Hazan v. GoberHazan v. Gober
Lead Opinion
The appellant, veteran Sol J. Hazan, appeals a March 25,1994, decision of the Board of Veterans’ Appeals (BVA or Board) that denied both an earlier effective date for service connection for cervical disc disease (CDD) and an earlier effective date for an increased rating for CDD. Record (R.) at 10-11. The decision also concluded that the increase to a 60% disability rating for service-connected congestive heart failure assigned by an August 1993 Department of Veterans Affairs (VA) regional office (RO) decision had granted the appellant’s claim in full and that that claim was thus not for appellate review. R. at 7. For the reasons that follow, the Court will affirm the BVA decision in part and vacate the decision in part and remand two matters.
I. Background
The appellant is a combat veteran of World War II with three separate periods of active duty: with the U.S. Army from May 1944 to June 1946, with the U.S. Navy from June 1955 to September 1956, and again with the U.S. Army from June 1976 to July 1978. R. at 18, 19, 271. Prior to his third period of service, he became a physician, and his discharge from the third period of service records his specialty as psychiatry (R. at 271), although he has testified under oath that during his third period of service he served more as a general practitioner and clinic administrator (R. at 314).
Service medical records from his first and second periods of service indicate no conditions relevant to the instant appeal. However, pre-induction medical examinations in February and March 1976 found no evidence of organic heart disease and, although noting laminectomies in 1959 and 1964 at C4-5 and C-8 with resulting weakness and atrophy, found him fit for duty. R. at 178-80. He has testified under oath as follows about the events that led to the “aggravation” of his CDD, which is currently rated at 40% disabling, and his heart condition, currently rated at 60% disabling: When he returned to active duty in 1976, he expected to be assigned as a psychiatrist to an Army drug and alcohol treatment program, but he was instead assigned to a clinic where he functioned as a general practitioner; he was ultimately assigned as commander of the clinic; because it was in disrepair, he and the personnel assigned to his command engaged in renovation and painting of the clinic; and he thereafter
The C-5 vertebra shows some compression anteriorly and superiorly and reversal of the normal curvature of the c-spine at this region posteriorly. C-7 shows degenerative change both superiorly and interiorly in the end plates[,] and T-l shows marked anterior degenerative spurring. Although poorly visualized!,] the T-2 vertebra is probably involved in the degenerative change.
R. at 175. He was put on restricted duty in March 1977, with no overhead lifting and no lifting of objects over 20 pounds. See R. at 186, 207. Additionally, a March 1978 report of cardiac catheterization noted that he had been experiencing edema in July 1977 and that symptoms “compatible with left ventricular failure [had] responded to treatment with digoxin and diuretics on two occasions”; the examination found no evidence of left ventricular dysfunction. R. at 198-201. The veteran’s June 1978 separation medical examination noted heart and upper, and lower extremity abnormalities and summarized the “defects” as “mild congestive cardiac failure” and wasting of the muscles of the left hand. R. at 210-11.
In February 1979, he filed an application with an RO for VA service-connected disability compensation or non-service connected pension based on, inter alia, cardiomyopathy with congestive heart failure and aggravation of CDD. R. at 275. A June 1979 RO decision granted a 30% rating for service-connected congestive heart failure, effective on July 15, 1978, and concluded that CDD and related muscle atrophy were not service connected. R. at 285. Upon appeal of the CDD issue, the BVA remanded that claim to the RO in July 1980 for a medical examination “by a specialist in orthopedic surgery and neurology in order to determine the nature and extent of spinal disability present.” R. at 327.
On remand, VA examinations were conducted by a neurologist (R. at 338-39) and by a specialist in “Rehabilitation Medicine”, because the examining office did not have a board-certified orthopedic surgeon on staff for compensation and pension examinations (see R. at 395). A December 1980 RO decision on remand continued the denial of service connection for CDD, noting that, although the new examinations had “fully describefd]” the disability related to CDD, “no[] data provided by the exam report has any bearing on the question of service aggravation.” R. at 341. The veteran objected to his having been examined by a neurologist and a “physical medicine specialist” because he believed that examinations by “an orthopedist or neurosurgeon [were] properly indicated” and were called for by the BVA remand instructions. R. at 349. In June 1981, the BVA denied service connection for aggravation of CDD. R. at 392.
