-ployability. With respect to appellant’s claim for an increased rating, the BVA concluded:

Although the numerous VA clinical records clearly indicate that the veteran’s bronchial asthma results in severe disability, it is evident that manifestations of more than severe bronchial disability are not demonstrated by a preponderance of the evidence. The veteran has not provided ‘objective evidence’ that he has severe dyspnea on slight exertion between attacks or that he has a marked loss of weight due to his service-connected asthmatic condition. Moreover, there is no other evidence of severe impairment of health.
We find that the veteran’s frequent attacks of asthma ... are clearly contemplated by the 60 percent evaluation.... We conclude that the preponderance of the evidence is against the veteran’s claim for an increased evaluation.

[72] Nathaniel C. Wade, BVA 91-12086, at 5 (June 28, 1991). The denial of a total rating due to unemployability was explained as follows:

Evidence has also been presented which indicated that the veteran was unable to continue in his most recent occupation as a maintenance worker due to dust. However, the veteran has presented no ‘objective evidence’ that he would be unable to be gainfully employed in a different type of environment. We do not doubt that he is restricted from certain occupations due to his service-connected disabilities.... While the veteran may not be able to continue in maintenance work, we do not find that his service-connected disability, in and of itself, renders him unable to pursue some form of substantially gainful employment.

Id. A timely notice of appeal was filed.

III.

At the outset, it must be noted that the BVA appears to have held appellant to a standard of proof higher than that required by 38 U.S.C. § 5107(b) (formerly § 3007(b)), which provides:

When, after consideration of all evidence and material of record in a case before the [Department of Veterans Affairs] ... there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.

In its discussion, the BVA stated, “It is evident that manifestations of more than severe bronchial disability are not demonstrated by a preponderance of the evidence.” Wade, BVA 91-12 086, at 5. However, as we explained in Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990), the “benefit of the doubt” doctrine of § 5107(b) means that:

a veteran need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail; entitlement need not be established “beyond a reasonable doubt,” by “clear and convincing evidence,” or by a “fair preponderance of evidence.”

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Wade v. Derwinski, 3 Vet. App. 70, 1992 U.S. Vet. App. LEXIS 312, 1992 WL 239498 (Cal. 1992).

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