Cahall v. Brown, No. 93-773

Cahall v. Brown, No. 93-773

UNITED STATES COURT OF VETERANS APPEALS
No. 93-773
JACK R. CAHALL, APPELLANT,
V.
JESSE BROWN,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided December 19, 1994 )
Jack R. Cahall, pro se.
Mary Lou Keener, General Counsel, Norman G. Cooper, Assistant General Counsel, David
W. Engel, Deputy Assistant General Counsel, and Michael P. Butler were on the brief for the
appellee.
Before NEBEKER, Chief Judge, and FARLEY and HOLDAWAY, Judges.
FARLEY, Judge: The appellant, Jack R. Cahall, appeals from an April 26, 1993, decision
of the Board of Veterans’ Appeals (BVA or Board) denying service connection for residuals of a
back injury and of a left ankle injury. For the reasons that follow, the Court will affirm the BVA
decision regarding both claims.
I. FACTUAL BACKGROUND
The appellant served in the Air Force from October 1948 to August 1952. Record (R.) at 37.
He was a member of the Army National Guard of Louisiana from September 15, 1959, until his
discharge on September 14, 1962. R. at 225; see also R. at 93. He is listed as having been on active
duty for training from February 10 to 20, 1960; August 10 to September 3, 1960; July 16 to 30, 1961;
and June 29 to July 15, 1962. R. at 225.
The appellant reported that he sustained a back injury in a plane crash while in the Air Force.
R. at 184-86. Except for obtaining some pain pills from the village doctor in Mont Jolie, Canada,
where the plane crash-landed and later obtaining more pills at “Fort Pepperrell A.F.B.,” the appellant
did not seek treatment for his injuries “because [his] three (3) year enlistment was up several days
pervious [sic] to the above accident, and [he] was waiting for orders to board ship for ZI (U.S.) and
did not want to be put in the hospital and miss the ship.” R. at 185. During his August 1952.2
separation examination, the appellant did not complain of any back problems or report that he had
injured his back in a plane crash, and no back problems were detected by the examining doctor. R.
at 95-96.
Seven years later, at his August 1959 National Guard enlistment examination, the appellant
did not complain of back pain or injuries, and none were detected. R. at 98-101. The appellant
claimed to have reinjured his back twice as a National Guardsman, both times as a result of
parachuting. R. at 187, 189. The appellant submitted an affidavit from a fellow National
Guardsman, Henry J. Cook, III, who stated that he had witnessed both of these occurrences. R. at
164-65, 170-71.
Private medical billings from Ochsner Foundation Hospital in New Orleans, Louisiana,
reflect that the appellant underwent a closed reduction of a fracture of the left ankle on September
24, 1961. R. at 103-16. Newsletter articles chronicle his broken ankle as a result of a parachute
jump. R. at 119, 121, 123. While these articles imply that he parachuted in his capacity as a
National Guardsman, records from the Ochsner Foundation Hospital concerning his admission on
September 24, 1961, describe him as a “29 [year old white male] who parachute jumps for a hobby.”
R. at 246. Prudential Insurance Company paid partial medical expenses for the ankle injury. R. at
125. As to this occurrence Henry J. Cook, III, stated in his affidavit that “in September of 1961, Jack
R. Cahall and myself were participating in a training parachute jump at Broussard Airport in
Lafayette, Louisiana . . . . [D]uring our second jump on that day . . . Mr. Cahall suffered a badly
fractured ankle with other leg injuries.” R. at 167.
On February 14, 1989, the appellant submitted an APPLICATION FOR COMPENSATION OR
PENSION; under the section entitled “NATURE AND HISTORY OF DISABILITIES,” he wrote that he had
received back injuries on October 8, 1951, February 8 to 17, 1960, September 24, 1961, and July 15,
1962, and a left ankle injury on September 24, 1961. R. at 133-37. He also referenced a letter from
Doctor Ralph J. Gessner (R. at 129-30), which was included with the application. That letter states:
It is my impression that this patient sustained several rather
acute injuries to his lumbar spine for which he now has a
degenerative process at the lumbo sacral junction. . . .
I feel that the patient did get a good result from the fractured
left ankle, however, I am of the opinion that he has permanent
limitations of motions of the ankle.
