Tucker v. West, No. 96-1493

UNITED STATES COURT OF VETERANS APPEALS
NO. 96-1493
DEMPSEY W. TUCKER, APPELLANT,
V.
TOGO D. WEST, JR.,
S ECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided August 13, 1998 )
James W. Stewart (non-attorney practitioner) was on the brief for the appellant.
Robert E. Coy, Acting General Counsel; Ron Garvin, Assistant General Counsel; Adrienne
Koerber, Deputy Assistant General Counsel; and Amy S. Gordon were on the brief for the appellee.
Before FARLEY, IVERS, and GREENE, Judges.
GREENE, Judge: The appellant, veteran Dempsey W. Tucker, appeals a September 1996
decision of the Board of Veterans’ Appeals (Board) that (1) denied him service connection for
impairments secondary to Agent Orange exposure; (2) failed to find clearly and unmistakably
erroneous VA regional office (RO) rating decisions of January 1970, November 1970, and May
1973 denying special monthly compensation (SMC) for loss of use of both feet; and (3) denied him
an effective date earlier than October 24, 1990, for his entitlement to SMC for loss of use of both
lower extremities. On appeal, the appellant limits his arguments to the denial of an effective date
earlier than October 24, 1990, for entitlement to SMC. Therefore, the other issues are deemed
abandoned. Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). The Secretary requests that the case
be remanded for further development of reasons and bases for the Board decision. The appellant
urges the Court to reverse the Board’s finding. The Court has jurisdiction of the case under
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38 U.S.C. § 7252(a). For the reasons that follow, the Court will vacate the decision of the Board and
remand the matter.
I. FACTS
The appellant served in the U.S. Marine Corps from June 1967 to July 1969. While on patrol
in Vietnam in 1968, he stepped on an enemy explosive device, causing multiple shrapnel wounds
to all extremities and the right eye. Record (R.) at 49. A medical discharge board found him unfit
for further duty. R. at 82.
A September 1969 rating decision granted Mr. Tucker service connection for multiple
missile wounds of the face and all extremities. R. at 168. In January 1970, the RO determined that
he did not qualify for SMC based on permanent loss of use of one or both legs. R. at 191. On
November 24, 1970, a rating decision granted the appellant entitlement to a total disability rating
based on individual unemployability effective January, 19, 1970. R. at 222. His claim was reopened
in May 1980 for, inter alia, SMC. A July 1980 VA medical examination noted that he “has pain in
both feet” and “cannot balance without crutches.” R. at 283. Also in his diagnosis, the VA
physician made the following observation:
The callus of the hands makes using the crutches difficult, the claimant is
bearing weight mainly with his crutches since the right foot is painful to touch the
ground and the left foot is limited in motion[,] also painful[,] so that the burden of
his weight is carried with his upper extremities and shoulders.
R. at 284. As a result, an October 1980 RO rating decision awarded the appellant 10% disability
for the development of calluses secondary to his service-connected leg disability. No decision was
made on the reopened SMC claim. R. at 288. Ten years later, on October 24, 1990, the Disabled
American Veterans represented the appellant and requested that he be granted SMC based on a long
history of loss of use of both legs. R. at 349.
After considering the results of a November 1990 VA examination, the RO determined in
February 1991 that the evidence “does not show the existence of no effective function remaining in
the veteran’s bilateral lower extremities. Entitlement to SMC based on loss of use of both lower
extremities was not established.” R. at 368. The rating form indicated that the decision was based
on evidence received “subsequent to rating action dated 11-30-81.” Id. However, the November
1981 rating action referred to did not mention any claim for SMC. R. at 310-13. Subsequently, the
appellant filed a Notice of Disagreement (NOD). R. at 378. Following a hearing in July 1991, he
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was given a VA disability examination specifically to determine whether he had lost the use of both
legs. In October 1991, the hearing officer (applying the standard articulated in 38 C.F.R.
§ 3.350(a)(2)) found that the appellant qualified for SMC as of October 24, 1990. R. at 496.
In January 1992, the appellant requested an earlier effective date for his SMC. R. at 503.
