# Moore v. Derwinski Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc. --- ## Moore v. Derwinski, 2 Vet. App. 67 (1992) {#6727599} *2 Vet. App. 67* _Moore v. Derwinski, 2 Vet. App. 67, decided 1992-01-09._ ORDER On July 10, 1991, the Court held that the December 4, 1989, Board of Veterans’ Appeals (BVA or Board) decision, which denied petitioner a total rating based on individual unemployability, be reversed and the case remanded for an award of benefits consistent with such a rating. Moore v. Derwinski, 1 Vet.App. 356, 359 (1991). The Secretary of Veterans Affairs (Secretary or Respondent) did not appeal the Court’s decision to the Federal Circuit within the 60-day time period allotted under U.S.Vet.App.R. 36. Thus, the mandate of this Court was issued on October 8, 1991 pursuant to U.S.Vet.App.R. 41. To date, Respondent has not complied with the mandate of the Court. On December 13, 1991, the Court received the petitioner’s request for enforcement of the court’s decision. Construing the petitioner’s motion liberally, the Court will treat it as a motion for extraordinary relief pursuant to U.S.Vet. App.R. 21 and 28 U.S.C. § 1651(a) (1988). On consideration of these matters, it is ORDERED that under the circumstances of this case, the $50.00 filing fee required to be paid with a motion for extraordinary relief shall be waived. It is further ORDERED that the Secretary make payment by January 31, 1992, to petitioner consistent with the mandate of this Court. It is further ORDERED that by January 31,1992, the Secretary show cause why he should not be held in contempt for failure to comply with an order of the Court under 38 U.S.C. § 7265(a)(3) and (b) (formerly § 4065). It is further ORDERED that by January 31,1992, the Secretary show cause why he should not be ordered to pay interest on the amount of entitlement due from March 8, 1987, the effective date ascertained by the BVA. --- ## Moore v. Derwinski, 2 Vet. App. 209 (1992) {#6727788} *2 Vet. App. 209* _Moore v. Derwinski, 2 Vet. App. 209, decided 1992-02-19._ MANKIN, Associate Judge: Appellant, John E. Moore, notes an appeal from a September 14, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for a bilateral knee disorder and an increased disability rating for a service-connected low back disorder. The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). Because the Court finds no error in the BVA decision, the decision will be affirmed. I. FACTS Moore served on active duty in the Army from May 28, 1954, to May 28, 1956, and reenlisted from May 28, 1958, to June 11, 1965. R. at 11. Appellant filed his first claim for compensation on April 27, 1971, for a service-connected back injury. R. at 61-65. On August 27, 1971, the Veterans’ Administration (now Department of Veterans Affairs) (VA) denied service connection for an umbilical hernia, but awarded him a disability rating of 10% from April 27,1971, *211for “Residuals of Laceration of the Right Thumb with Tendon Contracture and Nerve Damage”, and a 10% disability rating from April 27, 1971, for “Lumbosacral Region, Transitional Anomaly with Associated Sclerosis”, for a combined total disability rating of 20%. R. at 76-77. On January 1, 1972, claimant filed a statement in support of his claim and added to his original claim, the injury to his right knee, right leg, whiplash injury to his neck and head, and a skin condition on his left hand, including the names of all treatment facilities. R. at 79. He also submitted an accident report to substantiate his claim. R. at 81-82. On January 19, 1972, the VA Regional Office (VARO) reopened the April 27, 1971, claim and added service connection of a noncompensable degree for his left hand, but found no residuals of the injury to the right knee, right leg, whiplash injury to the neck and head in the last examination. The total disability rating remained at 20%, for the right thumb (10%) and back (10%). R. at 84-85; On October 7, 1982, the veteran requested a reevaluation of service connection for his knees. R. at 89. On December 2,1982, the VARO issued a deferred rating decision to give the veteran an opportunity to submit medical evidence showing treatment for bilateral knee condition since June 11, 1965, including current findings and diagnosis. R. at 91. No evidence was submitted until he was admitted into the VA Medical Center (VAMC) in Topeka, Kansas for an evaluation, primarily for alcohol abuse and hypertension, on February 25, 1986. R. at 95-97. On April 29, 1986, the VARO confirmed the rating decision of January 19,1972, noting treatment for non-service-connected disabilities and no complaints, symptoms, or diagnosis for service-connected