Veteranclaims’s Blog

January 29, 2017

Godfrey v. Derwinski, No. 90-1169(Submitted January 30, 1992 Decided April 15, 1992); Credibility Separation Physical Report; Probative Value Separation Physical Report;

Excerpt from decision below:

Because the Board’s denial of appellant’s claim depended to a significant extent on the unfavorable evidence it found in his separation physical report, the Board’s failure to address appellant’s challenge to the report’s credibility was severely prejudicial to the fair adjudication of his claim.  In a case such as this, the VA and the BVA should have advised and encouraged the veteran to submit such evidence that he has which would impeach the credibility of the physical examination.  On remand, if the Board continues its denial of appellant’s claim, it will be required to make express findings as to the probative value of the separation physical report, and support its conclusions with an adequate statement of reasons or bases.  See Gilbert, 1 Vet.App. at 59.”

=======================

UNITED STATES COURT OF VETERANS APPEALS
No.  90-1169
V.
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
and
On Appellee’s Motion for Summary Affirmance
(Submitted January 30, 1992 Decided  April 15, 1992)
.
Robert E.
Coy
,
Acting
General
Counsel,
Barry
M.
Tapp
, Assistant General Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Craig M. Kabatchnick were on the pleadings for appellee.
Before
 MANKIN, IVERS, and STEINBERG, Associate Judges. MANKIN, Associate Judge:
  Appellant,
Robert Gordon Godfrey,
seeks reversal of a September 10, 1990, Board of Veterans’ Appeals (BVA or Board) decision that denied service connection for his bilateral hearing loss.
  Robert G. Godfrey, BVA 90-30966 (Sept. 10, 1990).
  Upon review of the record, we find that the Board applied an incorrect legal standard with respect to the evidentiary basis required to establish service connection.
Further, the Board utterly disregarded a significant issue raised by appellant, viz., the arguably doubtful credibility of the report of his separation physical examination (hereinafter referred to as “separation physical”). See Gilbert v. Derwinski, 1 Vet.App. 49, 58-59 (1990).
Consequently, we deny appellee’s motion for summary affirmance, and remand
the case to the Board for further adjudication.
I. BACKGROUND
Robert Gordon Godfrey, a veteran, served in the Army from September 1945 to May
1947.  R. at 6.  Apparently, during some portion of that time he served as a weapons
instructor.  The report of his separation physical, recorded in April 1947, noted that his
uncorrected vision in both eyes was “20/20,” and his “Hearing (Whispered voice)” was
rated at “15/15” in each ear.  R. at 3.  Although appellant claims to have been examined
for hearing loss while in service, no documentation of such treatment exists, possibly
because
most records of the veteran’s service were destroyed in the 1973 fire at the National
Personnel Records Center in St. Louis.  Appellant underwent a Veterans’ Administration
(now the Department of Veterans Affairs) (VA) audiometric exam in June 1980, and a
VA
audiological exam in April 1989.  R. at 5, 10.  The BVA has acknowledged that these
tests
indicated bilateral hearing loss at high frequencies.
Godfrey
, BVA 90-30966, at 2.  In
June
1989, appellant filed a claim for compensation for service-connected vision loss,
hearing loss,
tinnitus, and athlete’s foot.  R. at 6-9.  He contended that, in carrying out his duties as a
weapons instructor, he had been repeatedly exposed to excessive noise without ear
protection.  R. at 7.  Appellant submitted a Statement in Support of Claim that described
his vision and hearing problems, including tinnitus and high-frequency hearing loss.  R.
at
12-13.  In his statement, appellant informed the rating board that since childhood he
had
suffered from defective vision requiring corrective lenses.
A VA rating board denied service connection for all claimed conditions in February
1990.  In March 1990, appellant filed a Notice of Disagreement with respect to the
denial
of his vision loss and hearing loss claims.  The VA’s Statement of the Case stated that
“findings do not support onset or permanent aggravation of these conditions during
active
service or within the applicable presumptive period.”  R. at 35.  (This statement would
appear to be somewhat misleading in that neither hearing loss nor vision loss is a
chronic
disease entitled to any presumption of service connection under 38 U.S.C. §§ 1101(3)
(formerly § 301(3)) and 1112(a)(1) (formerly § 312(a)(1));
see also
38 C.F.R. §§
3.307(a)(3),
3.309(a) (1991).)
In his appeal to the BVA, appellant called the Board’s attention to the possibility
that the results reported on his separation physical had been fabricated.  He argued
