# Ennis v. Brown

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

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## Ennis v. Brown, 4 Vet. App. 434 (1993) {#6729116}

*4 Vet. App. 434*

_Ennis v. Brown, 4 Vet. App. 434, decided 1993-03-29._

MEMORANDUM DECISION

IVERS, Associate Judge:
Gerald A. Ennis, Jr. appeals a September 7, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) which denied his reopened claim for service connection for residuals of frostbite of the feet, legs, and head. The Secretary of Veterans Affairs (Secretary) filed a motion for summary af-firmance. The Court has jurisdiction of the case under 38 U.S.C.A. § 7252(a) (West 1991).

“[T]he BVA must perform a two-step analysis when a veteran seeks to reopen a claim based upon new evidence.” Manió v. Derwinski, 1 Vet.App. 140, 145 (1991). The Board must first determine whether the evidence submitted since the prior denial of the claim is “new and material.” 38 U.S.C.A. § 5108 (West 1991). If it is not, the case may not be reopened; if it is, “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.” Manio, 1 Vet.App. at 145.

The Court reviews issues of whether an appellant has submitted “new and material” evidence on a de novo basis. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Material evidence is “relevant and probative of the issues at hand,” and new evidence is that which is not “merely cumulative of evidence in the record.” Id. at 174. Furthermore, in order for evidence to constitute “new and material” evidence, it must raise “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Id.

Because the BVA decision in this case was rendered prior to this Court’s decisions in Manió and Colvin and thus is not articulated in terms used by this Court in those decisions, it is difficult to determine whether the Board properly reopened a previously disallowed claim. The BVA previously denied the veteran’s claim for service connection for frostbite of the feet, *439legs, and head with claimed cerebrovascu-lar residuals in March 1983. R. at 2-4. With regard to evidence submitted since that decision, the BVA stated,

The additional evidence submitted since the Board’s denial does not demonstrate that the veteran has residuals of frostbite of the feet, legs and head with claimed cerebrovascular residuals which are related to service. The veteran’s complaints many years after service do not establish the presence of the claimed disorders coincident with service or demonstrate that cerebrovascular disease was present within a year of his service discharge. Upon consideration of the evidence in its entirety, the Board is of the opinion that the evidence added to the record since the prior Board decision does not present a new factual basis on which to allow the veteran’s claim.

Gerald A. Ennis, Jr., BVA 90-30871, at 5 (Sept. 7, 1990).

With regard to specifying exactly what evidence had been submitted since the prior decision of the Board, the Board noted in its findings of fact that “[t]he evidence added to the record since the decision in March 1983 ... consists primarily of [the veteran’s] hearing testimony....” Ennis, BVA 90-30871, at 5. In his motion for summary affirmance, the Secretary lists three items of evidence submitted or received since the prior decision: (1) “a VA hospital summary showing that the veteran was hospitalized from May 1979 to March 1980”; (2) testimony given at a hearing in September 1983; and (3) testimony given at a hearing in February 1990. Secretary’s Mot. at 3.

In his motion, the Secretary states, “The BVA reviewed the ‘newly’ submitted or received evidence and determined it to be essentially cumulative of evidence and contentions previously considered.” Secretary’s Mot. at 3. However, the Board did not use the word “cumulative” to describe the evidence. Judging from the March 1983 BVA decision, it appears that the evidence may be cumulative of evidence previously submitted, but it is difficult for the Court to so hold because the prior evidence is not of record. Moreover, the transcription of the veteran’s testimony at the February 1990 hearing is riddled with gaps, making the testimony incomprehensible. R. at 30-35. In his brief, the veteran alleges “falsification of transc[r]ipts of hearing,” although he claims such falsification occurred in the September 1983 hearing transcript rather than the February 1990 hearing transcript. Appellant’s Informal Br. at 1. The Secretary does not address these allegations in his motion nor does he explain the nature of the problem with the February 1990 hearing transcript.