I am further of the opinion that this patient has a disability of
approximately 30 percent of the left ankle and 10 percent of the back.
I am of the opinion that he has a total physical impairment of 40
percent of the body secondary to various injuries which he sustained
while serving in active duty while in the service.
R. at 130. There is no indication that Dr. Gessner had seen the appellant’s service medical records..3
The appellant was granted a VA examination, which resulted in diagnoses of “[d]egenerative
osteoarthritis lumbar spine,” and “[s]light traumatic arthritis left ankle . . . residual pain.” R. at 140.
The report of the radiologist regarding the appellant’s ankle was that “THERE IS A WELL HEALED
FRACTURE OF THE DISTAL FIBULA WITH SATISFACTORY ALIGNMENT OF THE MORTISE.” R. at 141. As
to his back, she reported that the “VERTEBRAL BODIES AND DISC SPACES HAVE MANTAINED [sic]
NORMAL HEIGHT AND ALIGNMENT IS SATISFACTORY.” R. at 143-44.
An August 3, 1989, rating decision denied service connection for both of the appellant’s
claims. R. at 152-53. The regional office (RO) found that although there were incomplete medical
records, the available ones did not indicate that the appellant had been treated for a back or a left leg
injury while in the service. R. at 152. The RO also noted that the appellant’s medical examination
upon release from the Air Force showed no evidence of back problems. Ibid. As to the ankle injury,
the RO stated that there was no evidence that he was on active or inactive duty for training at the
time it occurred. Ibid. On September 4, 1989, the appellant filed a Notice of Disagreement. R. at
155. Another rating decision was issued on October 30, 1989, summarily denying his claims. R.
at 176.
On January 17, 1989, after VA had contacted the Louisiana National Guard and was
informed that no additional records were in the appellant’s file, a confirmed rating decision was
issued. R. at 201. The BVA affirmed the denial of both claims on June 15, 1990, holding that the
clinical record did “not establish the incurrence of injuries to the veteran’s back or left ankle during
a period of active duty for training or inactive duty training.” R. at 32. Further, the Board found that
the other, “nonclinical” evidence, including the statements of Mr. Cook, was “insufficient to establish
injuries in service resulting in chronic residual disabilities when they are not documented in
contemporaneous clinical records.” R. at 33.
In a July 26, 1991, single-judge memorandum decision, this Court reversed the BVA’s
decision and remanded the case. R. at 378. The Court held that the BVA’s statement that the lay
evidence was “insufficient to establish injuries in service . . . when they are not documented in
contemporaneous clinical records” was contrary to 38 C.F.R. § 3.307(b) (1990), “which provides that
in order to prove injury in service, ‘[t]he factual basis may be established by medical evidence,
competent lay evidence, or both.'” R. at 378.
After the Court-ordered remand, the BVA remanded the case to the RO on March 26, 1992,
(1) to get more information from the Louisiana National Guard, including a “specific statement as
to whether the veteran was on active duty for training on September 24, 1961,” and (2) to obtain all
his private medical records. R. at 213-15. After this further development, the RO issued a
confirmed rating decision on October 14, 1992. R. at 296. The decision stated:.4
The National Guard advise[s that] records do not show the veteran
was on active duty or inactive duty for training on 9-24-61, the date
of his parachuting accident.
. . .
Service connection remains denied for a back injury and left
leg injury as the additional evidence does not show either one of these
conditions were incurred on active duty or on inactive duty training.
Ibid.
On November 30, 1992, the appellant submitted a statement in which he asserted that he had
been unable to attend weekday drills due to his civilian occupation, and that, although the regular
training jump was on September 26, 1961, he was authorized to perform it on September 24, 1961,
“ET and VOC.” R. at 335. (The appellant had earlier explained that he used the abbreviation “ET”
to mean “Equivalent Training” and “VOC” to mean “Verbal Orders by Commander.” R. at 334.)
The morning report of the Louisiana National Guard for September 26, 1961, which was previously
obtained by the RO and also submitted by the appellant with his statement in support of claim, lists
the appellant as being absent “NLD [not in the line of duty]” and his location as City Hospital in New
Orleans. R. at 349.