disabilities during the medical evaluation. R. at 99. On May 14, 1986, the VA received the statement in support of his claim requesting service connection for his bilateral knee problem. R. at 101. While the VARO reopened his claim, he was denied service connection for the bilateral knee problem on June 10, 1986. R. at 103-04. He filed his Notice of Disagreement (NOD) with the rating decision on June 18, 1986, and filed his Notice of Appeal (NOA) to the BVA on October 29, 1986. R. at 115. The BVA issued a decision on June 15, 1987, denying entitlement to service connection for a bilateral knee disorder, entitlement to an increased rating for the residuals of a right thumb laceration, entitlement to an increased rating for a low back disorder, and entitlement to an increased rating for dermatitis venenata of the left hand. R. at 127-34. On September 19, 1988, following a series of medical examinations in July 1988 for the treatment of sensory motor peripheral neuropathy due to chronic ethanol abuse involving lower extremities, and also, to lesser degree, to upper extremities, the VARO confirmed the rating decision of June 10, 1986. R. at 139. After claimant made another request for a medical examination on February 27, 1989, an evaluation was performed on March 21,1989. According to the in-service medical records reviewed, the physician noted that the veteran “apparently has had a right knee injury, the exact relationship of this to service is somewhat questionable and is given as chronic right knee condition.” R. at 149. The rating decision of June 10, 1986, was again confirmed by the VARO on August 2, 1989. R. at 156. Appellant’s NOD with the August 1989 rating decision was filed on August 18, 1989. R. at 158. Included with his statement in support of his claim were his service medical records from treatment between 1955 and 1965. R. at 169-77. On September 14, 1990, the BVA denied service connection for a bilateral knee disability and denied entitlement to an increased rating for his low back injury. John E. Moore, BVA 90-31680 (Sept. 14, 1990). From this BVA decision, the veteran appeals. II. ANALYSIS A. Service Connection for Bilateral Knee Disability Service connection for the veteran’s knee problems has been consistently denied since the January 19, 1972, rating decision. Under 38 U.S.C. § 7104(b) (formerly *212§ 4004), subject to the exception in 38 U.S.C. § 5108 (formerly § 3008), “when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” The exception in section 5108 states that a claim shall be reopened when new and material evidence has been presented or secured with respect to that claim. When a veteran attempts to reopen a previously denied claim based upon new evidence, “the BVA must perform a two-step analysis.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the BVA must determine whether the evidence is ‘new and material’. 38 U.S.C. [§ 5108 (formerly § 3008)]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old. Id. The claimant bears the initial burden of presenting “new and material” evidence under 38 U.S.C. § 5108. In this case, the veteran has not presented, nor has the VA secured, any evidence that is new and material to issue of entitlement to service connection for a bilateral knee disability. The BVA concluded in its “Findings of Fact” that Additional evidence consisting of the results of a March 1989 VA examination and photocopies of service medical records previously considered by the Board of Veterans [sic] Appeals in the June 1987 decision does not provide a factual basis for the grant of service connection for a bilateral knee disability. Moore, BVA 90-31680, at 8. The March 1989 neurological examination revealed “Apparent degenerative condition in the knee (see orthopedic consultation).” R. at 149. The March 1989 radiology report stated that “both knees show adequate bone density. Normal bony architecture. Joint spaces are adequately maintained.” R. at 151. The report concluded “Both Knees within normal limits.” While acknowledging that the recent medical examination was “new” evidence, the BVA concluded that “new and material evidence which would provide a new factual basis for grant of this claim has not been submitted.” Moore, BVA 90-31680, at 7. The service medical records submitted, while already considered by the 1987 BVA decision and thus not “new”, only showed the status of appellant’s knee condition in service and does not link his current knee complaints to any injury in service. Because there was no new and material evidence to substantiate appellant’s claim for service connection for a bilateral knee disability, that claim could not be