Galvagno v. Derwinski

3 Vet. App. 118, 1992 U.S. Vet. App. LEXIS 254, 1992 WL 197842
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 19, 1992
DocketNo. 90-1474
StatusPublished

This text of 3 Vet. App. 118 (Galvagno 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
Galvagno v. Derwinski, 3 Vet. App. 118, 1992 U.S. Vet. App. LEXIS 254, 1992 WL 197842 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The pro se appellant, Philomena P. Gal-vagno, surviving spouse of World War II veteran Anthony F. Galvagno, appeals from an August 9, 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 for summary affirmance. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). 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 matter remanded.

The veteran served on active duty in the United States Army from May 1942 to December 1946. R. at 1. While in the service, he was diagnosed with and treated for pulmonary tuberculosis (PTB). R. at 2-21. After his separation from service, the veteran continued to receive treatment for PTB. R. at 22-25. In July 1956, a Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) rating decision concluded that the veteran’s service-connected PTB had been inactive since May 1956. R. at 26. That RO decision provided for a gradual reduction in the disability evaluation starting at 100% disabling, effective as of October 1947, and ending at 0% by May 1967. R. at 26. In 1988, the veteran died from congestive heart failure, due to or as a consequence of cardiomyopathy—a chronic disorder of heart muscle that may involve hypertrophy and obstructive damage to the heart (Webster’s Medical Desk Dictionary 100 (1986)). R. at 43. The veteran’s final, private hospital records also noted other significant conditions at the time of his death: diabetes mellitus and chronic obstructive pulmonary disease (COPD). R. at 34.

In order for a veteran’s depen-dant to be awarded DIC benefits, it must be shown that the veteran died from a service-connected or compensable disability. 38 U.S.C. § 1310 (formerly § 410). Service connection for the cause of a veteran’s death may be established if a disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. See 38 C.F.R. § 3.312(a), (b), (c)(1) (1991). A chronic disease which is manifested to a degree of 10% within one year following separation from service, is to be considered service connected despite the absence of evidence of such disease while in service. See 38 U.S.C. § 1112(a)(1) (formerly § 312); 38 C.F.R. §§ 3.307(a), 3.309(a) (1991). Further, 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 and was of itself of a progressive or debilitating nature”. 38 C.F.R. § 3.312(c)(4) (1991). After reviewing all of the evidence of record, the BVA concluded that the veteran’s service-connected PTB had been “asymptomatic” since 1955 and did not substantially and materially contribute to the veteran’s death, and that his service medical records did not indicate any development of heart disease while in service or during the one-year presumption period, established by 38 U.S.C. § 1112(a)(1), following his separation from service. Anthony F Galvagno, BVA 90-27326, at 5 (Aug. 9, 1990).

However, in her Form 1-9 appeal and to this Court, the appellant made a [120]*120further argument to establish a link between the veteran’s service-connected PTB and the cause of his death, and that argument has not been refuted by the Board. R. at 53; Br. at 2. The appellant submitted a June 14, 1988, letter from the physician who treated the veteran immediately prior to his death. In this letter, the physician opined that the veteran’s PTB had contributed to the development of his COPD, and that the veteran’s COPD was one of the factors which caused his death. R. at 31. He stated: “Mr. Galvagno’s death was caused by multiple factors. He did have congestive heart failure. He also had chronic obstructive pulmonary disease which contributed to his death. Certainly I believe that the fact that he had tuberculosis contributed to his chronic lung disease.” R. at 31. Although this medical opinion is conclusory and not supported by findings or analysis, it still cannot be ignored. See Sanden v. Derwinski, 2 Vet.App. 97, 101 (1992); Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); Willis v. Derwinski, 1 Vet.App. 66, 70 (1991). The Board did not directly refute this medical opinion or, apparently, explore the possible contribution of the veteran’s service-connected PTB to the development of his COPD. Consequently, the Court holds that the Board’s statement of reasons or bases for its decision is inadequate because it failed adequately to address this argument. See 38 U.S.C. § 7104(d)(1) (formerly § 4004); Hanson v. Derwinski, 1 Vet.App. 512, 518 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991); Sammarco v. Derwinski, 1 Vet.App. 111, 113 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Part of the BVA’s obligation in setting out its reasons or bases is to “ ‘[pjermit a claimant to understand the Board’s response to the various arguments advanced by the claimant.’ ” Gilbert, 1 Vet.App. at 56 (quoting S.Rep. No. 418, 100th Cong., 2d Sess. 38 (1988)). “[T]he Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive.” Id. at 57.

The Board in its “Discussion and Evaluation” relied on the undisputed finding that the PTB had been inactive since the 1950s. But that finding does not preclude the possibility that the veteran’s PTB was the proximate cause of his COPD, which, allegedly, did contribute to the veteran’s death. 38 C.F.R. § 3.310(a) (1991) provides: “Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition.” The Board did not conclusively find that the veteran’s COPD was not proximately related to his service-connected PTB as alleged, and, thus, it is unclear whether the COPD may be considered service connected.

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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)
Willis v. Derwinski
1 Vet. App. 66 (Veterans Claims, 1991)
Murphy v. Derwinski
1 Vet. App. 78 (Veterans Claims, 1990)
Sammarco v. Derwinski
1 Vet. App. 111 (Veterans Claims, 1991)
Hatlestad v. Derwinski
1 Vet. App. 164 (Veterans Claims, 1991)
Colvin v. Derwinski
1 Vet. App. 171 (Veterans Claims, 1991)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
Moore v. Derwinski
1 Vet. App. 401 (Veterans Claims, 1991)
Hanson v. Derwinski
1 Vet. App. 512 (Veterans Claims, 1991)
Sussex v. Derwinski
1 Vet. App. 526 (Veterans Claims, 1991)
Cousino v. Derwinski
1 Vet. App. 536 (Veterans Claims, 1991)
Sanden v. Derwinski
2 Vet. App. 97 (Veterans Claims, 1992)
Tirpak v. Derwinski
2 Vet. App. 609 (Veterans Claims, 1992)

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Bluebook (online)
3 Vet. App. 118, 1992 U.S. Vet. App. LEXIS 254, 1992 WL 197842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galvagno-v-derwinski-cavc-1992.