Bostain v. West

11 Vet. App. 124, 1998 U.S. Vet. App. LEXIS 350, 1998 WL 133392
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 25, 1998
DocketNo. 97-62
StatusPublished
Cited by41 cases

This text of 11 Vet. App. 124 (Bostain v. West) 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
Bostain v. West, 11 Vet. App. 124, 1998 U.S. Vet. App. LEXIS 350, 1998 WL 133392 (Cal. 1998).

Opinion

HOLDAWAY, Judge:

The appellant, Wilda E. Bostain, widow of veteran Carl Bostain, appeals a September 26, 1996, decision of the Board of Veterans’ Appeals (Board or BVA) which determined that she had not submitted new and material evidence to reopen her claim for dependency and indemnity compensation (DIC). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board.

I. FACTS

The veteran served on active duty in the U.S. Army Air Forces from July 1943 to November 1945. In March 1944, while on duty in the skeet tower, he was struck in the left eye by a pellet from a twelve-gauge shotgun. The veteran was hospitalized for two months and treated with penicillin in an attempt to save his eye. The pellet was lodged in the veteran’s eye socket and could not be removed. As a result of his injury, the veteran suffered severe continuous pain in his left eye and the vision in his left eye was reduced to light perception. In July 1944, after a month of sick leave, the veteran was treated for complaints of continuous headaches over the left eye. In August 1944, a medical examiner noted that the veteran was having difficulty adjusting to his disability and was confronted with a difficult home situation. The examiner stated that as a result, the veteran was suffering from “nervousness, anxiety, profuse sweating, dizziness, anorexia[,] and insomnia.” The diag[126]*126nostic impression was transient psychoneu-rotic anxiety state, situational reaction. The veteran’s service medical records indicate that he continued to suffer from headaches. He was discharged in November 1945.

In February 1946, the veteran was awarded service connection with a 30% disability rating and a special monthly pension for his left eye condition. In March 1949, the veteran’s left eye was completely removed. After the veteran’s eye surgery, he suffered chronic conjunctivitis. In March 1950, the veteran continued to complain of headaches and discharge from his left eye. In 1954, the veteran was examined by Clarence E. Boyd, M.D., for several amnesiac episodes. The doctor diagnosed the veteran with dissociative reaction and recommended psychiatric hospitalization.

In October 1962, the veteran was hospitalized with complaints of headaches. At the time of admission, his blood pressure measured 200/90, and he was diagnosed with hypertensive vascular disease, unsustained type.

In March 1978, the veteran was diagnosed with essential type hypertension. In October 1978, it was determined that the veteran had peripheral vascular disease and probable coronary disease. In May 1983, the veteran was diagnosed with bilateral femoral aneurysms, bilateral iliac aneurysms, abdominal aortic aneurysms, and arterial insufficiency of both legs. In June 1983, the veteran died. His death certificate listed the cause of death as dissecting aortic aneurysms due to renal failure due to circulatory failure of the legs. Cardiorespiratory failure was listed as a significant contributing factor. The hospital report stated that he died of generalized cardiovascular insufficiency, toxicity, renal failure, and gangrene of the legs.

In August 1983, the appellant filed an application for DIC. In February 1984, the VA regional office (VARO) denied the appellant’s claim because the evidence did not demonstrate that the veteran’s cause of death was related to his service-connected disabilities. The appellant appealed the VARO’s decision to the BVA. As part of her appeal, in May 1984, she submitted a statement from J.W. Peterson, M.D., a VA doctor who opined that “[t]he injury to [the veteran’s] eye and the later trauma of surgery may have contributed to his poor health in later years.” The appellant submitted statements that she believed that the veteran’s service-connected eye disability, with resulting nervousness and headaches, contributed to his circulatory condition that in turn caused his death. In June 1985, the BVA determined that the appellant was not entitled to DIC because the veteran’s cause of death was not service connected.

In August 1985, the appellant applied to reopen her claim for DIC. Subsequently, she submitted a February 1986 medical opinion from Clarence E. Boyd, M.D. Dr. Boyd opined the following:

This examiner is of the opinion that the patient’s trauma did indeed result in emotional illness. As early as August 7th, 1944, it is noted in the patient’s medical records that he experienced considerable difficulty in adjusting to his disability and that this was also compounded by a difficult home situation. He was experiencing symptoms of nervousness, anxiety, profuse sweating, dizziness, anorexia, and insomnia. The consulting pryschiatrist [sic] believed this to be a transient, psychoneurotic anxiety state, the situational reaction. He recommended a convalescent furlough. It is evident that this condition proved to be permanent, and that the patient was continuing to have these troubles nearly ten years later when this examiner saw him, and that it constituted one of the factors in the development of his hypertension. Hypertension further leads to further and more malignant vascular changes, and it is therefore not inconceivable that the vascular changes resulting in the patient’s death were the result of a chain of events that began with the original trauma.

The VARO denied the appellant’s request to reopen her claim. In October 1987, the BVA found that the appellant had not submitted new and material evidence to reopen her claim.

In April 1993, the appellant filed an application to reopen her claim. In October 1993, she submitted a letter from Timothy L. Con-[127]*127nelly, M.D., a peripheral vascular surgeon. Dr. Connelly provided the following opinion:

It is well documented that the patient has had severe chronic stress and hypertension. It is well known that hypertension can be an etiological factor in developing aneurysms and in causing aneurysms to enlarge. It certainly also can contribute to [the] presence of and acceleration of ather-osclerotic disease.
I would hope that you would consider the above factors and consider that his pre[ ]existing service related condition may have in this manner contributed to his ultimate demise.

In May 1994, the VARO denied the appellant’s application to reopen her claim because Dr. Connelly’s opinion was not new and material evidence. The appellant appealed the VARO’s decision to the BVA, claiming that the veteran’s hypertension and his death were caused by the pain and stress created by his eye disability.

The BVA found that the appellant had not submitted new and material evidence to reopen her claim. The BVA reviewed the evidence submitted since the 1985 BVA decision. The BVA found that the appellant’s lay testimony was not material evidence because it cannot establish medical causation. The BVA also found that Dr. Connelly’s statement was not material evidence because it was too speculative to establish “causality.” The BVA stated that his opinion was “replete with generalities,” did not discuss the evidence of record, and made “no actual[ ] causal tie between any service-connected disability and the veteran’s death.”

II. ANALYSIS

New and material evidence must be presented or secured to reopen a claim which was disallowed by a final adjudication.

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Cite This Page — Counsel Stack

Bluebook (online)
11 Vet. App. 124, 1998 U.S. Vet. App. LEXIS 350, 1998 WL 133392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bostain-v-west-cavc-1998.