Darby v. Brown

10 Vet. App. 243, 1997 U.S. Vet. App. LEXIS 350, 1997 WL 236129
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 9, 1997
DocketNo. 96-1114
StatusPublished
Cited by6 cases

This text of 10 Vet. App. 243 (Darby 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
Darby v. Brown, 10 Vet. App. 243, 1997 U.S. Vet. App. LEXIS 350, 1997 WL 236129 (Cal. 1997).

Opinion

KRAMER, Judge:

The appellant, Wendy R. Darby, widow of Vietnam veteran Bruce E. Darby, appeals a May 20,1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for the cause of the veteran’s death. Record (R.) at 5-12. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the decision of the BVA.

I. RELEVANT BACKGROUND

The veteran served in the U.S. Army from July 1964 to June 1967. R. at 30. The veteran’s DD 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that he received several awards, including the Vietnam Campaign Medal and the Vietnam Service Medal. Ibid. In May 1986, he was diagnosed with and began receiving chemotherapy for “gastric adenocarcinoma with regional and mediastinal spread.” See R. at 53. (Gastric is “pertaining to, affecting, or originating in the stomach.” Dorland’s Illustrated Medical Dictionary 679 (27th ed.1988) [hereinafter Dorland’s]. Adenocarcinoma is “carcinoma derived from glandular tissue or in which the tumor cells form recognizable glandular structures.” Dorland’s at 27. Mediastinal is of or pertaining to “the mass of tissues and organs separating the two pleural sacs, between the sternum in front and the vertebral column behind, and from the thoracic inlet above to the diaphragm below.” Dorland’s at 991.) In November 1986, the veteran was hospitalized for more than a month and diagnosed with (1) “malignant paracardial [sic] effusion with tamponade, congestive splenomegaly and heart failure [and (2) ] gastric carcinoma, local adenopathy mesenteric invasion and ascites.” R. at 51-52; see R. at 50; 53-55. A discharge summary, dated December 19, 1986, indicated that “chest films” showed “a considerable increase in cardiac size, globular in shape with bilateral pleural effusion; all consistent with paracardial [sic] effusion.” R. at 51; see R. at 53. (Pleural is pertaining to the “serous membrane investing the lungs and linking the thoracic cavity.” Dorland’s at 1309.) In late December 1986, the appellant was again hospitalized and treated with further chemotherapy because he had “evidence of gastric primary progressing with associated malignant pericardial effusion.” R. at 46-47; see R. at 42-45, 48-49. He was discharged on January 21, 1987, with a diagnosis including “widely disseminated metastatic gastric carcinoma involving the mediastinum, liver, with malignant ascites.” R. at 47. (Metastatic is pertaining to the transfer of disease from one organ or part to another not directly connected with it. Dorland’s at 1016.)

On January 22, 1987, the veteran returned to the hospital for additional treatment. R. at 69. He died on February 13, 1987. R. at 40, 69. According to the death certificate, which was signed by David Werdegar, M.D., M.P.H., the immediate cause of death was pneumonia “due to or as a consequence of’ carcinomatosis of the heart, lungs, liver, and abdomen “due to or as a consequence of primary adenocarcinoma [of the] stomach.” R. at 40. (Carcinomatosis is “the condition of widespread dissemination of cancer throughout the body.” Dorland’s at 272.) The death certificate indicated that the approximate interval between onset of the veteran’s pneumonia and death was three days, the veteran’s carcinomatosis, including that of the lungs, and death was six months, and the veteran’s primary adenocarcinoma of the stomach and death was twelve months. R. at 40. At the time of his death, the veteran was [245]*245not service connected for any disability. R. at 87.

In May 1989, the appellant filed an application for dependency and indemnity compensation (DIC) asserting that her husband’s death was related to his “exposure to Agent Orange while serving in Vietnam.” R. at 35. In April 1994, a regional office (RO) denied her claim “because the veteran did not die from a service-related condition as a result of Agent Orange exposure.” R. at 72. The appellant appealed this decision to the BVA. R. at 78-79; 92.

In May 1994, the appellant submitted a letter, dated October 1990, to the RO indicating that she had been awarded surviv- or’s benefits through the Agent Orange Veteran Payment Program. R. at 102-03. The letter, signed by a “Special Master for Appeals,” stated that “[f]rom the record it appears that the veteran suffered severe disability over a substantial period, and it may be presumed that he would have been entitled to a disability award prior to his death.” R. at 103.

The BVA denied the appellant’s claim in May 1996 (R. at 5-12), and the appellant appealed to this Court. In its May 20, 1996, decision, the BVA stated:

The Board concludes that there is sufficient affirmative evidence indicating inter-current disease in the veteran’s death certificate so as to show that the veteran’s lung cancer was not related to Agent Orange or other herbicide exposure in Vietnam. The interval between the onset of lung cancer and death, as stated on the death certificate, was only 6 months, well after the veteran’s discharge from the service. Additionally, the medical evidence shows that the veteran had metastatic, not primary, lung cancer. The primary site of the cancer was the stomach, thereby rebutting the presumption that the lung cancer was caused by dioxin exposure. Although the appellant asserts that her husband had health problems related to exposure to Agent Orange and other chemical agents in Vietnam years before his death, there is no medical evidence in the file to support this assertion.

R. at 10.

II. ANALYSIS

The Court reviews the Board’s findings of fact under a “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Proscelle v. Derwinski, 2 Vet.App. 629, 631-32 (1992). Under the “clearly erroneous” standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53.

Pursuant to 38 U.S.C. § 1310, DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Hanna v. Brown, 6 Vet.App. 507, 510 (1994). A veteran’s death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1996). A service-connected disability is the principal cause of death when that disability, “singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312(b) (1996). To be a contributory cause of death, the disability must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c) (1996).

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Bluebook (online)
10 Vet. App. 243, 1997 U.S. Vet. App. LEXIS 350, 1997 WL 236129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darby-v-brown-cavc-1997.