White v. Brown

6 Vet. App. 247, 1994 U.S. Vet. App. LEXIS 112, 1994 WL 49632
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 18, 1994
DocketNo. 90-720
StatusPublished
Cited by6 cases

This text of 6 Vet. App. 247 (White 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
White v. Brown, 6 Vet. App. 247, 1994 U.S. Vet. App. LEXIS 112, 1994 WL 49632 (Cal. 1994).

Opinion

HOLDAWAY, Judge:

Appellant, Frank E. White, appeals from a January 28, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which denied appellant service connection for residuals of a motor vehicle accident and hearing loss. Frank E. White, BVA 93-1883 (Jan. 28, 1993). The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a). These claims were previously before the Court, and were remanded to the Board for appropriate action. White v. Derwinski, 1 Vet.App. 519 (1991).

I. FACTS

Appellant served on active duty in the Army from May 1, 1956, to April 30, 1958. His service medical records (SMRs) were destroyed in a fire at the National Personnel Records Center (NPRC).

Private medical records indicate that appellant injured his back in November 1974 when he bent over to do some cleaning at work. He could not recall what position he was in, but did recall that he had a sudden, sharp knife-like pain that radiated down his left leg and rendered him unable to move. Appellant told medical personnel that the pain had really started a few days before when he was moving a 150-pound ball-bearing. Appellant continued to complain about his back pain through 1975. In early 1975, it was noted that there was decreased left Achilles reflex without sensation loss. The physician felt there was some evidence of nerve irritation. In April 1975, appellant was offered the opportunity to undergo an exploratory laminectomy, but he elected to remain with a conservative course of treatment.

In December 1976, appellant filed for compensation for a low back injury, with nerve damage in the low back, left shoulder, and left leg, with an onset date of November 4, 1974. He also indicated he had not received any treatment for these problems while in the military. In August 1987, appellant filed a claim for compensation benefits for headaches and neck and shoulder problems. He claimed that he wrecked two Army vehicles in 1957, and that since 1958 he had had headaches and neck and shoulder problems. He stated that he had been treated by three civilian doctors, Dr. McNeeley, Dr. DeFiore, and Dr. Spray.

In November 1987, the VA requested a copy of appellant’s SMRs. The VA was notified that his records had been destroyed in a fire at the NPRC. A Statement of the Case (SOC) indicates that appellant was notified on March 10, 1988, that his claim could not be granted. Appellant filed a VA Form 1-9 for his appeal to the BVA on May 2, 1988. He stated that he wanted to add a claim for frostbite. Attached to the Form 1-9 was a police statement regarding a vehicle accident in January 1957. The police report indicated that only one Army vehicle was involved in the collision, and made no reference whatsoever to any personal injuries suffered as a result of this accident. Appellant also submitted a lay statement from a fellow soldier, Elmer W. Foust, who wrote: “I don’t really know what to say, but I know he had a wreck in a[n] Army truck while on duty.” Also on his Form 1-9, appellant referred to several VA medical centers (MCs) (Johnson City, Knoxville, and Nashville, Tennessee, and Youngstown, New York) where he was supposedly treated. He did not, however, list dates or the nature of the treatment.

Based on this information, the VA regional office (RO) requested copies of medical records from the VAMCs in Youngstown, New York, and Nashville and Knoxville, Tennes[249]*249see. Records indicating treatment at these facilities were submitted. These records, dated March 1987 to May 1988, indicated treatment for epilepsy, chronic headaches, tension, a fractured right wrist, a seizure disorder, peripheral vascular disease, and degenerative arthritis.

These records also show a March 10, 1987, x-ray of the cervical spine which found minimal to moderate degenerative changes of the cervical spine. There was slight narrowing of the C4-5 and C5-6 interspaces. A medical entry dated June 8, 1987, indicated that appellant had fallen and injured his right ribs.

Records from a VAMC in Mountain Home, Tennessee, dated September 11, 1987, show that appellant gave a history of having had frostbite 25 years ago on two separate occasions. He was also diagnosed with venous insufficiency, peripheral vascular disease, seizure disorder, and hypertension.

On July 20, 1988, the rating board denied service connection for a seizure disorder, headaches, peripheral vascular disease, and venous insufficiency. The rating board found that there was no evidence to indicate that these conditions were related to an automobile accident which occurred during appellant’s time in the service. Service connection for frozen feet was denied as the condition was not shown in the evidence of record.

Appellant then submitted a statement detailing his January 14, 1957, accident, and relating that he still had headaches and that his shoulder, neck, and lower back had never healed. He submitted a statement about his frostbite. He stated that he remembered going on guard duty for 8-10 hours without shoes or boots. He stated that he was going to have his legs taken off below the knee.

Appellant submitted a letter from Dr. Hendrix dated August 29,1988. Dr. Hendrix stated that he had seen appellant that day and that appellant was suffering from frostbite of the feet, and that appellant had vascular and neurological damage. For medication, the doctor recommended Lubriderm (a topical lotion). Dr. Hendrix did not state what type of examination he had performed to determine that appellant had vascular and neurological damage.

Appellant filed another VA Form 1-9 on May 2, 1988. He submitted a medical note pertaining to sensorineural hearing loss. By decision dated March 1, 1989, the BVA denied appellant’s claim for service connection for residuals of a motor vehicle accident and frostbite of the feet. The BVA decision did not address hearing loss.

In March 1989, appellant indicated through correspondence to the VA that he wished to amend his claim to include entitlement to service connection for hearing loss. Appellant sought to reopen his claim on March 22, 1989. Attached to his request were a 1963 medical statement and signed release forms authorizing the VA to obtain private medical records dating from the 1960s and 1970s. He did not note on these forms why these records would be of importance. On May 22, 1989, the rating board decided not to reopen appellant’s claim because these signed forms for the release of medical evidence where the records were destroyed in the fire would not constitute new and material evidence. Appellant filed his Notice of Disagreement in June 1989. An SOC was prepared. On April 11,1990, the BVA denied his appeal for service connection for residuals of a motor vehicle accident, frostbite of the feet, and hearing loss. Frank E. White, BVA 90-_ (Apr. 11, 1990).

Appellant filed an appeal to this Court. Appellant argued that the Secretary had breached his statutory duty to assist under 38 U.S.C. § 5107(a) by not helping appellant obtain the requested medical records. The Court held that appellant was entitled to have the Secretary assist him in obtaining records sought, and, if they were found to be new and material evidence, to have his claim reopened and readjudicated. The Court remanded the case to the BVA for appropriate action. White, 1 Vet.App. 519.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 247, 1994 U.S. Vet. App. LEXIS 112, 1994 WL 49632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-brown-cavc-1994.