[DECISION ASSESSMENT DOCUMENT]{.underline}

DOCKET NUMBER: 90-612 ACTIVITY: Rating

NAME: Leopoldo v. Brown

ISSUE: Aggravation; secondary service connection

ACTION BY COURT: Remand Date: 2/19/93

[Held]{.underline}: That the meaning of the term \"disability\" in 38
U.S.C. 1110 is the same as defined in section 1701(1), and that
disability compensation is not authorized by statute or regulation for
aggravation of a nonservice-connected condition after service by a
service-connected disability.

[Facts]{.underline}: Service connection had been established for
traumatic arthritis of the right knee following release from active
duty. The veteran was evaluated for low back pain, degenerative disc
disease, and osteoarthritis several years later, and secondary service
connection for low back disorder was subsequently denied. The veteran
then filed a VA progress note indicating an impression of lumbosacral
strain due to the service-connected right knee injury. A VA examination
was conducted which indicated a final diagnosis of degenerative disc
disease, symptoms of which were deemed aggravated by right lower
extremity impairments. Service connection was denied since the
disability was primarily due to a nonservice-connected condition.
Following an appeal to the Court, legal memoranda were filed concerning
whether or not service connection is warranted when a
nonservice-connected disability worsens because of service-connected
causes.

[Court Analysis]{.underline}: The Court noted that the word
\"disability\" can refer either to \"a state of disablement\" or to \"a
disease or injury.\" The Court turned to the definition of disability
found at 38 U.S.C. 1701(1) to resolve this ambiguity, because there was
no clear guidance concerning its intended meaning in 38 U.S.C 1110 or 38
CFR 3.310(a). For health care purposes, a \"disability\" is \"a disease,
injury, or other mental or physical defect.\" The Court adopted this
usage for purposes of construing section 1110, since it affords a
consistent basis for determining basic eligibility to compensation and
health care. The Court then concluded that:

Under this construction, section 1110 provides for disability
compensation only for a present \"disease, injury, or other physical or
mental defect\" resulting from \"personal injury suffered or disease
contracted in line of duty,\" or for inservice aggravation of a
preexisting disease or injury, but not for aggravation of a
nonservice-connected condition by a service-connected condition.

The case was remanded for readjudication on other grounds. The case had
been decided by the BVA in 1990, and its rationale had not relied upon
independent medical evidence ([Colvin v. Derwinski]{.underline}, 1 Vet.
App. 171 (1991)). The Court noted that the appellant would be able to
submit additional evidence pertinent to the outcome as a result of the
remand.

[Service Analysis]{.underline}: The definition of \"disability\" adopted
by the Court in [Leopoldo]{.underline} is consistent with VBA historical
practices. It is also consistent with the Court\'s decision in [Hunt v.
Derwinski]{.underline}, 1 Vet. App. 292, 293, 296-297 (1991), in which a
schedular definition of disability was adopted (38 CFR 4.1) for the
purpose of determining service aggravation under 38 U.S.C.1153. In that
case, evidence of (1) an increase in the underlying condition (the
disease or injury) and (2) a consequent decrease in average earnings
capacity (a measure of the state of disablement) were considered
necessary in order to invoke the statutory presumption of service
aggravation. In [Leopoldo]{.underline}, the Court has expressly adopted
a definition which relates to the first finding, whereas in
[Hunt]{.underline} the definition of disability then at issue concerned
the second finding.

As noted by the Court, \"disability\" is an ambiguous term. Depending on
context, the word may refer to an underlying medical disorder, a
consequent mental or physical impairment, or the rating evaluation which
is authorized for a corresponding decrement in average earnings
capacity. On the other hand, these meanings refer to different aspects
of a common object (there are no diseases or injuries without symptoms
or signs, nor vice-versa), and the exact senses in which the word has
been employed must be gleaned from its context, as the Court has done,
in a manner which is consistent with statutory mandates and historical
interpretations.

The [Leopoldo]{.underline} and [Hunt]{.underline} decisions are also
consistent with another early precedent ([Browder v.
Derwinski]{.underline}, 1 Vet. App. 204 (1991)), in which the Court held
that a noncompensable change in uncorrected vision may warrant a finding
of service aggravation. In that case, the underlying condition had
deteriorated. While this change was noncompensable, it was not transient
(as in [Hunt]{.underline}), nor was there evidence indicating unimpaired
earnings capacity as a result of this worsening (as in
[Hunt]{.underline}). Thus, service aggravation may be warranted when
there is an increase in the level of disability medically which affects
earnings capacity, even though that change is insufficient to warrant
compensation.

Since the Court did not discuss [Browder]{.underline} or
[Hunt]{.underline} in [Leopoldo]{.underline}, it is reasonable to infer
that the Court considered its current holding consistent with those
decisions. It is not possible to square the outcome in
[Leopoldo]{.underline} with the Court\'s previous analysis in [Tobin v.
Derwinski]{.underline}, 2 Vet. App. 34 (1991), since
[Leopoldo]{.underline} results in a different conclusion (in
[Tobin]{.underline}, the Court asserted that secondary service
connection might be established for an increase in the level of a
nonservice-connected disability). Because 3-judge panels are bound to
follow the holdings of prior panel decisions ([Bethea v.
Derwinski]{.underline}, 2 Vet. App. 252 (1992)), it seems apparent that
the Court itself did not consider [Tobin ]{.underline}of precedential
value.

. The Office of General Counsel concurs that [Tobin]{.underline} has no
precedential value in retrospect. As a consequence, any development
which has been requested based on [Tobin]{.underline} will be evaluated
pursuant to the Court\'s decision in [Leopoldo]{.underline}. For cases
which have been remanded by the Board of Veterans\' Appeals, there
should be an explanation in the Supplemental Statement of the Case of
subsequent events if secondary service connection is not in order. The
following language may be employed:

In December 1991, the Court of Veterans Appeals remanded an appeal
([Tobin]{.underline} [v. Derwinski]{.underline}, 2 Vet. App. 34 (1991)),
to determine whether or not a service-connected condition had aggravated
a disability which was incurred after service. Since your appeal raised
similar issues, the Board of Veterans\' Appeals ordered the same kind of
investigation to decide the merits of your claim. Subsequently, the
Court held that the law does not authorize disability compensation when
a service-connected condition aggravates a nonservice-connected
disability ([Leopoldo v. Brown]{.underline}, U.S. Vet. App. No. 90-612
(2/19/93)). As a consequence, the Rating Board had to determine whether
or not your \[insert the condition(s) at issue\] was completely caused
by a service-connected condition. Since the Rating Board was unable to
reach a favorable conclusion in that regard, your appeal will be
returned to the Board of Veterans\' Appeals for further consideration.

The Board of Veterans\' Appeals concurs with the content of this notice.
If necessary, this paragraph may be paraphrased to explain development
which was requested based on the interim instruction letter (3-19)
issued February 3, 1993, on consideration of new claims for secondary
service connection.

RECOMMENDED VBA ACTION: Adjudicate cases which have been remanded by the
BVA based on [Tobin]{.underline} under the [Leopoldo]{.underline}
analysis. Advise appellants of the reason for this change using a
paragraph similar to that suggested in this decision assessment document
if a Supplemental Statement of the Case is necessary.

Provide a copy of this assessment document to regional offices in order
to explain the Court\'s use of the term \"disability\" in light of
earlier precedents on service aggravation.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

X    /s/   3/26/93 Yes No J. Gary Hickman Date