Subsequently, a February 1983 VA radio-graphic report, which compared new x-rays to those taken of the veteran in March 1977 while in service, found “very minimal” change, explaining: “Exam essentially the same with mild DJD [degenerative joint disease] changes [ ] (especially] at T1-C7).” R. at 359. Thereafter, in May 1987, the veteran attempted to reopen as to his claim for CDD, asking to be profiled by an orthopedic surgeon. R. at 397-98. In a September 1987 RO hearing, the veteran testified under oath as to the connection between his work renovating the clinic and the development of neck pain. R. at 364-66. He also argued that, because the 1983 radiographic report had shown no significant change from 1977 (R. at .359) and had resulted in a recommendation that he not be returned to active duty (R. at 361), and because in 1976 he had been found fit to serve, the records plainly showed aggravation of his condition. R. at 374-75. A December 1987 RO decision found that the
In December 1987, the veteran submitted x-rays taken in 1971 and the accompanying report, which reflect his condition subsequent to surgery and five years prior to his third service period. R. at 411. The report noted “[s]econdary evidence of disc disease at the 5th, 6th and 7th cervical and 1st thoracic interspaces” and found “no evidence of any arthritic disease.” R. at 412. A December 1987 RO decision granted service connection effective on May 15, 1987, for postoperative CDD, rated at 20% disabling, based upon the new evidence and the fact that the veteran’s 1975 examination for return to active duty had found no disability. R. at 417-18. It also deferred a possible CDD increased rating pending a medical examination. R. at 418. After additional VA medical examinations (R. at 422-28), the RO in March 1988 confirmed the 20% CDD rating (R. at 536). The veteran appealed to the Board, arguing that medical examinations should be made by specialists. R. at 552. In an August 1989 BVA hearing, he again objected to VA’s failure to supply an examination by an orthopedic specialist, asserted that the examinations he was given were inadequate, and described the extent of his left-arm disability. Supplemental (Suppl.) R. at 4. A March 1990 BVA decision found no evidence of more than the moderate CDD disability required for a rating greater than 20%. R. at 450-51.
In May 1990, the veteran again sought an increased rating for CDD and congestive heart failure. See R. at 485. He submitted with his application the report of an extensive medical examination by Dr. Kueera, a private orthopedic specialist, in April 1990 that recorded complaints of headaches, neck pain and stiffness, and low back pain. R. at 454; see R. at 493. The examination found “tenderness in the left trapezius area with tightness; 80% range of motion with slight discomfort on extremes of motion” (R. at 454); “moderate clawing” and “moderate to severe weakness” in the left hand (R. at 455); lumbar motion at 80% with “slight discomfort on extremes of motion with hyperextension only” (ibid.); and decreased sensation in the left hand and left lateral calf (ibid.). Dr. Kucera’s report explained that the veteran’s “condition is permanent and stationary” and concluded:
The patient’s disability in the cervical and lumbar spine is compatible with moderate to severe symptoms with recurrent attacks, moderate loss of cervical motion, pronounced symptomatology of intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy and with radiculopathy in the upper extremity, neurological findings in the cervical and lumbar spine compatible with the characteristics of pain and neurological findings, appropriate to the level of disc involvement. The postoperative cervical disc disease would be rated at the level of severe.
The patient is in need of ongoing and periodic orthopedic treatment on a maintenance level for the indefinite future. He is very restricted in his physical activities, is disabled, and has not been able to work since 1978.
R. at 458.
A June 1990 VA neurological examination diagnosed: “Marked cervical spondylosis with degenerative pathology in C4-C5, C5-C6, C6-C7, and a residual radiculopathy mainly affecting C5 and C6 on the left. Increased pain since the last evaluation 2 years ago while the reduced function of the left hand has remained unchanged.” R. at 469. A VA orthopedic examination in July 1990 concluded:
[The veteran] has residuals of chronic degenerative disc disease in the cervical spine with residual T1 nerve root deficit on the left and chronic redicular [sic] pain. He has severe permanent intrinsic muscle atrophy of the left hand, very weak grasp strength and poor fine motor function. He is primarily a right[-]handed person. He also has moderate degenerative disc disease in the lumbar spine with a[n] occasional mechanical back pain.
