Petition for Writ of Certiorari — Staten v. West, 120 S. Ct. 183 (1999) (No. 99-170)

Gupreme Court, U.S.

FILED

\) 99 170 su 2699

No. OFFICE OF THE ClckK

In The

Supreme Court of the United States

CARROL STATEN,

Petitioner,

TOGO D. WEST, JR., Secretary,

Department of Veterans Affairs,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court

Of Veterans Affairs

PETITION FOR WRIT OF CERTIORARI

CARROL STATEN

8327 Corteland Drive

Knoxville, TN 37909

(423) 693-9627

Petitioner, Pro Se

UN

Js

QUESTION PRESENTED

Whether the veteran had presented enough material

considering the exceptional and unusual nature of the

two radiation exposure accidents which he has claimed

occurred did occur to support a well-grounded claim? See

App. 33, 34, 35, 36.

ii

TABLE OF CONTENTS

Page

OPINIONS BELOW AND JURISDICTION .......... 1

ORDINANCES AND REGULATIONS INVOLVED .. 1

STATEMENT OF THE CAGE. co cccccccecccnsteradees 2

Exceptional and Unusual Radiation Exposure Over-

PE PerrTerrrTr Terre re rr re rer rrr Ty ree 2

REASONS TO GRANT PETITION FOR WRIT OF

eg oF ere rre rr err errr rr rer rr he 3

ee | PPP Pere eee eee rT eee er ere eee 3

1960 Giusitia Tate 6 oinccccicvcsvgesscasevessvees 7

Administrative Error 1960. ....2..ccscvscsecscnsetsis 8

FMP errrrrerrrrerre yer rire rr TT rrr te 11

| PPE T EET er re re 11

CONCLUSION .....00cccccsssecesseersessatsesenes 15

APPENDIX

Board of Veterans’ Appeals Decision......... App. 1

United States Court of Veterans Appeals Mem-

oran@umn DOCkGR « «0 '.0vickensetinasnseeneae App. 15

United States Court of Appeals for the Federal

Ciscult Onder, Feme 23, T5RO os cccsvencccwusers App. 21

United States Court of Appeals for the Federal

Ciscuit Ordes, April 26, THOR. ss cccssechionsns App. 24

oe ae MNPereeTETorTe rr re App. 26

Letter from William F. Storey of December 29,

STATUTES

38 C.E.R

38 C.F.R

38 C.F.R

38 C.F.R

iii

TABLE OF AUTHORITIES

Page

- Ch. 1 [7-1-90], § 3.321(b) .............000% 1, 6

. Ch. 1 [7-1-90], § 3.311(d)................. 1,3

- Ch. 1 [7-31-90], § 4.97............... 1, 8, 9, 10

. Ch. 1 [7-1-93 Edition] § 4.88a .............. 7

OPINIONS BELO¥V’ AND JURISDICTION

Petitioner hereby requests this court to review issues

to which he raises concerning the denial decision issued

by the Board of Veterans Appeals, BVA Docket No.

92-13049 and the United States Court of Veterans Appeals

Vet. Appl. No. 94-0630, concerning his claim filed June 26,

1990. All references in brackets as [R-583] are references

to BVA Claim File.

The file record for the above is represented by 583

pages which are numbered and assembled in chronologi-

cal order starting with number 5 and continues through

page 583.

Appellant further pursued his claim to the United

States Court of Appeals for the Federal Circuit Docket

No. 98-7015; this claim was denied for lack of jurisdiction.

He then requested permission to submit new material

and requested a reconsideration of his case. The denial

for this action was received on April 26, 1999. The file for

this action is represented by 285 pages, starting with page

number 1001 and ending with page number 1286.

*

ORDINANCES AND REGULATIONS INVOLVED

U.S. Air Force T.O. 31-1-141-1

38 C.ER. Ch. 1 [7-1-90], § 3.311(b)

38 C.ER. Ch. 1 [7-1-90], § 3.311(d)

38 C.ER. Ch. 1 [7-1-90], § 4.97

- ¢

STATEMENT OF THE CASE

Exceptional and Unusual Radiation Exposure Overview

The veteran contends that his exposure to radiation

(as defined in T.O. 31-1-141-1) is an exceptional and

unusual event as evidenced by the radiation scar patterns

on his hands (R-455) and scar tissue in the lungs (R-24),

liponas (soft tissue problems) and sinus problem correlate

to the description of hazards stated in U.S. Air Force, T.O.

31-1-141-1 (R-319 and 325) and the lifelong health record

presented to the VARO. Due to the late term effects of

these injuries, on certain conditions these are the only

evidences available; also, considering that it was common

practice for the military services not to record radiations,

deliberate and accidental, exposure in the late 40’s and

early 50’s. Continuity of health problems, especially the

sinusitis, bronchitis, and (soft tissue problems) lipomas.

Significant head and body pain are also continuous and

documented in the record. The calcified granuloma (R-24)

diagnosis as noted on his military service medical record

is probably evidence of injury from breathing radiation

contaminated particles, which could have contributed to

his sinusitis and bronchitis problem.

The military records report extensive physical exam-

inations in August and September (R-25, 26, 27, 28, 29) of

1955 reports and continuing on to this date with

increased numbers.

Isn’t it conspicuously suspicious that the tissue prob-

lems in total are in the impingment areas of muscle

systems, being wrist, elbow, shoulder, and neck

beginning at the right hand and ending in the right side

of the head.

¢

REASONS TO GRANT PETITION

FOR WRIT OF CERTIORARI

General

The veteran has presented enough material consider-

ing the exceptional and unusual nature of the two acci-

dents which he has claimed occurred did occur to

support a well-grounded claim.

The veteran raises the issue the Veterans Administra-

tion (VA) failed to fulfill its obligation to assist the vet-

eran in building his claim of service connection. Initially,

he claimed that his multiple health problems (R-69-72),

sinusitis, bronchitis, soft tissue (lipomas) problems were

caused from working in a radiation environment (R-67

item 24), last paragraph (R-71), first and last paragraph

(R-72), increased pain, last paragraph (R-79-92), summary

of radiation exposure (R-72), medical records (R-93-130).

The above is all in support of his claim, denied on

8/16/90 (R-165 & 166) followed by Statement in Support

of Claim, Form 21-4138, 8/15/90 (R-171).

The veteran submitted a three-page resume of his

(R-174) working career; however the last two pages are

not in the BVA claim file record. The front page only

covers the period 4/86 to that present time. It is asserted

that his then service representative, the American Legion,

or the VARO removed the last two pages from the record.

These two pages are very important because they cover

thirty-seven years of his working life and ten job changes.

These two pages were essential to the VARO getting a fair

and comprehensive understanding of the effect of his

injuries on his working career.

In September 1990, he submitted several (R-218-222)

affidavits attesting to his severe sinus problem and sev-

eral pages of excerpts from T.O. 31-1-141-1, again the

pages 2-11, 2-12, and 2-13, the section on radio frequency

radiation did not get into the BVA files, pages that should

have been in front of (R-183). On October 1, 1990 a

Summary of Evidence and Adjudication Action Taken

(R-200-202) the second paragraph of (R-201) clearly

shows that the rating officer is confusing his accidental

exposures as he has clearly described, by personal state-

ments and T.O. 31-1-141-1. Basic Electronic Technology to

atmosphere testing of nuclear weapons, the occupation of

Hiroshima or Nagasake, Japan, from September 1945

until July 1946, or other activities as claimed. The follow-

ing radiogenic disease mentioned, imply that if it isn’t

cancer it isn’t caused by radiation (3.309(d)(2)(i) thru

(xiii)). The immediate and delayed effects caused by

ionized radio frequency exposure and injury to the body

systems doesn’t come close to the ionized radiation as a

result of atmospheric testing in identity. The Atomic

Radiation referred to in this claim is from a glass elec-

tronics tube (CRT) and the reference to Atomic Radiation

is the heading referred to on pages (R-184 and R-325), the

isotope in the glass tube ionizes the gas within the tube

creating radon, which is the reason for including

(R-229-237) and (R-124). Radio frequency radiation

referred to in this claim is referenced on page (R-319-322).