VA accepted this request as an NOD and issued a Statement of the Case (SOC). R. at 515-24. The
appellant filed an appeal to the Board (R. at 34), and it conducted a personal hearing in January
1993. R. at 590-604. In 1994, the Board remanded the matter to the RO to determine “whether all
the prior rating decisions not addressing the issue of entitlement to [SMC] on account of loss of use
of both lower extremities were erroneous.” R. at 669-70. The RO’s subsequent April 1995 decision
denied an earlier effective date for SMC. R. at 1153.
In the decision now on appeal, the Board denied the appellant an entitlement date for SMC
earlier than October 24, 1990, on the basis that “it had not been shown that there was no effective
function remaining in either of the veteran’s lower extremities.” R. at 22. The “REASONS AND
BASES FOR FINDINGS AND CONCLUSION” section of the Board’s 1996 decision contained the
following description of the appellant’s 1980 examination:
A July 1980 special VA orthopedic examination noted that the veteran walked with
the aid of crutches but could not balance without the crutches. The veteran’s right
foot was carried in inversion with weakness of dorsiflexion; the veteran had pain in
both feet. As the veteran walked his weight was mainly borne on the left foot. . . .
Both feet were held in inversion, and could not be everted except to the neutral
position. Range of motion of the right and left ankles were 0 to 40 degrees, and 0 to
35 degrees, respectively. There was a loss of 20 degrees of dorsiflexion of each toe,
a loss of approximately 25 degrees plantar flexion of the right foot, and a loss of 30
degrees plantar flexion of the left ankle. There were calluses on the right heel and
the dorsal aspect of the left foot. The veteran had hypesthesia [impaired or decreased
tactile sensibility. WEBSTER’S MEDICAL DESK DICTIONARY 316 (1st ed. 1986)] of
the entire left foot, the left lateral lower leg, and the lateral aspect of the right foot.
In his diagnoses, the examiner noted that the veteran was bearing weight mainly with
his crutches since it was painful to touch the right foot to the ground and the left foot
was both limited in motion, and also painful; therefore the burden of the veteran’s
weight was carried with his upper extremities and shoulders.
R. at 21. The Board decision then dismissed this examination by stating, “An October 1980 rating
decision failed to address the issue of entitlement to special monthly compensation on the basis of
the loss of use of the lower extremities.” Id. This appeal followed.
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II. APPLICABLE LAW AND ANALYSIS
A. Special Monthly Compensation
Special monthly compensation is awarded to a veteran based on a wartime disability. The
rate of SMC awarded depends upon the severity of the disability. The rating levels of SMC are
established in 38 U.S.C. § 1114 and 38 C.F.R. § 3.350 (1997). Section 1114(l) provides, “if the
veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use
of both feet . . . or is permanently bedridden or so helpless as to be in need of regular aid and
attendance,” he is entitled to a special monthly compensation. See Akles v. Derwinski, 1 Vet.App.
118, 119 (1991). Loss of use of a foot exists
when no effective function remains other than that which would be equally well
served by an amputation stump . . . with use of a suitable prosthetic appliance. The
determination will be made on the basis of the actual remaining function, whether
the acts of . . . balancing, propulsion, etc., could be accomplished equally well by an
amputation stump with prosthesis . . . .
38 C.F.R. §§ 3.350(a)(2), 4.63 (1997). Further, the regulation provides the following additional
guidance for determining functional loss:
Disability of the musculoskeletal system is primarily the inability, due to
damage or infection in parts of the system, to perform the normal working
movements of the body with normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which ratings are based adequately
portray the anatomical damage, and the functional loss, with respect to all these
elements. The functional loss may be due to absence of part, or all, of the necessary
bones, joints and muscles, or associated structures, or to deformity, adhesions,
defective innervation, or other pathology, or it may be due to pain, supported by
adequate pathology and evidenced by the visible behavior of the claimant
undertaking the motion. Weakness is as important as limitation of motion, and a part
which becomes painful on use must be regarded as seriously disabled. A little used
part of the musculoskeletal system may be expected to show evidence of disuse,
either through atrophy, the condition of the skin, absence of normal callosity or the
like.
