Hyder v. DerwinskiHyder v. Derwinski
The veteran, Rowena G. Hyder, seeks non-service-connected pension benefits for the disabling effects of a back condition.
I.
The appellant, Rowena G. Hyder, served in the Navy from October 1965 to January 1967 during the Vietnam Era. The record contains references to three separate lami-nectomies which were performed after the veteran was discharged. The first procedure was performed in 1974 while the veteran was residing in Peru. R. at 42. A second surgery apparently was performed shortly thereafter, but the record is unclear as to when, where, why, and what was done. The third operation occurred in 1985 when the veteran suffered a large ruptured disc while lifting a stack of books at her job in a printing business. Id.
In June 1988, the veteran applied for non-service-connected pension benefits. The veteran was diagnosed by her personal physician as having “severe degenerative disc disease at multiple levels in lumbar, thoracic, and cervical spine.” R. at 58. In the opinion of her physician, the veteran has reached “ ‘maximum healing,’ although this is a problem that will bother her the rest of her life.” R. at 59. He believes that the veteran is unable to sit or stand for longer than two hours during any work day and then only for one-half hour at a time. R. at 59-61. Due to the pain that she suffers “even with very minimal activity,” R. at 59, her physician does not consider her a viable candidate for employment or physical therapy. The veteran also has a history of falling because of weakness in her left leg due to her back condition.
The Veterans’ Administration (now the Department of Veterans Affairs) (VA) conducted an examination in January 1989. R. at 177-80. The veteran was able to bend so that her fingertips reached to 6" off the floor, and the VA physician noted that her carriage, posture and gait were all normal. She had marked difficulty with deep knee bends due to the weakness in her left leg. The final diagnosis was: “1. Previous herniated lumbar vertebral disc; 2. Three previous operations on lower back with residual scar and recurrent lower back pain with nerve root sciatica to left lower extremity; 3. Mild to mod[erate] overw[eigh]t.” R. at 180. The examining physician, recommended that a further examination be conducted by an orthopedist or neurosurgeon, R. at 180, but this examination never took place.
A January 17, 1989, VA radiological report confirmed the diagnosis of degenerative disc disease: “IMPRESSION: 1) Post surgical changes at L4 & 5. 2) Fairly
The veteran’s claim for non-service-connected pension benefits was rejected by the Regional Office (RO) because: “The evidence does not establish disabilities of sufficient ' severity to prevent substantially gainful employment.” R. at 185. The BVA affirmed the denial of the veteran’s claim for non-service-connected pension benefits, stating:
The veteran’s principal disability is a back disorder which causes pain, limitation of motion and other problems. She has no other significant disability.... The veteran’s back disorder is not so severe that it permanently precludes substantially gainful employment especially in view of her age, education and work experience.
Rowena G. Hyder, loc. no. 002668, at 7 (BVA Jan. 25, 1990). The BVA concluded that “[t]he veteran is neither 100% disabled nor permanently unemployable” because of her back condition. Id. An appeal to this Court followed.
II.
The veteran is seeking a non-service-connected pension under
(a) The Secretary shall pay to each veteran of a period of war who meets the service requirements of this section (as prescribed in subsection (j) of this section) and who is permanently and totally disabled from non-service-connected disability and not the result of the veteran’s willful misconduct, pension at the rate prescribed by this section, as increased from time to time under section 3112 of this title.
* * * * * *
(j) A veteran meets the service requirements of this section if such veteran served in the active military, naval, or air service—
(1) for ninety days or more during a period of war....
The second prong of the test requires that the veteran be permanently and totally disabled. The statutory criterion used to determine permanent and total disability would appear to be more objective rather than subjective in nature in that it is based primarily on the “average person.”
(a) For the purposes of this chapter, a person shall be considered to be permanently and totally disabled if such person is sixty-five years of age or older or became unemployable after age 65, or suffers from—
(1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person.
However, unlike the controlling statute, it is not clear whether the applicable regulations contemplate an objective or a subjective standard. In its decision, the BVA noted that
(a) Total disability ratings — (1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average*224 person to follow a substantially gainful occupation.
38 C.P.R.
On the other hand, various provisions of 38 C.F.R. Part 4 appear to permit the determination to be based upon more subjective criteria. For example,
However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability.
In a similar vein,
The BVA’s decision does not provide any assistance in resolving this confusion. Moreover, in the face of the objective “average person” standard established by statute, the BVA used subjective criteria unique to this claimant in order to reach its decision: “The veteran’s back disorder is not so severe that it permanently precludes substantially gainful employment especially in view of her age, education and work experience.” Hyder, at 7 (emphasis added.) The emphasized language may relate to an application on
(d) Each decision of the Board shall include—
(1) a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record....
As we said in Gilbert v. Derwinski,
III.
The VA’s failure to have conducted an examination by a specialist as recommended by the VA examining physician also had a detrimental effect upon the adjudication of the veteran’s claim. There is no question that the RO can “request additional medical opinions, examinations, or periods of hospital observation as may be necessary to furnish complete evidence on which rating decisions will be based.”
Notwithstanding the recommendation, the clear authority, and the statutory obligation to assist, the BVA concluded that the veteran was not entitled to the benefit of the “doctrine of reasonable doubt” under
IV.
No doubt recognizing the void created by the absence of the required statement of “reasons or bases” and the incomplete state of the medical evidence, the Secretary’s counsel proffers his own diagnosis: it is the veteran’s weight which prevents her from holding gainful employment and which makes her ineligible for a non-service-connected pension. Br. at 19-20. However, the sole qualitative reference to weight in the record is an examination report on which the physician found the veteran to be “mod[erate] overw[eigh]t.,” R. at 178, and included in the diagnosis the phrase “mild to modferate] overw[eigh]t.” R. at 180. The record of this case is totally devoid of any authoritative medical discussion by either her personal physician, the VA physician, or the BVA of a causal relationship between the veteran’s weight and her back condition.
Untroubled by this lack of authority, the Secretary’s argument culminates with the following statement: “Given the appellant’s age it should be taken into consideration that if she reduced her weight, and received further treatment for her back disability, her condition could in fact improve over time, and should not, therefore, be considered permanent.” Id. Lay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose and cannot be considered by this Court. See Gilbert, at 55-57; Murphy, at 81; Green, at 124.
CONCLUSION
For the reasons stated above, the January 25, 1990, decision of the BVA is VACATED and this case is REMANDED to enable the VA to conduct the examination by a specialist as recommended by the VA’s examining physician and to provide the BVA with the opportunity to include a statement of the reasons or bases, including the statutory and regulatory bases, for its findings or conclusions.
It is so Ordered.