This is where the ionized dc current is developed (the

current [passes through the CRT] thus the current

eee |

becomes ionized). In lay terms, I believe the above is

accurate; however, there is a major difference between

radiation from atmospheric testing and radio frequency

radiation. On 1/28/91, 2nd paragraph, the veteran states

his claim that his respiratory problems are caused from

the atomic radiation (as defined in T.O. 31-1-141-1).

During his rating evaluation of 12/26/90 (R-244) he

explained to Dr. Crowder how he was exposed and

injured by the radiation accidents, and Dr. Crowder’s

reply was “I have never heard of such a thing.” He was

really negative about the veteran’s problems and their

claimed cause. It shouldn’t be so difficult to understand

that these exposures do occur. If the individual has stud-

ied much about radiation, even the field of x-ray, which is

just another step up the ladder from radar, using the

same power sources (electromagnet current). One would

think that the good doctor would be somewhat familiar

with potential radiation accidents.

38 C.ER. Ch. 1 [7-1-90] (d) p. 232

On 6/17/91 (R-292) second paragraph, the veteran

has tried to explain to the hearing officer the radio fre-

quency issue and on (R-297) Mr. Manning clearly asks,

“You were never exposed to any nuclear tests?” and the

veteran explains, “No, no. Totally different type of expo-

sure.” This clearly shows that the VA had some major

confusion regarding the veteran’s atomic radiation expo-

sure and the radio frequency radiation exposure. On

(R-381) Reasons for Decision, second paragraph does

state that there is no provision of laws to cover this type

of radiation exposure, or at least that is what he gets from

the wording used. The VA rating officials are working

from 38 CFR Ch. 1 (7/1/90 edition) 312, Diseases specific

to radiation-exposed veterans and 3.311b Claims based

on exposure to ionized radiation. The veteran believes

that his claims should follow the category following the

above (iii). Other exposure claims pg. 235. Evidence of

any other effects radiation exposure may have had on the

veteran (v) page 237 (e) Factors for consideration. Factors

to be considered in determining whether a veteran’s dis-

ease resulted from exposure to ionizing radiation in ser-

vice.

38 C.F.R. Ch. 1 § 3.311(b) p. 237

(1) The veteran states that the VA has failed to use

the proper identification as to his radiation exposure and

has failed to apply the rules from 38 C.F.R. for deciding

and rating his claim and hereby asks the court to make

those determinations and decisions.

(2) The relative sensitivity of the involved tissue to

induction, by ionizing radiation, of the specific pathol-

ogy,

(3) The veteran’s gender and pertinent family his-

tory;

(4) The veteran’s age at the time of exposure;

(5) The time-lapse between exposure and the onset

of the disease; and

(6) The extent to which exposure to radiation, or

other carcinogens, outside of military service may have

contributed to the development of the disease.

aw

(f) Adjudication of claim. The determination of ser-

vice connection will be made under the general applica-

ble provisions of this part, giving due consideration to all

evidence of record, including any opinions provided by

the chief medical director or an outside consultant, and to

the evaluations published purs ant to 1.17 of this title.

With regard to any issue material to consideration of a

claim, the provision of 3/102 of this title apply.

(h) Service connection otherwise established. Noth-

ing in this section will be construed to prevent the estab-

lishment of service connection for any injury or disease

otherwise shown by sound scientific or medical evidence

to have been incurred or aggravated during military ser-

vice. (Authority: Pub. L. 98-542).

1960 Sinusitis Rating

38 C.F.R. Ch. 1 [7-1-93 Edition] § 4.88a p. 389,

6200 — Otitis, Chronic.

Whether the medical records support a service con-

nection for his right ear problem. On R-32 on 1-6-56 the

General Service Separation Physical examination reports

“External Otitis since 1952.” While in the USAF and fol-

lowing his discharge his ear problem was treated in the

course of sinusitis treatment, without notation to the ear

problem, identical to his chest cold treatment. The otitis

problem has been confused with side face pain, Tempro-

mandibular Joint (TMJ) syndrome. However, pain com-

plaints have normally been made to the right ear region

(R-107, 7-14-73), right scalpular area (R-109, 11-30-75)

pain in the right ear region, defective hearing right ear

(R-121, 8-15-76), otitis media right (R-129, 11-18-85), TMJ,

i

x-ray, negative (R-161, 11-21-85), TMJ, tscan (R-242,

12-25-90), ear pain (R-244, 12-26-90), no. 8 mass in right

submandibular area (R-539, 5-12-92), jugular node next to

submandibular gland (R-538, 9-8-92), soft modible mass

(right) neck. This problem like all others has shown

increased pain and identity.

Administrative Error 1960

38 C.F.R. Ch. 1 [7-1-90] § 4.97, 6513 - Sinusitis, maxillary,

chronic, post-operative.

(1) Whether the VARO, Montgomery, AL erred by

issuing a rating of 0% for his sinusitis condition on

1/13/60 (R-62), the veteran’s military service medical

reports (R-22, 28, and 30) each report severe and repeated

episodes of chronic sinusitis with headaches, sore throat,

and epigostic pain. Furthermore, he provided statements

from his wife, landlord, and a coworker (R-42, 44, and

45). The hospital operating record of 5/16/59 (R-216)

describes the Caldwell-Luc surgery that was done by Dr.

Odess. Based on the above, he feels that he should have

been rated at 10% which is described in Rating Schedule

Provisions of 4/19/91 (R-274) “Moderate, with discharge

or crusting or scabbing, infrequent headaches is rated

10%.” US Code 38.

In the rating of 1/13/60, the VARO failed to notify

him of his rights to appeal, therefore, he did not appeal

their decision. |

The veteran provided several statements and ahii-

davits from co-workers (R-218, 219, 220, 221, and 222)

attesting to his continuing bout with chronic sinusitis, at

a

the above or increased severe nature to the VARO and

BVA prior to 3/18/94 decision.

The veteran could not recall and had no reports in his

file of the office visits from 1960 to 1971 in Birmingham

and 1971 to 1990 in Knoxville for his sinus condition,

even though there were several.

38 C.F.R. Ch. 1 [7-1-90] § 4.97, 6513 - Sinusitis, maxillary,

chronic, post-operative.

(2) Whether Dr. Crowder, VAOPC, Knoxville under-

mined petitioner’s condition of a chronic sinusitis prob-

lem of a severe nature in his written evaluation dated

(R-244), December 26, 1990, Dr. Crowder does not place

any significance to his radical surgery (Caldwell-Luc)

done in 1959, even though it was of significant impor-

tance. He states, “He does not have any record of that,”

however, the scar is there and the veteran believes the

significance of this surgery should have carried a positive

significance in the evaluation statement. The veteran gave

him a fairly complete overview of his history of chronic

sinusitis. Dr. Crowder states that “He has been here on

several occasions by Dr. Russell” then contradicts himself

by the following statement: “He has had no treatment for

his sinus here.” On 9/25/90 the VAOPC x-ray report

states, “The right maxillary sinus is totally opacified,”

and had been given a prescription of ibuprofen on

2/28/90 (363) for headaches by Dr. Russell. While these

reports of Dr. Russell’s evaluation are not in the lower

court’s case file, they were in the VAOPC, Knoxville file

when Dr. Crowder wrote his evaluation report. Dr.

Crowder states, “He sniffs some water up his nose to

clear it out.” The veteran takes issue with the casual

|

10

attitude Dr. Crowder expressed during the evaluation

R-250 thru 252 dated 2/4/91, specifically to his quoted

above statement on R-396 lines 15 thru 23 dated 10/8/91.

On February 4, 1991 the veteran wrote the VARO

referencing Dr. Crowder’s evaluation report, commenting

on its contents. (R-250 thru 252). On 3/7/91 he did

receive a 10% rating for sinusitis retroactive to 9/18/90,

effective 10/1/90, the same rating denied service connec-

tion for bronchitis due to radiation exposure (R-262 and

263). On March 25, 1991 he filed a Notice of Disagreement

and requested a personal hearing.

