Hrvatin v. Principi

3 Vet. App. 426, 1992 U.S. Vet. App. LEXIS 351, 1992 WL 315752
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 4, 1992
DocketNo. 91-217
StatusPublished
Cited by2 cases

This text of 3 Vet. App. 426 (Hrvatin v. Principi) 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
Hrvatin v. Principi, 3 Vet. App. 426, 1992 U.S. Vet. App. LEXIS 351, 1992 WL 315752 (Cal. 1992).

Opinion

KRAMER, Associate Judge:

In its decision of October 10, 1990, the. Board of Veterans’ Appeals (BVA) denied appellant’s claim for entitlement to service connection for the cause of her husband’s death, and as a consequence, implicitly denied her claim to Dependency and Indemnity Compensation (DIC). Upon consideration of the record and the filings of the parties in this case, we hold that the BVA did not err in applying the relevant laws and regulations in reaching its decision, and, therefore, we affirm.

I.

Joseph Hrvatin, the veteran and husband of appellant, had active service with the Army from November 1941 to February 1945. R. at 1. While in action in North Africa near Turris, the veteran was struck in the lower right hip by an enemy machine gun bullet and sustained a fracture of the neck of the right femur bone. R. at 52. Two operations were performed on the femur to attach it to the hip socket with [428]*428screws. R. at 50, 52. Since these operations were not completely successful, the right femur was subsequently grafted into the hip. R. at 58-59. On February 1, 1945, the veteran received a discharge because of disability which at the time was described as a compound, comminuted, fracture of the neck of the right femur that had healed with incomplete fibrous ankylo-sis of the hip and knee. R. at 92.

On May 22, 1950, the veteran received a Veterans' Administration (now the Department of Veterans Affairs) (VA) orthopedic examination. R. at 119. The report of the orthopedic examination stated:

It is this examiner’s belief that the veteran would be more comfortable and better served with a prosthesis. Because of this fact and because of the limitations of motions of the hip, knee and ankle, it is this examiner’s opinion that loss of use of the right leg exists because of injuries sustained.

R. at 115. As a result of this examination, the veteran’s disability rating was increased to 90% as of May 22, 1950. R. at 119. The VA Regional Office (RO) rating board narrative stated in relevant part:

We found that there was a complete fibrous ankylosis of the right hip joint with total absence of the head and neck of the femur. There is a 3.25" shortening of the right leg, marked eversion of the leg, marked limitation of motion in the knee, and nearly complete ankylosis of the ankle. It is impossible for the veteran to sit in a public conveyance because ... there is no motion in the hip joint and the leg remains completely extended at all times.

R. at 118.

On April 6, 1989, Joseph Hrvatin died. His death certificate listed the cause of death as ventricular fibrillation due to coronary heart disease. R. at 381. Other significant conditions listed as contributing to his death were chronic obstructive pulmonary disease, end stage renal failure, and peptic ulcer disease. Id. On April 21, 1989, the veteran’s widow, Mary Hrvatin, applied for certain benefits, the denial of which are the subject of this appeal. R. at 383.

In denying service connection for the cause of the veteran’s death, the BVA stated that the veteran’s service-connected disability did not substantially cause or contribute to the cause of death. Mary D. Hrvatin, BVA 91-_, at 6 (Oct. 10, 1991).

II.

In order to obtain the DIC benefits appellant seeks, the veteran must have either died of a service-connected condition, 38 U.S.C. 1310(a) (formerly § 410(a)), or have had a 100% service-connected disability in effect for the ten years immediately preceding his death. 38 U.S.C. § 1318(a), (b) (formerly § 418(a), (b)).

A.

Appellant contends that the veteran’s loss of the use of his right leg was the functional equivalent of an amputation and, pursuant to 38 C.F.R. § 3.310(b) (1991), that the veteran, in effect, died of a service-connected condition. Title 38, Code of Federal Regulations, section 3.310(b), states in relevant part:

(b) Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee ... shall be held to be the proximate result of the service-connected amputation_

The language of this regulation, however, does not provide for service connection based on functional equivalency of an amputation, as appellant contends. As the regulation is clear on its face, no further inquiry is needed. See Ardestani v. I.N.S., — U.S. -, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991). (Nor as discussed in section H.C., infra, was this regulation intended to extend to functional equivalency.) However, even if the regulation provided for functional equivalency, the evidence in the record is silent regarding any proposed amputation site, i.e., at, above, or below the knee. The VA doctor, who performed the May 22, 1950, examination, simply stated that “the veteran would be better served [429]*429with a prosthesis” but that doctor did not mention the site where an amputation would take place. Thus, there is no evidence to suggest that the veteran’s right leg would have been amputated at or above the knee as required by 38 C.F.R. § 3.310(b).

B.

Appellant further contends that 38 C.F.R. 3.310(b) violates the equal protection clause of the Fifth Amendment of the United States Constitution because the regulation discriminates against the class of veterans who lost all functional ability of a leg and did not have an amputation performed as opposed to the class of veterans who lost all functional ability of a leg and received an amputation.

“The Fifth Amendment ... does not [specifically] contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But ... discrimination may be so unjustified as to be violative of due process.” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). In determining whether there has been due process, the Supreme Court applies the same standard to the federal government that it applies to the states under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See, e.g., Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Under this standard, where a classification does not affect an identifiable class, such as race or alien-age, or a fundamental right, such as voting, the federal government need only meet the rational basis test. See Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).

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Bluebook (online)
3 Vet. App. 426, 1992 U.S. Vet. App. LEXIS 351, 1992 WL 315752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hrvatin-v-principi-cavc-1992.