Hanna v. Brown

6 Vet. App. 507, 1994 U.S. Vet. App. LEXIS 497, 1994 WL 242640
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 6, 1994
DocketNo. 92-987
StatusPublished
Cited by12 cases

This text of 6 Vet. App. 507 (Hanna 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
Hanna v. Brown, 6 Vet. App. 507, 1994 U.S. Vet. App. LEXIS 497, 1994 WL 242640 (Cal. 1994).

Opinion

KRAMER, Judge:

Appellant, Linette J. Hanna, appeals a December 31, 1991, decision of the Board of Veterans’ Appeals (BVA) which found that appellant had not submitted a well-grounded claim for service connection for the cause of her husband’s death, and that she was not entitled to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 (veteran rated totally disabled for 10 or more continuous years prior to his death). The Court has jurisdiction under 38 U.S.C. § 7252.

I. FACTUAL AND PROCEDURAL BACKGROUND

The veteran, Thomas Lowery, served on active duty from November 1917 to December 1918. S.R. at 3. His health was described as “good” at discharge. S.R. at 7. There are no service medical records. In 1921, he was hospitalized with a diagnosis of chronic pulmonary tuberculosis (PTB). S.R. at 14. The 1921 hospital report noted that the veteran had been hospitalized twice during service in 1918 “on account of fever.” S.R. at 12. A February 1925 VA medical report contained diagnoses of PTB and mi-tral valve insufficiency. R. at 116. In March 1925, he was service connected for PTB, effective back to the date of discharge. R. at 118. A temporary total disability rating was granted from February 1925. Id. In the same rating decision, service connection was denied for mitral valve insufficiency. Id.

The veteran was service connected for bronchitis in March 1926. R. at 148. A May 1926 VA medical report revealed diagnoses of moderately advanced PTB, apparently arrested, and chronic bronchitis. R. at 152, 154. Based on this diagnosis, the veteran’s total disability rating was reduced to 75% in August 1926 (R. at 157), and to 15% in April 1927 (R. at 159). By rating action dated September 1933, his disability rating was increased to 30%, effective July 1,1933, to be reduced to 0%, effective August 23, 1936, because the PTB had remained inactive and arrested since August 1926. R. at 189. But cf. R. at 221 (October 1937 decision of the Dependents Pension Board stating that the veteran’s bronchitis was disabling to a degree of 30% or more at the time of death).

The veteran died in September 1937. R. at 198, 205. On the death certificate, Dr. J.H. McClendon stated that coronary sclerosis of two years’ duration was the principal cause of death, and that anemia was a contributory cause. R. at 205. Shortly after the veteran’s death, appellant applied for benefits for herself and her children. R. at 199. An October 1937 rating decision determined that the veteran’s coronary sclerosis and anemia were not due to his military service. R. at 221. A February 1938 “Disal-lowance Memorandum” stated that appellant’s claim for benefits was disallowed because the veteran’s death was “not due to, or the result of, a directly or presumptively service-connected disease.” R. at 247. Also in February 1938, appellant received a notice that she had been awarded “compensation” as the “unremarried widow” of the veteran, and that her portion would be discontinued upon her remarriage or death, and each child’s portion discontinued when he or she reached 18 years of age, married, or died. R. at 243.

Appellant remarried in October 1943 (R. at 273), and her compensation was discontinued in November 1943 (R. at 274). In March 1944, another “Disallowance Memorandum” was issued, stating that death benefits were disallowed because the veteran’s death was not “due to, or the result of, a service-connected disease or injury.” R. at 302. “Compensation” payments continued for the children, and an income verification letter dated in February 1946 referred to the payments as “death pension payments.” R. at 314. In 1960, one of the children applied for education benefits. R. at 377. His claim was denied because the veteran’s death was not due to a service-connected injury or disease. R. at 380, 382. The child appealed, and his claim was denied by the BVA in August 1961 because the evidence did not show that a cardiovascular disease was incurred in or [509]*509aggravated by service, or that the veteran’s’ PTB or bronchitis substantially or materially contributed to the veteran’s death. R. at 390. Appellant’s second husband died in December 1962, but she made no attempt to reopen her claim of entitlement to death pension. R. at 392, 395-96.

In 1990, appellant filed a claim for DIC, stating that the cause of death was due to service or, alternatively, that the service-connected disability, if not the actual cause of death, was a “contributing factor” to death. R. at 392. She also stated that the veteran “was rated totally disabled from service-connected disability” (Id.) and that she “drew widows pension” after the veteran’s death until her remarriage (R. at 395). In an attachment to her application for DIC, appellant stated that the veteran’s death was assumed to be from heart problems but that he was rated totally disabled from service-connected disability and received a total disability pension from the VA for more than 10 years, until his death in 1937. R. at 398.

In January 1991, the RO, treating appellant’s application as both a reopened claim of service connection for cause of death and a claim for DIC under 38 U.S.C. § 418 (now 38 U.S.C. § 1318) denied both claims, finding that the veteran was not service connected for cause of death, that the veteran was rated at 0% for PTB at the time of his death, although he was receiving the statutory minimum for PTB, and that there was no evidence to show that the veteran was entitled to a total evaluation for 10 continuous years prior to his death. R. at 400-02. Appellant then submitted a July 1960 letter (prepared for her son’s earlier claim) written by Dr. McClendon (the attending physician at the time of the veteran’s death), which stated:

As I understood it your Father Tom Lowery was drawing compensation from the V.A. on account of injury or disability while in the service during the World War No. 1.
If such was the case his death was aggravated by the said disability.
If you have proof of this you should see your local Service office and discuss it with him.
P.S. I do not have any evidence of hid [sic] service disability nor that he was drawing anything from the V.A.

R. at 407. The VA again denied service connection for cause of death in February 1991, stating that Dr. McClendon’s statement “does not relate any etiology between the arrested tuberculosis and the cause of death; nor does it show that the death was hastened or materially affected by [the veteran’s] service connected tuberculosis.” R. at 413.

In March 1991, appellant submitted a copy of her award of “death compensation” in 1938, arguing that the letter proved that service connection for the cause of death had already been established, and that she was entitled to DIC. R. at 411-12. Her claims were denied again. R. at 409. The VA’s letter informing appellant of the denial stated that the “death compensation” she received was not paid as “benefits for a surviving spouse whose husband’s death was considered service connected.” R. at 424. In another letter written to clarify its position for appellant, the VA stated:

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Bluebook (online)
6 Vet. App. 507, 1994 U.S. Vet. App. LEXIS 497, 1994 WL 242640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanna-v-brown-cavc-1994.