Frances D'Aries v. James B. Peake

22 Vet. App. 97, 2008 U.S. Vet. App. LEXIS 384, 2008 WL 938444
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 8, 2008
Docket05-1468
StatusPublished
Cited by358 cases

This text of 22 Vet. App. 97 (Frances D'Aries v. James B. Peake) 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
Frances D'Aries v. James B. Peake, 22 Vet. App. 97, 2008 U.S. Vet. App. LEXIS 384, 2008 WL 938444 (Cal. 2008).

Opinions

PER CURIAM:

Before the Court is Frances D’Aries’s appeal of a May 18, 2005, Board of Veterans’ Appeals (Board) decision that denied service connection for the cause of her husband’s death under 38 U.S.C. § 1310. Because the VA medical examination sought under the authority of 38 U.S.C. § 7109 and 38 C.F.R. § 20.901 was adequate for rating purposes, the Board provided adequate reasons or bases for rejecting the opinion of the treating physician, and there was no error in the notice provided, the Board decision will be affirmed.

I. FACTS

Mrs. D’Aries’s husband, Lawrence D’Aries, served on active duty in the U.S. Army from December 1942 to February 1946 during World War II. His service included combat duty in Germany, where he suffered a head injury in March 1945 when a shell landed near him. At the time of his death on December 27, 1998, Mr. D’Aries was receiving VA compensation for several service-connected disabilities, including chronic brain syndrome associated with brain trauma from the 1945 incident, with post-traumatic headaches, rated 70% disabling, and a loss of bone of the skull, rated 30% disabling. His combined sche-dular evaluation was 80% disabling. The death certificate listed his cause of death as cardiorespiratory arrest due to or as a consequence of sepsis, due to or as a consequence of pneumonia. Record (R.) at 177.

In April 1999, Mrs. D’Aries applied for dependency and indemnity compensation. With her claim, Mrs. D’Aries submitted a letter from Mr. D’Aries’s private physician, Dr. Henry McCabe. In that letter, Dr. McCabe expressed his opinion that Mr. D’Aries’s chronic brain disorder, “along with his [djiabetes, prevented him from sensing appropriately the symptoms which were developing leading up to his pneumonia and blood poisoning (sepsis), and ultimately, unfortunately, his untimely demise.” R. at 179. In August 1999, VA received Mr. D’Aries’s hospital admission records, which indicated that he had been admitted to the hospital on December 27, [100]*1001998, with a cough, fever, and confusion. The record noted that he had a history of “congestive heart failure, diabetes mellitus, cerebrovascular accident with right hemi-plegia, and chronic obstructive pulmonary disease.” R. at 194. Later that same day, Mr. D’Aries was found in respiratory distress and intubated, and died shortly thereafter.

In August 1999, after reviewing the medical evidence of record, a VA regional office denied Mrs. D’Aries’s claims for benefits for the cause of her husband’s death and dependency and indemnity compensation, finding that there was no relationship between Mr. D’Aries’s death and his military service. Mrs. D’Aries filed a Notice of Disagreement with that decision.

In January 2000, Dr. McCabe submitted another letter regarding Mr. D’Aries’s death. In that letter, Dr. McCabe indicated that he had treated Mr. D’Aries “primarily” for diabetes mellitus, congestive heart failure, arteriosclerotic cardiovascular disease, atrial fibrillation, and hypertension. R. at 233. Dr. McCabe wrote:

The combination of [Mr. D’Aries’s] diseases, arteriosclerotic cardiovascular disease and hypertension all combined to cause a chronic organic brain syndrome, which became progressively worse in his later years.... [I]t is my opinion that these problems both directly and indirectly contributed to the condition listed at the time of his demise (i.e.[,] Chronic Brain Syndrome).
It is quite possible that the head trauma which he sustained many years ago may also have contributed to this condition, but in all likelihood, the more chronic and progressive nature of his other conditions was responsible for the deterioration of his mental skills later in life.

Id. Mrs. D’Aries appealed to the Board in April 2000.

In May 2001, Mrs. D’Aries received notice pursuant to the then-recently enacted Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (codified at 38 U.S.C. § 5103). That letter explained what information and evidence she was responsible for obtaining and what information and evidence VA would obtain. The letter also explained the evidence necessary to establish entitlement to compensation for service-connected conditions and advised Mrs. D’Aries of the information VA needed from her. A Supplemental Statement of the Case was issued in April 2002. That document advised Mrs. D’Aries that her claim had been “considered based on all the evidence of record, including review of [the] claim as a result of [the] passage of [the] Veterans Claims Assistance Act of 2000.” R. at 254. Also in that document, the regional office continued to deny entitlement to dependency and indemnity compensation and service connection for the cause of Mr. D’Aries’s death.

In August 2002, the Board remanded Mrs. D’Aries’s claims in order to afford her a hearing before the Board. In October 2002, Dr. McCabe submitted a third letter regarding Mr. D’Aries’s death. In that letter, Dr. McCabe wrote:

Towards the latter part of his life, Mr. D’Aries began to experience symptoms consistent with Organic Brain Syndrome. These symptoms included confusion, hallucinations, euphoria, agitation, insomnia[,] and[,] subsequently!,] disequilibrium.
In all probability, the culmination of this entity was initiated by an episode of severe head trauma which he sustained many years ago. Over a long period of time[,] this caused cerebral atrophy[,] which significantly reduced and impaired his mental capacity and motor skills.
[101]*101Despite his other medical illnesses[,] it was the complications of his Organic Brain Syndrome and their sequelae which led to his mental and physical deterioration later in life[,] and ultimately to his demise. It is my medical opinion that any retroactive review of his government benefits must incorporate this issue in its evaluation due to the causal effect it had upon his death.

R. at 262. Mrs. D’Aries was afforded a Board hearing held in February 2003.

In October 2004, the Board informed Mrs. D’Aries that it had “decided to ask one or more experts to provide a medical opinion” with respect to her claim for benefits for the cause of her husband’s death.1 R. at 279. The Board sent an engagement letter to the Portland, Oregon, VA Medical Center, asking the chief of staff of that facility for a “medical expert opinion.” R. at 281. Specifically, the Board requested that “an internal medicine specialist ... provide a medical advisory opinion” on the question of whether Mr. D’Aries’s chronic brain syndrome and/or loss of bone of the skull caused or contributed to his death. Id. The Board directed that the medical expert “review the claims file in its entirety” and included an explanation of the criteria for determining whether a condition was a principal or contributory cause of death. R. at 281-82. Finally, the Board requested that the medical expert comment on the opinions offered by Dr. McCabe. R. at 282.

That same month, Dr.

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Bluebook (online)
22 Vet. App. 97, 2008 U.S. Vet. App. LEXIS 384, 2008 WL 938444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frances-daries-v-james-b-peake-cavc-2008.