This publication is an order denying the appellant’s motion for panel review after a single-judge memorandum decision had summarily affirmed the Board’s May 20, 1991 decision. The per curiam order does not address the underlying merits and simply denies review.

The dissent explains why panel review might have been appropriate. Judge Steinberg reasoned that the case arguably implicated the Court’s recent new-and-material-evidence precedents, especially where a later treating physician’s opinion substantially echoed an earlier treating physician’s opinion concerning the cause of the veteran’s psychiatric disability. The dissent also noted that the veteran repeatedly asserted inability to obtain gainful civilian employment, which could have raised an inferred claim for non-service-connected pension under 38 C.F.R. § 3.151(a). The dissent therefore would have granted panel review so those questions could be considered in light of then-recent precedent.

A panel review motion may be denied even where a dissent believes the case is reasonably debatable; the underlying dissent highlights that corroborative medical evidence may be relevant to reopening and that a compensation claim may also be construed as a pension claim when reasonably raised.

The order itself is procedural, but the dissent is useful as an early citation on two recurring veterans-law issues: when corroborative medical evidence can support reopening and when VA must consider an inferred pension claim from a compensation application.

Although not a merits decision, the case is helpful for understanding how the Court viewed panel review and how closely related medical opinions might be treated as potentially new and material. It also reinforces the principle that VA must consider reasonably raised pension entitlement when the record and pleadings suggest it.

Failure to Adjudicate Reasonably Raised Claim [Procedural Error]

A veteran files for service-connected compensation and repeatedly states he has been unable to maintain gainful employment. The record also includes a later doctor’s opinion echoing an earlier doctor’s opinion about onset in service. Counsel argues both reopening and inferred pension entitlement should be addressed.

Use cautiously for the proposition that a compensation claim may reasonably encompass pension when the record raises unemployability, and that corroborative medical opinions may matter in the new-and-material analysis. Because this is an order denying panel review, it is weak authority on the merits.

Frankel v. Derwinski, Bethea v. Derwinski, Paller v. Principi, Ferraro v. Derwinski, Pritchett v. Derwinski