Carbino v. Gober

10 Vet. App. 507, 1997 U.S. Vet. App. LEXIS 1009, 1997 WL 688796
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 6, 1997
DocketNo. 96-1625
StatusPublished
Cited by50 cases

This text of 10 Vet. App. 507 (Carbino v. Gober) 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
Carbino v. Gober, 10 Vet. App. 507, 1997 U.S. Vet. App. LEXIS 1009, 1997 WL 688796 (Cal. 1997).

Opinion

IVERS, Judge.

The appellant, the widow of veteran Frank S. Carbino, appeals from a September 24, 1996, Board of Veterans’ Appeals (BVA or Board) decision which denied service connection for the cause of the veteran’s death and for the cause of the veteran’s death due to exposure to Agent Orange. In her brief the appellant limited her appeal to the issue of service connection for the cause of the veteran’s death. The Court deems the appellant to have abandoned her appeal with respect to the issue of the cause of the veteran’s death due to Agent Orange exposure. Bucklinger [508]*508v. Brown, 5 Vet.App. 435 (1998). The Court has jurisdiction pursuant to 88 U.S.C. § 7252(a). For the reasons stated below the Court will affirm the BVA’s September 24, 1996, decision.

I. FACTS

The veteran, a Vietnam veteran, served on active duty in the Army from October 1965 to September 1967. Record (R.) at 20. The veteran’s service medical records (SMRs) were devoid of any problems or complaints related to sarcoidosis. R. at 22-50. Sarcoidosis is a chronic, progressive, systemic granulomatous reticulosis of unknown etiology, involving almost any organ or tissue, including the skin, lungs, lymph nodes, liver, spleen, eyes, and small bones of the hands and feet. Dorland’s IllustRated Medical DICTIONARY 1484 (28th ed.1994) [hereinafter Dorland’s].

In July 1978, during a physical examination for a new job, x-rays were taken. R. at 53. After they were compared with a 1968 x-ray the impression was sarcoidosis. R. at 146. Private medical records were submitted from July 1978 to December 1992 showing diagnoses of sarcoid (R. at 53, 97); sarcoidal granulomatous dermatitis consistent with sarcoidosis from the right knee (R. at 74); asymptomatic dormant sarcoidosis (R. at 165); sarcoid changes to the right side of the neck, ankles, and right second toe (R. at 120, 123, 129, 137); sarcoid on his neck and both knees (R. at 107, 127, 133-34); and systemic sarcoidosis (R. at 62).

The veteran died on December 19, 1992. The autopsy report listed the cause of death as systemic sarcoidosis with involvement of the heart, lungs, visceral pleura, and hilar and mediastinal lymph nodes, and spleen; severe cardiac sarcoidosis with marked septal scarring involving the cardiac conduction system; sudden death likely secondary to complete heart block and arrhythmia; and generalized visceral congestion. R. at 76. Cardiac sarcoidosis is the involvement of the heart in sarcoidosis, with lesions ranging from a few asymptomatic, microscopic granulomas to widespread infiltration of the myocardium by large masses of sarcoid tissue, often leading to arrhythmias, heart block, mitral regurgitation, or sudden death. Dorland’s at 1485. The report also indicated that the veteran was diagnosed with systemic sarcoidosis with cardiac involvement in the mid-1980s. R. at 76. The death certificate listed the immediate cause of death as cardiac arrest. Sarcoidosis was listed as a condition contributing to his death. R. at 177.

In May 1993 the appellant submitted an application' for dependency and indemnity compensation (DIC). She contended that the veteran had contracted sarcoidosis while serving in Vietnam. R. at 169-72. In a September 1993 rating decision, service connection for the veteran’s cause of death was denied as was her claim for DIC. R. at 183-85.

A November 1993 lay statement by a member of the veteran’s family contended that the veteran had not suffered from any skin problem until after service. R. at 193. The appellant submitted that statement and a Notice of Disagreement. R. at 196. A Statement of the Case (SOC) was issued. R. at 199-206. She submitted VA Form 9, Appeal to the Board of Veterans’ Appeals. R. at 208.

In a January 11, 1994, statement the appellant revealed that the veteran’s legs began to peel and that he had a red rash soon after service. He was treated with various cremes but the rash persisted. In 1988 the veteran was seen by a cardiologist after he experienced rapid heart rates and arrhythmia. He was placed on Prednisone which he took until his death. R. at 212. Prednisone is a steroid used in the treatment of various diseases including respiratory diseases such as symptomatic sarcoidosis. Physioians’ DesK Reference 2595-96 (50th ed.1996). The appellant reported that a doctor had told the veteran that the sarcoidosis had affected his heart. R. at 212. She contended that there was “no doubt in [her] mind that the skin rash which occurred immediately after his discharge, the enlarged glands, and the heart sarcoid, were all manifestations of the same ailment.” She explained that the disease had first manifested in 1967. R. at 213. In addition, several lay statements were submitted which discussed the veteran’s rash and his weakness, i.e., inability to climb a flight of stairs without stopping. R. at 216-25.

[509]*509In March 1994 the appellant testified that the veteran’s rash began -within three weeks of his discharge from service. R. at 229. She testified that the veteran saw a dermatologist, Dr. Schwartz, in 1968 or 1969. She indicated that Dr. Schwartz’s treatment records for the veteran had been destroyed in 1992. She explained that the appellant suffered from the skin rash prior to his diagnosis of sarcoidosis in 1978. Specifically, she testified regarding the veteran’s initial sarcoidosis diagnosis:

It was an enlarged gland which [the doctors] diagnosed as sarcoidosis and then they said, well this rash on your leg, you know because that was really predominantly red at that point, ... and they said ... this is sarcoidosis and that’s how I know my husband came home from service with this thing.

R. at 232. She described how the veteran eventually became so weak that he could not carry groceries and he could not work full time. R. at 234-35. That same month, the hearing officer rendered his decision, denying service connection for the cause of the veteran’s death. R. at 242-43. A Supplemental SOC (SSOC) was issued. R. at 245-51.

On March 29,1996, the BVA remanded the appellant’s ease for further development. R. at 259-62. In an April 1996 rating decision, service connection for the appellant’s cause of death was denied. R. at 264-65. An SSOC was issued. R. at 267-72.

On September 24,1996, the BVA rendered the decision currently on appeal. The Board concluded that the appellant had not submitted a well-grounded claim for service connection for the cause of the veteran’s death. R. at 8.

II. ANALYSIS

The appellant argues that the lay evidence describing the veteran’s development of a skin condition within weeks of his separation from service, combined with the medical evidence that the veteran’s condition existed continually from 1978 grounds her claim. She argues that to require her to submit, at this stage of her claim, evidence of a “diagnosis” of her husband’s skin condition as sarcoidosis within the first post-service year is tantamount to requiring her to present conclusive evidence supporting her claim. Quoting from Cook v. Brown, 4 Vet.App. 231 (1993), she states, “[T]here need be only symptomatology which, in retrospect, may be identified as manifestations of the chronic condition____” Id. at 237.

A. Well-Grounded Claim

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Cite This Page — Counsel Stack

Bluebook (online)
10 Vet. App. 507, 1997 U.S. Vet. App. LEXIS 1009, 1997 WL 688796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carbino-v-gober-cavc-1997.