in the united states court of appeals for veterans … · 4/23/2020 · states court of appeals...
TRANSCRIPT
IN THE UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
LESLIE C. LONG, JR., )
)
Appellant, )
)
v. )
) Vet. App. No. 19-7301
ROBERT L. WILKIE, )
SECRETARY OF VETERANS AFFAIRS, )
)
)
Appellee. )
OPENING BRIEF OF APPELLANT
CERTIFICATE OF SERVICE
Gordon A. Graham
Non-attorney practitioner
14910 125th Street, N.W.
Gig Harbor, WA 98329
Telephone: (253) 313-5377
E-mail: [email protected]
Lead Representative for Appellant
1. TABLE OF CONTENTS
Page
1. TABLE OF CONTENTS ............................................................................................................ i
2. TABLE OF AUTHORITIES .................................................................................................... ii
3. TABLE OF RBA CITATIONS ................................................................................................ iii
4. CERTIFICATE OF ELECTRONIC FILING ........................................................................... vi
5. OPENING BRIEF OF APPELLANT ....................................................................................... 1
6. INTRODUCTION ..................................................................................................................... 3
7. STATEMENT OF ISSUES PRESENTED FOR REVIEW ..................................................... 5
8. JURISDICTIONAL STATEMENT .......................................................................................... 5
9. STANDARD FOR REVIEW .................................................................................................... 6
10. STATEMENT OF THE CASE ................................................................................................ 9
I. Course of Proceedings Below ........................................................................................ 9
II. Statement of the Facts Relevant to the Issues ............................................................. 13
11. ARGUMENT AND AUTHORITIES .................................................................................... 16
I. WHETHER THE APPELLANT IS ENTITLED TO AN EARLIER EFFECTIVE
DATE OF APRIL 29, 1970…………………………………………………….....….16
A. The failure of the Board to comply with 38 C.F.R. §3.156(c)(1),(3),(4) and
38 U.S.C. §1154(b) to reconsider all the claims filed on 6/22/1970 is
reversible error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
12. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
i
2. TABLE OF AUTHORITIES
CASES
Page
Adams v. Shinseki, 568 F.3d. 956 (Fed. Cir. 2009) ...............................................................24
Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005) ........................................................26
Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004)..…………………………………....29
Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014). ...................................................6,7
Boone v. Lightner, 319 U.S. 561 (1943)………………………………………………...30
Brokowski v. Shinseki, 23 Vet.App. 79 (2009) ......................................................................19
Clemons v. Shinseki, 23 Vet.App. 1 (2009)..………………………………………………..25
Cogburn v. Shinseki, 24 Vet.App. 205 (2010)...………………………………………7,17
Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996)………………………………………...27
Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)…………………………………….26,27
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009)……...…………………………..27
Elkins v. West, 12 Vet.App. 209 (1999)…………………………………………………..…..6
Emerson v. McDonald, 28 Vet.App. 200 (2016)...………………..................................6,7
Gilbert v. Derwinski, 1 Vet.App. 49 (1990)…………………………………………………..6
Harris v. Derwinski, 1 Vet.App. 180 (1991).…....…………………………………...12,17
Henderson v. Shinseki, 562 U.S. 428 (2011).…..……………………………………….29
Ingram v. Nicholson, 21 Vet.App. 232 (2007)....……...……………………………..19,24
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) .......................................................20
ii
CASES (Cont’d)
Page
MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006)…….………………………….19
McWhorter v. Derwinski, 2 Vet.App. 133 (1991)…...……………………………….19,20
Mitchell v. McDonald, 27 Vet.App. 431 (2015)…..………………………………….....28
Norris v. West, 12 Vet. App. 413 (1999)…...……………………………………………24
Roberson v. Principi, 17 Vet. App. 135 (2003) ...................................................................6,25
Robinson v. Peake, 21 Vet.App. 545 (2008) ...........................................................................25
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009)..........................................................19
Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999)……………………………………..16
White v. Illinois, 502 U.S. 346 (1992)……….…………………………………………..18
Wise v. Shinseki, 26 Vet.App. 517 (2014) ...............................................................................29
STATUTES
38 U.S.C. § 1154(b) .....................................................................................................5,12,16,20,27
38 U.S.C. § 7104(d)(1) ....................................................................................................................5
38 U.S.C. § 7261 ...........................................................................................................................3,5
38 U.S.C. § 7262 ...........................................................................................................................3,5
REGULATIONS
38 C.F.R. § 3.114………………………………………………………………………………...14
38 C.F.R. § 3.155 ........................................................................................................................5,12
38 C.F.R. § 3.156(c)...................................................................................5,8,10,12,16,17,21,23,26
iii
REGULATIONS (Cont’d)
38 C.F.R. § 3.160...………………………………………………………………………………24
38 C.F.R. § 4.41 .............................................................................................................................22
38 C.F.R. § 4.42 .............................................................................................................................22
38 C.F.R. § 4.87b………………………………………………………………………………...14
38 C.F.R. § 4.124a .......................................................................................................................14
38 C.F.R. § 4.132………………………………………………………………………………...14
MISCELLANEOUS
Page
U.S. Vet. App. R. 28. ........................................................................................................................1
U.S. Vet. App. R. 31. ........................................................................................................................1
Part IV, VA Schedule of Rating Disabilities (1970).…………………………………………….14
VA Diagnostic Codes 6260, 8045, 9304 (1970) ............................................................................14
3. TABLE OF RBA CITATIONS
RBA Brief Page
R. at (0005-0032) BVA Decision (October 3, 2019) ...........................................................2,12
R. at (0042-0068) BVA Hearing Transcript (September 20, 2018) .................................... 20
R. at (0280-0380) Statement of the Case, multiple issues (May 21, 2018) .............................18
R. at (0431-0454) Rating Decision, grants various claims (May 21, 2018) ..................10,11,17
R. at (0743-0750) Medical records from Dr. Chavez (May 23, 2017) ....................................26
R. at (0800-0803) Eye C&P with Medical Opinion DBQ (September 26, 2017) ...................11
R. at (1561-1569; 1580-1585) Rating Decision TBI (May 8, 2017) .......................................23
iv
TABLE OF RBA CITATIONS (Cont’d)
RBA Brief Page
R. at (1876-1942) DRO Hearing Transcript (February 22, 2017) ..........................................18
R. at (1948-1998) Exhibits B through E, A (February 22, 2017)……………………...3,11,14
R. at (2326-2365) Exhibit A: Special Court Martial Records (October 15, 1970) ..................4
R. at (2366-2370) Exhibit B: Purple Heart Award (January 18, 1969) .................................5,9
R. at (2371-2373) Exhibit C: X-rays of head/chest/right side of body (March 1, 2016) .......16
R. at (2375-2380) Ophthalmological exam (December 30, 2013) ...........................................9
R. at (2436-2452; 2464-2484) Rating Decision, various grants (December 21, 2015)..........10
R. at (3073-3084) VA Form 21-526EZ, various issues (March 26, 2015)..…. .................10,20
R. at (3085-3173) DD 215, request for c file, various issues ..............................................9,16
R. at (3174) DD-214 for Leslie C. Long, Jr. (April 4, 1968)..……………………………….3
R. at (3175-3187) Report of Medical Exam for Disability Eval. (August 10, 1970) ....13,17,21
R. at (3188-3253) Military service personnel and medical records (March 24, 1970) ..........4,9
v
4. CERTIFICATE OF ELECTRONIC FILING
I, Gordon A. Graham, hereby certify that I have:
1. Filed this document using the Electronic Filing System of the U.S. Court of Appeals
for Veterans Claims which will automatically send it to counsel for the Appellee,
Melissa A. Timbers, Esq.
Office of General Counsel (027B)
Department of Veterans Affairs
810 Vermont Avenue, N.W.
Washington, D.C. 20420
Telephone (202) 632-4712
Telecopier (202) 495-6104
E-mail: [email protected]
And;
2. I have mailed a copy of this document to the Appellant by first class mail at his
address of record.
/s/ GORDON A. GRAHAM Dated: April 23, 2020
Gordon A. Graham
Non-attorney practitioner
14910 125th Street, N.W.
Gig Harbor, WA 98329
Telephone: (253) 313-5377
E-mail: [email protected]
Lead Representative for Appellant
vi
IN THE UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
LESLIE C. LONG, JR., )
)
Appellant, )
)
v. )
) Vet. App. No. 19-7301
ROBERT L. WILKIE, )
SECRETARY OF VETERANS AFFAIRS, )
)
)
Appellee. )
5. OPENING BRIEF OF APPELLANT
The appellant, Leslie Clyde Long, Jr., (hereinafter appellant), through his
representative, pursuant to U.S. Vet. App. R. 28 and 31, respectfully submits to the United
States Court of Appeals for Veterans Claims (CAVC or Court) his opening brief.
In support of this claim, the appellant relies upon the Record Before the Agency
filed with the Court on February 7, 2020, and referred to as (R xxxx) and any appendix
filed with this brief referred to as (App. at ).
1
There are errors of law contained in the Board of Veterans Appeals (BVA)
decision dated October 3, 2019, in Docket 18-14 816, (RBA 0005-32), in which the board
denied the appellant’s claims for earlier effective dates. On appeal, appellant submits the
Court should reverse the decision based on an incorrect interpretation of precedential case
law and contemporaneous regulations and remand it with instructions to grant the correct
effective date for the claims.
2
6. INTRODUCTION
The appellant was drafted and served in the U.S. Army from April 4, 1968, until
April 28, 1970. (R 3174). He was assigned to the 23rd
Infantry Division (Americal), 3rd
Battalion, 1st Infantry, 11
th Brigade as an Eleven Bravo Ten infantryman. He was
assigned to Landing Zone (LZ) Cork, I Corps in November 1968. On January 18, 1969,
after being in country only two months and 8 days, LZ Cork was attacked by a large
contingent of Viet Cong irregulars. (R 1995-98). Three soldiers were killed including
appellant’s platoon commander and a fellow infantryman. Fifteen soldiers were
grievously wounded including eight of his fellow platoon members. A 60mm North
Vietnamese mortar round exploded 2 feet away from him blinding him in both eyes and
rupturing both eardrums. (R 1950; 1956). An hour later, appellant was airlifted to the
312th Air Evac. Hospital in Chu Lai, Republic of Vietnam (RVN) for triage due to his
wounds. (R 1948-1953). Air evacuation was subsequently accomplished January 19th,
1970 to the 95th Air Evac. Hospital at Da Nang Airbase, RVN. (R 1954-1963). Appellant
underwent eye surgery and debridement for shell fragment wounds (SFWs) too numerous
to count. Afterwards, he was evacuated to Camp Zama Army Hospital, Japan for further
debridement and evaluation. (R 1964-1976). Several weeks later, he was evacuated to
the United States from Japan. It was noted on the air evacuation notes “Purple Heart not
awarded this station.” (R 1965). After release from Letterman Hospital several months
3
later, he was assigned to light duty tasks. On March 10, 1969, he was given a permanent
E-3 PULHES (Abbreviation for Physical capacity/stamina, Upper extremities, Lower
extremities, Hearing, Eyes and Psychiatric) profile for his right eye. (R 3235).
Shortly after returning to light duty in June 1969, he was arrested and charged
with failure to report for formation. (R 2326-2365). He complained of untreated eye and
ear problems as being materially responsible in part. (R 2360-61). He was convicted at
General Court Martial of being AWOL and missing formations. He was given a sentence
of five months hard labor with reduction of rank to Private E-1. However, his sentence
was reduced and he was subsequently incarcerated in the Presidio Stockade and
sentenced to two months of hard labor and reduced in rank to Private E-1. He served
without incident thereafter was discharged honorably on April 28, 1970, with an unhealed
injury to the right eye and still bereft of any medals proving combat.
Appellant filed for injuries sustained in the firefight and still awaits decisions for
those certain claims made on June 22, 1970 as well as August 10, 1970. He continues to
complain of “blurred vision” as to be distinguished from refractive error.
Forty five years later, on February 14, 2015, appellant sought, and was
belatedly awarded, inter alia, the Purple Heart Medal, the Army Commendation Medal
and the Combat Infantryman Badge for his military service. (R 2366-70). He reopened
his 1970 claims on March 30, 2015. This is the same claim stream.
4
7. STATEMENT OF ISSUES PRESENTED FOR REVIEW
I. WHETHER THE APPELLANT IS ENTITLED TO AN EARLIER EFFECTIVE
DATE OF APRIL 29, 1970, FOR COMPENSABLE TINNITUS, BLURRED
VISION AND HEADACHES
A. The failure of the Board to comply with 38 C.F.R. §3.156(c)(1),(3),(4) and
38 U.S.C. §1154(b) to reconsider all the claims filed on June 22, 1970, is
reversible error.
B. The failure of the Board to correctly interpret §3.155(1970) by refusing to
acknowledge a signed and sworn VA Form 21-2545 attesting to ‘present
complaints’ as inferred or informal claims is reversible error.
8. JURISDICTIONAL STATEMENT
The Court has jurisdiction to hear this appeal as it was timely filed and concerns
the failure of the Board to properly apply the regulations, statutes, and controlling
precedential case law relevant to the comprehensive adjudication and assignment of a
proper effective date.
The relevant statutes are 38 U.S.C. §§ 7104(d)(1); 7262(a)(1); and 7261(a)(4).
5
9. STANDARD FOR REVIEW
The issue before the Court concerns the failure of the Board to follow the
precedence established in Blubaugh v McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014)
and Emerson v. McDonald, 28 Vet. App. 200, 210 (2016). The 1970 Rating Board
clearly failed to adjudicate the claims as presented and ignored informal or inferred
claims made at the August 10, 1970, C&P exam. Normally, by operation of law, these
prior decisions would be final as they were never appealed.
Findings of the Board as to the correct interpretation of regulations are legal
determinations. The findings are reviewed by the Court under the clearly erroneous
standard under 38 U.S.C. § 7261(a)(4). See Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990). As to matters of law, the review is to be de novo. 38 U.S.C. § 7261(a)(1); Elkins
v. West 12 Vet. App. 209, 218-19 (1999) (en banc); Roberson v. Principi, 17 Vet. App.
135 (2003).
This case presents legal as well as factual issues. The appellant challenges the
findings of the Board as to entitlement to an earlier effective date based on several
subsections of the Secretary’s regulation concerning the proper legal standard of review
of reconsideration of prior decisions following the introduction of service department
records never before associated with the claims file.
6
This case presents matters of first impression never before explored in Blubaugh
and Emerson supra. Combat awards which activate the 38 U.S.C. §1154(b) combat
presumption forty five years after a decision has been promulgated provoke
reconsideration under 38 CFR §3.156(c)(1).
Appellant’s effective date for 1970 original claims, either inferred or informal,
for perforated eardrums with residuals of constant tinnitus, perforation of the right cornea
with residuals of blurry vision and narrowed field of vision, and shell fragment wound
(SFW) to right side of head with residuals of frequent headaches due to concussion blast
injury (traumatic brain injury) (TBI), which appeared to be implicitly denied in the
original September 30, 1970, rating decision (and subsequently awarded after submission
of the new service department records in 2015-2017), are now reviewable once more
based on Cogburn factors in combination with these service department records never
before associated with the Veteran’s files. See Cogburn v. Shinseki, 24 Vet. App. 205,
207 (2010).
Appellant’s case is distinguishable in that it doesn’t hinge on records generated by
the Joint Services Center for the Research of Records (JSCRR) nor does it involve a
claim for a major mental disorder. The SFWs with retained metal fragments alone are
dispositive of the TBI. His records were carefully preserved at the National Personnel
7
Records Center (NPRC) for the last forty five years because the VA never made any
effort to procure them or associate them with the claims file. By operation of law,
appellant must be placed in the same legal position he occupied in 1970. In light of the
grants of entitlement for these claims above following submission of proof of combat in
2015, and the new service department records in 2017, the legal standard of review
demands reconsideration of the effective date under §3.156(c)(3) and (c)(4) for
appellant’s identical 1970 claims.
8
10. STATEMENT OF THE CASE
I. COURSE OF PROCEEDINGS BELOW
Appellant filed his original claims on June 22, 1970. Specifically, he filed for
perforated eardrums, perforation of right cornea, Shell fragment wounds (SFW) right
hand and right arm and right side, and SFW right side of head.(R 3249-3252). He
correctly identified where the medical records could be located. He received an initial
award of 10 percent for his shrapnel wounds to his right arm, effective April 29, 1970.
He was also awarded 0 percent for residuals of a SFW to the right cornea; VOD 20/40
with best correction, 0% for SFW scars and pepper spots to the right arm, leg and pelvic
region and 0 percent for Deafness bilateral. (R 3147-48). Appellant contends it took
longer to find a place to park than it took to be examined. Appellant did not receive a
psychiatric or neurological examination nor any X-rays. Appellant continued to suffer
watery, blurry vision in his right eye. Appellant did not appeal the decision.
A December 30, 2013, private eye exam for cataracts by an ophthalmologist noted
a large scar and retained shell fragments in right eye. (R 2379).
Forty six years later, after a three-year quest, appellant was belatedly awarded
combat medals, to include the Purple Heart Medal, the Army Commendation Medal and
the Combat Infantryman Badge on February 14, 2015. (R 2366-2370).
9
On March 30, 2015, the appellant, again pro se, filed for both new and increases
for numerous conditions associated with TBI to include tinnitus, an eye condition, and
additional wounds or scars too numerous to count overlooked at the August 10, 1970 VA
compensation and pension (C&P) examination. He also submitted a DA 1594 Duty
Officer’s Log and two newer DD 215s with the reopening of his claims which he
contends are “service department records never before associated with the file.” (R 3071;
3082). He was promptly granted, inter alia, 50 percent for PTSD, 10 percent for tinnitus,
an increase to 20 percent for right arm injuries due to SFWs, an increase from 0 percent
to 20 percent for painful SFWs, pepper spotting and scars, 10 percent for SFW to right
upper thigh and a permanent and total rating due to Individual Unemployability on
December 17, 2015. (R 2467-2484).
In August of 2016 appellant obtained representation and filed a NOD and
requested an increase for his PTSD which was granted in a decision dated May 21, 2018.
(R 0431-449). The appellant also filed new claims for Traumatic Brain Injury (TBI) and
headaches December 16, 2016, with an award on May 17, 2017, at 30 percent, secondary
to TBI incurred on January 18, 1969, for 0 percent and Special Monthly Compensation
(SMC) at the (S) rate. (R 1561-69). An earlier date based on §3.156(c)(3),(4) was not
awarded nor was it discussed.
10
Prior to a Decision Review Officer Hearing on February 22, 2017, appellant
provided this representative with new and material service department records he
received in 2014 from the National Personnel Records Center (NPRC) in St. Louis,
Missouri which had never before been associated with the claims file. From the new
service treatment records of his air evacuation and triage from Chu Lai 312th Air Evac
Hospital RVN, to Camp Zama, Japan via the 95th Air Evac. Hospital in Da Nang, RVN,
appellant discovered he had been injured in both eyes (R 1956) and had numerous SFWs
to, inter alia, his face, neck, back, upper and lower trunk and thighs. These new records
were labeled Exhibits A-E and submitted at the February 22, 2017, DRO hearing. (R
1947-1985; 1994-1998).
A month later, a March 28, 2017, C&P exam revealed nine (9) retained metal
fragments and a mild constriction of the visual field. (R 0800-803). On May 21st, 2018,
the Secretary granted a compensable rating (10 percent) for the right eye albeit with an
effective date of the claim reopening in 2015. (R 0439-441).
Since the inclusion of the new and material service combat awards records both
on March 30, 2015, and the new service department records submitted at the February 22,
2017, DRO formal hearing, appellant has been rated for numerous compensable injuries
which manifested on January 18, 1969-to wit: PTSD, headaches, TBI, right eye and
additionally identified SFWs previously claimed and implicitly denied. Based on the
11
evidence of record, appellant can only surmise the Secretary has granted his claims while
ignoring the provenance of the entitlement being directly attributable to the new service
department records never before associated with the claims file.
On appeal to the Board, appellant withdrew his Motion to Revise the September
30, 1970, decision and opted to pursue the contentions purely under 38 CFR
§3.156(c)(1),(3),(4) and 38 USC §1154(b). He also withdrew a large number of shell
fragment wound contentions for the sake of conserving scarce judicial resources.
The Board held, in its October 3, 2019, decision, that there is no evidence of any
unadjudicated claim, formal or informal, for service connection for tinnitus in the record
prior to March 30, 2015. (R 22-24) The decision also baldly stated there was no
communication or action from the Veteran that indicated intent to seek service for
tinnitus, an earlier effective date for compensable eye injuries, headaches due to TBI or
unadjudicated SFW to right side of head. This is the wrong legal standard of review.
Appellant has continuously prosecuted his appeal to have all his inextricably intertwined
claims adjudicated before March 30, 2015 under the Secretary’s regulations concerning
service department records never before associated with the claims file. See Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991) (stating that when a claim is inextricably
intertwined with another claim, the claims must be adjudicated together in order to enter
12
a final decision on the matter). At no time has appellant relinquished his quest for earlier
effective dates for any injuries incurred on January 18, 1969. Appellant avers he has one
claim-for all residuals of TBI. Reasonable minds can only concur the 1970 claim would
include all SFWs, all residuals of perforation of eardrums to include tinnitus, all residuals
of perforation of right cornea to include a field vision defect and headaches secondary to
TBI trauma to right temporal area with retained (2.9 mm) shell fragment.
II. STATEMENT OF THE FACTS RELEVANT TO THE ISSUES
Appellant’s first claim, for perforated eardrums, secondary to TBI, now viewed
in retrospect, was certainly a claim for any and all possible residuals of perforated
eardrums to include otitis media, tinnitus, vertigo etc. Appellant clearly expressed both
on the VA form 21-2545 under oath on August 10th
, 1970 (R 3175) and again at the
August 14th
, 1970 eye and ear C&P (R 3177) that he had tinnitus due to concussion blast
injury (TBI). The medical evidence showed appellant’s eardrums were indeed perforated.
However, appellant was never service connected for perforated eardrums. He was rated
for impaired hearing. Appellant made no claim for hearing loss. Based on the
constructive possession of knowledge of TBI alone, the mere presence of any
diagnosable tinnitus in the evidence of record should have been granted in 1970.
13
The VA Schedule for Rating Disabilities (VASRD) (1970) clearly and
unmistakably states in 38 C.F.R. Part IV §4.87b Schedule of ratings—ear (1970) under
DC 6260 Tinnitus to see diagnostic codes 8045 and 8046. §4.124a Schedule of ratings—
neurological conditions and convulsive disorders (1970), DC 8045 discusses, inter alia,
brain disease due to trauma.:
“Purely subjective complaints such as headache, dizziness, insomnia, tinnitus etc.
recognized as symptomatic of brain trauma, will be rated 10% and no more under
diagnostic code 9304.”
§4.132—Schedule of ratings—mental disorders diagnostic code 9304 is a rating for
“chronic brain syndrome associated with brain trauma.”
The second claim submitted was for a perforation of the right cornea. Appellant
rightfully complained and was quoted as saying his right eye was blurry at his August 14,
1970, C&P examination. The term “blurry” referred to wateriness and irritation of the eye
itself-not a description of refractive error. This description was made under oath and
quoted. The new and material evidence contained in the recently obtained service
department records noted retained fragments in both eyes prior to surgery. (R 1956) As
the eye injuries were incurred in combat, appellant is competent to report it and credible.
Appellant has subsequently been granted a compensable rating for that which has existed
since January 18, 1969-the date entitlement arose. Again, this claim was only granted in
2017 after an additional eye examination “suddenly” revealed a narrowed field of vision.
14
Appellant contends his eye injury in 1969 is identical to the injury today in every
respect. (R 0048) The only difference being the Secretary has inexplicably granted
service connection for his 1970 combat injury subsequent to the inclusion of the new
service department records but absent the correct effective date. Appellant is capable and
credible of testifying about his 1969 combat wounds regarding his impaired vision. As
the perforated cornea claim was never addressed, this too would be a pending claim;
mayhap no more than 0% but nevertheless a verifiable claim that was never granted.
Appellant filed for numerous SFWs to the right side of his body in 1970.
Appellant was not told he had to point out each one of the hundreds of retained fragments
nor to itemize them by muscle group. Appellant was medically evacuated after his
injuries and surgeries; he was not expected to memorize each and every area of injury.
The new service records only now support his left eye was injured as well. Based on the
new service department records, numerous other muscle groups in the arm and thigh have
also been identified and compensable entitlement for injuries awarded which can only be
said to have unarguably arisen on the night of January 18, 1969.
Appellant also filed a claim for a specific shell fragment wound apart from the
other numerous ones on his extremities and trunk of his body. This one was a large chunk
(2.9mm) that was never removed from the right temple. This wound was different and
15
appellant claimed it was the geographical area of origin of his frequent headaches absent
any medical knowledge that such a large fragment was still lodged there. The discovery
of the large retained fragment occurred when appellant privately sought his own x rays
in March 2016 to prove his contentions. (R 2372). The 1970 rating decision discussed it
as “There is a reaction to trauma to temporal area right.” but then discussed headaches
previous (November 1967) to the concussion blast trauma. (R 3147). There the headache
claim ended. Assuming, arguendo, that appellant’s service treatment records (STRs)
showed no headaches noted at entry (presumption of soundness) and a report of
headaches prior to TBI, the headaches would still be service connected in any case.
Appellant contends his subsequently awarded claim was a pending claim in 1970.
11. ARGUMENT AND AUTHORITIES
I. WHETHER THE APPELLANT IS ENTITLED TO AN EARLIER
EFFECTIVE DATE OF APRIL 29, 1970, FOR COMPENSABLE
SERVICE CONNECTED TINNITUS, EYE INJURY AND HEADACHES
SECONDARY TO TRAUMATIC BRAIN INJURY
A. The failure of the Board to comply with 38 C.F.R.
§3.156(c)(1),(3),(4) and 38 U.S.C. §1154(b) to reconsider all the
claims filed on June 22,1970, is reversible error.
There is no set form an informal written claim must take. All that is required is
that the communication indicates an intent to apply for one or more benefits under the
laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d
1351 (1999).
16
The Board inartfully dodged appellant’s contentions, adequately supported under
numerous, separate evidentiary submissions of new and material service department
records never before associated with the claims file under 38 CFR §3.156(c). Essentially,
the Board attempts to bifurcate the appeal demanding Cogburn factors analysis. This is
the incorrect legal standard of review. First and foremost, all of appellant’s claims are
inextricably intertwined and all occurred simultaneously. Cogburn; Harris supra.
Addressing the Cogburn factors, appellant would prevail in any case on all four
factors. To date the 1970 “informal “claims still remain pending as there is no evidence
of intercurrent service connection for same. (R 0450-54). Rather than prove the four
Cogburn factors, appellant choses to obtain a de novo reconsideration under the
Secretary’s more lenient §3.156(c) jurisprudence. Cogburn supra.
The actual 1970 examination revealed “intermittent tinnitus and perforation of the
tympanic membranes”. Oddly, the final diagnosis inexplicably omitted the finding of any
tinnitus and instead concluded “deafness neurosensory bilateral” results of concussion
blast injury.” (emphasis added) (R 3177). Appellant would ask the Court to take
judicial notice of the conclusion of law in the May 21, 2018, Statement of the Case
wherein the VA examiner, in denying the request for an earlier effective date for service
connection for tinnitus, stated in haec verba:
17
“In 1970, tinnitus had to be severe and continuous, and a symptom of head injury or
concussion before service connection could be granted.” (emphasis added) (R 0362-63).
Appellant, as a combat Veteran, has testified repeatedly since the injury, that the
“ringing in his right ear” has been continuous and severe since January 18, 1969,
regardless of what clinicians have recorded. His credibility cannot be compromised. Shell
fragment wounds too numerous to count with retained metal fragments and pepper
spotting (showing close proximity to the explosive event) are testimonial to his being
involved in a concussion blast injury synonymous with TBI rather than the alleged
benign “acoustic trauma”.
At appellant’s DRO hearing conducted on February 22, 2017, appellant
credibly testified under oath that his right ear rang “almost all the time”. (R 1914).
The Secretary conceded on May 18, 2018, in the rating decision that tinnitus was
“shown” at the August 14, 1970, C&P examination. As tinnitus is a purely subjective
symptom, appellant submits he is the most qualified to describe what only he experiences
-unfiltered by others recording his history. This he has credibly sworn to under oath three
times. See White v. Illinois, 502 U.S. 346, 355-56 (1992) (statements made for medical
diagnosis or treatment has been deemed by the Court to be exceptionally trustworthy
because the declarant has a strong motive to tell the truth to receive a proper diagnosis or
treatment).
18
The Board has contended an earlier date for entitlement cannot be assigned for
tinnitus because no inferred or informal claim for tinnitus was presented any earlier that
March 30, 2015. The May 21, 2018, concession of entitlement one year earlier than
date of filing is clear and unmistakable error. The Board cites to §3.114(a)(3) as its
authority. Appellant suffered concussion blast injury (TBI), not acoustic trauma. See
McWhorter v. Derwinski, 2 Vet.App. 133, 136 (1991). “Yet,[w]here [an] appellant has
presented a legally plausible position . . . and the Secretary has failed to respond
appropriately, the Court deems itself free to assume . . .the points raised by [the]
appellant, and ignored by [VA], to be conceded.”
The elements of any claim, formal or informal are "(1) an intent to apply for
benefits, (2) an identification of the benefits sought, and (3) a communication in
writing[.]" Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009); see also MacPhee v.
Nicholson, 459 F.3d 1323, 1325 (Fed. Cir. 2006). A veteran's identification
of the benefits sought does "not require any technical precision" and VA "must fully and
sympathetically develop a veteran's claim to its optimum before reaching the claim on its
merits." Brokowski, 23 Vet.App. at 85; see also Ingram v. Nicholson, 21 Vet.App. 232,
256-57 (2007).
19
The Secretary reads that which is not there into his regulation. He contends that the
new service department records are cumulative and redundant of the evidence of record.
However, the legal standard of review requires that the new service department record
merely be relevant. Submission of a DD 215 showing Appellant’s awards of combat
medals attest to his proximity to extraordinarily hazardous noise levels and presumptive
entitlement to compensable hearing loss and residuals. (R 3082).
Appellant gave testimony at the BVA Travel Board hearing on September 20,
2018. Under oath, appellant was queried about his tinnitus by this representative: “Is it
constant? Is it nonstop? Has it been continuous since 1969?” Appellant answered “Yes it
has been.” (R 0050). Appellant contends he is competent, not to mention credible, to
describe his tinnitus symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.
Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not
medical diagnoses). Additionally, appellant, now under color of §1154(b), has filed and
been granted the same claim he was diagnosed with in 1970. He was awarded an
inexplicable effective date one year prior to what the Secretary avers is the original filing
on March 30, 2015, based on the misguided impression appellant suffered acoustical
trauma. Moreover, the Secretary has been free to present clear and convincing evidence
to show Mr. Long’s testimony regarding his combat injuries is rebuttable under §1154(b)
but has declined to exercise his prerogative. McWhorter supra.
20
Entitlement to compensable tinnitus under an inapplicable regulation a full year before
appellant filed for such following submission of service department records never before
associated with his claims file suggests a sotto voce grant based on §3.156(c)(1)
transpired –albeit absent the correct effective date based on §3.156(c)(3),(4).
In the same vein, the appellant filed for perforation of the right eye. At the August
14, 1970, C&P examination, the clinician noted blurred vision in the history and
complaints and incipient lens change in the right eye. Again, there was no award for the
claimed perforation of the right cornea nor for incipient lens change (glaucoma). The
diagnosis was a finding of decreased visual acuity and no mention of blurred vision
consistent with an unhealed eye injury. (R 3177).
After a long appeals process, the VA examiner finally granted a compensable rating
for the right eye due to “narrowing of the field of vision.” Oddly, this revelation came
about after the second C&P exam revealing no less than nine (9) retained metal fragments
in the cornea. Again, any disability awarded after submission of the new §3.156(c)
records which provokes or supports an entitlement still must pass muster as to whether
the new and material evidence, all, or in part, supports an earlier effective date. Appellant
contends his current chronic eye disability, described as blurry vision, is the exact same
21
disability which has persisted unabated for the last fifty years. The injury was noted at
the August 10, 1970, C&P examination as well as on the September 30, 1970, rating
decision with no award forthcoming. Only in the absence of any proof of combat could
such a rating decision occur.
At the August 10, 1970, C&P examination, appellant, who had experienced TBI
in combat that rendered him unconscious (R 1883), noted in his present complaints that
he had been experiencing headaches. The VA Rater only noted he had reported
headaches in November 1967 but all exams were negative. With the sure knowledge
appellant had self-reported a ‘concussion blast injury’ (TBI) in the intercurrent period
between the November 1967 exam discussing headaches and the current C&P exam, the
1970 Board overlooked the applicable regulations. See §§4.41;4.42 (1970). What’s
more, by even discussing the applicability of service connection for headaches in the first
instance shows the rater reviewed the ‘present complaints’ box on the C&P examination
forms and was cognizant of an informal claim for headaches.
In any event, the 1970 Board discussed headaches in conjunction with appellant’s
contended head trauma. The September 1970 rating stated “There is a reaction of trauma
to temporal area, rt.” in describing the shell fragment wound to the right side of the
appellant’s head. Entitlement was not forthcoming. (R 3147).
22
In the May 8, 2017, rating decision granting service connection for TBI and
headaches, the Secretary readily concedes the award is for “TBI or other injuries suffered
on January 18, 1969”. (R 1580-1585). Notably, this award of entitlement occurred 75
days after submission of the new and material service department records never before
associated with the claims file until February 22, 2017.
Nowhere in the four corners of appellant’s claims file is there to be found any clear,
concise discussion of reconsideration of any of the 1970 original claims based on
§3.156(c) following the submission of the new relevant service department records. In
point of fact, everything points to adjudication solely under §3.156(a).
The Board insists there were no prior informal or inferred claims for any of the
subsequently awarded entitlements mentioned on page one of the VA 21-2545 dated
August 10, 1970. Claims formally made on June 22, 1970, were also implicitly denied-
i.e. perforated eardrums, perforation of right cornea and SFW to right side of
head with trauma. The evidence clearly shows claims made, informal claims ignored and
finally, claims implicitly denied. Appellant contends the Secretary has granted benefits
subsequent to the submission of new service department records but arbitrarily refuses to
apply §3.156 subsections (c)(3) and (c)(4).
23
The conundrum is confounding. The appellant has submitted numerous items which
are clearly and unmistakably relevant service department records never before associated
with the file, and yet not one of the four claims made in 1970 have been reconsidered. To
stir the paradox, each and every symptom or complaint mentioned at the 1970 C&P
exam, subsequent to the submission of all these records, has been granted uncontested –
but strangely only with more recent effective dates.
A pending claim is an application, formal or informal, which has not been finally
adjudicated. 38 C.F.R. § 3.160(c). Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir.
2009). A finally adjudicated claim is defined as "an application, formal or informal,
which has been allowed or disallowed by an agency of original jurisdiction." 38 CFR
§3.160(d)(2018). Such an action becomes "final" by the expiration of one year after the
date of notice of an award or disallowance, or by denial on appellate review, whichever is
the earliest. The pending claims doctrine provides that a claim remains pending in the
adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App.
413, 422 (1999). The Court has confirmed that raising a pending claim theory in
connection with a challenge to the effective-date decision is procedurally proper. Ingram
v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not
overruled the pending claim doctrine articulated in Norris).
24
Robinson v. Peake, 21 Vet.App. 545, 552 (2008) held that the Board must address
all issues raised by the claimant or reasonably raised by the record, aff'd sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Appellant, essentially pro se in
1970, finds it almost inconceivable that diagnosable diseases and injuries clearly and
unmistakably secondary to concussion blast trauma would not be inferred and considered.
A claimant "[does] not file a claim to receive benefits only for a particular diagnosis, but
for the affliction his . . . condition, whatever that is, causes him." Clemons v. Shinseki,
23 Vet. App. 1, 5 (2009). Consequently, VA "should construe a claim based on the
reasonable expectations of the non-expert, self-represented claimant and the evidence
developed in processing that claim," taking into consideration "the claimant's description
of the claim; the symptoms the claimant describes; and the information the claimant
submits or that the Secretary obtains in support of the claim." Id. VA commits error
"when it fail[s] to weigh and assess the nature of the current condition the appellant
suffer[s] when determining the breadth of the claim before it." Id. at 6.
Appellant filed for perforated eardrums and the Secretary construed that as a claim
for hearing loss. Appellant filed for perforated cornea and the Secretary construed that as
a claim for reduced vision of VOD 20/40.
25
Appellant has raised the applicability of §3.156(c)(1) continuously since the
February 22nd
, 2017 DRO Review Hearing for all claims filed in 1970. Appellant is
appealing the regulation’s misapplication as it applies to his circumstances. The evidence
of record submitted, combined with the testimony at the hearings, essentially fills in the
gap of what transpired from the moment the appellant was injured until the evidence of
record commenced at Letterman General Hospital almost a month later. The records
even mention that combat medals were not awarded prior to evacuation to the United
States. (R 1965). Most importantly, the records confirm shell fragment wounds too
numerous to count from head to knee on the right side. Sadly, the VA declined to obtain
x rays of appellant’s lower leg to ascertain additional SFWs prior to the time the leg had
to be amputated above the knee on June 7, 2017. (R 0747-48).
VA has a duty to read sympathetically all claims filed by the pro se claimant,
including CUE motions. See Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); see
also Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (clarifying that a veteran
receiving only limited representation from a veteran's service organization qualifies as
pro se for the purposes of the duty to read claims sympathetically). "VA's duty to read an
appeal submission sympathetically to ascertain all potential claims it contains is
antecedent to its duty to ensure that an issue has been properly raised on appeal." Comer,
26
552 F. 3d at 1368. Even if a layperson is not competent to diagnose or determine the
cause of a particular condition, lay evidence is still competent to establish the occurrence
of observable events and medical symptoms. Davidson v. Shinseki, 581 F.3d 1313, 1316
(Fed. Cir. 2009).
In cases involving disabilities related to combat, VA must presume lay evidence that
describes the in-service disease or injury is credible so long as it is "consistent with the
circumstance, conditions, or hardships of such service, notwithstanding the fact that there
is no official record." 38 U.S.C. §1154(b). This presumption is rebuttable only by clear
and convincing evidence. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996).
12. CONCLUSION
The record viewed under the correct legal standard of review in 1970 supports the
claim of the appellant for an earlier effective date for the inextricably intertwined combat
injuries based in part on the newly associated service department records and award of
medals showing presumptive exposure to hazardous noise levels. The evidence is
dispositive. The summary of the injuries are consistent with a Traumatic Brain Injury
which the Secretary has belatedly conceded based on newly associated service
department records in part.
Appellant suffered many injuries, all inextricably intertwined with one seminal
explosive event. Long-archived service department records and awards of medals long-
forgotten have finally told the truth.
27
The Secretary’s own regulation and the Court have both held that the DVA must
put the Veteran in the same position he occupied at the earliest date filed and judge the
merits of the service department records in the first instance. To this day, that promised
reconsideration has not occurred.
After five, long years, Appellant’s 50-year old chronic eye injury, headaches and
tinnitus have all been finally granted-albeit with an incorrect effective date. Appellant
seeks that to which he is entitled and no more. The mere fact that the Secretary abstained
from his duty to assist appellant and obtain records in the Government’s custody at the
National Personnel Records Center has deprived appellant of entitlement to numerous
injuries for fifty years. See Mitchell v. McDonald, 27 Vet.App. 431,440 (2015) (Cases
“must be decided on the law as we find it, not on the law as we would devise it”).
Appellant seeks reversal of the conclusion of law depriving him of reconsideration
and award of an effective date of April 29, 1970, for the aforementioned compensable
injuries for which entitlement arose on January 18, 1969, at 11:25 P.M.
The Secretary essentially concedes the inextricably intertwined claims and
compensable TBI residuals were all incurred in combat but nevertheless arbitrarily
refuses to acknowledge he is legally required to sympathetically reconsider the
appellant’s 1970 submission. This is reversible error and deprives appellant of his due
process.
28
Appellant does not dispute any of the prior compensation percentage ratings
awarded during the current appeal. He only disputes the misapplication of the correct
effective date for his informal 1970 claims submitted on August 10, 1970, during the
pendency of his June 22, 1970, original claim. The Secretary variously recognizes March
30, 2014, as the date entitlement arose based solely on acoustic trauma. Additionally, he
has awarded entitlement to other claims associated with TBI with the filing of the
reopening of this claims stream. This is unarguably the wrong legal standard of review.
Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) has stated that the benefit of the
doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our
veterans,' has 'taken upon itself the risk of error' in awarding such benefits.").
Appellant feels the appeal is in equipoise and asks for the time-honored pro-
Veteran canon of statutory construction most recently espoused in Henderson v.
Shinseki, 562 U.S. 428,441 (2011) (“We have long applied the canon that provisions for
benefits to members of the Armed Services are to be construed in the beneficiaries’
favor.”).
Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) held (“[T]he veterans
benefit system is designed to award entitlements to a special class of citizens, those who
risked harm to serve and defend their country. This entire scheme is imbued with special
beneficence from a grateful sovereign.”
29
The Supreme Court first articulated this canon in Boone v. Lightner to reflect the
sound policy that we must “protect those who have been obliged to drop their own affairs
to take up the burdens of the nation.” Boone v. Lightner 319 U.S. 561, 575 (1943). This
same policy underlies the entire veterans benefit scheme.
Appellant was drafted and dutifully presented himself for service when his country
called. Our first President, George Washington, observed “The willingness with which
young people are likely to serve in any war, no matter how justified, shall be directly
proportional as to how they perceive veterans of earlier wars were treated and appreciated
by this country.” It would set an ugly, disparaging precedent to deny a Veteran who was
grievously wounded that which his comrades were awarded contemporaneously in 1970
simply because he failed to mention “symptoms” until arriving at his C&P exam.
Congress most assuredly never intended such an absurd result.
Respectfully Submitted,
/s/ GORDON A. GRAHAM Dated: April 23, 2020
Gordon A. Graham
Non-attorney practitioner
14910 125th Street, N.W.
Gig Harbor, WA 98329
Telephone: (253) 313-5377
E-mail: [email protected]
Lead Representative for Appellant
30