forcefully that the credibility of his separation physical report could be impeached by
considering evidence that he had, in fact, suffered from a lifelong vision impairment.  He
contended that such evidence would show that, notwithstanding the notation of 20/20
uncorrected vision in the 1947 record of his separation physical, an accurate
examination
could not have found him to have normal vision at the time of his discharge; therefore,
the
entire report, including the “whisper test” results indicative of normal hearing, was highly
suspect.  Although  appellant withdrew his claim for service-connected vision loss, he
contended that the evidence regarding his vision claim was essential to a fair evaluation
of
his claim for service-connected hearing loss.  R. at 39-40.
In its decision, the BVA did not mention, much less discuss or refute, appellant’s
attack on the credibility of the separation physical report.  The Board described
appellant’s
CONTENTIONS
as follows:
It is contended by the veteran that service connection is
warranted for a bilateral hearing loss because it was incurred
during his active military service.  He relates that as a weapons
and explosives instructor, over a basic training unit, he was not
provided hearing protection.  A favorable resolution of
reasonable doubt is requested.
Godfrey
, BVA 90-30966, at 2.
In
THE EVIDENCE
section of its decision, the Board described the separation physical
report as follows:
A report of physical examination of the veteran prior to
separation from service, dated April 1947, indicates no
pertinent abnormality concerning his ears.  The veteran showed
15/15 hearing for whispered voice, bilaterally.
Ibid
.
In its
DISCUSSION AND EVALUATION
, the Board noted:
It is not doubted that the veteran was subjected to substantial
amounts of loud noise on multiple occasions during his active
military service.  Although exposure to excessive levels of noise
(Previous DocumentacousticNext Hit Previous HittraumaNext Document) can be the cause of chronic hearing loss in
some individuals, the veteran’s physical examination for
purposes of separation from service showed no pertinent
abnormality concerning his ears.
Id
. at 3.
The BVA denied service connection for appellant’s hearing loss, and a timely appeal
to this Court followed.
II.  ANALYSIS
A.
As an initial matter, we note that appellant has submitted for the Court’s
consideration a number of documents that were not included in the Secretary of
Veterans
Affairs’ (Secretary) designation of the record.  Appellant first proffered these items in his
counter designation of the record.
See
U.S. Vet. App. R. 10(a).  The counter
designated
materials included a medical test report dated March 13, 1991; letters from two
physicians
in support of appellant’s claim; photographs of appellant, dated 1932-1949; a letter from
appellant’s cousin offering testimony corroborating his assertion that he had worn
eyeglasses since childhood; and a transcript of a television news program concerning
hearing
loss.  Instead of responding to appellant’s counter designation, the Secretary filed a
record
consisting solely of materials of appellee’s own designation.  Appellant then filed a
“Motion
for Correction or Modification of Transmitted Record on Appeal.”  On September 3,
1991,
the Court denied appellant’s motion, finding that the materials appellant sought to be
included in the record had not been a part of his claims file at the time of the BVA
decision.  Appellant then tried a different tack.  Citing Rule 28(h) of the Court’s Rules of
Practice and Procedure, he submitted a letter to the Clerk of the Court offering the
materials he had counter designated (with the exception of the photographs) as a
citation
of supplemental authorities.  Approximately one week later, appellant again wrote to the
Clerk, enclosing an additional television news program transcript related to the subject
of
hearing loss.
Appellant’s persistence with respect to this procedural matter must go unrewarded.
His characterization of the aforementioned materials as “authorities” does not magically
transform their status in this appeal.  All of appellant’s proffered supplementary
materials
are evidentiary in nature and, as such, may not come in through the back door by way
of
citation as “supplemental authorities.”
See Trans-Sterling, Inc. v. Bible
, 804 F.2d 525,
528
(9th Cir. 1986).  The television news program transcripts, although arguably providing
somewhat “authoritative” discussion of hearing loss, may only be characterized as a
record
of opinion.  They obviously do not constitute legal authority; nor do they provide a
description of “facts not subject to reasonable dispute.”
Smith v. Derwinski
, 1 Vet.App.
235,
238 (1991) (citing Fed. R. Evid. 201(b)).  It is not the role of this Court to serve as the
