*1
com-
timely
Appeals
filed. See 38
denied entitlement
to
2001 NOA was not
7266(a)
adversely
affect
(person
pensation
under 38 U.S.C.
1151 for a
U.S.C.
shall file NOA with
by
disability causing
ed
BVA decision
and
numbness
weakness
Irwin,
Court);
arm,
tion for a decision is denied. KRAMER, Judge, concurring: Chief I concur the denial of the motion for a panel decision. alternative However, I separately explicate write to MITCHELL, Appellant, Joe A. Iwhy August the reason believe that the 29, 2001, Appeals Board of Veterans’ (Board BVA) decision should be af- Anthony PRINCIPI, Secretary J. firmed. Affairs, Appellee. Veterans
No. 01-1659. appeal, At the time relevant to this pertinent part: § 1151 provided, of Appeals United States Court for Veterans Claims. any veteran shall have suffered Where injury, of an injury,
April 2004. hospitalization, as the result of ... and not the KRAMER, Judge, Before and of such veteran’s own willful mis STEINBERG, Judges. IVERS conduct, and such results in additional to or the ORDER veteran, death of or death such PER CURIAM: n.;. compensatio shall be awarded disability, the same manner if such 15, 2003, as single-judge On December in a decision, aggravation, or death were affirmed an service-con 2001, decision of the Board of Veterans’ nected. . . *2 496 (1996). § In ... finding clearly
38 U.S.C. 1151 that a if the decision] erroneous,” 7261(a)(4); § provision’s regulation pro- 38 U.S.C. implementing the vided, may not overturn a part: in relevant Board fact de termination “plausible where there is a (c) determining In Cause: whether the record” for it. Mariano such additional resulted from a Principi (2003); 17 Vet.App. 313 injury aggravation disease or an or an of Principi Vet.App. Pentecost v. 16 129 existing an disease or suffered as (2002); Principi Parker v. 15 Vet.App. a result of .:. or surgical treat- (2002). Moreover, 410 the outcome of ..., following ment the considerations application the Board’s of equipoise the govern:
will 5107(b) § standard found ais factual determination that the Court re (3) Compensation payable is not for “clearly views under the erroneous” stan necessary consequences the of medical Mariano, supra; dard. see 38 U.S.C. surgical or or treatment examination . 7261(b)(1) 5107(b), §§ properly administered with the ex- case, conclude, In the instant I-cannot press implied consent of the veter- record, evidentiary based on the that the an.... “Necessary consequences” are finding Board’s “the of from, those which are certain to result clearly evidence in this outweighs case from, or were intended to result appel- [one doctor’s] assertions [that ... surgical medical or treatment ad- lant’s condition worsened after the 1980 Consequences ministered. otherwise surgery] and establishes the VA sur- certain or intended to result from a gery February 1980 did not result will not be un- treatment considered (Record (R.) any additional disability” at solely certain or unintended because it 19) erroneous. See 38 U.S.C. had not been determined at the time 5107(b), 7261(a)(4), (b)(1); Mariano, §§ given consent was whether that treat- supra. Specifically, Dr. Armin Haerer’s ment would in fact be administered. (R. 108) report 1995 November at reflects 3.358(c)(3) (1996). Thus, § 38 C.F.R. un appellant’s symptomatology may statutory scheme, der regulatory this possibility have indicated the of a worsen- additional ing of his condition that was not a certain existing from, of an condition that arose result of his 1980 hemilaminectomy; how- alia, inter medical or ever, Dr. report Haerer’s 1997 may compensable only be where that addi 1-2) (Supplemental (Supp.) R. at reflects tional disability of an exist categorical opinion his appellant’s ing condition was uncertain or unintended condition had not worsened as a result of “to result from . . the medical Further, surgery. 1980 Dr. Padma surgical treatment A administered.” Id. Surapaneni’s August report (Supp. 1997 R. Board determination regarding 3-6) entitle essentially at reflects that compensation § ment to is a 1151 lant’s condition had not worsened as a finding of fact that the Court reviews un contrast, result of the 1980 In der “clearly erroneous” standard. 38 Dr. Charles A. Ozborn’s November 1997 7261(a)(4); see Look v. Derwin reflects that the condi- ski, (1992). 2 Vet.App. 161-62 Under tion had worsened as a the 1980 review, may this standard of surgery but that that “expected result was “hold unlawful ahd set aside finding of patients” degenera- [a some selected with Further, material fact made in reaching the BVA tive disc disease. R. at 317. Dr.
497 May opinion essentially 1998 re- 1151 for compensation, Ozborn’s find- Board’s opinion that the appellant’s flects his con- ing that evidence preponderated may dition have worsened as a result of against finding compen- entitlement to and, in the 1980 his sation under supported by was *3 opinion, opined Dr. Ozborn that the appel- plausible and, the record there- worsening lant “had of his condition follow- fore, not erroneous. See 38 ing surgery” worsening and that [his 1980] 7261(a)(4), (b)(1); Mariano, su- expected.” from not be “would R. pra. notes, however,
at 362. The Court does not reflect the STEINBERG, Judge, concurring: any worsening causation of agree I analysis with the Judge Last, lant’s condition. Drs. Haerer and concurring Kramer’s statement. Swamy, opined October
appellant’s condition had not worsened as
a result of the R. at 366-67.
Hence, that, light of the fact of those (Dr.
eight only one opinions, Haer-
er’s report) November 1995 could have
provided necessary the evidence