The veteran believes that his rating for sinusitis and |

lack of rating for bronchitis is significantly denied !

because of Dr. Crowder’s minimizing and simple evalua- |

tion.

The Statement of the Case R-272, 273, and 274

describes the rating of 0% - 10% - 30% and 50%. This

reference clearly shows that the rating would have been

more favorable to the veteran if Dr. Crowder’s evaluation

had been correctly written. Later evaluations and surgery

support that claim. Further examinations by Dr. Russell,

VAOPC, Knoxville, 9/8/92 (R-538) reports chronic

sinusitis, crusting and on 9/22/92 (R-537) reports chronic

sinusitis and nose lesions. The rating for severe sinusitis

with frequently incapacitating recurrences, severe head-

aches, purulent discharge or crusting reflecting purulence

is rated 30% (R-274) and that is where the veteran feels

that he was as of 6/26/90, date this claim was filed.

i:

38 C.F.R. Ch. 1 [7-1-90] § 4.97, 6600 - Bronchitis, Mod-

erately Severe

(3) Whether the VARO, Nashville erred on rating of

10/15/91 (R-390) by failing to give a rating for bronchitis

secondary to his long history of sinusitis as noted in (1)

above. This condition was added to his claim on 4/9/91

(R-269). While diagnosis of bronchitis was not noted on

military service records, post nasal drip, sore throat

(R-22, 28, and 30) are reported. In 11/30/75 (R-109) is the

first report of record of this disease. On this report the

impression states, “sounds like chronic bronchopulmon-

ary trouble on the right,” on 12/1/75 (R-110 & 111)

chronic bronchitis and severe, chronic, sinusitis is

reported on 8/16/76 (R-121, 122, and 124) chronic bron-

chitis is again diagnosed. The veteran states that he never

has a sinus cold without it turning into a chest cold.

However the medical professionals do not always

address the chest cold. 38 C.F.R. Ch. 1 (7/1/93 edition)

Pg. 393. Bronchitis, chronic, moderately severe: persistent

cough at intervals throughout the day, considerable

expectoration, considerable dyspepsea on exercise, rages

throughout chest, beginning chronic airway obstruction,

rating 30%.

Lipomas

Fibromyalgia - 5025

(4) Whether there is a link between the veteran’s

soft tissue problems and the high voltage DC current

shock/burn and ionized radio frequency current shock/

burn. While the petitioner has steadfastly maintained that

the soft tissue (lipomas) and other medical problems are

caused by exposure to radiation or did contribute to the

12

severity of the disease, maybe if only to increase the pain

level, the support of a doctor’s statement is unattainable

for a positive medical evidence Dr. Poteet (R-560) states

as close as one can, “I cannot confirm Mr. Staten’s state-

ment that his multiple recurrent tumors are a result of

this radio frequency. However, I cannot disprove his

claim for the same reason.” The petitioner is asking this

court to review and decide on the issue, while he con-

tinues to make his claim, the strongest supporting evi-

dence and other medical reports post dates the BVA

decision of 3/18/94.

The significance of the majority of his mental and

physical health problems (R-99, 116-120, 387, 461, 486,

533, 539, 540, 555) being pronounced to the upper right

quadrant of his body, (from right hand, shoulder, thorax,

chest, neck, and right side of head) per medical reports

throughout his life, certainly lends credibility to his claim

of ionized radio frequency shock/burn injury as

described on (R-319, 563, 455, 456, 565, 569).

The petitioner does have a second line of tissue prob-

lems that travels from under right arm, to right groin,

across to left hip (R-96). Note “multiple (2) benign

lipomas (from the abdominal wall) (7)” It has been

explained that the (7) represents lipoma formations, this

line continues down the left leg. Again there are multiple

areas in this line, diagnosed post dating the BVA decision

of 3/18/94.

9209 — Depression - Definite impairment of social and

industrial adaptability

Whether the diagnosis of Dysthymia, second type,

late onset and major depression, recurrent, moderate

(R-581) are related to the ionized radio frequency shock/

13

burn injury. (R-319, 2-73). 38 C.F.R. Ch. 1 Pg. 415 Major

Depression, definite impairment of social and industrial

adaptability. 30%. The veteran contends that his blunted

mood and Dysthymia and affect is a result of his injury-

Ref 1/21/93 Pg. 1 VAMC report.

Whether the material in appendix 26-32 expresses an

attitude of malpractice. The veteran had been attempting

to get an evaluation and diagnosis to rule out the ques-

tion of radiation exposure as recommended by the

VAOPC doctor, Lewis T. Howard, M.D., CMO (R-481).

The veteran had been referred to the VAMC for evalua-

tion and had tried on previous occasions to get an

appointment with the mental health clinic for the R/O

evaluation. This medical clinic didn’t seem to want to

cooperate with the veteran and had given him the run-

around on previous occasions. The veteran had obtained

copies of his medical records on several occasions from

the VAM, Nashville, and on the medical report for

1-21-93, had only received the front page of the report.

On July 2, 1998, he received a copy of the latest rating

decision of 6-8-98. At this point he requested from the

VARO a copy of his claim file. In this file he found a copy

of a report filed by Doctor Michael W. Propper, M.D.,

Psychiatry Department. Inside this report was a reference

to a report filed by a Doctor Dan Boyd, M.D. Doctor

Propper quotes a paragraph from Dr. Boyd’s report that

he had not seen before. After several letters and tele-

phone calls, he finally received the complete (front and

back) report of 1-21-93. On the reverse side of this report

is the report written by Dr. Boyd (Ref. Appendix 28). The _

surprising part of this report is the negative statement

“possible elements of malingering and exaggeration for

14

SC pay.” The veteran wasn’t seen by this doctor on this

day or previously and he fails to see where the reports

referred to by Dr. Boyd given cause for such a negative

reference. The veteran has since brought this issue up

with the VAMC administrative assistant in the CMO’s

office and the negative statement has been struck from

his record. However, this was done on 3-3-99 and going

back through the years from 1-21-93, the statement was in

the records while his claim was denied, denied, denied by

the VARO, BVA, COVA and essentially by the U.S. Court

of Appeals for the Federal Circuit, since they declined to

review his claim for lack of jurisdiction (this issue was

addressed in this latest court brief).

The veteran contends that Dr. Crowder’s narrow

evaluation and this negative report both contributed sig-

nificantly to his claim being denied. The medical records

subsequent to this 1993 report show a much different |

picture in favor of the veteran than these two doctor’s |

reports show. The veteran admits that his speech and

personality when speaking to the medical profession is

blunt. However, this is an element of his pain and frustra-

tion caused by dealing with his medical problem for the

forty plus years as the medical records show. |

The veteran doesn’t mean to imply that the many

people have conspired to deny his claim. It’s just that a

few important people in strategic places have -filed

reports that have led other reviewers to the denial conclu-

sion and he wishes to stress that the reverse side of the

report of 1-21-93 was kept from him for all those years.

a |

15

The veteran was declared disabled in 1994, for insur-

ance coverage purposes by Admin. Law Judge retroactive

to 2-15-91.

CONCLUSION

1. The veteran claims that the soft tissue absorbed

energy creating lipomas and thickened tissue at the back

of the head and neck to the right side to center line. The

cervical spine and other soft tissue could have also been

damaged. The veteran understands that this is offering

medical fact and speculation, however, he has provided

scientific and technical literature supporting his claim for

damaged tissue resulting from his radiation exposure.

Also he has had multiple tumors removed by surgery in

the line of hand to head and currently has others and has

severe pain in this same line. Also, in the second line

from right shoulder to left foot as medical records show.

