Williams v. Gober

10 Vet. App. 447, 1997 U.S. Vet. App. LEXIS 737, 1997 WL 572201
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 16, 1997
DocketNo. 95-1184
StatusPublished
Cited by3 cases

This text of 10 Vet. App. 447 (Williams v. Gober) 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
Williams v. Gober, 10 Vet. App. 447, 1997 U.S. Vet. App. LEXIS 737, 1997 WL 572201 (Cal. 1997).

Opinion

HOLDAWAY, Judge:

The appellant, Clyde V. Williams, appeals from the November 8, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) that determined, inter alia, that the appellant was not entitled to an effective date earlier than August 13,1984, for an award of service connection for mitochondrial myopathy manifested by disabilities in other than the lower extremities. The appellant does not challenge the two additional determinations made by the Board: (1) that “[a] minimum rating of 30 percent should be applied effective September 10, 1975[,] through August 12, 1984[,] (subject to the already assigned separate 10 percent ratings) for the service-connected mitochondrial myopathy as manifested by involvement of the lower extremities”; and (2) that the appellant was not entitled to an effective date earlier than August 13, 1984, for an award of service connection for atypical depression with generalized anxiety disorder. The Court considers the appellant to have abandoned those issues on appeal and will not review them. See Bucklinger v. Brown, 5 Vet.App. 435 (1993). Both parties have filed briefs. The Court has jurisdiction over the case under 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the decision of the Board.

I. FACTS

The appellant served on active duty in the United States Army from March 1974 to September 1975. The appellant’s induction examination noted that his lower extremities were normal. The appellant was treated several times while in service for bilateral leg cramps. In October 1974, the appellant was hospitalized for more than one month for leg cramps that were ultimately diagnosed as bilateral anterior compartment syndrome (ACS). “Anterior tibial .compartment syndrome” is defined as “rapid swelling, increased tension, pain, and ischemia necrosis of the muscles of the anterior tibial compartment of the leg; the skin becomes glossy, erythematous, and edematous as the necrosis occurs. The cause is unknown, but usually there is a history of excessive exertion.” Dorland’s Illustrated Medical Dictionary 1624 (28th ed.1988) [hereinafter Dorland’s]. During his hospitalization, he underwent related surgery. In March 1975, the appellant was again hospitalized for continued complaints of pain and cramping in his legs associated with bilateral ACS. The appellant’s separation examination reported a diagnosis of “[bjilateral [ACS], chronic.”

The appellant filed his initial claim for service connection for, inter alia, bilateral ACS in October 1975. In July 1976, the VA regional office (VARO) granted the appellant service connection for, inter aha, bilateral ACS. It assigned the appellant separate 10% disability ratings for each leg, effective September 10, 1975, the day after his separation from service. The VARO confirmed that decision in March and November 1977.

A December 1977 VA neurology progress note suggested that myopathy of unknown etiology, as the cause of the appellant’s leg pains, should be ruled out through further examination. Myopathy is “any disease of a muscle.” Dorland’s at 1094. In January 1978, the appellant filed a request for increased disability compensation for his bilateral ACS. In March 1978, the appellant was afforded a VA compensation and pension examination. The examiner’s diagnosis was bilateral ACS with residual pain that limited the appellant’s activity. A March 1978 VA neurological progress note indicated that it was “following up on painful myopathy in calves and occasionally in] forearms appearing [with] exercise.” The examiner’s diagnostic impression was myopathy of unknown etiology. The VARO confirmed again in June 1978 the appellant’s separate 10% disability ratings for each leg for ACS.

In August 1978, the appellant was afforded VA orthopedic and neurological examinations. The orthopedic examiner reported that the appellant’s complaints were not explained by the objective findings or on the basis of classical anterior compartment syndrome. The neurologist found no evidence of myopathy or anterior compartment syndrome and could not explain the appellant’s [449]*449symptoms. In September 1978, the VARO found no basis to increase the appellant’s award and confirmed and continued its original rating decision.

In November 1978, the appellant was evaluated at a VA medical facility for probable primary hyperparathyroidism and to rule out myopathy characterized by painful muscle cramps. Hyperparathyroidism is “a condition caused by excessive amounts of parathyroid hormone, which invokes hypercalcemia and hypophosphatemia and affects the functions of many cell types.” Dorland’s at 798. A January 1979 VA progress note stated that the appellant continued to have muscle pain in all muscle groups, and that review of the data led to a conclusion that the appellant had early first-degree hyperparathyroidism. In January 1979, the appellant filed a claim for service connection for hyperparathyroidism. VA progress notes from February and April 1979 also reported that hyperparathyroidism was causing the appellant’s muscle cramps. The VARO denied the appellant service connection for hyperparathyroidism because there was no evidence of the disorder during service. Subsequently, the VARO received a letter from a VA physician who opined that the appellant did have the parathyroid condition while on active duty. In November 1980, the VARO granted service connection and a 10% rating for the appellant’s hyperparathyroidism.

In December 1980, the appellant filed a Notice of Disagreement (NOD). The appellant claimed that he should receive a 100% disability rating, and he requested a rating for total disability based on individual unemployability (TDIU). In April 1981, the VARO denied the appellant’s request for TDIU. In July 1981, the appellant filed a substantive appeal to the BVA.

A December 1981 VA examination report noted a diagnosis of hyperparathyroidism with refractory muscle cramping. The examiner also noted that he did not feel that the appellant’s symptoms were related to ACS. A VA orthopedic examination, also performed in December 1981, found that there was no current evidence of ACS. In March 1982, the VARO confirmed its denial of entitlement to increased ratings for hyperparathyroidism and ACS and to TDIU. In September 1982, the BVA determined that the appellant was entitled to a 20% disability rating for hyperparathyroidism, but denied him entitlement to an effective date earlier than January 1979. The BVA also found that the appellant was not entitled to TDIU.

A June 1983 VA medical record reports that, after testing, the examiner’s diagnostic impression was episodic hypercalcemia. The examiner opined that he doubted the appellant had hyperparathyroidism. In September 1983, Dr. Orlo H. Clark, a VA staff physician, wrote a letter to the appellant stating that the appellant did not currently have hyperparathyroidism, but he was being followed because some patients have intermittent hypercalcemia. That month, the VARO reduced the appellant’s disability rating for hyperparathyroidism to 0%, but continued the appellant’s separate 10% disability ratings for ACS in each leg. The appellant timely appealed to the BVA. In July 1984, the BVA determined that the appellant was not entitled to increased ratings for ACS in his legs or a compensable rating for hyperparathyroidism.

On August 13, 1984, the appellant was hospitalized for muscle pain and weakness in all muscle groups.

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Related

McGrath v. Gober
14 Vet. App. 28 (Veterans Claims, 2000)
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12 Vet. App. 203 (Veterans Claims, 1999)

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Bluebook (online)
10 Vet. App. 447, 1997 U.S. Vet. App. LEXIS 737, 1997 WL 572201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-gober-cavc-1997.