In addition to these problems with the evidence of record, the Court observes that the veteran’s representative stated in the Informal Hearing Presentation, “The VA examination and subsequent rating decision recognized frostbite residuals of a noncompensable level, but without a history of symptomatology of sympathetic dystrophy and atrial insufficiency.” R. at 44 (emphasis added). This statement raises questions about the nature of the veteran’s claim, i.e., whether it is a claim to reopen a previously denied claim for service connection or whether it is a claim for an increase in a disability rating which is not subject to the reopening requirements of 38 U.S.C.A. § 7104(b) (West 1991). See Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (claim for an increase is a new claim which is not subject to reopening requirements). The VA examination and rating decision referred to are not in the record on appeal. However, it appears from the March 1983 BVA decision that service connection for residuals of frostbite was denied by the Board, and that the task of the BVA in the decision currently before this Court was to decide whether new and material evidence had been submitted to justify reopening the claim for service connection for residuals of frostbite. Nevertheless, on a confirmed rating decision sheet, dated December 6, 1983, a VA rating board designated the veteran’s claim as a “claim for increase” and then further described the claim as, “Reconsideration of service connection of frostbite which the veteran alleges was the forerunner of the CVA [cerebrevascular accident (stroke)] in 1978.” R. at 17. In *440addition, the September 1990 BVA decision notes, “It is emphasized that the VA examination reflects residuals of frostbite and that these conditions could well be related to an earlier severe case of frostbite,” but the Board does not comment further about this VA examination. Ennis, BVA 90-30871, at 3.

Finally, the Court notes that the veteran’s representative alleged that the veteran’s service medical records (SMRs) were incomplete and requested that the case be remanded for further development (R. at 44), and, according to the hearing officer’s summary of the veteran's testimony at the February 1990 hearing, the veteran “stated that he did not undergo a separation examination when he left service.” R. at 41. No SMRs are contained in the record on appeal; however, the March 1983 BVA decision refers to a separation examination dated in July 1950. R. at 3. In its September 1990 decision, the Board noted the veteran’s assertion “that the [SMRs] are incomplete” but did not address this assertion. Ennis, BVA 90-30871, at 2-3.

While the Court’s rules provide both parties an opportunity to participate in the designation of the record, it is to the Secretary that we must look for an adequate record in the first instance. See U.S.Vet.App.R. 10. The missing documents and the nearly unintelligible transcript of the February 1990 hearing are serious deficiencies. The parties to this case and the Court are not well served by the inadequate record presented here, and the Secretary and his counsel must bear responsibility for the record’s inadequacies.

Given the problems with the February 1990 hearing transcript, the questions raised by the record regarding the nature of the veteran’s claim, and the assertions made by the veteran but not addressed by the Board that his SMRs are incomplete, the Court holds that the decision of the Board must be vacated and the case remanded for further development and read-judication. The Court further holds that summary disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Accordingly, upon consideration of the record, appellee’s motion for summary affirmance, and appellant’s informal brief, the Court holds that the Secretary’s motion is denied, the decision of the BVA is VACATED, and the case is REMANDED for readjudication consistent with this decision.

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## Ennis v. Brown, 4 Vet. App. 523 (1993) {#6729197}

*4 Vet. App. 523*

_Ennis v. Brown, 4 Vet. App. 523, decided 1993-04-15._

ORDER

On January 14,1993, the Court issued an opinion in this case which reversed and remanded the March 1, 1991, decision of the Board of Veterans’ Appeals with instructions for further proceedings consistent with the Court’s opinion. On January 28,1993, the Secretary of Veterans Affairs (Secretary) filed a motion for reconsideration, for decision by the full Court, to modify or vacate decision, and to stay further proceedings. The basis of the Secretary’s motion was “that the Court erred in applying the provisions of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) to suggest presumptive service connection may be established for polycythemia rubra vera.” Motion at 1.

On consideration of the foregoing, it is

ORDERED that the Secretary’s motion to stay further proceedings is denied; it is further

ORDERED that the Secretary’s motion for reconsideration is granted and his motion for en banc review by the Court is denied as moot; it is further

ORDERED that the opinion of this Court dated January 14, 1993, is hereby vacated by the Court, and replaced by the opinion filed this date.

April 15, 1993.

PER CURIAM.

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## Ennis v. Brown, 4 Vet. App. 523 (1993) {#6729200}

*4 Vet. App. 523*

_Ennis v. Brown, 4 Vet. App. 523, decided 1993-04-15._

IVERS, Associate Judge, filed the opinion of the Court. FARLEY, Associate Judge, filed a separate opinion, concurring in part arid dissenting in part.