As one would understand that a high voltage current

would travel from contact point (right hand) up the arm

it is contained by the diameter of the arm, then at the

shoulder it would (should) expand out, thus as the side of

the head would be in contact with the grounded equip-

ment. The current traveling from the shoulder would

expand out in the right thorax chest, drawn back into the

more narrow neck and exit the body where the head is in

contact with grounded frame and would allow the cur-

rent to exit.

2. All tissues and organs in this line could have

been damaged by the heat created by this energy as noted

in T.O. 31-1-141-1. R-319-325. The hollows of the sinus,

16

throat, esophagus, bronchial tubes, and right lungs could

have been damaged by the first accident (atomic radia-

tion). Then the tissue of these systems could also have

been damaged by the energy from the radio frequency

current. This is a logical conclusion and not a conclusion

of speculation. His service medical record reporting

examination of the pain that had started in the area of the

heart, esophagus [R-23-29] and the thorax chest. There is

a continuous medical record reporting the examinations

and surgery of benign lipomas in this first line and sec-

ond line as explained in other parts of this petition.

3. The veteran asserts that had the reviewers of his

claim not been exposed to the narrow and negative medi-

cal reports, it could have found grounds to decide a

grounded claim.

4. The veteran has received since 3/18/94, a state-

ment letter from his former First Sergeant and detach-

ment Commander (appendix). This shouldn’t have been

necessary except for the issues in 3 above. This should

confirm his claim and further establish a well-grounded

claim.

Respectfully submitted,

CARROL STATEN

8327 Corteland Drive

Knoxville, TN 37909

(423) 693-9627

Petitioner, Pro Se

App. 1

IN THE APPEAL OF

CARROL C. STATEN

[LOGO]

BOARD OF VETERANS’ APPEALS

WASHINGTON, D.C. 20420

DOCKET NO. 92-13-049 ) DATE

) MAR. 18, 1994

THE ISSUES

1. Entitlement to an increased rating for sinusitis, cur-

rently evaluated at 10 percent disabling.

2. Entitlement to service connection for bronchial and

lung conditions.

3. Entitlement to service connection for multiple

lipomas.

4. Entitlement to service connection for degenerative

disc disease of the cervical spine.

5. Entitlement to service connection for diverticular dis-

ease.

6. Whether the January 13, 1960, rating decision of the

agency of original jurisdiction contained clear and unmis-

takable error.

REPRESENTATION

Appellant represented by: Disabled American Veterans

App. 2

ATTORNEY FOR THE BOARD

Patrick J. Costello, Associate Counsel

INTRODUCTION

This matter came before the Board of Veterans’ Appeals

(hereinafter the Board) on appeal from August 1990 rat-

ing decisions of the Department of Veterans Affairs (VA)

Regional Office (RO), in Nashville, Tennessee, which

denied the veteran’s claim for service connection. The RO

did however increase the veteran’s disability rating for

sinusitis. The notices of disagreement were received in

September 1990, and March 1991. Statements of the case

were issued in October 1990, and April 1991, and sub-

stantive appeals were received in May and June 1991.

In June 1991, the veteran and his representative appeared

and offered testimony at a hearing on appeal conducted

at the RO. The hearing officer rendered a decision in

September 1991 that confirmed and continued the prior

rating action. A supplemental statement of the case was

thereafter issued in September 1991. Additional rating

decisions were issued in October and November 1991. A

supplemental-statement of the case was issued in Decem-

ber 1991. The veteran and his representative reappeared

and offered testimony at a hearing on appeal conducted

at the RO in January 1992. In April 1992, the hearing

officer confirmed and continued the prior rating actions.

A supplemental statement of the case was issued in May

1992. The appeal was received and docketed at the Board

in July 1992.

——

App. 3

The veteran has been represented throughout this appeal

by the Disabled American Veterans, which submitted

additional written argument to the Board in March 1993.

This case is now ready for appellate review.

The veteran had active military service from February

1952 to January 1956.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the rating action of January 13,

1960, contains clear and unmistakable error, and that the

rating assigned did not adequately reflect his sinusitis

condition. He asserts that the RO erred which it failed

evaluate his condition more disabling, and thus requests

that he receive retroactive payment of benefits for the

period of 1960 through 1990.

He further avers that RO erred when it failed to grant

service connection for his pulmonary condition, multiple

lipomas, and diverticular disease. He asserts that these

conditions were a result of his exposure to cobalt and

radium filled radio tubes while in service. Moreover, he

states that his proximity to radar equipment on the flight

line contributed to his incurrence of these illnesses.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38

U.S.C.A. § 7104 (West 1991), has reviewed and considered

all of the evidence and material of record in the veteran’s

claims file(s). The Board has determined that only those

items listed in the “Certified List” attached to this deci-

sion and incorporated by reference herein are relevant to

App. 4

this decision and incorporated by the veteran’s claim.

Based on its review of the relevant evidence in this mat-

ter, and for the following reasons and bases, it is the

decision of the Board that the veteran’s claim concerning

clear and unmistakable error is not well-grounded. Addi-

tionally, it is also the decision of the Board that the claims

for service connection for bronchial and lung conditions,

multiple lipomas, and diverticular disease are not well-

grounded.

Furthermore, it is the decision of the Board that the

preponderance of the evidence is against both an evalua-

tion in excess of 10 percent for sinusitis, and a grant of

service connection for degenerative disc disease of the

cervical spine.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable dis-

position of the veteran’s appeal has been obtained by the

agency of original jurisdiction.

2. Service medical records are negative of any findings

of or exposure to radiation.

3. Service medical records are negative for treatment of

a bronchial and lung condition, multiple lipomas, degen-

erative disc disease of the cervical spine, and diverticular

disease. These conditions did not appear on the record

until many years after his release from the military.

4. The January 13, 1960, rating action was based upon

current medical evidence of the veteran’s sinusitis condi-

tion; the RO applied then current regulations and statutes

in effect to the evidence presented by the veteran.

App. 5

5. The veteran has a chronic sinus condition evidenced

by sniffing some water up his nose to clear his sinuses

out. The veteran self-medicates, and x-rays of the right

maxillary sinus are completely opacified, the nasal pas-

sages are clear, but he sounds slightly congested.

6. Neither an exceptional nor unusual disability picture

has been presented so as to render impractical and appli-

cation of the regular schedular standards.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent

for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107

(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10,

Part 4, Diagnostic Code 6513 (1993).

2. The claim for entitlement to service connection for

bronchial and lung conditions is not well-grounded. 38.

U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38

C.F.R. §§ 3.307, 3.309 (1993).

3. The claim for entitlement to service connection for

multiple lipomas~is not well-grounded. 38 U.S.C.A.

§§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.ER.

§§ 3.307, 3.309 (1993).

4. The claim for entitlement to service connection for

diverticular disease is not well-grounded. 38 U.S.C.A.

§§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.E.R.

§§ 3.307, 3.309 (1993).

5. The veteran’s degenerative disc disease of the cervical

spine was not incurred in or aggravated by active service.

38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.FR. § 3.303

(1993).

App. 6

6. The veteran’s claim that the January 13, 1960, rating

decision of the agency of original jurisdiction contained

clear and unmistakable error is not well-grounded. 38

U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38

C.F.R. §§ 3.307, 3.309 (1993).

REASONS AND BASES FOR

FINDINGS AND CONCLUSIONS

I. Clear and Unmistakable Error

The veteran contends that he is entitled to a compensable

rating for his sinusitis condition, with an effective date

from 1960, based on clear and unmistakable error in the

initial VA disability determination. However, the initial

question for resolution is whether the veteran has submit-

ted a well-grounded claim in accordance with 38 U.S.C.A.

§ 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App.

78 (1990). In order to determine whether the veteran has

submitted a plausible, well-grounded claim, we must first

determine what is required for a valid clear and unmis-

takable error claim.

The United States Court of Veterans Appeals has defined

clear and unmistakable errors as errors that are “undeba-

table, so that it can be said that reasonable minds could

only conclude that the original decision was fatally

flawed at the time it was made.” Russell v. Principi, 3

Vet.App. 310, 313-314 (1992). “A determination that there

was ‘clear and unmistakable error’ must be based on the

record and the law that existed at the time of the prior

AOJ or BVA decision.” Id. at 314. There must be more

than a disagreement as to how the facts were weighted or

App. 7

evaluated, and the error must be outcome determinate.

Id. at 313.

The veteran alleges that clear and unmistakable error was

present in the 1960 decision because the same symptoms

detected in 1960 were also present when he was re-

evaluated at 10 percent disabled in 1991. He states that

those symptoms were initially ignored. The veteran does

not contend that this evidence was not before the adjudi-

cator, nor that statutory regulations or provisions were

incorrectly applied. He merely asserts disagreement with

how the RO evaluated the facts before it. In accordance

with Russell v. Principi, 3 Vet.App. 310 (1992), and more

recently Newman v. Brown, 5 Vet.App. 99 (1993), we find

that no valid claim of error as to this claim has been

raised, and hence, the claim is not plausible nor well

grounded.

II. Service Connection for Bronchial and

Lung Conditions, Multiple Lipomas, and

Diverticular Disease

The appellant also appeals the RO’s actions which have

repeatedly denied service connection for the above

named conditions. In essence, the RO stated that the

veteran’s conditions were not a result of or proximately

caused by exposure to radiation. The RO also noted that

these disabilities were not those associated with exposure

to radiation under the provisions of the law. Also refer-

enced by the RO was the fact that the veteran was not

exposed to radiation as a result of atmospheric exposure

or the occupation of Japan around the nuclear holocaust

areas. Yet, before the topic of service connection may be

discussed, the initial question for resolution in this case is

App. 8

whether the appellant has submitted a well-grounded

claim in accordance with 38 U.S.C.A. § 5107 (West 1991),

and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Upon

review of the claims file, we find that this requirement

has not been satisfied.

Per 38 U.S.C.A. § 5107 (West 1991), and subsequently

Tirpak v. Derwinski, 2 Vet.App. 609 (1992), a well-

grounded claim requires more than just a mere allegation.

The appellant in this case must submit supporting evi-

dence that would justify the belief that the claim is plaus-

ible. In this instance, the appellant asserts that the

veteran's disabilities were caused by his exposure to bro-

ken radio tubes which contained cobalt and radium. He

also claims that he was exposed to radiation from the

radar equipment used on the flight lines. To support his

claim, he offered copies of an Air Force radio user’s

manuals and government-produced pamphlets on radia-

tion exposure. The veteran highlighted the safety precau-

tions needed when handling radio equipment, and the

dangers involved in exposure to radiation and x-rays.

From this material, the veteran concluded that he was

exposed to radiation, and said radiation has caused his

various disabilities.

However, the record does not contain any evidence cor-

roborating the appellant’s claim. Such statements by the

appellant are speculative and would not “justify a belief

by a fair and impartial individual that the claim is well

grounded.” Ibid. While we do not doubt that he is sincere

in his belief that he was previously exposed to radiation,

he is not qualified to offer such an opinion. See Espiritu v.

Derwinski, 2 Vet.App. 492 (1992). Moreover, mere conten-

tions of the appellant without supporting evidence do not

App. 9

constitute a well-grounded claim. Fields v. Derwinski, U.S.

Vet. App. No. 90-933 (Dec. 2, 1991); King v. Brown, U.S.

Vet. App. No. 92-709 (Apr. 20, 1993).

III. Service Connection for

Degenerative disc disease of the Cervical Spine

In accordance with 38 U.S.C.A. § 5107 (West 1991), and

Murphy v. Derwinski, 1 Vet. App. 78 (1990), the appellant

has presented a well-grounded action in regards to his

claim for service connection for degenerative disc disease

of the cervical spine. The facts relevant to this appeal

have been properly developed and the obligation of the

Department of Veterans Affairs (VA) to assist the veteran

in the development of his claim has been satisfied. Id.

Under 38 U.S.C.A. § 1110, 1131 (West 1991), compensation

will be provided if it is shown that the veteran suffers

from a disease or injury incurred in or aggravated by

service. In addition, service-connection may be granted

for any disease diagnosed after discharge, when all of the

evidence, including that pertinent to service, establishes

that the disease was incurred in service. 38 C.F.R.

§ 3.303(d) (1992). Service medical records show that the

veteran was not treated for any type of back pain or

injury. The veteran performed his military and personal

activities with no restrictions. His end-of-service physical

was negative for any complaints, residuals, or abnor-

malities that might be associated with a degenerative disc

disease of the cervical spine.

The veteran then requested service connection for his

disability in June 1990. In his letter to the VA, the veteran

claimed that his disability had existed since service, and

App. 10

inferred that his service caused his disability. In the alter-

native, the veteran asserted that the degenerative disc

disease was a result of exposure to radiation. Letter to the

VA, undated. While the veteran has claimed the existence

of the disability since service, he has not provided evi-

dence that would link his current disability with his

service. There is only his statement in support of his

claim. While we do not doubt that the veteran’s claim is

made in the sincere belief that his disability may be

somehow related to his service, he is not medically quali-

fied to offer such an opinion. That is, he has no medical

training that would permit him to make a diagnosis of the

cause of the current condition. Espiritu v. Derwinski, 2

Vet.App. 492, 494 (1992). Moreover, as a layman, the

appellant is not qualified to proffer an opinion as to the

definitive date of onset of his disability; such testimony

would only be probative if it were proffered by a witness

qualified as an expert. Miller v. Derwinski, 2 Vet.App. 578

(1992).

Thus, while the veteran has provided statements attesting

to the chronicity of the disability, he has failed to provide

evidence that would corroborate his claim. Furthermore,

the veteran has unsuccessfully identified any persistent

pattern, since service of spinal abnormalities. The evi-

dence of record, including the veteran’s statements and

the medical documents, does not show post-service conti-

nuity of complaints, findings, or diagnoses of the resid-

uals of the claimed disability so as to reasonably relate

current complaints to a period of service ending many

years earlier. Such chronicity ought to be found if the

individual was suffering from a remarkable chronic

App. 11

degenerative disc disease of the cervical spine since ser-

vice.

Therefore, based on these findings and following a full

review of the record, the Board is of the opinion that the

veteran does not have a cervical spine disability that may

be reasonably associated with his service in the U.S. Air

Force.

IV. Increased Rating for Sinusitis

We find that the veteran has presented a well-grounded

claim in accordance with 38 U.S.C.A. § 5107 (West 1991),

and Murphy v. Derwinski, 1 Vet. App. 78 (1990). Disability

evaluations are based upon the average impairment of

earning capacity as determined by a schedule for rating

disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part

4 (1993). Separate rating codes identify the various dis-

abilities. 38 C.F.R. Part 4 (1993). In determining the cur-

rent level of impairment, the disability must be

considered in the context of the whole recorded history,

including service medical records. 38 C.F.R. §§ 4.2, 4.41

(1993). An evaluation of the level of disability present

also includes consideration of the functional impairment

of the veteran's ability to engage in ordinary activities,

including employment, and the effect of pain on the

functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59

(1993).

The veteran initially received a noncompensable evalua-

tion for sinusitis in 1959. Then, on the basis of the vet-

eran’s reopened claim for an increased disability

evaluation, the RO assigned a 10 percent rating in March

1991. In its decision, the RO noted:

App. 12

The vetéran has . . . problems with a sinus

condition since 1971. Current VA examination

indicates that the veteran relates sniffing some

water up his nose to clear his sinuses out. The

veteran states that he does not smoke. The vet-

eran takes aspirin which is usually for his head

situation. X-rays of the right maxillary sinus is

completely opacified, compatible with examina-

tion, the veteran’s nasal passages are clear, but

the veteran sounds slightly congested. Impres-

sion is chronic sinusitis.

A noncompensable evaluation is warranted for chronic

maxillary sinusitis with only x-ray manifestations and

mild or occasional symptoms. A 10 percent evaluation

requires moderate chronic maxillary sinusitis manifested

by a discharge, crusting, or scabbing and infrequent

headaches. A 30 percent evaluation requires severe

chronic maxillary sinusitis manifested by frequently inca-

pacitating recurrences, severe and frequent headaches,

and a purulent discharge or crusting reflecting purulence.

When there is either chronic osteomyelitis necessitating

repeated curettage following a radical operation or severe

symptoms after repeated operations, the disability will

warrant a 50 percent evaluation. 38 C.F.R. Part 4, Diag-

nostic Code 6513 (1993).

Since the above rating decision, the veteran underwent a

VA Compensation and Pension Examination in June 1992.

The examiner wrote that there was “[s]ome tenderness

over the right maxillary and frontal sinuses. Nasal

mucous membrane is rather red and slightly swollen.”

The veteran has not proffered any additional evidence

indicating a more debilitating condition. Moreover, the

record is negative for any evidence that would indicate

App. 13

that he is suffering from a more severe condition. That is,

severe chronic maxillary sinusitis manifested by frequently

incapacitating recurrences, severe and frequent headaches,

and a purulent discharge or crusting reflecting purulence

are not present. Since the indicators of a more severe

condition have not been present, an increased rating for

sinusitis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West

1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.10, Part 4, Diagnostic

Code 6513 (1993).

Consideration has also been given to the potential appli-

cation of the extraschedular evaluation provisions of 38

C.F.R. § 3.321(b) (1993). The evidence does not present

such an exceptional or unusual disability picture as to

render impractical the application of the regular schedu-

lar standards. Specifically, there has not been a demon-

stration of marked, interference with employment or

frequent periods of hospitalization so as to render

impractical the application of the regular schedular crite-

me

ORDER

1. Entitlement to an earlier effective date for a compens-

able rating of sinusitis based upon clear and unmistak-

able error is denied.

2. Entitlement to service connection for bronchial and

lung conditions is denied.

3. Entitlement to service connection for multiple

lipomas is denied.

4. Entitlement to service connection for degenerative

disc disease of the cervical spine is denied.

App. 14

5. Entitlement to service connection for diverticular dis-

ease is denied.

6. Entitlement to an increased rating for sinusitis, rated

at 10 percent, is denied.

[SEAL]

BOARD OF VETERANS’ APPEALS

WASHINGTON, D.C. 20420

/s/ W.H. Yeager, Jr. M.D. /s/ C.P. Russell

W. H. YEAGER, JR., C. P. RUSSELL

M.D.

/s/ Jack W. Blasingame

JACK W. BLASINGAME

[“Certified” List Omitted In Printing]

App. 15

Designated for electronic publication only

UNITED STATES COURT OF VETERANS APPEALS

No. 94-630

Carrot C. STaTeN, APPELLANT,

Vv.

HersHet W. Goser,

Before NEBEKER, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R 28(i),

this action may not be cited as precedent.

NEBEKER, Chief Judge: The appellant, Carrol C.

Staten, appeals from a March 18, 1994, Board of Veterans’

Appeals (BVA or Board) decision which denied an

increased rating for his service-connected sinusitis; found

claims for bronchial and lung conditions, multiple

lipomas, and diverticular disease to be not-well-

grounded; and denied service connection for degenera-

tive disc disease of the cervical spine. The appellant does

not challenge in his pleadings the Board’s determination

that he did not properly raise a claim for clear and

unmistakable error in a January 13, 1960, regional office

(RO) decision. Accordingly, this claim is deemed aban-

doned. See Bucklinger v. Brown, 5 Vet.App. 435 (1993).

Based upon the record on appeal and the briefs of the

parties, single-judge disposition is appropriate in this

case (see Frankel v. Derwinski, 1 Vet.App. 23 (1990)), and

the Court will affirm the decision of the Board for the

reasons that follow.

App. 16

I. FACTS

The appellant had active service in the United States

Air Force from February 1952 until January 1956. Record

(R.) at 34. He is currently service connected for sinusitis,

rated at 10% disabling. R. at 496-497. Other than treat-

ment for his sinus condition, His service medical records,

including his separation examination, do not reflect treat-

ment for any of the other claimed disabilities and do not

reflect any incident of radiation exposure. R. at 16-32.

Since his application for benefits in 1990, the appellant

has steadfastly contended that he was exposed to radia-

tion from broken radio tubes and from radar equipment

during service, and that this alleged exposure has caused

the disabilities from which he now suffers. Outpatient

treatment records reveal that the appellant has had sev-

eral lipomas surgically removed (R. at 92, 96, 100-01, 119,

177); was involved in an automobile accident which dam-

aged his cervical spine (R. at 102-04); has been diagnosed

with degenerative disc disease of the cervical spine (R. at

107); has been diagnosed with chronic bronchitis (R. at

110-11); and has been diagnosed with diverticular disease

- of the colon. R. at 124, 127-28.

Il. ANALYSIS

A. Sinusitis

The determination of a degree of a disability is a

question of fact to which this Court applies the “clearly

erroneous” standard of review. McGrath v. Brown, 5

Vet.App. 57, 60 (1993). Under this standard, the Court

will not substitute its own judgment for that of the Board

and will disturb the factual determinations only if there is

ew

App. 17

no “plausible basis” in the record to support them. Gilbert

v. Derwinski, 1 Vet.App. 49, 52-53 (1990). Where a disabil-

ity has already been service connected and the issue is

entitlement to an increase in compensation, the most

recent level of that disability is of primary concern. Fran-

cisco v. Brown, 7 Vet.App. 55 (1994).

The rating code for sinusitis is 38 C.F.R § 4.97 Diag-

nostic Code (DC) 6513 (1996). To warrant a rating of 30%,

the condition must be severe, with frequent incapacitat-

ing recurrences, severe and frequent headaches, purulent

discharge or crusting reflecting discharge. A -ating of

10% is warranted for a moderate condition, accompanied

by discharge, scabbing or crusting and infrequent head-

aches. The most recent VA examination in 1992 notes

“some tenderness over the right maxillary and frontal

sinuses. Nasal mucus membrane was rather red and

swollen.” R. at 479. The appellant’s outpatient treatment

records for the period covering February 1991 to April

1993 reflect that the appellant complained of sinus prob-

lems on only four occasions. None of these records notes

symptomatology reflective of a 30% rating. R. at 360-68,

402-08, 478-79, 533-40, 550-51. The appellant testified that

he has headaches “every few weeks,” and has not offered

any evidence of incapacitating episodes. R. at 297-99.

Therefore, the Board’s determination to affirm the 10%

rating has a plausible basis in the record.

B. The Remaining Claims

Section 5107(a) of title 38, United States Code, pro-

vides: “[A] person who submits a claim for benefits

under a law administered by the Secretary shall have the

App. 18

burden of submitting evidence sufficient to justify a belief

by a fair and impartial individual that the claim is well

grounded.” Generally, a well-grounded claim requires (1)

medical evidence of a current disability; (2) medical or, in

certain circumstances (not applicable here), lay evidence

of incurrence or aggravation of a disease or injury in

service; and (3) medical evidence of a nexus between an

in-service injury or disease and the current disability. See

Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per

curiam, 78 F.3d 604 (Fed.Cir. 1996) (table). This Court

reviews de novo whether a claim is wel! grounded. Grott-

veit v. Brown, 5 Vet.App. 91 (1993).

The appellant contends that his pulmonary condi-

tion, lipomas, degenerative disc disease, and diverticular

disease are the result of his exposure to radiation from

broken radio tubes and radar equipment. No evidence

appears in the record to confirm that the appellant was

indeed exposed to radiation during the two incidents he

alleges. The appellant conceded at a personal hearing in

1991 that he had no medical evidence which linked his

conditions to radiation exposure, even if it occurred as

alleged. R. at 295. The only physician to address this

issue, Dr. Tony Poteet, was unable to render an opinion

either for or against the appellant’s claims. R. at 560-61.

