CAVC Case 01-467: Back

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · October 22, 2003 · KRAMER, Chief Judge

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

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Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Affirmed / Reversed / Remanded / Vacated

Decision Date

October 22, 2003

Judge

KRAMER, Chief Judge

Service Era

March 1943 to February 1946

Conditions Claimed

Back Shoulder Hip TDIU Eye Arthritis

Issues on Appeal

BackShoulderHipTDIUEyeArthritis

Why It Was Decided This Way

First, the Board found that, with respect to the MGs in the appellant's left shoulder, the evidence shows that the residuals of the GSW to the left shoulder involve only MG I and not an injury to MG IV (Preliminary Finding 1).

Third, the Board found that the evidence reveals that osteoarthritis of the left shoulder is not a residual of the appellant's in-service GSW in the left shoulder (Preliminary Finding 3).

The Board denied, therefore, the appellant's claim for an increased disability rating for his service-connected residuals of a GSW to the left shoulder, affecting MG I.

31, 35 (1999) (holding that Board erred in relying on inadequate 1997 examination to deny rating increase when 1995 examination, inter alia, supported requested rating).

Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose.

Preliminary Finding 1 As to the appellant's MG injury, the Board found "that the residuals of the [GSW] to the left shoulder involve only an injury to [MG] I and not an injury to [MG] IV.

To the extent that the BVA determined that MG IV is not involved, the Board failed to address the following.

First, the Board did not consider whether the award of service connection for MG IV is protected because it has been in effect for more than 26 years, far longer than the 10 years required in order for service connection to be protected under 38 U.

Authorities Cited

Allday v. BrownBucklinger v. BrownCastro v. PrincipiCharles v. PrincipiCormick v. GoberDyment v. WestFrancisco v. BrownGordon v. PrincipiGrivois v. BrownHoman v. PrincipiJohnson v. BrownKutscherousky v. WestLovelace v. DerwinskiMaggitt v. WestParker v. PrincipiPentecost v. PrincipiRoberson v. PrincipiSee Brown v. GardnerSee Cotant v. PrincipiSee Fleshman v. BrownSee Ford v. GoberSee Kay v. PrincipiSee Powell v. WestSmith v. BrownStegall v. WestStegall v. West InWeaver v. PrincipiWoods v. Gober

Regulations Cited (38 CFR / 38 USC)

38 CFR 3.159(c) (2002)38 CFR 3.310(a) (2002)38 CFR 3.951(b)38 CFR 3.957 (2002)38 CFR 4.1 (2002)38 CFR 4.10438 CFR 4.4038 CFR 4.5538 CFR 4.69 (2002)38 CFR 4.7138 CFR 4.71a38 CFR 4.7338 USC 11038 USC 115538 USC 115938 USC 510138 USC 510338 USC 5107(b)38 USC 7104(a)38 USC 7104(d)(1)

Denial Type

Preponderance Against|Inadequate Exam

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