R. at 472. Based on this report, a November 1990 RO decision increased the veteran’s rating for CDD to 40%, effective in April 1990, the date of Dr. Kueera’s examination, and denied an increased rating for the veteran’s congestive heart failure. R. at 485-86. The veteran filed a Notice of Disagreement
At a hearing before the BVA in February 1992, the veteran testified under oath that he had given up volunteer work on flood control projects because the “dissension” produced attacks of angina and that stress and exercise produced angina attacks. R. at 513-14. A BVA decision in June 1992 held in abeyance the claim for an earlier effective date for CDD (R. at 526) and remanded the veteran’s heart claim, ordering the RO to secure treatment records generated since 1981, especially records of treatment of a heart disorder since 1990 (R. at 526-27).
Medical progress notes and other medical records were submitted on remand, and an August 1993 RO decision found that the veteran’s service-connected heart disease had worsened and granted a 60% rating, effective on May 31, 1990, the date of his claim for an increased rating for that condition. R. at 731. On the September 1993 certification of his appeal to the BVA, the RO certifying official apparently crossed out the claim for congestive heart failure and noted, “granted by rating dated 8/5/93”. R. at 736. In an October 3, 1993, letter to the BVA, the veteran noted that the 1992 BVA decision had remanded the heart-condition issue and left unaddressed the two issues of earlier effective date for a 40% rating for service-connected CDD and for an earlier service-connection award for CDD; he wrote: “In August 1993, the first issue was resolved by the local VA[RO] office and that file returned to the BVA for the decision on the remaining two issues____ In view of the delay experienced with the local decision, I trust that the BVA will resolve the remaining issues with a timely priority____” R. at 738 (emphasis added). However, a written submission by the veteran’s representative in November 1993 identified as at issue the claim for increased evaluation for congestive heart failure, the claim for earlier service connection of CDD, and the claim for an earlier effective date for the 40% rating for CDD. R.-at 742.
In the March 1994 BVA decision here on appeal, the Board stated that the veteran’s March 1991 NOD, which had expressed disagreement with the RO rating for congestive heart failure, presented an issue “not for appellate review, as the claim was granted by an August 1993[RO] rating decision.” R. at 7. The Board noted that the BVA’s 1981 decision had been a final disallowance of the claim. R. at 8. The BVA also found “no defect” in the effective date of April 27,1990, provided for the assignment of a 40% rating for CDD because “the medical records [] make it clear that there was a factual basis on which to award a 40 percent rating only as of April 27,1990.” R. at 11. A timely appeal to this Court followed.
II. Analysis
The appellant has not addressed the effective date of service connection for CDD, and the Court will consider that claim to have been abandoned as part of this appeal and will not address it. See Degmetich v. Brown,
Thus, this appeal presents two major issues: (1) Whether the Board erred in the effective date it assigned for the veteran’s increased rating for CDD; and (2) whether the Board erred in determining that his claim for an increased rating for congestive heart failure was not properly before the Board. In order to assist it in the resolution of the first issue, the Court, on October 10, 1996, ordered supplemental briefing, and both parties have filed supplemental memoranda.
A. Earlier Effective Date for CDD Increased Rating
The appellant contends that he is entitled to an earlier effective date for his 40% CDD rating. He argues that, because his May 31, 1990, claim led to the 40% rating (R. at 485), section 5110(b)(2) of title 38, U.S.Code, requires an earlier effective date (within the year preceding May 31, 1990) where one can be ascertained, and that such an earlier date can be ascertained on the basis of his own August 1989 sworn hearing testimony (Suppl. R. at 1-11); he contends that that testimony was not considered by the 1994 Board decision presently on appeal (Reply Br. at 4-5). He also argues that
The Secretary addresses the issue of the use of the 1989 hearing testimony to establish an increased-rating effective date as a question of CUE, arguing that the 1989 hearing testimony cannot be used to establish an effective date prior to the March 1990 BVA decision that had concluded that he had not satisfied the criteria for an increased rating. R. at 450-51. The Secretary argues that the BVA properly addressed the issue of obvious error. Br. at 14. The Court will consider the two issues separately.