reopened and allowed consistent with the provisions of section 7104(b). The Court does not find the BVA determination to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under 38 U.S.C. § 7261(a)(3)(A) (formerly § 4061) to warrant a remand. See Manió, 1 Vet.App. at 146. The BVA found, in the “Conclusions of Law” section of its decision, that The decision of the Board of Veterans [sic] Appeals in June 1987 is final; and a new factual basis warranting service connection for a bilateral knee disability has not been established by additional evidence received since then. Moore, BVA 90-31680, at 7. Although the 1987 BVA decision is final, appellant contends that the Court can review this determination under Bentley v. Derwinski, 1 Vet.App. 28 (1990) by finding clear and unmistakable error. Clear and unmistakable error will be found only where there is an “administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not a misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991); see Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991). While appellant alleges clear and unmistakable error, he argues his disagreement with the 1987 BVA decision and its interpretation of the facts. In the present case, appellant has failed to demonstrate any clear and unmistakable error in the 1987 BVA decision which would estab*213lish service connection for a bilateral knee disability. B. Increased Evaluation for a Low Back Disorder Appellant is currently receiving compensation for a service-connected low back disorder rated as 10% disabling. He seeks an increased disability rating. The BVA decision on appeal affirmed the rating decision of August 2, 1989, which concluded that more than a 10% disability rating was not warranted. R. at 156. The applicable diagnostic code (DC) in the schedule of ratings for the musculoskeletal system distinguishes between a 20% and a 10% disability rating as follows: 5295 Lumbosacral strain: With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 20 With characteristic pain on motion 10 38 C.F.R. § 4.71a, DC 5295 (1991). The March 1989 compensation and rating examination found that the “Back shows no tenderness or spasm.... Mechanical low back pain, rule out early degenerative arthritis.” R. at 148. The neurological examination states that “He can flex his back only about 25% normal range.... Apparent limitation of motion possibly secondary to osteoarthritic changes.” R. at 149. The radiology report concluded “lumbar spine showing no abnormalities on the survey views.” R. at 153. The BVA reconciled these examinations in its “Discussion and Evaluation” by stating “The March 1989 VA examination show that the veteran has lost some range of motion in the lumbar spine. However, there was no tenderness or spasms and X-ray studies show no abnormalities_ In addition, this panel notes that the March 1989 VA examination was complete, and included range of motion studies, X-ray studies, and a neurological examination. A remand for additional studies is, therefore, unnecessary.” Moore, BVA 90-31680, at 7-8. Based on these examinations, the BVA concluded that “The veteran’s service-connected low back disability is no more than 10% disabling.” Moore, BVA 90-31680, at 8. The Court is satisfied that the BVA decision does provide reasons or bases for its findings and conclusions on all material issues of fact and law presented on this record to fulfill the requirements of 38 U.S.C. § 7104(d)(1). Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). The Court also finds that the BVA’s account of the evidence is plausible in light of the record viewed in its entirety. Therefore, this Court “may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Gilbert, 1 Vet.App. at 52 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). III. CONCLUSION It is the holding of this Court that appellant has not demonstrated that the BVA committed either factual or legal error which would warrant a reversal or a remand. Accordingly, the September 14, 1992, decision of the Board of Veterans’ Appeals is AFFIRMED. --- ## Moore v. Derwinski, 2 Vet. App. 375 (1992) {#6728002} *2 Vet. App. 375* _Moore v. Derwinski, 2 Vet. App. 375, decided 1992-04-28._ ORDER It is ORDERED, sua sponte, that the Court’s order in this case issued on April 23, 1992, is revoked, and the following order is substituted therefor: On October 23, 1991, the Secretary of Veterans Affairs (Secretary) filed a designation of record. On November 14, 1991, appellant filed a counter designation. On February 3, 1992, the Secretary filed a motion requesting the Court to order appellant to show cause why specified documents contained in appellant’s counter designation should be included in the record on appeal. On February 20,1992, in her response to the Secretary’s February 3, 1992, motion, appellant argued that the counter-designated items should have been before the Board of Veterans’ Appeals (BVA or Board) pursuant to the BVA’s statutory duty to assist the veteran under 38 U.S.C. § 5107(a) (formerly § 3007). Two issues are presented. Insofar as designating the record on appeal, this Court is precluded by statute from considering any material which was not contained in the “record of proceedings before the *376Secretary and the Board.” 