Hill v. Derwinski

2 Vet. App. 570, 1992 U.S. Vet. App. LEXIS 170, 1992 WL 154003
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 2, 1992
DocketNo. 90-868
StatusPublished

This text of 2 Vet. App. 570 (Hill 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
Hill v. Derwinski, 2 Vet. App. 570, 1992 U.S. Vet. App. LEXIS 170, 1992 WL 154003 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

Pauline A. Hill, proceeding pro se, appeals a Board of Veterans’ Appeals (BVA or Board) decision, dated July 23, 1990, which denied an award of Dependency and Indemnity Compensation (DIC) on the basis that the evidence of record did not establish service connection for her veteran husband’s cause of death. Summary disposition is appropriate in this case because it is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance, which the Court will deny for the reasons set forth below. Because of deficiencies in the BVA decision, the record will be remanded with instructions.

I.

The veteran, Horace H. Hill, served on active duty in the U.S. Army from October 1939 to July 1945. R. at 72, 83, 88. Various undated service medical records reflected notations of a normal cardiovascular system. R. at 16, 32, 52. An Army hospital entry, dated September 4, 1944, stated that the veteran had experienced “pains in left chest anteriorly — about 1 year — related to heavy lifting”. R. at 67. It further noted “Tachycardia — admits hav[572]*572ing nervous spells”. Ibid. The veteran was hospitalized on September 28,1944, for observation of the tachycardia and was returned to duty on October 5, 1944 upon a final diagnosis of “no disease^] ... found physically fit.” R. at 64, 71. The veteran’s separation physical examination was similarly unremarkable with regard to cardiovascular disease. R. at 73. The report noted a “normal” cardiovascular system and “no significant abnormalities” in the chest x-ray.

Pursuant to a Veterans’ Administration (now Department of Veterans Affairs) (VA) medical examination in November 1946, the veteran received a chest x-ray once again, which resulted in a “normal” finding. R. at 75. Upon examination of the cardiovascular system, however, the physician noted: “[the veteran] has marked tachycardia — apparently very nervous— gets short of breath after exercise.” R. at 78. The only apparent diagnosis with regard to the complete examination was “anxiety”. R. at 82, 86.

In December 1947, the veteran was examined at a VA facility, where he reported that he was disabled by a “nervous condition”. R. at 88. Examination of his cardiovascular system was again unremarkable except for a fast heart beat. R. at 89. The relevant diagnosis was “anxiety reaction, chronic, moderate, manifested by tension, apprehension, profuse perspiration, gastric distress, and headaches”. R. at 92. The veteran was subsequently awarded service connection by the VA Regional Office (RO) for anxiety reaction, effective May 3, 1948, and was assigned a 10% disability rating.

In April 1977, the veteran received a diagnosis of moderate hypertension secondary to anxiety, the first such diagnosis apparent in the record on appeal. R. at 100. During the physical examination, the veteran denied “any symptoms of chest pain, shortness of breath, dizziness, or blackouts”. His electrocardiogram was within normal limits, and his “cardiac examination” was “normal”. The report stated that “no heart disease was found.” R. at 108. In a rating decision dated May 23, 1977, the RO increased the veteran’s disability rating for service-connected anxiety reaction to 30%. R. at 109. In the same decision, the rating board denied service connection for hypertension. The veteran did not appeal that denial.

He died on March 19, 1989, from cardiac arrest due to hypertensive coronary artery disease. R. at 112. Noted on the veteran’s death certificate as the immediate cause of death was “CARDIAC ARREST ... DUE TO HYPERTENSIVE CORONARY ARTERY DISEASE”. On March 81,1989, the appellant applied to VA for DIC, claiming service connection for her veteran husband’s cause of death. R. at 114. The claim was denied in an April 28, 1989, rating decision. R. at 118. In August of the same year, the RO received a statement by a private physician who, upon the appellant’s request, had reviewed the veteran’s medical records from 1977 forward. The physician, Dr. Karody, stated in pertinent part:

“I feel based on the information from the charts that this patient[’s] multiple risk factors including Diabetes, Hypertension, off and on smoking may have contributed to his death[.] In addition this patient was on a Service Related Disability for Anxiety Reaction.... I believe that the patient’s chronic anxiety may have contributed to the Hypertensive Coronary Artery Disease, which was the ultimate cause of death.”

R. at 126 (emphasis added). The RO continued its previous rating on the basis of this evidence. In the appellant’s December 28, 1989, substantive appeal to the BVA, she listed a number of VA medical facilities where she believed her husband had received medical treatment pertinent to her claim. Medical records from two of those facilities — in Idaho and California — are absent from the record on appeal.

II.

Under 38 U.S.C. § 1310 (formerly § 410), DIC will be paid to a deceased veteran’s spouse when the veteran has died from a disability incurred in or aggravated by active military service, that is, from a service-connected disability. Under 38 C.F.R. § 3.312 (1991), the service-connected dis[573]*573ability will be considered the cause of death when (1) it is singly or jointly the immediate cause, (2) it contributed substantially or materially — combined with another condition — to the cause, (3) it involved active processes affecting vital organs and rendered the veteran materially less capable of resisting the effects of other disease or injury, or (4) it was of such severity as to have had a material influence in accelerating death. In its July 23, 1990, decision, the BYA concluded, inter alia, that the veteran’s service-connected anxiety reaction did not cause his death, did not contribute materially or substantially to his death, did not render him materially less capable of resisting the fatal heart disease, and did not accelerate his death. Pauline A. Hill, BVA 90-, at 6 (July 23, 1990).

The Court reviews BVA factfinding under a “clearly erroneous” standard. Under 38 U.S.C. § 7261(a)(4) (formerly § 4061) and Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990), the Court must set aside a finding of material fact as clearly erroneous when the Court is left with a definite and firm conviction, after reviewing the entire evidence, that a mistake has been committed by the Board to the extent that no “ ‘plausible basis’ in the record” exists for the BVA findings at issue. Here, however, the Court cannot proceed to review the merits of the Board’s decision to determine whether a plausible basis exists in the record to support the Board’s findings of fact since the Court has been presented with an inadequate BVA decision and record for review. Id. at 56-57 (basis for administrative decision must be clear enough to permit effective judicial review; bare conclusory statement without supporting analysis and explanation does not suffice).

The BVA’s decision contains legal shortcomings foreshadowed in the Court’s March 19, 1992, order in this case. Under 38 U.S.C.

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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)
Murphy v. Derwinski
1 Vet. App. 78 (Veterans Claims, 1990)
Littke v. Derwinski
1 Vet. App. 90 (Veterans Claims, 1990)
Colvin v. Derwinski
1 Vet. App. 171 (Veterans Claims, 1991)
EF v. Derwinski
1 Vet. App. 324 (Veterans Claims, 1991)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
Godwin v. Derwinski
1 Vet. App. 419 (Veterans Claims, 1991)
Murincsak v. Derwinski
2 Vet. App. 363 (Veterans Claims, 1992)

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Bluebook (online)
2 Vet. App. 570, 1992 U.S. Vet. App. LEXIS 170, 1992 WL 154003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-derwinski-cavc-1992.