1. Effective Date for CDD under
The appellant asserts that the 1994 BVA decision denying an effective date earlier than April 27, 1990, for the 40% CDD rating failed to take proper account of
(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
(b)(1)....
(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such a date.
The veteran’s August 29, 1989, testimony before a traveling section of the BVA is devoted largely to his admonishing the RO for having failed to provide an examination by a qualified specialist in orthopedic medicine, as was required by the 1980 remand by the Board. Suppl. R. at 2-5. In the course
A. If I’m active, I have to, first of all I don’t have the complete use of my left hand and I have atrophy, I have a residual hand. Discomfort at night, it’s extensive. I have to use a muscle relaxant. I’ve been using Ibuprofen[;] if that doesn’t help me with my discomfort, then I have my own supply of Empirin/Codeine____ I use Valium as my muscle relaxant most of the time.
I’m sitting at the dinner table for instance and I turn my head and you can hear the crepitus, the joint crepitus—
Q. Is that painful?
A. Yes, very definite.
Q. Are you able to work?
A. I think I could work, I’m uncomfortable a great deal of the time and if I’m erect, for instance, if I wear a jacket and tie and I’m out all day, I usually get a lot of spasms in my muscles.
Q. Where is the pain you’re talking about, neck, hand, shoulder, arm?
A. The neck, primarily the neck and usually when I wake up at night, I may take two showers.
Suppl. R. at 7-8.
a. Evidence to be reviewed to determine “ascertainable” increase: The 1994 BVA decision, in assessing the evidence available for ascertaining an increased rating, does not mention the veteran’s 1989 hearing testimony. This was an error. On its face,
The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See
It is clear that Smith precludes a collateral attack by an RO on a final BVA decision and, more broadly, that it precludes the application of CUE provisions to challenge BVA decisions.- See Smith,
c. Meaning of “an increase” in
Adopting the appellant’s position in the instant case, to the extent that that position is that Dr. Hazan’s testimony alone could show an increase to the next disability level, would permit the assignment of an effective date for an increased rating as of a point in time when, as a matter of law because of an intervening BVA decision (such as the Board’s March 1990 decision here), an increase had not been demonstrated. It is true that certain provisions of chapter 51, in assigning effective date, apparently allow a claimant to receive benefits as of a given date without a showing of entitlement as of that date. See, e.g.,
Accordingly, absent clear congressional intent to effectuate a grant of benefits to claimants, by way of effective date, at a time when they are not otherwise entitled to such an increase, the Court cannot agree with the appellant that “an increase in disability” means that a claimant, having shown an increase to the next disability level on the basis of certain evidence, then need clear a lower hurdle in establishing the effective date for that increase — that is, that any ascertainable increase, no matter how marginal, in disability within the year preceding application would require an earlier effective date.
d. Application of
Therefore, the Board’s failure to address the veteran’s 1989 hearing testimony in its 1994 decision as to that evidence’s providing the sole basis for an earlier effective date is nonprejudicial error, see
However, the Secretary’s position is nevertheless fundamentally mistaken insofar as it suggests that the Board (and the RO) could not properly have considered the 1989 hearing testimony at all. In point of fact, as the Court’s caselaw,
In carrying out this analysis on remand, the Board must determine under the evidence of record the earliest date that the increased rating was “ascertainable” within the meaning of
2. Allegations of Obvious Error under
The appellant also contends that
It is overwhelmingly clear from the record on appeal that the appellant did raise to the Board the issue of alleged errors in prior Board decisions. His 1991 VA Form 1-9 included an allegation of “clear and unmistakable error” based on the RO’s failing to provide an examination by an orthopedic specialist, as per the 1980 BVA remand order (see R. at 502); his NOD (see R. at 488-89), his BVA hearing testimony in 1992 (R. at 514-15), and the written presentations of his representative to the BVA in 1992 (R. at 521-22) and 1993 (R. at 742-43) also all raise this issue. However, the 1994 BVA decision specifically noted that “the veteran and his representative have used the terms ‘error,’ and in one instance ‘clear and unmistakable error,’ in relation to prior Board decisions concerning the adequacy of examinations”. The Board, while noting that the veteran had raised the issue of CUE, specifically found that he had not made out a viable CUE claim in his contention that it was CUE for the RO to fail to provide an examination by an orthopedic specialist. R. at 9.
