CAVC Case 96-947: Anxiety

Additionally, the Board concluded that the veteran had never filed a Substantive Appeal as to claims for service connection for varicose 2 veins of the right leg and for an increased rating for residuals of surgery of the right testicle and that, therefore, those matters were not properly before it.

That decision did not address either right-leg varicose veins or a right-testicle condition.

6 In the April 3, 1996, BVA decision here on appeal, the Board concluded, inter alia: [The] issues of entitlement to service connection for varicose veins of the right leg and entitlement to an increased (compensable) evaluation for residuals of surgery of the right testicle were included in a supplemental statement of the case dated in April 1995, [and] the veteran never filed a substantive appeal with respect to these issues.

in order to permit him to file a Substantive Appeal to the Board as to that claim; and (3) that the Board erred in concluding that his right-testicle claim was not before it.

The degree of disability under the diagnostic code is a finding of fact subject to the "clearly erroneous" standard of review.

§ 7261(a)(4) (Court shall hold unlawful finding of fact when such finding is "clearly erroneous"); Smallwood, 10 Vet.

at 97 (diagnostic code rating determined by Board reviewed under "clearly erroneous" standard); Johnson (Brenda) v.

However, 8 this distinction does not affect the application of the "clearly erroneous" standard of judicial review because that standard applies to our review of both the assignment of an initial disability rating as well as the Board's adjudication of a rating-increase claim, see Johnson (Brenda) and Lovelace, both supra; furthermore, "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded", AB v.