Allen v. Brown, Mar 17, 1995, 7 Vet.App. 439 (1995)

Decision Assessment Document

Allen v. Brown, Mar 17, 1995, 7 Vet.App. 439 (1995)

U.S. Court of Appeals for Veterans Claims (Court)

What the case is about:

The Court held that entitlement to service connection on a secondary basis may be established when it is shown that a service-connected disability aggravates a nonservice connected disorder.

The Court held that the term “disability” as used in 38 U.S.C. 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition, shall be compensated. The Court stated that pursuant to 38 U.S.C. 1110 and 38 C.F.R. 3.310(a), when aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.

Impact on VBA:

38 C.F.R. 3.310 was eventually amended in 2006 in accordance with the Court's holding.

Summary of the facts and Court’s reasons:

The veteran claimed secondary service connection under the provisions of 38 C.F.R. 3.310(a) for osteoarthritis of both hips and the left knee due to claimed altered gait resulting from a service-connected right knee injury. Evidence submitted and/or gathered during the development of the claim included four medical opinions which addressed the etiological relationship between the service-connected right knee injury and the bilateral hip and left knee disorders. One found no etiological relationship; one found an etiological relationship; and two could not determine etiology. Only one of the opinions specifically addressed aggravation. That opinion concluded that the bilateral hip and left knee disorders were definitely aggravated by the right knee injury. The claim was subsequently denied on the basis that the hip and left knee disorders were not due to the service-connected right knee injury. On 11/19/92, the BVA affirmed the decision.

In December 1991, the Court issued a decision in Tobin v. Derwinski, 2 Vet. App. 34 (1991), which held that aggravation of a nonservice-connected disability by a service-connected disability constituted an increase in the disability, and, under the provisions of 38 C.F.R. 3.310(a), such an increase in disability was entitled to be service-connected. In February 1993, the Court issued a decision in Leopoldo v. Brown, 4 Vet. App. 216 (1993), which was contrary to Tobin, holding that 38 U.S.C. 1110 does not provide compensation for aggravation of a nonservice-connected disability by a service-connected disability. Because of the issues presented in Allen, the Court, on 11/9/94, ordered en banc consideration to resolve the conflict between Tobin and Leopoldo, requested memoranda on the issue, and ordered oral argument to consider the question of whether aggravation of a nonservice-connected disability by a service-connected disability entitles a claimant to service connection for that increment in severity of the nonservice-connected disability. The appellant, the Secretary, and an amicus all submitted separate memoranda answering the Court's question in the affirmative.

The Court determined that the interpretation announced in Tobin was the correct standard to be applied, and ordered remand to determine whether the service-connected right knee disorder aggravated the left knee and hip disorders, and, if so, what level of disability is attributable to such aggravation. The Court also determined that remand was appropriate to correct a reasons or bases deficiency in the BVA decision for not explaining the basis for rejecting the favorable opinion concerning direct etiology.

References:

CAVC case number: No. 93-245

https://veteranclaimsresearchcases.wordpress.com/2008/12/21/allen-v-brown-no-93-245/

M21-1, Part IV, Subpart ii, Chapter 2, Section B - Determining Service Connection (SC)

https://veteranclaimsresearchcases.wordpress.com/2008/12/21/allen-v-brown-no-93-245/