Harvey v. Brown

6 Vet. App. 390, 1994 U.S. Vet. App. LEXIS 264, 1994 WL 113605
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 7, 1994
DocketNo. 93-118
StatusPublished
Cited by18 cases

This text of 6 Vet. App. 390 (Harvey 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
Harvey v. Brown, 6 Vet. App. 390, 1994 U.S. Vet. App. LEXIS 264, 1994 WL 113605 (Cal. 1994).

Opinion

IVERS, Judge:

Jane Harvey, the widow of veteran Harold C. Harvey, appeals an October 30,1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for the cause of the veteran’s death. Jane Harvey in the Case of Harold C. Haney, BVA 92-25682 (Oct. 30, 1992). The Court has jurisdiction over the ease pursuant to 38 U.S.C. § 7252(a). The Secretary has filed a motion for summary vacation or, in the alternative, for summary affirmance. Since this case presents issues of first impression, however, summary disposition is not appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Therefore, the Court will deny the Secretary’s motion for summary vacation or, in the alternative, summary affirmance. For the reasons set forth below, the Court affirms the October 1992 decision of the BVA but remands the case for further adjudication consistent with this opinion.

I. Factual Background

The veteran served on active duty in the United States Army from March 23, 1951, to May 7, 1953. R. at 13. On September 23, 1951, he was wounded by mortar fire while serving in Korea. R. at 16. Following separation from service, on June 22, 1953, the veteran filed an application with a VA regional office (RO) seeking compensation for residuals of the mortar fire wounds to the left arm, both legs, and the left side of the neck and face. R. at 88. On September 4, 1953, the RO granted service connection for shell fragment wounds of the left upper forearm and lower forearm involving muscle groups VII and VIII (rated as 30% disabling), the right thigh involving muscle group XIV (30% disabling), the left lower leg and foot involving muscle groups X and XI (30% disabling), for paralysis of the left radial nerve as a residual of shell fragment wounds (20% disabling), and for a scar from a shell fragment wound to the left neck and scalp and left face (10% disabling); the veteran was assigned a combined disability rating of 80%. R. at 102.

On November 5, 1978, the veteran suffered a cerebrovascular accident (CVA). R. at 106, 111. A medical record from the Public Health Service Hospital in San Francisco, California, noted the veteran’s service-connected disabilities and remarked that he had an “occasional intermittent limp without foot drop.” R. at 112. The final diagnosis was malignant hypertension and left hemispheric CVA. R. at 114. On November 15, 1978, the veteran applied for a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU rating) (R. at 106-09), and the RO denied a TDIU rating on April 11, 1979 (R. at 117).

On May 25, 1990, when the veteran fell at home, his wife found him and placed him in bed. R. at 154. The veteran became unresponsive one hour later, and his wife called for an ambulance to take him to a private hospital. R. at 153-54. At the hospital, he was diagnosed with an acute right frontotem-poral parietal subdural hematoma. R. at 162. The veteran died at the hospital on May 27, 1990. R. at 127. The death certificate lists the immediate cause of death as craniocerebral trauma, which was described as an accident, and listed hypertensive cardiovascular disease, CVA by history, and severe arterionephrosclerosis as significant conditions contributing to death but not related to the immediate cause of death. Ibid.

On August 17, 1990, the veteran’s widow, appellant in this case, filed a claim for service connection for the cause of the veteran’s death. See R. at 128. The RO denied service connection on September 21,1990. Ibid. In a December 3,1990, Statement in Support of Claim, appellant wrote:

My husband Harold died May 27,1990[,] due to a fall while going to the bathroom approximately] 11:30 PM.
[393]*393I contend that the [service-connected] left anide and leg of my husband could have been a partial reason for the fall.
Although my husband died of [right] subdural hematoma, I feel the [service-connected] problems could help cause the fall.

R. at 131. On a February 4, 1991, VA Form 1-9 (Appeal to BVA), she wrote:

[The veteran’s left foot] buckled under him time and again during the 37 years between his discharge and his death.... Had he not hit his head when he fell on May 25,1990, it would have been no worse than a repetition of all his previous falls.... He did hit his head though and that led to his death.

R. at 137. At a March 26, 1991, personal hearing before the RO, she testified that her husband would fall six or seven times a year because of his service-connected leg condition. R. at 140. She also testified that she did not witness her husband’s fall, but that she heard him fall in the bathroom and then found him lying on the floor. R. at 145. On May 20, 1991, the hearing officer continued the denial. R. at 172. In an August 6,1991, letter, appellant wrote: “Without the intrinsic injuries of [the veteran’s] foot combined with his weak ankle it is unlikely he would have fallen and hit his head.... [H]e fell because of the permanent injuries of his foot and ankle and sustained a subdural hemato-ma which resulted in his death on May 27th.” R. at 281-82. She also submitted a letter from a co-worker of the veteran’s, who wrote that the veteran “had trouble from time to time keeping his balance and would fall down from time to time_” R. at 283. On October 30, 1992, the Board denied service connection for the cause of the veteran’s death. Harvey, BVA 92-25682, at 7.

II. Analysis

A. Dependency and Indemnity Compensation (DIC)

The surviving spouse of a veteran who has died after December 31, 1956, may file a claim for dependency and indemnity compensation (DIC). 38 U.S.C. §§ 1310, 1311. The 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) (1993). 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) (1993). A contributory cause of death must be causally connected to the death and 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)(1) (1993). Therefore, the issue is whether a service-connected disability was a principal or contributory cause of the veteran’s death. See Stoner v. Brown, 5 Vet.App. 488, 490 (1993).

In this ease, the veteran died of an accidental craniocerebral trauma; significant conditions contributing to death but not related to the immediate cause of death included hypertensive cardiovascular disease, CVA by history, and severe arterionephrosclerosis. R. at 127.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 390, 1994 U.S. Vet. App. LEXIS 264, 1994 WL 113605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-brown-cavc-1994.