Curl v. Derwinski

3 Vet. App. 98, 1992 U.S. Vet. App. LEXIS 244, 1992 WL 191124
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 12, 1992
DocketNo. 90-1125
StatusPublished

This text of 3 Vet. App. 98 (Curl v. Derwinski) 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
Curl v. Derwinski, 3 Vet. App. 98, 1992 U.S. Vet. App. LEXIS 244, 1992 WL 191124 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The pro se appellant, Helen B. Curl, surviving spouse of veteran Charles H. Curl, appeals from a June 14, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying her claim for dependency and indemnity compensation (DIC) benefits on the ground that the record did not show that the veteran’s death resulted from a service-connected disability. The Secretary of Veterans Affairs (Secretary) has moved [99]*99for summary affirmance. Because the Court finds that the Board failed to provide an adequate statement of the reasons or bases for its findings and conclusions and to carry out fully its duty to assist the appellant, the Secretary’s motion will be denied and the Board’s decision will be vacated and the record remanded for read-judication of the appellant’s claim.

I. BACKGROUND.

The veteran, Charles H. Curl, served on active duty in the United States Air Force from February 1943 to November 1953 and from January 1954 to September 1963. Helen B. Curl, BVA 90-19677, at 2 (June 14, 1990). While in the service the veteran contracted pulmonary tuberculosis (PTB). R. at 225. Although in 1971 the veteran developed moderately advanced granuloma-tous disease — nodules of chronically inflamed tissue usually associated with an infective process (Webster’s Medical Desk Dictionary 274 (1986)) — the PTB remained inactive throughout the remainder of the veteran’s life. R. at 226, 234-35, 244, 254. The record does not indicate if PTB was the “infective process” with which the granulomatous disease may have been associated. These granulomas (nodules), located in the middle and upper portions of the right lung, were discovered in November 1971 and remained essentially static throughout the veteran’s life. R. at 226, 237-39, 248-49, 276-302. In January 1972, following the discovery of the granulomas, the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) increased to 30% the veteran’s noncompensable disability rating for pulmonary tuberculosis, moderately advanced, inactive. R. at 234-35. In June 1978, a private physician diagnosed the veteran as having moderately severe chronic obstructive pulmonary disease (COPD). R. at 236. In November 1982, a VA medical examination for disability evaluation also identified moderately severe COPD. R. at 244. One of the tests performed in conjunction with this examination noted that the COPD significantly improved with bronchodilators. R. at 247.

A January 1983 RO decision incorporated the COPD in its evaluation and identified the veteran’s service-connected condition as: “Pulmonary tuberculosis moderately advanced, inactive with moderately severe chronic obstructive pulmonary disease.” R. at 254. There was no discussion of the basis for extending service connection to the COPD or for combining the COPD and PTB into one service-connected disability. In the January 1983 RO decision, the veteran’s disability rating for the combined disability was reduced from 30% to 20%, the RO noting that the PTB was completely arrested. R. at 254.

In September 1988 the veteran was hospitalized in a VA facility, complaining chiefly of weakness in the legs, incontinence, and advancing dementia. R. at 256. After undergoing surgery to insert a shunt to drain off excess fluid in his brain, the veteran contracted pneumonia. R. at 291. In mid-November 1988, the veteran’s VA hospital charts indicated a growing indistinctness of pulmonary vascularity (explained under part II. F., infra) which was consistent with his worsening pulmonary edema. R. at 297-300. Pneumonia was the primary cause of the veteran’s death on November 29, 1988. R. at 261. The death certificate stated that the pneumonia was “[d]ue to or as a consequence” of the end-stage dementia for which he was hospitalized. R. at 261.

The appellant applied for DIC benefits, but the VARO denied eligibility, stating that the veteran’s service-connected disability of PTB was not shown to have materially contributed to his death. R. at 262, 266. There was no mention of the veteran’s COPD in that decision. In the appellant’s Form 1-9 Appeal to the BVA, she stated: “I believe the service-connected respiratory disease did materially and substantially contribute to his death. (38 C.F.R. § 3.312) It is reasonable to hold that his service-connected condition accelerated his death because the lungs are a vital organ and his disability of COPD was of itself of a progressive and debilitating nature. (38 C.F.R. § 3.312)”. R. at 303. The BVA denied service connection for the veteran’s death. Curl, BVA 90-19677, at 6.

[100]*100II. ANALYSIS.

A service-connected disability is considered to have contributed to the cause of a veteran’s death when it is shown that it contributed “substantially and materially ... to the production of death.” 38 C.F.R. § 3.312(c)(1) (1991). Even in cases where the primary cause of death is so “overwhelming” that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a “material influence in accelerating death” because it “affected a vital organ [such as the lungs] and was of itself of a progressive or debilitating nature”. 38 C.F.R. § 3.312(c)(4) (1991).

The Board held that “a service-connected disorder” did not materially or substantially contribute to the veteran’s death. Curl, BVA 90-19677, at 6. However, the Board’s “Discussion and Evaluation” is rife with ambiguities which make it impossible for the Court to carry out meaningful review of the Board’s decision or for the appellant to understand its rationale. Thus, its statement of the reasons or bases for its decision is inadequate. 38 U.S.C. § 7104(d)(1) (formerly § 4004); see Sammarco v. Derwinski, 1 Vet.App. 111, 113 (1991) (“BVA’s decision must express findings with sufficient detail and clarity to achieve two critical purposes: to inform the claimant and to make meaningful review by this Court possible”); see also Hanson v. Derwinski, 1 Vet.App. 512, 518 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

In its “Discussion and Evaluation”, the Board set forth its reasoning in a series of statements that are replete with ambiguities, imprecision, and unstated assumptions:

It has been asserted that the veteran’s service-connected inactive pulmonary tuberculosis with moderately severe chronic obstructive pulmonary disease played a material role in the veteran’s death. While the chronic service-connected respiratory disorder certainly affected a vital organ, the record shows that pulmonary tuberculosis had been inactive for many years and was not progressive or debilitating in nature. We note in this regard that the evidence shows this particular respiratory disorder was significantly improved with medication.

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Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
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1 Vet. App. 111 (Veterans Claims, 1991)
Akles v. Derwinski
1 Vet. App. 118 (Veterans Claims, 1991)
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1 Vet. App. 164 (Veterans Claims, 1991)
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1 Vet. App. 512 (Veterans Claims, 1991)
Sussex v. Derwinski
1 Vet. App. 526 (Veterans Claims, 1991)
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1 Vet. App. 536 (Veterans Claims, 1991)

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Bluebook (online)
3 Vet. App. 98, 1992 U.S. Vet. App. LEXIS 244, 1992 WL 191124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curl-v-derwinski-cavc-1992.