The BVA affirmed the RO’s denial on April 26, 1993. The Board held that
Dr. Gessner’s opinion attributing the degenerative changes of the
veteran’s lumbosacral spine to his reported inservice back injuries is
not found to be credible and probative because there is no indication
that Dr. Gessner reviewed any of the veteran’s prior medical
examination and treatment reports.
R. at 20. The Board went on to find that “the probative value” of this evidence was outweighed by
other evidence, namely the appellant’s August 1952 Air Force separation examination and his August
1959 National Guard enlistment examination, where the appellant did not complain of any back
problems and none were detected by the doctors. R. at 95, 98. The Board was also influenced by
a 1965 medical record from the Ochsner Clinic, in which it was noted that the appellant had
complained of low back pain, but the impression of the doctor was that it was “[c]hronic back strain–
postural. Possibly aggravated by car he uses (GM seats tend to be low and angled backward
[causing] strain and fatigue).” R. at 274. Based on this evidence, the Board concluded that “any
injuries to the veteran’s back which occurred during his Federal military service are shown to have
been acute and transitory, resolving without residual disability.” R. at 20.
With regard to the ankle injury, the Board found that the appellant was not on active or
inactive duty for training on September 24, 1961, the date he broke his ankle. R. at 21-22. The
Board held that it was bound by 38 C.F.R. § 3.203 (1993), and Duro v. Derwinski, 2 Vet.App. 530,
532 (1992), which, when “read together with 38 U.S.C.[] §§ 101(24), 106 . . . signifies that only
official service department records can establish if and when an individual was serving on active.5
duty, active duty for training, or inactive duty training.” R. at 22. The only evidence the Board
deemed probative was the morning report from the Louisiana National Guard for the date in question
and a contact between a VA official and Chief Warrant Officer Warren Lund of the Louisiana
National Guard. R. at 304. The chief warrant officer had checked the morning reports and informed
the VA official that the appellant was listed as “absent, not in line of duty” for September 26, 1961,
and also said that “the hospital bill would be paid by the [National Guard] if the injury occurred on
[active duty].” Ibid. (It is clear that the National Guard did not pay for his medical expenses, since
his health insurance covered part of them. R. at 125.) The Board concluded that the appellant was
not on inactive duty training on September 24, 1961, and thus was not eligible to be service
connected. While the Board conceded that the appellant jumped from a National Guard plane, it
held that he did so “as a civilian.” R. at 22.
II. ANALYSIS
A. Back Claim
In denying service connection for a particular disabling condition, the Board makes a finding
of fact which the Court reviews under a “clearly erroneous” standard of review. 38 U.S.C.
§ 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “A finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948). In determining whether a finding is clearly erroneous, “this 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.” Gilbert, 1 Vet.App. at 53.
The Court finds that there is a plausible basis in the record for the Board’s conclusion that
the “degenerative osteoarthritis” of the spine the appellant currently suffers from did not first arise
during service or during the one-year presumptive period established by title 38 of the United States
Code and VA regulations. See 38 U.S.C. §§ 1101(3), 1110, 1112(a)(1); 38 C.F.R. §§ 3.303,
3.307(a)(3) (1993). There is no documentation in either his Air Force or Louisiana National Guard
service records of injury to his back. Both the appellant’s 1952 Air Force separation examination
and his 1959 National Guard enlistment examination fail to reveal any evidence of back pain
reported by him or discovered by the doctors. R. at 95, 98. A 1965 examination attributed the back
pain the appellant was experiencing to the fact that his car’s driver seat caused him back strain and
fatigue. R. at 274. Finally, the doctor who performed his VA examination characterized his
condition as “degenerative osteoarthritis,” with no mention that it was caused or aggravated by his
in-service injuries, and the x-ray reports were essentially normal. R. at 140, 143, 144..6
Even according credibility to the appellant and Henry J. Cook, III, their assertions only tend
to establish that the appellant injured his back; there is nothing in their statements or elsewhere in
the record that demonstrates that the injury was other than acute and transitory. Nor do the
statements show chronicity. See 38 C.F.R. § 3.303(b) (“For the showing of chronic disease[,
including arthritis,] in service there is required a combination of manifestations sufficient to identify
the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word ‘Chronic.'”). The record does not establish
that there was a continuity of symptomatology, or that the appellant’s arthritis became manifest to
a degree of 10% or more during the year following his discharge from service. 38 U.S.C.