initial finder of fact.  Consequently, such materials, however relevant they may appear,
may
not be considered in the first instance by the Court.
See
Green v. Derwinski
, 1 Vet.App.
121,
124 (1991);
Rogozinski v. Derwinski
, 1 Vet.App. 19 (1990).
Appellant has also requested the Court to expunge the separation physical report
from the record on appeal on the grounds of its alleged lack of credibility.
See
Br. of
Appellant at 4.  This the Court may not do.  Under 38 U.S.C. § 7252(b) (formerly
§ 4052(b)), “[r]eview in the Court shall be on the record of proceedings before the
Secretary
and the Board.”  Here, the separation physical report was clearly considered by the
Board;
accurate or not, it is an essential component of the record in this appeal.
We also note that appellant seems to have misconstrued the scope of the authority
of this Court to grant relief.  In a later section of his informal brief, appellant requested
that
the Court:
1. Reverse the BVA decision and grant service connection for
his hearing disability;
2. Order the VA to pay his disability-related medical expenses;
3. Order the VA to reimburse appellant for his time and
expense in prosecuting this appeal; and
4. Order the VA to pay appellant compensation retroactive to
his tour of duty.
See
Br. at 11-13.
With respect to appellant’s first request, it is well settled that in an appropriate case
this Court has the authority to reverse the BVA’s denial of service connection for a
veteran’s disability.
See
38 U.S.C. § 7261(a)(4) (formerly § 4061(a)(4));
see also, e.g.,
Willis
v. Derwinski
, 1 Vet.App. 66 (1991).  For the reasons set forth below, here we will not
order
the Board to award appellant service connection for his hearing loss; instead, we will
remand the case to the Board for further consideration.
See
38 U.S.C. § 7252(a).  The
remainder of appellant’s prayer for relief seeks remedies that cannot be granted by the
Court in this case.
This Court has “exclusive jurisdiction to review decisions of the Board of Veterans’
Appeals,” 38 U.S.C. § 7252(a), and, as noted, such review is on the record of
proceedings
below.  Inasmuch as the issue of appellant’s entitlement to compensation for his
disability-
related medical expenses was not before the Board, that question may not be
addressed in
this appeal.
See Branham v. Derwinski
, 1 Vet.App. 93, 94 (1990).  Further, we are
aware of
no authority, statutory or otherwise, that would permit the Court to order the Secretary
to
reimburse appellant for his time and expenses in pursuing a routine appeal.
But cf.
Jones
v. Derwinski
, 1 Vet.App. 596, 608 (1991) (ordering the Secretary to reimburse
petitioners’
expenses and attorney fees because of the professional misconduct of the Secretary’s
representatives).
Finally, because we are remanding this case to the BVA for further adjudication of
the service-connection issue, the effective date of appellant’s entitlement (if any) to
compensation is not before the Court.  We note that determination of the effective date
would be governed by 38 U.S.C. § 5110(a) (formerly § 3010(a)), which states: “Unless
specifically provided otherwise in this chapter, the effective date of an award based on
an
original claim . . . shall be fixed in accordance with the facts found, but shall not be
earlier
than the date of receipt of application therefor.”
B.
It is clear that the Board reached its determination that appellant’s hearing loss
“was not incurred in or aggravated by active military service,”
Godfrey
, BVA 90-30966,
at
4, on the basis of a flawed analysis.  The Board reported the following
FINDINGS OF
FACT
:
1. The veteran’s service medical records, other than the report
of his separation examination, are unavailable.
2. Hearing loss is not shown to have been present during the
veteran’s active military service.
Id
. at 3.  Pursuant to these factual findings, the Board determined that appellant had
failed
to establish service connection for his disability.
In reviewing the BVA decision, we conclude that the Board treated the lack of
evidence that appellant experienced hearing loss during service as dispositive of his
claim.
The Board has evidently misinterpreted the law.  To establish service connection,
appellant
was not obliged to show that hearing loss was present during active military service.
Appellant may establish the required nexus between his current condition and his term
of
military service if he can show that his disability “result[ed] from personal injury suffered
. . . in line of duty.”  38 U.S.C. § 1110 (formerly § 310).
Cf
. 38 C.F.R. § 3.303(d) (1991)
(service connection may be granted for any disease diagnosed after separation when
all the
evidence establishes that the disease was incurred in service).  If evidence should
sufficiently
demonstrate a medical relationship between the veteran’s in-service exposure to loud