IVERS, Associate Judge:
Appellant, Rita T. Ennis, seeks review of two March 1, 1991, Board of Veterans’ Appeals (BVA) decisions. The first decision denied entitlement to accrued benefits pursuant to a pending claim for entitlement for service connection for polycythemia ru-bra vera, claimed as a residual of exposure to ionizing radiation. Rita T. Ennis, in the Case of Henry L. Ennis, BVA 91-06748, at 4 (Mar. 1, 1991). The second decision denied entitlement to accrued benefits pursuant to a pending claim for entitlement to service connection for polycythe-mia rubra vera, claimed as a residual of exposure to asbestos; denied entitlement to accrued benefits pursuant to a pending claim for entitlement to service connection for a chronic pulmonary disorder, claimed as a residual of exposure to asbestos; and denied entitlement to service connection for the cause of the veteran’s death on a basis other than as the result of exposure to ionizing radiation. Ennis, BVA 91-06749, at 6. On April 7, 1991, the Secretary of Veterans Affairs (Secretary) filed a motion for summary affirmance, for acceptance of the motion in lieu of a brief, and for a stay of proceedings pending a ruling on this motion. For the reasons set forth below, the Court affirms the decision of the BVA which denied service connection for poly-cythemia rubra vera based on radiation exposure. The Court, for the reasons also set forth below, remands to the BVA, for further proceedings consistent with this opinion, the remaining three issues: service connection for polycythemia rubra vera based on asbestos exposure, service connection for chronic pulmonary disorder based on asbestos exposure, and service connection for the cause of the veteran’s death.

*525I. BACKGROUND

The veteran, Henry L. Ennis, served as a machinist mate in the United States Navy from November 10, 1937, through October 9,1947, and October 21, 1947, until December 17, 1965. He retired with the rank of Senior Chief Machinist Mate (E-8) and was honorably discharged. R. at 202. In June 1967, the veteran received a disability rating of 20% for osteoarthritis and 10% for varicose veins. No ratings for other disabilities or injuries were awarded. R. at 105-06. The veteran petitioned to reopen his claim for service-connected disability on October 30, 1987. At the same time, he filed for increased ratings and alleged that he was suffering from polycythemia rubra vera which he claimed was the direct result of his exposure to asbestos during his military service. R. at 204. In connection with that claim, the Veterans’ Administration (now Department of Veterans Affairs) (VA) also received correspondence from the veteran’s private physician which supported his claim of polycythemia rubra vera. The physician’s correspondence also indicated that the veteran suffered from chronic obstructive pulmonary disease (COPD). R. at 219. The veteran received a medical evaluation in support of his claim on February 2,1988, which took note of the fact that the veteran smoked approximately one to two packs of cigarettes a day for 40 years. R. at 221. As a consequence of the claim and examination, the VA Regional Office (RO), on March 9, 1988, increased his total disability to 40% based upon spon-dylosis and arthritis of the lumbar spine, but denied service connection for poly-cythemia rubra vera and COPD. R. at 227-28. The veteran amended his claim by submitting a VA Form 21-4138, which was received on March 10, 1988, in which he claimed that the polycythemia rubra vera was caused by his possible exposure to radiation while serving aboard the U.S.S. C.K. Bronson (D.D.668) as part of the occupation of Japan in late 1945. R. at 229. The veteran further supported his claim by stating that he believed that his exposure could have occurred as a result of his assignment to search parties trying to capture Japanese hiding in the countryside or while he was on shore leave in Japan. R. at 253. The VA issued a confirmed rating decision on November 12, 1988, denying service connection as to both diseases, citing as a basis a lack of evidence of service in Japan “around the atomic bomb sites” and a lack of evidence that either disease was the result of asbestos exposure. R. at 254. The veteran filed his Notice of Disagreement through the Disabled American Veterans, on December 13, 1988. R. at 256. On January 13, 1989, the veteran died; his widow, Mrs. Rita T. Ennis, filed a VA Form 21-4138 on February 11, 1989, in which she stated her desire to continue her late husband’s claim. R. at 257.

