# Gifford v. Brown

> United States Court of Appeals for Veterans Claims · March 1, 1994 · 6 Vet. App. 269

URL: https://www.frixlaw.com/law-library/cases/6611570

## Case

- **Full name:** Larry K. GIFFORD v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** March 1, 1994
- **Citations:** 6 Vet. App. 269; 1994 U.S. Vet. App. LEXIS 158; 1994 WL 59962
- **Precedential status:** Published
- **Opinion:** Concurrence by Kramer
- **Judges:** Holdaway, Kramer, Nebeker
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6611570

## Opinion text

KRAMER, Judge,
concurring in the result:
I agree that appellant is entitled to only one rating for a gunshot wound to the thigh, but I disagree that the “shifting” of the rating from the right thigh to the left thigh was merely an “administrative correction” as opposed to an improper severance under applicable statutes.
Section 110 of 38 U.S.C. provides that a disability which has continuously been rated at or above any evaluation for twenty or more years “shall not thereafter be rated at less than such evaluation, except upon a showing of fraud.” Section 1159 of 38 U.S.C. provides that service connection for any disability that has been in force for ten or more years
shall not be severed ... except upon a showing that the original grant of service connection was based upon fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.
Appellant’s service connection for a gunshot wound to the right thigh had been in force for more than twenty years at the time the rating was “transferred” to the left thigh, and there is no evidence or allegations in this case of fraud or that appellant did not have the requisite service or character of discharge. As there is no exception under either 38 U.S.C. § 110 or § 1159 for “administrative error,” service connection for the right thigh was, therefore, improperly severed, and appellant is entitled to service connection for gunshot wounds to both thighs.
However, a conclusion that appellant is entitled to be service connected for both thighs does not mean that he is entitled to a rating above 10%. Appellant has only a single disability to the left thigh, even though he has been improperly, but non-severably, service connected and rated for the right thigh. As a consequence, under the principles enunciated in Brady v. Brown, 4 Vet.App. 203 (1993), and Esteban v. Brown, 6 Vet.App. 259, 261 (1994), appellant cannot be awarded a separate rating for his left thigh because to do so would award him duplicate ratings for the “same symptomatology” (residuals of a gunshot wound to the left thigh) and thereby violate the prohibition against pyramiding. See 38 C.F.R. § 4.14 (1993). Unlike severance, limiting appellant here to a single 10% disability where he is service connected for both thighs is not precluded by our statutes, and is supported by ease law and regulation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6611570. Public record. Not legal advice.