Allen v. Brown

FARLEY, Associate Judge,

with whom NEBEKER, Chief Judge, joins, dissenting:

Had the issue been properly presented in this appeal, I would have agreed with the majority’s reaffirmation of Tobin v. Derwinski, 2 Vet.App. 34 (1991). With the clarity of 20/20 hindsight, I now see two problems with Leopoldo v. Brown, 4 Vet.App. 216 (1993).

First, it was error to apply a definition explicitly lodged in 38 U.S.C. § 1700 “[f]or purposes of this chapter” to all chapters of title 38. The stated reason, i.e., that the term “disability” would have the same meaning for purposes of both chapters 11 and 17, is a self-fulfilling prophecy, not a legal justification. The Court interposed its own judgment without even paying lip service to the Secretary’s interpretive regulations. See Blanchard v. Derwinski, 3 Vet.App. 300, 303-05 (1992) (Farley, J., concurring).

Second, I agree with the majority and the parties that when a non-service-connected disability is increased because of a service-connected disability, that increase is itself entitled to service connection. If the issue is presented squarely in some future case, an unlikely event in view of the Secretary’s express statement of acquiescence in Tobin here, the Court may well have to overrule Leopoldo someday. Today, however, is not that day.

*451The BVA, in its “reasons and bases for FINDINGS AND CONCLUSIONS,” took explicit note of Dr. MeAlevy’s 1989 conclusion that the appellant’s left knee and hip “conditions were definitely aggravated by his service-connected right knee.” R. at 7. Nevertheless, the BVA then found “no etiological relationship between the veteran’s service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis.” R. at 8. In that same paragraph, the BVA concluded “that [the] preponderance of the evidence favors the consclusion [sic] that the veteran’s left knee and bilateral hip arthritis is not proximately due to or the result of the veteran’s service-connected right knee disability.” Id.

In its rush to reach the Tobin/Leopoldo issue, the majority latches onto the word “onset” but ignores both the Board’s specific cognizance of the appellant’s claim of aggravation and its comprehensive conclusion of no causation. Then, apparently finding something in a definition of “etiology” that escapes me, the majority states: “Thus, it appears that the BVA was requiring a causal connection between the service connected disability and the ‘subsequent onset’ of another disease.” Ante at 445 (emphasis in original). That, however, is not how it “appears” to me.

The BVA’s use of the present tense demonstrates that the BVA found no causal relationship between the appellant’s service-connected condition (right knee) and his current non-serviee-conneeted arthritis of the left knee and hips. Since a current disability can only be the sum of the initial disability (“onset”) and any incremental changes, the Board’s definitive conclusion that the appellant’s current left knee and hip arthritis are “not proximately due to or the result of’ the service-connected right knee disability necessarily embraced any claim of aggravation.

I would not have reached the Tobin/Leopoldo issue because I would have affirmed the BVA decision. In my view, the opinions of Drs. Bredthauer and Thull provide a plausible basis for the Board’s findings and conclusions and its “reasons or bases” satisfy the requirements of 38 U.S.C. § 7104(d)(1). Even if one were inclined toward the majority’s view that the BVA’s “reasons or bases” concerning causation were inadequate, a remand for that specific reason hardly constitutes a license to slay dragons which do not presently exist and may never exist in this matter. The Court today is rendering an impermissible advisory opinion on the To-bin/Leopoldo issue because it does not arise in the context of a concrete ease or controversy; the issue simply is not ripe for resolution. For this reason, I am compelled to dissent.