noise
and his current disability, it would follow that the veteran incurred an injury in service;
the
requirements of section 1110 would be satisfied.
See
Douglas v. Derwinski
, 2 Vet.App.
103,
107-08 (1992) (BVA improperly failed to address possibility that sailor’s skin cancer, first
diagnosed years after discharge, was caused directly by his in-service exposure to
sunlight
as a deckhand in the Pacific Theater).
C.
In pursuing his appeal before the BVA, appellant completed a VA Form 1-9
(“Appeal to Board of Veterans Appeals”) to which he attached several additional pages
elaborating on his arguments.  The veteran expressly called the Board’s attention to the
possibility that the report of his separation physical did not accurately portray his
physical
condition at the time it was recorded.  R. at 39.  As we noted in Part I,
supra
, the Board
simply ignored appellant’s contentions on this point.
This Court has previously held that the BVA is not free to ignore the issues a veteran
raises in his appeal.
See Smith v. Derwinski
, 2 Vet.App. 137, 141 (1992).  Here, the
Board
was not required to discount the separation physical report merely on the basis of
appellant’s assertions, especially to the extent that appellant failed to substantiate them.
Nevertheless, the veteran’s own statement to the effect that, contrary to the report, he
possessed neither normal eyesight nor normal hearing at the time of his discharge, and
that
he could prove through extrinsic evidence that his eyesight had been defective since
childhood, raised an issue that the Board was not entitled to brush aside in such
cavalier
fashion.
See
38 C.F.R. § 19.123(a) (1991) (“The Board will construe such arguments
[raised
in VA Form 1-9] in a liberal manner for purposes of determining whether they raise
issues
on appeal.”) (superseded by 57 Fed. Reg. 4112 (1992) (to be codified at 38 C.F.R.
§ 20.202)); 38 C.F.R. § 19.172 (1991) (“An appellant may submit . . . information as to
the
availability of additional evidence after initiating an appeal.”) (superseded by 57 Fed.
Reg.
4125 (1992) (to be codified at 38 C.F.R. § 20.800));
see also
EF v. Derwinski
, 1
Vet.App. 324,
326 (1991);
Myers v. Derwinski
, 1 Vet.App. 127, 129-30 (1991).  Because the Board’s
denial
of appellant’s claim depended to a significant extent on the unfavorable evidence it
found
in his separation physical report, the Board’s failure to address appellant’s challenge to
the
report’s credibility was severely prejudicial to the fair adjudication of his claim.  In a case
such as this, the VA and the BVA should have advised and encouraged the veteran to
submit such evidence that he has which would impeach the credibility of the physical
examination.  On remand, if the Board continues its denial of appellant’s claim, it will be
required to make express findings as to the probative value of the separation physical
report,
and support its conclusions with an adequate statement of reasons or bases.
See
Gilbert
, 1
Vet.App. at 59.
Further, upon remand the Board must afford appellant the opportunity to submit
additional evidence, not only upon the question of the separation physical report’s
credibility, but also with respect to whether a cause-and-effect relationship exists
between
his in-service experience as a weapons instructor and his present hearing disability.
For
example, appellant may wish to offer for the Board’s consideration the documents he
improperly submitted to the Court in this appeal.  In that event, the Board should
determine
whether further remand to the Regional Office is necessary.
See
38 C.F.R. § 19.182(a)
(1991) (concerning remand by Board to agency of original jurisdiction for further
evidentiary
development) (superseded by 57 Fed. Reg. 4105 (1992) (to be codified at 38 C.F.R. §
19.9));
38 C.F.R. §§ 3.103(c)(1), (2), (d), 3.200 (1991) (concerning personal hearings and
submission of evidence at Regional Office); 38 C.F.R. §§ 19.157(a), (b), 19.165 (1991)
(concerning hearings and witnesses before BVA) (superseded by 57 Fed. Reg. 4119,
4122
(1992) (to be codified at 38 C.F.R. §§ 20.700, 20.710)); 38 C.F.R. §§ 19.173, 19.174
(1991)
(concerning evidence received by agency of original jurisdiction subsequent to
commencement of appeal to BVA) (superseded by 57 Fed. Reg. 4127-28 (1992) (to be
codified at 38 C.F.R. § 20.1304));
see also Littke v. Derwinski
, 1 Vet.App. 90, 92 (1990).
III.  CONCLUSION
In summary, we find that this case must be remanded to permit the development of
further evidence and for application of the correct legal standard concerning proof of
service
connection.  Accordingly, the BVA’s decision of September 10, 1990, is VACATED.  The
case is REMANDED to the BVA for further proceedings consistent with this opinion.
It is so Ordered.

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: