Sanders v Derwinski

JAMES R. SANDERS, APPELLANT

v.

EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE

No. 89-84

UNITED STATES COURT OF VETERANS APPEALS

1990 U.S. Vet. App. LEXIS 27; 1 Vet. App. 88

September 13, 1990, Submitted November 30, 1990, Decided

NOTICE: PURSUANT TO 38 U.S.C. § 4067(d)(2) (1988), THIS DECISION WILL  BECOME THE DECISION OF THE COURT THIRTY DAYS FROM THE DATE HEREOF.

SUBSEQUENT HISTORY: As Amended December 5, 1990.

PRIOR HISTORY: On Appeal from the Board of Veterans’ Appeals  

COUNSEL: C. Craig Fitzhugh for appellant.

Raoul L. Carroll, General Counsel, and Barry M. Tapp, Assistant General  Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Carolyn F. Washington, were on the brief for appellee.  

JUDGES: Kramer, Holdaway, and Steinberg, Associate Judges.  

OPINION BY: HOLDAWAY  

OPINION: James R. Sanders, appeals the portion of the Board of Veterans’ Appeals (BVA) decision which denied him entitlement to service connection for chronic  interstitial cystitis. The law provides benefits to veterans for injuries which arise in or become aggravated by active service. 38 U.S.C. § 331 (1988). Upon  review, the BVA found inadequate evidence to support service connection for the veteran’s chronic interstitial cystitis.

The veteran asks this Court to reverse the decision of the BVA on the ground that the decision was arbitrary, capricious, and clearly erroneous, with no  basis in fact, under 38 U.S.C. § 4061(a)(3)(A), (a)(4) (1988). On the contrary, this Court finds more than a sufficient factual basis for the BVA  decision.

James R. Sanders served in the U.S. Navy Seabees for a period of roughly  eleven years. He enlisted in March 1962, and was discharged in 1973. His  enlistment exam, dated March 13, 1962, notes “cystitis, chronic” with a history of hematuria, dysuria and frequency for the year prior to enlistment. R. at 1.  He apparently reported at that time that the symptoms which he complained about upon enlistment had been persistent for two weeks and that he had the same  symptomatology at the age of twelve. Upon enlistment, he was treated for these conditions and returned to duty.

The veteran first filed a claim for benefits with the Veterans’  Administration (VA) (now the Department of Veterans Affairs) on October 12, 1982, for high frequency hearing loss and cystitis/acute prostatitis which  Sanders asserts had its onset during his military service. The claim for  cystitis was denied in February 1983. Sanders subsequently reopened his claim  on several occasions. In September 1988, he filed another claim for service  connection. Notwithstanding a substantial question of whether “new and material evidence” had been produced by the claimant sufficient to reopen his  claim, the BVA nonetheless heard the appeal on the merits that is now under  consideration by this Court. See 38 U.S.C. § § 3008, 4004(b) (1988); 38 C.F.R. § 19.194(b) (1989). The Court has jurisdiction to hear this appeal pursuant to 38 U.S.C. § 4052 (1988).

The BVA found that the interstitial cystitis was not incurred in or  aggravated by service. The BVA concluded that the cystitis and prostatitis had existed prior to his entrance on active duty as shown by his entrance exam. The BVA also found that the veteran’s cystitis and prostatitis symptoms were not  reflected in his medical records, including his discharge exam, after the  treatment he received early in his service; that his early difficulties were  relieved with treatment; and that his cystitis/prostatitis condition was  resolved without residuals upon discharge–that is, was not aggravated by  service.

Sanders argues that the BVA’s decision was not supported by the evidence in  the record. The evidence upon which Sanders relies is a letter dated January  12, 1988, from his physician stating that the interstitial cystitis “may  possibly have started” in March of 1962, the time of his enlistment.  Sanders has also produced a substantial medical history of a chronic  interstitial cystitis since 1982. The physician’s letter and lay testimony from Sanders’ wife, however, are apparently the only evidence mustered in an attempt to prove that the cystitis arose during service and not prior to his enlistment. Whether the cystitis had its onset prior to or during service or was aggravated by service are questions of fact. These fact findings, which were dispositive  in this case, were resolved against the appellant. This Court may set aside  findings of fact only if “clearly erroneous.” 38 U.S.C. § 4061(a)(4) (1988).

This Court finds no basis to conclude that the BVA erred in its decision to  deny service connection for interstitial cystitis on the basis that it did not  have its onset during the appellant’s military service. There is in fact strong evidence to the contrary. There is manifestly a plausible factual basis in the record for the BVA’s decision. See Gilbert v. Derwinski, U.S. Vet. App. No.  89-53 (Oct. 12, 1990). We therefore affirm.

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