38 C.F.R. § 4.40 (1997). In deciding each case, the Board is required to apply all appropriate and
relevant statutes and regulations. See Browder v. Derwinski, 1 Vet.App. 204, 205 (1991).
B. Effective Date
The appellant asserts in his appeal that he is entitled to an earlier effective date for an award
of SMC. Under the applicable statutory and regulatory law, the effective date of an award of
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disability compensation, based on an original claim, is the day following separation from active
service or the date entitlement arose, provided the claim was received by the RO within one year
after separation from service. Otherwise, the effective date is the “date of receipt of claim or date
entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o) (1997); see 38 U.S.C. § 5110(a).
Under 38 U.S.C. § 5110(b)(2), “[t]he effective date of an award of increased compensation
shall be the earliest date as of which it is ascertainable that an increase in disability had occurred,
if application is received within one year from such date.” There is no dispute that the appellant
filed a claim for SMC in 1980 and that, prior to the 1996 Board decision here on appeal, the Board
considered the veteran’s May 20, 1980, SMC claim to be a pending claim (R. at 25) until its
February 1991 decision. No determination was made between 1980 and 1990 of when the
appellant’s entitlement to SMC arose.
Normally, the determination of an effective date for entitlement for benefits is a finding of
fact that the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); Scott
v. Brown, 7 Vet.App. 184, 188 (1994) (quoting Quarles v. Derwinski, 3 Vet.App. 129, 135 (1992));
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Court must set aside a finding of fact as 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.” Gilbert, 1 Vet.App.
at 52 (citing United States v. Unites States Gypsum Co., 333 U.S. 364, 395 (1948)). See also
38 U.S.C. § 7261(a)(4). The Court may reach that conclusion only if there is no “plausible basis in
the record” for the Board findings. See Quarles and Gilbert, both supra.
The Board found that the appellant did not become entitled to SMC before October 24, 1990,
and that, therefore, he was not entitled to an earlier effective date. The Board’s decision stated:
With respect to the prospect of according an earlier effective date for the
grant of special monthly compensation, evidence submitted contemporaneous with
and subsequent to the veteran’s May 1980 claim should be summarized. The July
1980 VA examination noted that that [sic] the veteran was able to walk with his
crutches, but was unable to balance without their assistance. It was noted that the
veteran’s weight was placed primarily upon his crutches since it was painful for the
veteran to touch his right foot to the ground and the left foot was limited in motion
and also painful. By November 1990, however, VA examination revealed that the
veteran’s preferred mode of ambulation had continued to be crutches until the middle
of 1988, when he began to rely upon the wheelchair. Significantly, in August 1991,
the opinion of the VA examiner was that there was enough residual strength,
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sensation, and balance, that allowed the veteran to ambulate on a limited basis for
normal activities of daily living using his adapted shoes, crutches, and wheelchair
that did not warrant amputation and suitable prosthetic device.
Curiously, in the face of that medical opinion, in October 1991, the RO
granted special monthly compensation for loss of the use of the veteran’s feet.
R. at 28 (emphasis added). This part of the decision demonstrates the Board’s incorrect application
of the regulatory standard for determining SMC entitlement, and the Board’s continued belief that
the veteran did not qualify for entitlement despite the RO’s granting SMC in 1991. Indeed, the
Board characterized his condition as “improved.” Id.
The relevant inquiry concerning an SMC award is not whether amputation is warranted but
whether the appellant has had effective function remaining other than that which would be equally
well served by an amputation with use of a suitable prosthetic appliance. See 38 C.F.R.
§ 3.350(a)(2), § 4.63. The Board concluded that because his situation did “not warrant amputation,”
the appellant was not eligible for SMC. R. at 488. This incorrect application of the standard was
error. (The Secretary’s Brief concedes to the use of an incorrect standard. Secretary’s Brief at 11.)
Additionally, in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of
pain in making its determination, see Spurgeon v. Brown, 10 Vet.App. 194, 196 (1997), and
articulate how pain on use was factored into its decision, see DeLuca v. Brown, 8 Vet.App. 202, 208
(1995). No statements concerning the impact of pain are in this Board decision. Further, because
the Board’s decision as to entitlement was not in accordance with the law, the determination of
effective date is similarly defective. See Smith v. West, 11 Vet.App. 134, 136 (1998).
When rendering a decision, the Board also is required to provide a written statement of the
reasons or bases for its findings and conclusions on all material issues of fact and law presented on
the record; the statement must be adequate to enable a claimant to understand the precise basis for
the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday
v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert,
1 Vet.App. at 57 (1990). The Secretary concedes that the current Board decision lacks sufficient
reasons or bases for judicial review. The Court agrees. Not only did the Board incorrectly apply
the evaluative standards for SMC, but it also failed to articulate sufficient reasons or bases for its
conclusions. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra.
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Here, in determining when SMC arose and denying the appellant an effective date earlier
than 1990, the Board did little more than point to forms of locomotion the appellant could use. The
Board decision here on appeal notes that “it is clear that the process that had compromised [the
appellant’s] ability to balance in 1980 had resolved.” R. at 29. The decision fails to articulate the
evidence, reasons, and bases in support of this conclusion. Where the Board has failed to fulfill its
obligation to provide adequate reasons or bases, the Court is precluded from effectively reviewing
the adjudication. Quarles, 3 Vet.App. at 136. The Secretary also concedes that the Board decision
did not rely solely on independent medical evidence in reaching its determinations. Secretary’s Brief
at 7, 9. See Colvin v. Derwinski, 1 Vet.App. 171 (1991); Leopoldo v. Brown, 4 Vet.App. 216, 219
(1993) (medical conclusions must be based on independent medical evidence and not the internal
medical expertise of the Board members). The Court agrees. The Board erred when it relied on its
own medical speculation that the appellant’s “[b]alance and propulsion using his lower extremities
were very likely demonstrated in his ambulation . . . .” R. at 29. The Board violated Colvin by not
citing “medical evidence of record in this case or recognized medical treatises to support these
medical conclusions.” Colvin, 1 Vet.App. at 175. Bare assertions without identifying the underlying
factual basis for the conclusion are not sufficient. Id.
C. Remedy
The appellant argues for a reversal because of the Board’s failure to properly apply VA law
and regulations. Appellant’s Brief at 21. However, incorrect application of the law does not
necessarily constitute grounds for reversal. See Johnson v. Brown, 9 Vet.App. 7, 10 (1996) (reversal
is the appropriate remedy when the only permissible view of the evidence is contrary to the Board’s
decision). Generally, where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a
remand is the appropriate remedy. See generally Hicks v. Brown, 8 Vet.App. 417, 422 (1995).
Accordingly, a remand is necessary; this will permit the Board to make the appropriate required
determinations, under the correct legal standards, for the appellant’s SMC and the concomitant
effective date. The Board shall provide adequate reasons or bases to support its findings. See
38 U.S.C. § 7104(d)(1); Allday, Simon, and Gilbert, all supra.
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III. CONCLUSION
Upon consideration of the record, and the pleadings of the parties, the Court holds that the
appellant has demonstrated and the Secretary concedes that the Board committed legal error that
warrants remand. Accordingly, the Board decision is VACATED and the matter REMANDED to
the Board for prompt determination of SMC entitlement and the date such entitlement arose. On
remand, the appellant will be free to submit additional evidence and argument, and the Board may
seek other evidence it considers necessary to the resolution of the appellant’s claim. See Hardin
v. West, 11 Vet.App. 74, 79 (1998) (citing Quarles, 3 Vet.App. at 141). The Board shall proceed
expeditiously in accordance with section 302 of the Veteran’s Benefits Improvement Act, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring
Secretary to provide for “expeditious treatment” for claims remanded by Board or Court). See
Drosky v. Brown, 10 Vet.App. 251, 257 (1997); Allday, 7 Vet.App. at 533-34.