Collins v. Derwinski

Collins v. Derwinski, 2 Vet. App. 215, decided 1992-02-21.

MANKIN, Associate Judge: Robert E. Collins appeals a July 16,1990, decision of the Board of Veterans’ Appeals (BVA or Board), which denied him an increased disability rating for bronchiectasis with left lower lobectomy, currently rated as 30% disabling. 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 Board’s decision, the Secretary’s motion for summary affirmance will be granted and the decision will be affirmed.

I. FACTUAL BACKGROUND

Robert E. Collins served in the U.S. Army from January 6, 1955, to December 19, 1956. R. at 6. On November 6, 1961, the Veterans’ Administration (now Department of Veterans Affairs) (VA) granted the veteran service connection for bronchiecta-sis (a chronic inflammatory or degenerative condition of one or more bronchi or bron-chioles) with left lower lobectomy (surgical removal of a lobe of the lung) from August 18,1961, the date he made the claim. R. at 7. In August 1988, the veteran requested an increased disability rating for his lung condition using recent records of treatment by Dr. Wayne E. Young in support of his claim. R. at 8. On September 26, 1988, he also requested a physical examination by the VA. R. at 12. On October 10, 1988, a brief physical examination was performed, where the veteran’s temperature, blood *216pressure, and pulse were taken, and the physician noted “harsh quality lung sounds” and “expiration mildly prolonged when compared to inspiration ...” R. at 14-15. The physician referred the veteran for a pulmonary function test (PFT), but this apparently was never performed by the VA. R. at 16. The rating decision of February 21, 1989, confirmed that the “service-connected lung condition remains 30% disabling.” R. at 17-18. The veteran filed a Notice of Disagreement on March 30, 1989. R. at 19.

On May 22, 1989, Dr. Young, the veteran’s treating physician, sent reports, dated July 1988, of the chest X rays and pulmonary function test to the VA. R. at 25-29. The pulmonary function interpretation report showed several readings outside the normal range. R. at 26-27. The report concluded, however, that “There is a minimal obstructive lung defect. Lung volumes are within normal limits. Diffusion is within normal limits_ This is interpreted as a mild response.” R. at 28. The radiology report noted that “The findings are consistent with some chronic lung disease, strictly at the left base.” R. at 29. Again on June 22, 1989, the rating board confirmed the previous 30% disability rating. R. at 35. The veteran filed his substantive appeal to the BVA on July 18, 1989. R. at 40. On July 16,1990, the BVA concluded that “[t]he schedular requirements have not been met for more than a 30 percent disability rating for bronchiecta-sis with left lower lobectomy.” Robert E. Collins, BVA 90-23712, at 4 (July 16, 1990). From this BVA decision the veteran appeals to this Court.

II. ANALYSIS

Since 1961, the veteran has been receiving compensation for service-connected bronchiectasis rated as 30% disabling. The applicable diagnostic code (DC) in the schedule of ratings for the respiratory system, 38 C.F.R. § 4.97, DC 6601 (1991), distinguishes between a 60% and a 30% disability rating as follows:

Severe; with considerable emphysema, impairment in general health manifested by loss of weight, anemia, or occasional pulmonary hemorrhages; occasional exacer-bations of a few days duration, with fever, etc., are to be expected; demonstrated by lipiodol injection and layer sputum test. 60

Moderate; persistent paroxysmal cough at intervals throughout the day, abundant purulent and fetid expectoration, slight, if any, emphysema or loss of weight... 30

Through an examination of the criteria listed in 38 CFR § 4.97, DC 6601, it does not appear that the veteran has the symptoms required for a 60% disability rating. The medical evidence available in the record does not reveal any of the “severe” symptoms. The veteran’s only complaints are that he has frequent breathing problems and asserts that his condition worsened to the point that he took an early retirement. The breathing problems are evidence in support of a 30% rating, but there is no evidence, other than the veteran’s own testimony, to support the veteran’s contention that his lung condition caused him to retire early.

Under 38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4)), “in order for a finding of material fact made by the BVA to be set aside, this Court must conclude that the finding is ‘clearly erroneous’.” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). Under this rule, the “Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... we cannot overturn them.” Id. at 53. Accordingly, the BVA correctly determined that

In spite of the veteran’s complaints, neither abundant expectoration, weight loss, nor pulmonary hemorrhages were reported. Pulmonary functions testing showed a minimal obstructive lung defect with normal lung volumes and normal diffusing capacity. These findings are adequately compensated by the 30 percent evaluation now in effect.

*217Collins, BVA 90-23712, at 4. Dr. Young s reports, relied upon heavily by the veteran, do not support an increased disability rating of 60%.

It should be noted that while the initial VA examination conducted in October 1988 failed to perform a pulmonary function test and may have been insufficient to support a substantive medical conclusion alone, the medical tests and reports of Dr. Young read together with the VA medical examination did provide a plausible basis for the BVA’s factual conclusions. See Gilbert, 1 Vet.App. at 53.

III. CONCLUSION

After consideration of the supporting memoranda and review of the record, it is the holding of the Court that appellant has not demonstrated that the BVA committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the BVA decision satisfies the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)), and the benefit of the doubt doctrine of 38 U.S.C. § 5107(b) (formerly § 3007(b)). See Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

The Secretary’s Motion is GRANTED and the decision of the BVA is summarily AFFIRMED.

Collins v. Derwinski, 3 Vet. App. 290, decided 1992-09-29.

