# Seals v. Brown > United States Court of Appeals for Veterans Claims · November 1, 1995 · 8 Vet. App. 291 URL: https://www.frixlaw.com/law-library/cases/6612783 ## Case - **Full name:** William SEALS, Jr. v. Jesse BROWN, Secretary of Veterans Affairs - **Court:** United States Court of Appeals for Veterans Claims - **Decided:** November 1, 1995 - **Citations:** 8 Vet. App. 291; 1995 U.S. Vet. App. LEXIS 800; 1995 WL 638634 - **Precedential status:** Published - **Opinion:** Concurring in part by Steinberg - **Judges:** Ivers, Nebeker, Steinberg - **Cited by:** 10 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/6612783 ## How later opinions describe it (automated extraction) - noting that Board had failed to consider an issue, stating that “the Court has no factual basis for judicial review and should remand, rather than reverse, for the BYA to address [the claim] in the first instance”, and noting that “[t]his Court is not an initial trier of fact” ## Opinion text STEINBERG, Judge, concurring in part and dissenting in part: I concur in the result in the majority opinion insofar as it vacates the March 25, 1993, Board of Veterans’ Appeals (BVA or Board) decision and remands for further development and readjudication on the issue of an increased rating for osteomyelitis. However, I dissent because I believe the opinion both goes too far and does not go far enough as to errors made in the BVA decision. First, I dissent from the majority’s reversal and direction to the BVA to award temporary 100% disability compensation. Rather, I believe that the BVA decision should be vacated and the matter remanded for further adjudication. The veteran had surgery in June 1989, and the Department of Veterans Affairs (VA) awarded him temporary 100% disability compensation for the periods from January 12, 1989, to May 1, 1989, and from June 20,1989, to February 1,1990. He then had surgery in September 1990 and received temporary 100% disability compensation from October 23,1990, to December 31,1990. In the decision on appeal, the BVA expressly stated that it did not adjudicate the issue of temporary 100% disability compensation beyond December 31,1990, because the veteran had not contested such compensation relative to his September 1990 surgery. The BVA erred in limiting its adjudication to the time period before September 1990, both because the appellant’s representative had stated that he sought 100% compensation “beyond 2/1/90” and did not limit it to “prior to September 1990”, and because VA had treated the claims for 100% convalescent ratings as part of the same case. 1 Hence, this matter should be remanded for initial adjudication by the Board. Because the BVA should have considered the issue of temporary 100% disability compensation beyond September 1990 but did not, the Court has no factual basis for judicial review and should remand, rather than reverse, for the BVA to address in the first instance the issue of post-September-1990 temporary 100% disability compensation. See Servello v. Derwinski, 3 Vet.App. 196, 200-01 (1992) (remanding claim to BVA where Board had not evaluated relevant evi *298 dence); Myers v. Derwinski, 1 Vet.App. 127, 130 (1991). This Court is not an initial trier of fact. See 38 U.S.C. § 7261 (c) (“In no event shall findings of fact made by the Secretary or the [BVA] be subject to trial de novo by the Court.”); Landicho v. Brown, 7 Vet.App. 42, 48 (1994); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). The reversal in the majority opinion also covers temporary 100% disability compensation for the time period “indicated in the medical record from February 1, 1990, to September 21, 1990”. I believe that remand rather than reversal is in order as to this period so as to allow the Board an opportunity to provide an adequate statement of reasons or bases as to the March 1990 medical statements (R. at 296, 300), which opined that the veteran was 100% disabled and needed approximately three months of additional convalescence time and which were not addressed by the Board. Reversal as to temporary 100% disability compensation for this period is not appropriate because the Board had a plausible basis (clinical records and x-ray reports, R. at 248, 253, 262, 282-84) 2 for denying temporary 100% disability compensation for this time period. See 38 U.S.C. § 7261 (a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). Finally, I would also make clear that on remand the BVA is required to adjudicate the question of a higher rating for the right-ankle disability. The BVA appeared to indicate that the issue of a higher rating for the light ankle is moot because the veteran already has a combined rating of 40% for the right foot (including the 20% rating for osteo-myelitis), and because the rating cannot be higher due to the “amputation rule” in 38 C.F.R. § 4.68 (1994). R. at 14. A higher rating for right-ankle fusion is not moot, however, because it is possible that the veteran’s osteomyelitis will improve at some time in the future and receive a lower rating. Therefore, the Court should remand for the BVA to determine if the ankle fusion should be evaluated at 40% regardless of the rating for osteomyelitis. For the above reasons, I respectfully dissent from the Court’s opinion to the extent noted. . See, e.g., R. at 374, Supplemental Statement of the Case to the January 1991 Department of Veterans Affairs regional office decision terminating temporary 100% disability payments on December 31, 1990. . The majority correctly' states that the clinical records and x-ray reports referred to by the Board predate the March 1990 medical reports. However, I am not prepared to find, especially without analysis, that there was no plausible basis in the record for the Board's interpretation that the earlier medical records indicated that the veteran had recovered from the June 1989 surgery and for the Board's conclusion that a schedular rating was therefore appropriate as of February 1990. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612783. Public record. Not legal advice.