Appellant, Mrs. Ennis, on March 25, 1989, amended her appeal to seek Dependency and Indemnity Compensation (DIC) benefits. R. at 263. On May 5, 1989, the VA issued a rating decision which denied DIC benefits, noting that the death certificate indicated death due to “metastatic bronchogenic carcinoma.” R. at 266. An appeal to the BVA followed, and on October 5, 1989, the BVA issued two separate decisions. The first decision addressed the issue of service connection for the veteran’s death. The BVA, in that decision, issued a remand to the originating agency with instructions to develop more fully the medical record on the issue of the veteran’s fatal disease. R. at 273-75. The second BVA decision dealt with (1) service connection for polycythemia rubra vera based upon exposure to either asbestos or ionizing radiation and (2) service connection for COPD based upon exposure to asbestos. R. at 276-78. The BVA also issued a remand on this claim. R. at 277. The RO issued a rating decision on March 8, 1990, denying service connection for either poly-cythemia rubra vera or COPD. R. at 281-82. A second rating decision, denying service connection for the cause of death, was issued on April 23, 1990. R. at 388. Appellant appealed these latest rating decisions to the BVA. R. at 393-406. The BVA issued two separate decisions on March 1, 1991. The first decision denied entitlement to service connection for poly-cythemia rubra vera as a result of exposure to ionizing radiation. Ennis, BVA 91-06748, at 4. The second decision denied three claims: service connection for poly-*526cythemia rubra vera as a result of asbestos exposure; service connection for chronic pulmonary disorder as a result of asbestos exposure; and service connection for the veteran’s death “on a basis other than as the result of exposure to ionizing radiation.” Ennis, BVA 91-06749, at 6. Appellant perfected a timely appeal of these decisions to this Court. The Court has jurisdiction of the case under 38 U.S.C.A. § 7252(a) (West 1991).

II. ANALYSIS

Under 38 U.S.C.A. § 7261(a)(4) (West 1991), findings of material fact by the BVA may be set aside only if such findings are found to be “clearly erroneous.” With regard to the claim for service connection for polycythemia rubra vera as a result of exposure to ionizing radiation, the BVA appropriately cited the relevant subparagraphs of 38 C.F.R. § 3.311b (1992), which address “claims based upon exposure to ionizing radiation.” Section 3.311b(b)(2) lists those diseases which are presumed to be the result of exposure to ionizing radiation, and polycythemia rubra vera is not listed. In fact, section 3.311b(b)(3) specifically states that “ ‘radiogenic disease’ shall not include polycythemia” (emphasis added). In addition, the veteran incurred this disease some two decades after service, and there is no indication that he incurred the disease while in service. R. at 222. Polycythemia rubra vera is not included as one. of the VA-recognized “radiogenic diseases.” See also 38 C.F.R. § 3.309(d)(2) (1992). Therefore, there is no extended presumption period on that basis. Nor is polycythemia rubra vera included among the diseases on the “chronic disease” list that is set forth in 38 U.S.C.A. § 1101(3) (West 1991). See 38 C.F.R. § 3.309(a) (1992). Thus, although 38 C.F.R. § 4.117 (Diagnostic Code 7704) (1992) provides that “polycythemia, primary” be rated as “pernicious anemia,” a chronic disease which is listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a), the treatment of “polycythemia, primary” as “pernicious anemia” for rating purposes does not extend the presumption period for chronic diseases to polycythemia. Therefore, the one-year presumption period provided for chronic diseases in 38 U.S.C.A. § 1112(a)(1) (West 1991), see also 38 C.F.R. § 3.307(a) (1992), is also inapplicable. Consequently, the veteran must establish service connection through incurrence or aggravation in service. See 38 U.S.C.A. § 1110 (West 1991). He was unable to do so. The BVA’s decision on the issue of denial of service connection for polycythe-mia rubra vera, based on exposure to ionizing radiation, was made in full accordance with applicable laws and regulations, and that decision is affirmed.

With regard to the second and third issues, service connection for either (1) polycythemia rubra vera or (2) chronic pulmonary disorder as a result of exposure to asbestos, the BVA acknowledged first that “disease processes attributable to exposure to asbestos frequently are clinically manifested many years subsequent to that exposure.” Ennis, BVA 91-06749, at 4. The BVA also determined that “it is established that veteran’s military occupational specialty was one which would normally place him at high risk of exposure to asbestos.” Id. However, the BVA went on to state that polycythemia rubra vera and chronic pulmonary disorder “are not recognized as asbestos-related diseases.” Id. With regard to COPD, the BVA went on to further conclude that COPD “is not a characteristic manifestation of asbestos exposure....” Id. Consequently, the BVA determined that there was no service connection. The BVA, however, cited no authorities, medical or otherwise, for its determination that neither condition was an asbestos-related disease.

