CAVC Case 92-970: Back

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · April 17, 1996 · HOLDAWAY

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.

What would this rating pay you? (2026 rates)

Official 2026 VA monthly compensation, including the 2.8% COLA increase.

Rating Married Children

per month · per year, tax-free

Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.

2026 base rates, all ratings (veteran alone)

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

Unknown

Decision Date

April 17, 1996

Judge

HOLDAWAY

Service Era

Not specified

Conditions Claimed

Back Cervical Hearing Loss Tinnitus Hip Headache Skin TDIU Eye

Issues on Appeal

BackCervicalHearing LossTinnitusHipHeadacheSkinTDIU

Why It Was Decided This Way

On May 21, 1992, the Board denied a schedular evaluation greater than 10% for the service- connected left mandible condition but granted an additional 10% evaluation for that condition on an extraschedular basis.

Left Mandible Condition The appellant's claim for an increased rating for the service-connected left mandible condition is a new claim, and the Court reviews the Board's findings of fact under a "clearly erroneous" standard of review.

Under the "clearly erroneous" standard of review, "if there is a `plausible' basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.

§ 7104(a), and must provide a "written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record," 38 U.

Duty to Assist The September 1989 VA examination report is, however, inadequate, and this inadequacy frustrates judicial review.

Once a claimant has submitted "evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded," the Board has a duty to assist the claimant in developing the facts pertinent to the claim.

121, 124 (1991), the Court stated: "[F]ulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.

The appellant also argues that the Board failed to seek to obtain certain x-rays.

Authorities Cited

Akles v. DerwinskiBernard v. BrownButts v. BrownCombee v. PrincipiCox v. BrownCurry v. BrownDarrow v. DerwinskiDouglas v. DerwinskiElkins v. BrownFanning v. BrownFisher v. BrownFisher v. PrincipiGardner v. BrownGilbert v. DerwinskiGodfrey v. BrownGodwin v. DerwinskiHamilton v. BrownIn Green v. DerwinskiIn Isenbart v. BrownIn Reonal v. BrownIn Voyles v. BrownJustus v. PrincipiKellar v. BrownLaughlin v. BradleeManio v. DerwinskiMasors v. DerwinskiMoyer v. DerwinskiMurphy v. DerwinskiMyers v. DerwinskiNeither Bernard v. Brown

Regulations Cited (38 CFR / 38 USC)

38 CFR 19.938 CFR 19.9 (1994)38 CFR 2.6638 CFR 2.6938 CFR 2.69 (1994)38 CFR 20.101 (1994)38 CFR 20.101(a)38 CFR 20.101(b) (1995)38 CFR 20.3(a) (1995)38 CFR 3.100(a) (1994)38 CFR 3.103(a) (1994)38 CFR 3.104(a)38 CFR 3.32138 CFR 3.321(b)38 CFR 3.321(b)(1)38 CFR 3.321(b)(1) (1994)38 CFR 3.321(b)(1) (1995)38 CFR 3.321(b)(2)38 CFR 4.15038 CFR 4.16(b)

Denial Type

Credibility|Not New Material|Duty To Assist|Inadequate Exam

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