§ 1112(a)(1); 38 C.F.R. §§ 3.303(b), 3.307(a)(3).
Although the letter from Dr. Gessner states that the appellant “sustained several rather acute
injuries to his lumbar spine for which he now has a degenerative process at the lumbo sacral
junction,” it appears that Dr. Gessner relied heavily on the appellant’s recitation of his own medical
history, a circumstance which makes the doctor’s conclusion that the appellant’s injuries caused his
arthritic condition less persuasive. See Reonal v. Brown, 5 Vet.App. 458, 460 (1993). Furthermore,
Dr. Gessner reported that the x-rays of the appellant’s spine “revealed degenerative changes at L5-
S1,” without any mention that this arthritis was induced by trauma. R. at 129-30. In contrast,
regarding the appellant’s ankle, Dr. Gessner stated that the x-rays revealed “a rather marked amount
of traumatic arthritic changes for his age and this is certainly secondary to the trauma of the left
ankle.” R. at 129. Accordingly, the BVA’s denial of service connection for a back condition must
be affirmed.
B. Ankle Claim
In order for service connection for an injury to be granted, the facts of a case must establish
that a veteran was injured while he or she was “in the active military, naval or air service.” 38 U.S.C.
§ 1131. “In the active military, naval or air service” is defined as including “any period of inactive
duty training during which the individual concerned was disabled or died from an injury incurred or
aggravated in line of duty.” 38 U.S.C. § 101(24). Section 3.203 of title 38 of the Code of Federal
Regulations, entitled “Service records as evidence of service and character of discharge,” provides:
(a) Evidence submitted by a claimant. For the purpose of
establishing entitlement to pension, compensation, dependency and
indemnity compensation or burial benefits [VA] may accept evidence
of service submitted by a claimant (or sent directly to [VA] by the
service department) . . . without verification from the appropriate
service department if the evidence meets the following conditions:
(1) The evidence is a document issued by the service department. .
. . ; and.7
(2) The document contains needed information as to length, time
and character of service; and
(3) In the opinion of [VA] the document is genuine and the
information contained in it is accurate.
. . . .
(c) Verification from the service department. When the claimant
does not submit evidence of service or the evidence submitted does
not meet the requirements of paragraph (a) of this section . . . , [VA]
shall request verification of service from the service department.
38 C.F.R. § 3.203 (1993). In Duro, 2 Vet.App. at 532, this Court held:
The provision in [38 C.F.R. § 3.203(a)] allows VA to accept evidence
submitted by the veteran without service department verification only
if that evidence is itself a document issued by the service department
and VA is satisfied as to its authenticity and accuracy. The issuance
of this regulation was within the scope of VA’s statutory authority to
prescribe specific regulations regarding the “proof” of service. 38
U.S.C. § 501(a)(1). Therefore, VA is prohibited from finding, on any
basis other than a service department document, which VA believes
to be authentic and accurate, or service department verification, that
a particular individual served in the U.S. Armed Forces.
Under the circumstances presented by this appeal, the Board was correct in stating that the
Duro interpretation of 38 C.F.R. § 3.203 “signifies that only official service department records can
establish if and when an individual was serving on active duty, active duty for training, or inactive
duty training.” R. at 22. The official service department records do not establish that the appellant
was in the “active military, naval or air service” on September 24, 1961. If the appellant disagrees
with the information contained on those records, his remedy, if any, must be pursued with the Army
Board for the Correction of Military Records.
III. CONCLUSION
On consideration of the record and the pleadings of the parties, the Court holds that the
appellant has not shown that he is entitled to service connection for either his back condition or ankle
condition. The Court also is satisfied that the BVA decision meets the “reasons or bases”
requirements of 38 U.S.C. § 7104(d)(1), and the benefit of the doubt doctrine of 38 U.S.C.
§ 5107(b). See Gilbert, supra. Accordingly, the Court AFFIRMS the April 26, 1993, Board
decision.