Allin v. Brown

6 Vet. App. 207, 1994 U.S. Vet. App. LEXIS 97, 1994 WL 42286
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 14, 1994
DocketNo. 90-1565
StatusPublished
Cited by16 cases

This text of 6 Vet. App. 207 (Allin v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allin v. Brown, 6 Vet. App. 207, 1994 U.S. Vet. App. LEXIS 97, 1994 WL 42286 (Cal. 1994).

Opinion

MANKIN, Judge:

Elaine S. Allin (appellant) appeals a June 13, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to death benefits for Dependency and Indemnity Compensation for Service-Connected Deaths under 38 U.S.C. § 1318(b)(1) [hereinafter DIC]. The Court affirms in part, vacates in part, and remands this case to the Board.

I. Factual Background

The veteran served in the United States Army from May 1941 to May 1946. He was captured by the Japanese on April 9, 1942, and survived the Bataan Death March. The veteran was held as a prisoner of war (POW) until August 17, 1945, during which time he suffered serious deprivation, illness, and torture. The veteran’s separation physical does not mention his POW experience or show any serious physical or psychological ailments. The record reveals, however, that the veteran developed pneumonia, pellagra, beriberi, and severe tropical ulcers during captivity by the Japanese.

On June 11, 1946, the veteran was granted service connection with a combined rating of 50% for pellagra, inguinal hernia, and bilateral and septal spurs. In May 1947 appellant had a VA neuropsyehiatric examination. The final diagnosis was psychoneurosis mixed hysteria and partial social and emotional inadequacy. On June 24, 1947, noncompensa-ble service connection for hookworm and 10% service connection for psychoneurosis were granted. Pellagra, hernia, and bilateral and septal spurs were reduced to a noncompensa-ble level. In February 1948 the veteran was diagnosed with intestinal infestation with hookworm, anxiety reaction with fatigability, deviated nasal septum, and left inguinal hernia. On March 31, 1948, the Regional Office (RO) continued noncompensable ratings for pellagra, a hernia, a septal spur, and hookworm infection, but increased the evaluation for psyehoneurosis from 10% to 30%. Following a regularly scheduled examination which showed an improved condition with mild symptomatology, a November 1950 RO decision reduced the veteran’s psychoneurosis evaluation to 10%. After a hospital stay in August 1968 due to anxiety reaction, a [209]*209September 1968 VA rating decision continued his 10% rating. On July 22, 1969, a rating decision increased the 10% rating to 30% disabling.

In March 1971 the VA examined the veteran for a heart problem which he claimed to be the result of beriberi he contracted as a POW. A clinical record entry dated April 26, 1971, noted he had had several episodes of arterial fibrillation and had been hospitalized for four or five days late in 1968. A neurop-sychiatrie examination noted that the veteran’s “nervousness [was] about the same”; however, he did not exhibit signs of anxiety or severe depression at that time. The diagnosis was anxiety reaction. A rating decision of May 19, 1971, found that the March 1971 VA examination was negative for any residuals of injuries or diseases incurred as a POW, and service connection was denied. The veteran’s 30% disability rating for anxiety reaction was continued.

On February 9, 1972, the veteran was admitted to the VA hospital in Manchester, New Hampshire, for treatment of degenerative spinal arthritis and chronic anxiety reaction. While there, the veteran filed an “Income-Net Worth and Employment Statement,” in which he stated, “I believe all of my physical and mental disabilities had their start during my 3í¿ years as a POW in Japan, and request a careful review of my claim on this basis, as I am totally disabled.” The VA did not consider this document to be a notice of disagreement (NOD) with the May 19, 1971, RO determination, and no action was taken on the document in that regard. An April 7, 1972, rating decision granted a 70% disability evaluation for the service-connected anxiety neurosis, as well as entitlement to total disability due to individual unemploya-bility effective April 1, 1972. This rating continued in effect until the veteran’s death on May 30, 1981, for which the death certificate lists the immediate cause of death as respiratory arrest, due to or as a consequence of squamous cell carcinoma of the larynx with pulmonary metastasis.

The appellant, the veteran’s wife, filed an application for DIC on June 2, 1981. The claim was denied by rating decision of July 27, 1981, because the RO found no etiological relationship between the veteran’s service-connected disorders and the cause of death. The appellant attempted to reopen her claim for service connection under 38 U.S.C. § 1151 (benefits for persons disabled by treatment or vocational rehabilitation), asserting that the veteran’s laryngeal cancer was the result of improper diagnosis and failure to promptly treat the cancer. This claim was denied by rating decision on October 19, 1981. The claim was readjudieated upon receipt of the veteran’s complete original VA medical records. Once again the rating board denied service connection.

The appellant sought to reopen her claim for DIC benefits in August 1988. In her statement to reopen, the appellant asserted that the May 19,1971, rating decision, as well as those before that date, were erroneous because they did not properly rate the veteran for his POW-related disabilities, and because new and material evidence proved the veteran’s claims of service connection. On December 20, 1988, the appellant was again denied service connection for the cause of the veteran’s death. After reviewing the record, the rating board found that there was no clear and unmistakable error committed in the May 19, 1971, rating decision and those before it, and that the new and material evidence did not support the appellant’s contentions. An NOD was filed, which resulted in a June 13, 1990, Board decision affirming the findings of the previous rating decision. The appeal to this Court followed.

II. Analysis

The appellant claims the Board erred in determining that she was not entitled to DIC, 38 U.S.C. §§ 1301-1323, as a result of the death of her service-connected veteran-husband. The appellant claims entitlement to DIC under 38 U.S.C. §§ 1318(a) and 1318(b)(1), which grants benefits to the surviving spouse and children of a deceased veteran “who dies, not as the result of the veteran’s own willful misconduct, and who was in receipt of or entitled to receive ... compensation at the time of death for a service-connected disability that ... (1) was continuously rated totally disabling for a period of 10 or more years immediately preceding death.” The Board found that the veter[210]*210an died on May 30, 1981, but had not been rated as totally disabled until April 1, 1972. Consequently, the veteran had only been rated as totally disabled for a period of nine years and two months, ten months short of the statutory threshold for obtaining benefits. In response, the appellant contended that the May 19, 1971, determination of the veteran’s service connection contained error, and that but for that error the veteran would have been service connected for total disability at an earlier date, thereby satisfying the ten-year threshold for DIC benefits.

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Bluebook (online)
6 Vet. App. 207, 1994 U.S. Vet. App. LEXIS 97, 1994 WL 42286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allin-v-brown-cavc-1994.