Barnett v. Brown

8 Vet. App. 1, 1995 U.S. Vet. App. LEXIS 259, 1995 WL 216998
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 13, 1995
DocketNo. 93-1098
StatusPublished
Cited by16 cases

This text of 8 Vet. App. 1 (Barnett 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
Barnett v. Brown, 8 Vet. App. 1, 1995 U.S. Vet. App. LEXIS 259, 1995 WL 216998 (Cal. 1995).

Opinion

HOLDAWAY, Judge:

The appellant, Flora L. Barnett, appeals a September 13, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which found that new and material evidence had not been submitted to reopen her claim for service connection for the cause of the death of her husband, veteran Boyd Barnett.- The Court affirms the Board’s decision.

I. BACKGROUND

The veteran had active service in the Navy from August 1942 to December 1944. His service medical records were negative for a respiratory disorder. During service in 1944, he developed a duodenal ulcer and was hospitalized numerous times thereafter for treatment. In January 1945, service connection was granted for malaria and duodenal ulcer, postoperative with hyperchlorhydria. Chest x-rays taken in August 1951 and March 1956 were reported as normal. The veteran reported shortness of breath during a November 1956 hospitalization, but no abnormality of his respiratory system was found. In 1958 the veteran was diagnosed with asthmatic bronchitis, but no respiratory problems were documented in records dated September 1958 to April 1960. His gall bladder was removed in December 1959, and he had a sub-total gastric resection in May 1961. A chest x-ray taken in May 1961 showed a general increase in lung markings, but there were no significant changes according to x-rays taken later in October 1961.

The veteran was hospitalized in April 1968 and diagnosed with anxiety and external precipitated depression. The regional office (RO) determined that the veteran’s anxiety and his gastrointestinal disorder were interrelated, and in June 1968 awarded service connection for anxiety reaction with post gas-trectomy. In November 1972 the veteran was diagnosed with chronic obstructive pulmonary disease (COPD). In 1973 he was diagnosed with diabetes mellitus, nutritional cirrhosis, and congestive heart failure. Pulmonary function studies that same year revealed a decrease in breathing capacity, although x-rays did not show evidence of active disease. From August 1978 until his death in August 1987, the veteran had a 70% dis[3]*3ability rating for schizophrenia, formerly identified as anxiety reaction, and a noncom-pensable rating for malaria.

The veteran’s death certificate identified the cause of death as “Respiratory Arrest Due to, or as a Consequence of Pneumonia” and listed COPD as “Other Significant Conditions.” The appellant filed an application for dependency and indemnity compensation in August 1987. She submitted a copy of the death certificate and records from 1986 and 1987 which documented the veteran’s treatment for chest pain, severe low back pain, COPD, tachycardia, pneumonia, and congestive heart failure. Although schizophrenia was listed as a diagnosis in the medical records, it was never discussed in the records as a factor in the veteran’s physical problems.

The RO denied service connection for the cause of death in November 1987. The appellant then submitted a “Medical Certificate” from Dr. Friday who said that the veteran had been followed by him for several years for schizophrenia, COPD, and congestive heart failure. Dr. Friday stated:

In my opinion his death was hastened by his schizophrenic condition which made regulation of his diabetes and medication extremely difficult. The patient was uncooperative in taking his medication, dietary measures and general medical follow up because of his schizophrenia. In my opinion this was directly responsible for [the veteran’s] final decline and demise.

The appellant did not file a Notice of Disagreement (NOD) until August 1988. In June 1989 the BVA denied service connection for the cause of death because the veteran did not have a service-connected lung disorder and because contemporaneous medical evidence did not show that his service-connected schizophrenia interfered significantly with the treatment of his longstanding respiratory problems.

In April 1990, the appellant sought to reopen her claim and submitted another letter from Dr. Friday. In the second letter, Dr. Friday gave several examples of how the veteran’s schizophrenia affected his other medical conditions: he would not quit smoking; he was so depressed he would not engage in any physical activity; two years prior to his death he had liver problems possibly caused by his psychiatric medication, his medication was discontinued by Dr. Dickinson, and his mental and physical condition deteriorated; and he would tell the doctor that he would rather have certain treatments done at VA facilities and would not follow up. In its April 1990 decision, the RO called the appellant’s claim “reopened” and found that there was no basis for a change in the prior decision.

The appellant filed an NOD in June 1990. Although the appellant’s veterans service organization representative acknowledged 38 C.F.R. § 3.156 (1990) which pertains to new and material evidence in his presentation to the Board, the Board nevertheless remanded the case in December 1990 for the RO to issue a Supplemental Statement of the Case (SSOC) presenting the laws on finality of decisions. The RO issued the SSOC in February 1991. Iii his second presentation to the BVA in September 1991, the appellant’s representative again acknowledged 38 C.F.R. § 3.156. In April 1992, the BVA remanded the case for the RO to obtain treatment records from Dr. Friday, Dr. Dickinson, and the Birmingham, Alabama, VA Medical Center (VAMC).

The medical records of the veteran’s last illness were secured from VAMC, as were Dr. Friday’s treatment records from 1978 to 1987. Neither Dr. Friday’s nor VAMC’s records referred to a connection between the veteran’s schizophrenia and his respiratory disorder. Records from Dr. Dickinson were obtained which showed that the veteran had unexplained liver problems which the doctor thought might be due to his psychiatric medication. The veteran underwent a liver biopsy in 1985. Although there was no pathology diagnosis, the biopsy did show “nonspecific resolving hepatocellular injury which may have been secondary to Naprosyn to a major tranquilizer secondary to congestive heart failure.” Dr. Dickinson recommended that the veteran avoid the major tranquilizers.

In July 1992, the RO found that there was no evidence showing the veteran received less than adequate care throughout his life for his multiple medical problems because of [4]*4his schizophrenia. The RO did not discuss the evidence according to the new and material evidence requirements. Nevertheless, the appellant’s representative argued to the BVA in January 1993 that new and material evidence had been presented. In its September 1993 decision, the Board concluded that new and material evidence had not been submitted to reopen the claim. It found that Dr. Friday’s second letter was cumulative of his previous letter and showed no clinical or evidentiary basis to substantiate the doctor’s opinion that the veteran’s schizophrenia contributed to or hastened his demise. Dr. Dickinson’s records were deemed not material because liver disease was not shown to contribute to the veteran’s death.

II. ANALYSIS

On appeal, the appellant challenges the Board’s authority to change an RO determination which is favorable to .the claimant.

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Bluebook (online)
8 Vet. App. 1, 1995 U.S. Vet. App. LEXIS 259, 1995 WL 216998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnett-v-brown-cavc-1995.