Without competent medical evidence to support his

claim, the appellant’s suppositions and hypotheses do not

provide the required connection between a current condi-

tion and service. Espiritu v. Derwinski, 2 Vet.App. 492

(1992). The appellant has therefore failed to submit well-

grounded claims for these conditions.

The Board found that the appellant’s claim for ser-

vice connection of degenerative disc disease was well

App. 19

grounded, and proceeded to adjudicate, and deny, the

claim on the merits. R. at 6-7. As discussed above, the

appellant has failed to provide any competent medical

evidence which links this condition to service. Therefore,

the appellant's claim is not well grounded and the Board

erred in reaching its merits. See Edenfield v. Brown, 8

Vet.App. 384 (1995) (en banc). The Court in Edenfield held

that such erroneous decisions of the Board should be

affirmed unless they result in prejudicial error to the

appellant. Edenfield, 8 Vet.App. at 390. The Court holds

that affirming the Board’s decision denying the claim

would result in no such error, as the result is the same.

Finally, the Court notes that while his appeal was

pending before the Board, Mr. Staten submitted a letter to

the RO seeking to add a claim for a mental health disabil-

ity. R. at 572. He attached a letter from Dr. Patricia Lees, a

psychologist in Tennessee. R. at 573-75. In this letter, Dr.

Lees stated that the appellant suffers from major depres-

sion, conversion disorder, and somotoform pain disorder.

R. at 574. While the Board did not state in its decision

what action was taken on this claim, the Court trusts that

the matter, having been first raised to the Board, was

referred to the RO for initial adjudication. See Suttman v.

Brown, 5 Vet.App. 127, 132-33 (1993); EF v. Derwinski, 1

Vet.App. 324 (1991).

App. 20

Ill. CONCLUSION

The March 18, 1994, decision of the Board is

AFFIRMED.

DATED: AUG 26 1997

Copies to:

Carrol C. Staten

8327 Corteland Drive

Knoxville, TN 37909

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

App. 21

NOTE: Pursuant to Fed. Cir. R. 47.6, this order is

not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

98-7015

CARROL C. STATEN,

Claimant-Appellant,

v.

TOGO D. WEST, JR.,

Secretary of Veterans Affairs,

Respondent-Appellee.

ON MOTION

Before MICHEL, RADER and BRYSON, Circuit Judges.

RADER, Circuit Judge.

ORDER

(Filed June 23, 1998)

The Secretary of Veterans Affairs moves to waive the

requirements of Fed. Cir. R. 27(e) and to dismiss Carrol C.

Staten’s appeal for lack of jurisdiction or, in the alterna-

tive, for an extension of time to file his brief. Staten

opposes.

In 1994, the Board of Veterans’ Appeals denied

Staten’s claims for service connection for various condi-

tions and his claim for an increased rating for sinusitis.

On August 26, 1997, the Court of Veterans Appeals sum-

marily affirmed the Board’s decision on the grounds that

the Board’s decision regarding the sinusitis claim had a

plausible basis in the factual record and that Staten had

App. 22

not submitted evidence to render his remaining claims

well grounded. Staten appealed to this court.

Pursuant to 38 U.S.C. § 7292, not every decision

entered by the Court of Veterans Appeals is appealable.

Section 7292(a) provides that a party may only seek

review of a decision of the Court of Veterans Appeals

with respect to the validity or interpretation of any stat-

ute or regulation relied on by the court in making its

decision. Further, except to the extent that an appeal

presents a constitutional issue, this court may not review

“(A) a challenge to a factual determination, or (B) a

challenge to a law or regulation as applied to the facts of

a particular case.” 38 U.S.C. § 7292(d)(2). If an appellant’s

case does not meet these criteria, 38 U.S.C. § 7292(d)

requires this court to dismiss the appeal.

Staten does not argue that the Court of Veterans

Appeals misinterpreted a constitutional provision, a law,

or a regulation in its decision. In his informal brief and

response, Staten challenges the evaluation of the evidence

and the application of the law to the facts of his particular

case. Because this court has no jurisdiction to conduct

such an inquiry, this appeal must be dismissed. See Liv-

ingston v. Derwinski, 959 F.2d 224, 225-26 (Fed. Cir. 1992).

Therefore, Staten’s appeal rests beyond this court's juris-

diction.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary’s motion to waive the require-

ments of Fed. Cir. R. 27(e) is granted.

(2) The Secretary’s motion to dismiss is granted.

App. 23

(3) The Secretary’s alternative motion for an exten-

sion of time to file his brief is moot.

(5) Each side shall bear its own costs.

FOR THE COURT

JUN 23 1998 /s/ Randall R. Rader

Date Randall R. Rader

Circuit Judge

cc: Carrol C. Staten

Deborah A. Bynum, Esq.

$12

ISSUED AS A MANDATE: JUN 23 1998

App. 24

NOTE: Pursuant to Fed. Cir. R. 47.6, this order is not

citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

98-7015

CARROL C. STATEN,

Claimant-Appellant,

v.

TOGO D. WEST, JR.,

Secretary of Veterans Affairs,

Respondent-Appellee.

ON MOTION

Before MICHEL, RADER and BRYSON, Circuit Judges.

RADER, Circuit Judge.

ORDER

(Filed Apr. 26, 1999)

Carrol C. Staten moves for reconsideration of the

court’s order dismissing his appeal for lack of jurisdiction

and for leave to file supplemental information with the

court.* The Secretary of Veterans Affairs has not

responded.

The supplemental information that Staten seeks to

file with the court consists primarily of documents post-

dating the Court of Veterans Appeals’ decision that was

involved in this case. That material is not part of the

record on appeal. See Fed. R. App. P. 10.

* Staten also states that he wishes to submit a lengthy brief.

Staten’s motion for leave to file that brief was granted in an

earlier order.

iit

App. 25

Upon consideration thereof,

IT IS ORDERED THAT:

(1) The motion for reconsideration is denied.

(2) The motions for leave to file supplemental infor-

mation are granted with respect to documents that were

part of the record and denied with respect to documents

that were not part of the record.

FOR THE COURT

APR 26 1999 /s/ Randall R. Rader

Date Randall R. Rader

cc: Carrol C. Staten Circuit Judge

Deborah A. Bynum,

Esq.

App. 26

1/21/93

2:50 PM

MHC DUTY OFFICER |

REFERRAL AND HX OF COMPLAINT

Pt is a 62 yo separated wm who presented in triage / MHC

c/o pain in his head radiating through his sinuses and

into his right arm. He has undergone multiple surgeries

for lipomas that he describes as very painful. His physical

problems began at age 21 when exposed to radiation

while in the service. He added that he received radio

frequency burn to his right arm. Pt attributed his physical

problems to these incidents. When asked, he c/o prob-

lems with every body system. Pt also reports feeling

depressed, difficulty staying asleep, and periods of con-

fusion (losing his way inside his house when he gets up

at night). Pt one time mentioned that he is not sure

whether the pain is real or in his head. Pt has been

followed in Knoxville VAOPC and drove to Nashville to

dissatisfaction with location in Knoxville.

Psychiatric HX

Pt denies a hx of psychological / psychiatric hx. However,

he is currently taking Amitriptyline 25 mg per day but is

unaware it is an antidepressant.

CDHX

Pt reports he is a very controlled drinker averaging 2

drinks 3 x per week between 4 and 5 o'clock.

App. 27

family HX

Pt denies a hx of mental illness and substance abuse in

his family.

Social HX

Pt born and raised in Walnut Ridge, AK. His mother died

when he was 3 yo. He is the 6th of 9 children, he reports

good relations with his family. Pt is a high school gradu-

ate and completed 2 years of college at the U of AL at

Birmingham. Pt entered the U.S. Air Force 1952 and hon-

orable discharged in 1956 at the rank of airman Ist class.

Pt married in 1956 and is currently separated. Two child-

ren resulted from this marriage. Since discharge from the

military, he has worked as an accountant but has been

unemployed for the past 4 years due his medical prob-

lems.