ORDER

Appellant appeals from a February 20, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to a total disability rating based on unemployability due to his service-connected disabilities and denying entitlement to a certificate of eligibility for assistance in acquiring an automobile or other conveyance or specially adapted equipment. Marion M. Collins, BVA 91-05518 (Feb. 20, 1991). Appellant asserts on appeal that the Board failed to provide an adequate statement of the reasons or bases for its determinations, and that the Board’s findings of fact must be reversed as clearly erroneous. Appellant further contends that the Board erred in expressly declining to adjudicate additional claims for service-connected disability compensation for conversion reaction (loss of physical functioning suggest*291ing physical disorder, but which instead is an expression of a psychological conflict, Diagnostic and Statistical Manual of Mental DISORDERS 257 (3d rev. ed. 1987)) and left hemiparesis (“muscular weakness or partial paralysis affecting one side of the body”, Dorland’s Illustrated Medical Dictionary 745 (27th ed. 1988)). The Secretary of Veterans Affairs (Secretary) has filed a motion for dismissal or, in the alternative, for remand and for a stay of further proceedings.

The Secretary’s motion to dismiss the claims is predicated upon the assertions that the claims decided by the Board were "inextricably intertwined” with appellant’s claims for service connection for conversion reaction and left hemiparesis, and that the latter claims were not ripe for appellate review by the Board and, subsequently, by this Court. Appellant asserts that those claims were clearly presented for review by the Board, and that the Board erred in declining to review them. The Board is required to “ ‘review all issues which are reasonably raised from a liberal reading’ ” of “all documents or oral testimony submitted prior to the BVA decision.” EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (quoting Myers v. Derwinski, 1 Vet.App. 127, 129 (1991)). Here, appellant’s claims for service connection for conversion reaction and hemiparesis were denied by prior final Department of Veterans Affairs (VA) Regional Office decisions in June and August 1989. R. at 453-55, 463-64. Appellant, in his June 1989 Notice of Disagreement and his January 1990 Form 1-9, Appeal to the BVA, stated his desire to appeal the denial of those claims. R. at 458, 480. Therefore, those claims were clearly raised to the Board and the Board’s failure to review those claims was error. Remand is thus required in order for the Board to adjudicate those claims. Furthermore, because the Board’s disposition of those claims could change the outcome of the claims for a total disability rating based on unemployability due to service-connected disabilities (see 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16) (1991)) and for a certificate of eligibility for assistance in acquiring an automobile or other conveyance or specially adapted equipment (see 38 U.S.C. §§ 3901, 3902 (formerly §§ 1901, 1902); 38 C.F.R. § 3.808 (1991)), the latter claims must also be remanded for readjudication. The Court does not find, in the record before it, a sufficient basis to reverse the Board’s findings as to those claims at this time. See Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990).

The Board committed additional errors requiring remand in its adjudication of the claim for a total disability rating based on individual unemployability. In its February 1991 decision, the Board failed, in violation of 38 U.S.C. § 7104(d)(1) (formerly § 4004), to provide an adequate statement of “the reasons or bases for [its] findings and conclusions on all material issues of fact and law presented on the record”. See Gilbert, 1 Vet.App. at 56-57. Specifically, the Board failed (1) to discuss its evaluation of a VA physician’s opinion that the veteran is unemployable (R. at 239), see Simon v. Derwinski, 2 Vet.App. 621, 623 (1992); (2) to discuss the ample evidence of appellant’s severe pain due to his service-connected disabilities as it may affect his unemployability, see Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991); and (3) to make clear whether it concluded that the veteran was not unemployable, or that he was not unemployable solely due to service-connected disabilities, and to explain its conclusion, see Fluharty v. Derwinski, 2 Vet.App. 409, 411-13 (1992). Therefore, remand is required in order for the Board to comply with the reasons or bases requirement in these respects.

Additionally, the Board breached its statutory duty to assist the claimant in developing the facts pertinent to his well-grounded claim. See 38 U.S.C. § 5107(a) (formerly § 3007); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (a well-grounded claim is a “plausible” claim). The record before the Secretary and the Board revealed that appellant was receiving Social Security Disability Income. R. at 448. Therefore, because Social Security records regarding the veteran’s disability and em-ployability are “pertinent” to VA adjudications of those issues, VA’s statutory duty to assist required the Board to seek to *292obtain all relevant Social Security Administration records. See Murincsak v. Derwinski, 2 Vet.App. 363, 370-71; Masors v. Derwinski, 2 Vet.App. 181, 187 (1992). On remand, the Board will be required to seek to obtain those records.

On consideration of the foregoing, it is

ORDERED that the Secretary’s motion for remand is granted. The Court vacates the February 20, 1991, BVA decision and remands the record to the Board for prompt readjudication and issuance of a new decision in accordance with the Secretary’s motion for remand and this order. See 38 U.S.C. §§ 5107(a), 7104(a) (formerly § 4004), (d)(1); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). “On remand, the appellant will be free to submit additional evidence and argument”. Quarles v. Derwinski, 3 Vet.App. 129, 140-41 (1992). The Court retains jurisdiction. The Secretary shall file with the Clerk (as well as serve upon appellant) a copy of any Board decision on remand. Within 14 days after the filing of any such final decision, appellant shall notify the Clerk whether he desires to seek further review by the Court. It is further

ORDERED that the Secretary, not later than 90 days after the date of this order, advise the Court as to the status of the proceedings on remand. It is further

ORDERED that the Secretary’s motion to dismiss is denied.