Gabrielson v. Brown

7 Vet. App. 36, 1994 U.S. Vet. App. LEXIS 784, 1994 WL 509539
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 20, 1994
DocketNo. 93-532
StatusPublished
Cited by292 cases

This text of 7 Vet. App. 36 (Gabrielson 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
Gabrielson v. Brown, 7 Vet. App. 36, 1994 U.S. Vet. App. LEXIS 784, 1994 WL 509539 (Cal. 1994).

Opinions

FARLEY, Judge, filed the opinion of the Court.

HOLDAWAY, Judge, filed a concurring opinion.

FARLEY, Judge:

Appellant, the widow of veteran Dale E. Gabrielson [hereinafter the veteran], appeals from a May 3, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) which denied her claim for dependency and indemnity compensation (DIC) benefits after concluding that the cause of the veteran’s death was not service connected. The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). On consideration of the record on appeal and the briefs filed by the parties, the Court will vacate the decision of the Board and remand the matter for further proceedings consistent with this opinion.

I.

The veteran was a career Naval officer, serving from June 25, 1965, until he retired on July 1, 1985. Record (R.) at 124. In the “Report of Medical History,” dated June 3, 1985, he reported that his health was excellent, and that he used no medications. R. at 105. Dr. Bothwell, the Navy doctor who examined the veteran on that day, noted a fine hand tremor. R. at 103-04. She also recorded the veteran’s statement that he drank five to six ounces of alcohol a day, and that he denied any past history of alcohol problems, driving while intoxicated, or “loss of work time” due to alcohol use. R. at 106. There is no reference in the veteran’s service medical records (SMRs) to alcohol abuse or liver diseases. R. at 47-102, 108-18. At the age of 46 and less than three years after his retirement, the veteran died on May 30, 1988. R. at 121. The records of the private hospital where he died reported nthat the veteran “stated that he was drinking three-quarters of a quart of bourbon every day for the past 30 years.” R. at 153. The death certificate listed the immediate cause of death as bacterial sepsis “due to, or as a consequence of,” liver failure, which, in turn, was “due to, or as a consequence of,” the “underlying cause,” which was alcoholism of 30 years’ duration. R. at 121. At appellant’s request, the death certificate was amended on September 2, 1988, to show that, prior to his death, the veteran had suffered from alcoholism for 15 years, rather than 30 years. R. at 122. Appellant explained that the attending physician had misunderstood the veteran’s response when he asked how long the veteran had been drinking; instead of stating that he had been drinking since the age of 16 to 18, the veteran had said that he had been drinking for 16 to 18 years. R. at 204-05.

Appellant, on June 1, 1989, applied for DIC benefits for herself and two children, claiming that her husband’s death was service connected. R. at 127-28. In an attachment to the application, appellant claimed that the veteran’s alcoholism problem “began while in service” and was “related to stress, [and] pressure while on active duty.” R. at 130,133. She also asserted that the alcoholism “did not interfere [with his] job,” that it became worse after his 1985 retirement, and that “his disability had to have begun while he was in the service” because “[a] liver is not destroyed in the three years between discharge and death.” R. at 130. In a rating decision on August' 25, 1989, service connection for the cause of death was denied for the reason that the SMRs “do not show any treatment for liver disease” and his alcoholism was “considered to be the result of willful misconduct.” R. at 139. The rating decision further noted that the “liver failure is an [38]*38organic condition that resulted from his alcoholism. There is no indication that the veteran was treated for a liver condition in service. There is no indication that the veteran developed cirrhosis of the liver within the one year presumptive period following his discharge from service.” Id.

Appellant filed a Notice of Disagreement on April 25, 1990, again contending that three years would not have been a sufficient period of time for alcohol to have destroyed the functioning of her husband’s liver and kidneys. R. at 142. She further alleged that the hand tremor noted at his retirement physical supported her claim that her husband had visible signs of alcoholism at that time. Id. Her substantive appeal (VA Form 1-9), dated October 22, 1990, reasserted that the hand tremors were alcohol related and that it was her belief that the veteran “was at least 10% disabled from cirrhosis during the presumptive one year period.” R. at 184.

At a personal hearing on December 19, 1990, appellant testified that the veteran’s service assignments were stressful, particularly his service as an admiral’s aide, which placed him in constant demand day and night, and which required that he attend all the admiral’s parties, where a great deal of social drinking transpired. R. at 189-90. She further testified that, although he never drank during the day while he was working, she estimated that he consumed as much as one-half bottle of liquor nightly “toward the end of his career” and that his daily intake for the three years following his retirement in 1985 until his death “accelerated” to three-quarters of a bottle. R. at 190, 195, 196. Appellant also commented that during the last six years of the veteran’s life, she noticed he had visible hand tremors, particularly in the morning. R. at 193-94. At the conclusion of the personal hearing, the hearing officer confirmed the prior denial of service connection for the cause of the veteran’s death. R. at 208-09.

In April 1992 a Board medical adviser, Dr. Jack Rheingold, reviewed the evidence of record and stated “that it was quite conceivable” that the liver damage secondary to alcohol might have begun during service or within the applicable presumption period. R. at 218. The Board then referred the matter to Dr. Geoffrey Block for an independent medical expert (IME) opinion, advising him of Dr. Rheingold’s report. R. at 223-24. The Board asked Dr. Block, a specialist in hepa-tology, to review the record and furnish the Board with his opinion as to whether there was objective medical evidence that cirrhosis was present during service or within one year thereafter. R. at 224. On November 12, 1992, Dr. Block advised the Board that there was no physical or laboratory evidence in»the record to show that the veteran had any type of liver disease before his May 1988 admission to the private hospital where he died. R. at 227. Dr. Block opined that there was evidence to support’ a diagnosis of alcoholism and alcohol abuse at the beginning of the veteran’s terminal hospitalization in May 1988, particularly the widow’s report of “significantly increased ethanol use following discharge.” R. at 228, 230. However, Dr. Block concluded that the veteran’s

service record, as well as relevant spousal testimony, did not otherwise indicate any evidence of interference with routine duties, personal relationships, or ability to perform the usual social, professional or personal activities of daily living.... The [veteran’s] accounting of ethanol use at the time of discharge [5-6 ounces of alcoholic beverages per day] did not meet standard criteria for making a diagnosis of ethanol abuse, nor was the reported amount of ethanol use sufficient to reasonably expect to find significant liver injury in the absence of overt physical findings.

R. at 228-30. In a January 20, 1993, letter transmitted to the Board with a letter from her representative, appellant responded to Dr.

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Bluebook (online)
7 Vet. App. 36, 1994 U.S. Vet. App. LEXIS 784, 1994 WL 509539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabrielson-v-brown-cavc-1994.