Mental Status

Pt was cooperative with the assessment process. He did

not display any problems with ambulation or gross motor

control but moved in a slowed lethargic manner. Memory

and cognitive functions were intact and was oriented x3.

Pt denies SI/HI. He denies any hallucinations or delu-

sions. Mood was dysthymic and affects was somewhat

blunted. |

Diagnosis

Axis I: Undifferentiated Somataform Disorder (provi-

sional,

: App. 28

Axis Il: Deferred

Axis Ill: None

Recommendations

Pt does not appear to be a risk to himself or others at this

time. Due to the complexity of Pt’s case and clarification

of the validity of physical complaints, Pt is referred to the

MHC resident.

Wayne Siegel Ph.D. Candidate

Psychology Intern

Carrole Young, Ph.D.

1-21-93

Chart reviewed - esp. Dr. Hoehn’s note of 10/91 & pts

12/1/92 stack of papers in chart detailing his ailments

(complete with color coded diagrams!).

I'd briefly spoked to him in waiting room when otologist

saw him & he was asymptomatic for BP and I rec the FU

for BP at local physician (sooner if symptomatic &

explained symptoms). I called for pt at 4:00 pm but he’d

already left. Based on above not & chart, I suspect

somatization & somatoform disorder and possible ele-

ments of malingering and exaggeration for SC pay. Pt

should cont RX at Knox VA MHC or local MHC.

Boyd, M.D.

App. 29

10-18-91

Mental Health Clinic Resident I

Statten, Carol 383-28-0862

Subjective:

60 year old white male referred for vague reasons from

medical clinic. Patient reports being very concerned

about multiple somatic complaints related to past benign

growths which he feels is related to exposure to radiation

many years ago. In reviewing his chart he has had

numerous ER visits for a variety of concerns and he has

had suspected somatization disorder. He reports no pre-

vious psychiatric history or substance abuse in the past.

Medications:

Ibuprofen 600 mg TID

Verapamil 80 TID

Bronpheniramine BID

Past Medical History: Multiple Benign growth SP

resection

Past Psychiatric History: None

Social History:

Accountant recently unemployed, sporadic work history

the past 10 years (the economy), married x 34 years, two

grown children.

Examination:

Moderately obese anxious white male, A&O*4, speech

clear, mood/affect mildly anxious, though normal but

preoccupied with multiple medical complaints (“I know

App. 30

they’re getting worse”), no SI/HI, Memory/concentra-

tion intact, judgement intact, insight fair.

Impression: Probably Somatization DO

Plan: =

Will schedule psychological testing and RTC after testing.

May benefit from supportive therapy.

Robert Hoehn, M.D.

12-21-92

GI gives multiple complaints. Has had several lipomas

removed in past. Pt as had pain in head, neck, (cannot

read) esophagus for 45 years. Wants something done thus

requests that entire med record be accumulated and have

his eligibility for SC on disability.

He has multiple lipomas (cannot read) general surgery

several months ago. Felt urgent to have operation indi-

cated. Referred to ENT for right submandibular lipoma.

Obese white male

Right small submandibular node or lipoma

Diagnostic Impressions:

1. Chronic Pain

2. Lipoma

i i i

App. 31

Plan:

1. Keep ENT appointment

2. To Veteran Affairs for (cannot read) of medical

records

3. CCR to pain clinic

(Cannot read) doctor’s name.

Veteran’s handwritten note in personal file at home.

1-18-93 Psychology —- Mental Health

1-327-5398

H.D. closed today w/b open every day

Went to Nashville on 1-21-93, got the usual runaround.

Asked to see a psychologist to discuss my medical prob-

lems (the R/O issue). I got into that clinic at 10:30 Central

time. About 1:00 o’clock I talked to a young (intern)

doctor Wayne Seigel. We talked for about ten minutes.

Then I was sent back to the waiting room. Then he came

back over and we went back to his private office again

and he asked some personal questions about family his-

tory, education, employment, etc. Then I was sent back to

the waiting room about 2:30. Was supposed to see the MD

psychologist but never did get to see him. At 4:00 pm I

decided that this was another runaround trip. I went

downstairs to the admitting office and spoke with Mr.

Billy Morrow. I showed him some of the charts of my

medical history and the one on the RF and microwave

App. 32

research. He suggested I let him make me an appoint-

ment with the nuclear clinic, Dr. Dodd, and then I would

have an opportunity to show him the information that I

have. He is supposed to send me some forms to fill out.

Mr. Morrow called upstairs and spoke with Doctor Boyd

who commented that he had just gone out to get me and I

was gone. Mr. Morrow told him that I was there com-

plaining about waiting all day to see the doctor and now

has a long drive back to Knoxville (3 hours). The last

patient had left the Mental Health Clinic at 2:30 p.m.

App. 33

William F. Storey

8210 West Maine Street

Belleville, IL 62233-2020

December 29, 1997

Ref: Carrol C. Staten vs. Veterans Administration

To Whom It May Concern:

This is to acknowledge that in late 1952 and early

1953, 1 was attached to Detachment 20, 3944th Radar

Bomb Scoring Squadron, Birmingham Municipal Airport

Birmingham, Alabama. My duties were Chief Clerk and

First Sergeant of the unit.

During the above noted period, I recall an incident

where broken radioactive electronic (Cathode Ray Tubes)

tubes were discovered in a bin in the unit supply trailer.

These broken tubes could have presented a health hazard

to anyone spending any amount of time inside the trailer

at this particular time. Also about the same time as the

above accident, the trailer was moved to a position of

about 35° counter-clockwise to the radar transmitting

antenna to prevent exposure to personnel inside the

trailer to microwave radiation energy.

I further acknowledge that a zero Defects attitude

was strongly administered towards accidents reports that

at that time might have been considered to be trivial or

harmless, since there was strong competition within the

Squadron and Group Headquarters of the Strategic Air

Command for first place or near first place ratings, which

this Detachment was awarded on several occasions,

App. 34

largely because of minimum or no accidents and mini-

mum or no unscheduled down time.

Furthermore, the security of the unit as established

by higher headquarters was about as tight as it could ever

have been. Confidentiality agreements were required of

each member of the organization, background checks

were made before security classifications (clearance rat-

ing) were handed out, a strict policy was administered,

not to talk about your work except when it is in the line

of duty and when you leave the service you must main-

tain your security commitment and do not discuss

(divulge) your in service secrets.

12/30/97

T.M. Mulherin

“OFFICIAL SEAL”

THOMAS M. MULHERIN

NOTARY PUBLIC, STATE OF ILLINOIS

My commission expires February 7, 2001

/s/ William F. Storey

Name

30 December 1997

Date

App. 35

Adam Wiley

Lt. Col. USAFR (Ret)

1288 West Crest Way

Monterey Park, CA 91754

To Whom It May Concern:

During the time I was serving as Commander of Detach-

ment 6, 12th Radar Bomb Scoring Squadron, formerly Det

22, 3944th RBS Sq. (Strategic Air Command) at Rhein-

Main Air Force Base in Frankfurt, Germany, one of my

assigned airmen A/1c Carrol C. Staten, was involved in

an accident regarding an electrical shock from high-volt-

age live wires or instruments connections during the

preparation of radar trucks and equipment to be shipped

with the detachment’s movement to Orly Field, Paris,

France on or about October 1-5, 1955. The current

involved could have been ionized.

He was immediately taken to the Rhein-Main Air Base

Hospital for required medical assistance. He was

observed for several hours at the hospital by medical

personnel and then released back to his unit several

hours later. The Detachment was moved to Orly Field on

or about the next few days.

I regret that I have no knowledge nor can I remember any

further required medical assistance, for him although

there was expressed concern for him by other airmen

(enlisted men and officers).

I was transferred from this Detachment as its Com-

mander and returned to the United States on or about

November 15, 1955.

App. 36

This statement may be used by subject individual for VA

disability benefit.

Sincerely,

/s/ Adam Wiley

Adam Wiley

Date: Feb. 15, 1997

AW: mj

2/12/97