38 U.S.C. § 7252(b) (formerly § 4052); Rogozinski v. Derwinski, 1 Vet.App. 19 (1990) (review in the Court shall be on the record of proceedings before the Secretary and the BVA). In Rogozinski, private medical records which had not been proffered to the BVA at the time it rendered its decision were precluded from review by the Court. Id. at 20. However, “[i]f the records had been proffered and rejected during the adjudication process, an additional and quite different question would have been presented, i.e., whether the rejection, and the reasons or bases for the rejection were proper.” Rollins v. Derwinski, No. 90-690, 1992 WL 301092 (order, U.S. Vet.App. April 7, 1992). As to appellant’s argument regarding the Secretary’s duty under section 5107(a) to assist claimants before the Department of Veterans Affairs (VA) in developing the facts pertinent to a well-grounded claim, when a claimant has submitted a well-grounded claim his or her bringing the existence of medical records to VA’s attention in some manner triggers VA’s duty to assist the claimant, requiring it to try to locate and obtain such records. See Murinscak v. Derwinski, 2 Vet.App. 363 (1992); Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990) (remanded on duty to assist grounds for BVA to obtain, inter alia, medical records to which appellant referred in substantive appeal to BVA); see also Gross v. Derwinski, 2 Vet.App. 551 (1992). At this stage of the proceedings in the instant case, the Court cannot determine whether appellant’s veteran husband proffered his medical records to VA prior to the BVA’s decision on appeal, and, if so, whether VA wrongfully excluded them from the record below, or whether the BVA failed to fulfill a duty to assist appellant by failing to take the initiative to request or locate the records at issue. See Sayre v. Derwinski, 2 Vet.App. 224 (1992). These issues must be resolved before the Court can proceed to a merits review. On April 23, 1992, this Court entered an order, which the instant order is designed to supersede. On consideration of the foregoing, it is ORDERED that the Secretary, within 30 days after the date of the April 23 order, file a preliminary record containing any documents in which VA may have had brought to its attention the existence of medical records from the four facilities listed in appellant’s counter designation. It is further ORDERED that appellant, within 30 days after the date of the April 23 order, file any evidence that her veteran husband attempted to bring the existence of the counter-designated documents or the documents themselves to the attention of VA prior to the issuance of the BVA decision at issue in this appeal. It is further ORDERED that, if no responsive documents are located, the Secretary and appellant are directed to serve and file a notice attesting to that fact within 30 days after the date of the April 23 order. It is further ORDERED that these proceedings are stayed for 30 days from the date of the April 23 order or until further order of the Court. --- ## Moore v. Derwinski, 2 Vet. App. 454 (1992) {#6728068} *2 Vet. App. 454* _Moore v. Derwinski, 2 Vet. App. 454, decided 1992-04-30._ ORDER Appellant’s Notice of Appeal was filed in this Court on October 22, 1990. The brief of the Secretary of Veterans Affairs (Secretary) was due on July 19, 1991. On two occasions the Court granted timely motions by the Secretary for extensions of time to file his brief, as a result of which the Secretary’s brief fell due on September 3, 1991. On October 10, 1991, 83 days past the original due date and 37 days out of time, the Secretary lodged his brief with the Court and filed a motion to file his brief out of time. In a July 11, 1990, decision, the Board of Veterans’ Appeals (BVA or Board) issued a decision awarding service connection for appellant’s left-knee disability and denying his claims for service-connected disability compensation for five other conditions. Charles L. Moore, BVA (July 11, 1990) (hereinafter Moore). The BVA also awarded an increased rating for appellant’s service-connected disability of the left thigh and denied increased ratings for two other service-connected conditions. Ibid. Among the conditions for which the BVA denied service connection were a low back disability and disabilities of the right and left hips, which appellant claimed are secondary to his service-connected amputation, gunshot wound, and leg-shortening conditions. The Board denied service connection for the former conditions on the basis that, because the disabilities were first manifested several years after separation from service, the Board was unable to conclude that they were causally related to the service-connected disabilities. Moore, at 9. The Board’s conclusions implicitly reject appellant’s medical evidence. The medical evidence of record includes a September 20, 1989, statement from Dr. G. Samuel Baker, stating an unequivocal opinion that appellant’s arthritis, joint damage, and back condition are caused by his service-connected injuries (R. at 164); a March 9, 1987, examination report by Dr. John Nolan stating that appellant’s low back pain is “probably from compensation for leg injury” (R. at 89); and a June 26, 1985, statement from Dr. George B. Peat expressing an opinion that appellant’s present problems (apparently including back pain) “relate to his previous military injuries.” R. at 78. The Board failed to cite any medical evidence of record or other medical authorities in rejecting these medical opinions. The BVA may not reject medical evidence on the basis of its own unsubstantiated medical conclusions. Hanson v. Derwinski, 1 Vet.App. 512, 516-17 (1991); Meister v. Derwinski, 1 Vet.App. 472, 473 (1991); Colvin v. Derwinski, 1 Vet.App. *456171, 175 (1991). “The BVA’s failure ... to cite independent medical authority or to supplement the record through remand leaves the Court with little to review other than the veteran’s unrebutted evidence.” Meister, 1 Vet.App. at 473. Upon review of the record, the Court holds that the record does not provide a “plausible basis” for the BVA’s factual determinations which are, therefore, held to be clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990); Garrett v. Derwinski, 2 Vet.App. 334, 335-36 (1992). The Board also failed to address appellant’s claim for a total service-connected disability rating on the basis of individual unemployability. See 38 C.F.R. § 4.16 (1991). The veteran stated such a claim on his August 29,1989, VA form 1-9. R. at 149. Therefore, the BVA was required to consider that claim. See Myers v. Derwinski, 1 Vet.App. 127, 129-30 (1991). Although subsumed in the disposition of this appeal, the Court notes that the Board also failed to consider and apply 38 C.F.R. § 4.58 (1991) (with service-incurred amputation or shortening of lower extremity, later-developing arthritis in same extremity, including arthritis of the lumbar spine associated with the leg amputation or shortening, with indications of earlier arthritis, will be service connected). Appellant specifically requested the application of section 4.58, and the facts and evidence clearly indicate the relevance of that regulation. Therefore, the BVA was required to consider and discuss the applicability of that provision. See Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); Peyton v. Derwinski, 1 Vet.App. 282, 285-87 (1991); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). On consideration of the foregoing it is ORDERED that the July 11, 1990, BVA decision is reversed, the Court retains jurisdiction, and the record is remanded to the Board for proceedings consistent with this order. Not later than 90 days after the date of this order, service-connected disability ratings shall be assigned for the appellant’s currently diagnosed back and hip disabilities and a service-connected rating shall also be assigned for appellant’s left-knee disability, if one has not already been assigned. The Board shall also promptly adjudicate appellant’s claim for a total disability rating based on individual unemploy-ability due to his service-connected conditions. Any new Board decision on remand shall contain an adequate statement of the Board’s conclusions on all material issues of law and fact, and the reasons or bases for those conclusions. 38 U.S.C. § 7104(d)(1) (formerly § 4004). The Secretary shall file with the Clerk and serve upon appellant a copy of any Board final decision on remand. Within 14 days after such filing, appellant shall notify the Clerk whether he desires to seek further review by the Court. It is further ORDERED that the Secretary’s motion to file his brief out of time is denied and the brief will be returned to the Secretary.