As we have previously said, “[s]uch a conclusion, especially if it is medical or scientific in nature, like all other findings of the BVA, must be supported by ‘a written statement of ... the reasons or bases for those findings or conclusions.’ ” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (quoting 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1))); see also Gilbert v. Derwin-ski, 1 Vet.App. 49 (1990). Since such a statement is not present in this case with regard to the issues of service connection for polycythemia rubra vera and for COPD qn the basis of asbestos exposure, the *527Court remands the case so that the BVA may present adequate “reasons and bases” for its medical conclusions.

The final issue is service connection for the cause of death. The record shows that the veteran’s death was due to metastatic bronchogenic carcinoma. R. at 264. The BVA took note of the following information: (1) there was no evidence of lung cancer during service, (2) the veteran did not exhibit symptoms of bronchitis until some twenty years after separation from service, and (3) there was no evidence showing that the lung cancer was a result of his exposure to asbestos during service. Ennis, BVA 91-06749, at 4. The BVA also determined that the service-connected disabilities that the veteran did have, relatively mild musculoskeletal and circulatory disorders, neither caused nor contributed to the veteran’s death. Id. at 4-5. For these reasons, the BVA concluded that appellant had failed to prove service connection for the cause of the veteran’s death.

The analysis used by the BVA in this decision, however, is incomplete. There is currently no statute regarding asbestos and asbestos-related diseases, nor has the Secretary promulgated any regulations. The VA, however, has issued a circular on asbestos-related diseases, a circular which provides the only guidelines for considering asbestos compensation claims. Department of Veterans Benefits, Veterans’ Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The circular specifically emphasizes the following criteria when assessing asbestos claims, criteria which the BVA failed to take into account in its decision. First, “the latent period varies from 10 to 45 or more years between first exposure and development of the disease.” Second, “[p]er-sons with asbestos exposure have an increased incidence of bronchial, lung, phar-yngolaryngeal, gastrointestinal and urogenital cancer.” Third, “U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were used extensively in military ship construction.” Id. at 1-2 (emphasis added).

We note that appellant has also made an appeal to the BVA for service connection for the cause of the veteran’s death based on exposure to radiation, and we further note that the BVA remanded that claim to the originating agency because the BVA determined that the claim had “not been adequately developed for [the BVA’s] consideration.” Ennis, BVA 91-06749, at 2.

Because the veteran did have significant occupational exposure, because the VA recognizes that simple asbestos exposure can lead to bronchial or lung cancer, because the VA recognizes the extreme latency period associated with asbestos-related diseases, and because the VA is readjudicat-ing the claim for service connection for cause of death on the basis of radiation exposure, we find that the BVA adjudicated this claim without adequate development. Therefore, this matter will be remanded with instructions that the Secretary more fully develop the claim, in light of the guidelines set forth in DVB CIRCULAR 21-88-8.

III. CONCLUSION

For the reasons stated above, the Court AFFIRMS the decision of the BVA which denied service connection for polycythemia rubra vera due to radiation exposure. For the reasons also stated above, the Court VACATES the decision of the BVA which denied service connection for polycythemia rubra vera due to asbestos exposure, denied service connection for COPD due to asbestos exposure, and denied service connection for cause of death from exposure to asbestos. Further, the Court REMANDS these matters for readjudication consistent with this opinion. The Secretary is reminded that remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)). A remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).

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FARLEY, Associate Judge,
concurring in part and dissenting in part:

The reasons or bases offered by the Board of Veterans’ Appeals for rejecting the claims for service connection for poly-cythemia rubra vera and chronic obstructive pulmonary disease, particularly in light of DVB CIRCULAR 21-88-8 which was referenced by the majority in its opinion, are more than adequate to satisfy the requirements of 38 U.S.C. § 7104(d)(1) and our jurisprudence. See Gilbert, 1 Vet.App. 49. Unlike the majority, I would affirm the BVA’s decisions on these two issues; I concur in the remainder of the analyses and holdings of the majority.