A CUE claim and an obvious error claim are essentially equivalent. See Dinsay v. Brown,
Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied____ [CUE] is the sort of error which, had it not been made, would have manifestly changed the outcome ... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed.
Russell,
B. Abandonment of Heart Claim
The appellant also claims that the BVA erred in treating his claim for an increased rating for his heart condition as no longer for appellate review because it was granted by the RO. The appellant’s new claim for an increased rating for his heart condition was submitted with his new claim for an increased rating for CDD in May 1990 and was denied in the November 1990 RO decision that granted an increased rating as to the latter claim. R. at 484. In June 1992, the Board remanded the heart claim for the acquisition of additional records related to the veterans’ treatment. R. at 526-27. Subsequently, the RO granted an increased rating, from 30% to 60%, in August 1993. R. at 727. See
In the RO’s certification of appeal, dated September 1993, the inereased-rating claim for congestive heart failure is stricken out and there is a notation “granted by rating date 8/5/93”, apparently made by the VA certifying official. R. at 736. In a letter to the BVA in October 1993, the veteran incorporated by reference the issues considered in the 1992 docketing of his claim before the BVA. R. at 738. However, his conclusion notes: “In view of the delay experienced with the local decision [RO decision on increased rating for congestive heart failure], I trust that the BVA will resolve the remaining issues with a timely priority----” Ibid. (emphasis added). Nevertheless, the statement of the veteran’s accredited representative in a November 1993 written submission to the BVA specifically incorporated the heart claim when it referred to the veteran’s claim for “increased evaluation” for congestive heart failure. R. at 742. The BVA, in the “Introduction” section of its 1994 decision, concluded, without stating more, that the issue of an increased rating for congestive heart failure “is not for appellate review, as the claim was granted by an August 1993[RO] decision.” R. at 2.
The Secretary contends that because “the Appellant and his designated representative explicitly abandoned any claim for a rating in excess of 60% for his heart condition, the BVA was not required to address this issue.” Br. at 11. However, in Verdón v. Brown, this Court held that “where it is not clear that a VA claimant has withdraw a particular claim from an appeal to the BVA, it is not sufficient for the Board to conclude that there is abandonment without providing an adequate statement of reasons or bases to support that conclusion”. Verdon v. Brown,
The Court concludes that it is not clear that the appellant abandoned his claim to the Board for an increased rating (above 60%) for congestive heart failure. Thus, the Board’s summary notation in the Introduction to its decision does not amount to an adequate statement of reasons or bases under
C. Fee Agreement
Under its authority under
III. Conclusion
Upon consideration of the record and the submissions of the parties and in light of the above analysis, the Court affirms the March 25, 1994, BVA decision in part (as to the abandoned claim for an earlier effective date for CDD service connection) and vacates the decision in part and remands two matters— an earlier effective date for a CDD increased rating and an increased rating for congestive heart failure — for expeditious further proceedings in accordance with applicable law and regulation and consistent with this opinion and in accordance with VBIA section 302,
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Concurrence in Part
concurring in part and dissenting in part:
I agree with the majority opinion except insofar as it remands for a determination of the “earliest ascertainable date that the increased rating was ‘ascertainable’ within the meaning of
In the context of
Although the Court pronounced no formal definition of the word “ascertainable” in its decision, its instructions to the. Board assumed that “earliest ascertainable date” meant the date when probative reports were prepared, in other words, the day that sufficient evidence came to exist which could prove a disability had increased. In Wood, supra, it meant that the earliest ascertainable date was the date of the earliest examination indicating total and permanent unemployability.
The interpretation of
In applying