Lathan v. Brown

7 Vet. App. 359, 1995 U.S. Vet. App. LEXIS 52, 1995 WL 29007
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 26, 1995
DocketNo. 93-62
StatusPublished
Cited by38 cases

This text of 7 Vet. App. 359 (Lathan 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
Lathan v. Brown, 7 Vet. App. 359, 1995 U.S. Vet. App. LEXIS 52, 1995 WL 29007 (Cal. 1995).

Opinion

STEINBERG, Judge:

The appellant, Roberta Lathan, appeals a December 8,- 1992, Board of Veterans’ Appeals (BVA or Board) decision denying dependency and indemnity compensation (DIC) on the ground that the cause of death of her husband, veteran Hubert C. Lathan, was not service connected. Record (R.) at 19. A timely appeal to this Court followed. For the reasons that follow, the Court will vacate the Board decision and remand the matter for further development and readjudication.

I. Background

The appellant, Roberta Lathan, is the widow of World War II veteran Hubert C. La-than, who served on active duty in the U.S. Marine Corps from March 1942 until February 1946. R. at 26, 29, 32-33. He was wounded in action in Guam in July 1944. R. at 26. An August 1944 service medical record (SMR) described the wound as a “[p]en-etrating wound of [the] left thorax with associated massive hemothorax” (a collection of blood in the pleural cavity, Dorland’s Illustrated MEDICAL DICTIONARY 751 (27th ed. 1988) [hereinafter Dorland’s] ). R. at 44. A fragment of metal in the lower portion of the left lungfield was noted in a July 1944 SMR x-ray report. R. at 41.

Between August 1944 and August 1945, the veteran underwent chest aspiration twice and chest surgery three times. R. at 57-60. In January 1946, a Board of Medical Survey found him unfit for service, with a diagnosis of suppurative pleurisy (inflammation of the pleura, producing pus, Dorland’s at 1309, 1614). R. at 62. He was discharged for disability in February 1946. R. at 82. In March 1946, he filed with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) an application for service-connected disability compensation for a shrapnel wound to his left chest. R. at 79-80. In November 1946, the VARO awarded service connection for residuals of left-pleural-cavity injury, rated 40% disabling, and damage to muscle group II, left, rated 20% disabling — for a combined rating of 50%. R. at 111. (As to combined ratings, when a veteran has more than one disability a combined disability rating is derived. Currently, combined ratings are derived from Table I, 38 C.F.R. § 4.25 (1994).)

Between 1946 and 1950, the veteran was hospitalized four times for medical complications of his service-connected injury and underwent two surgical procedures, including removal of a shell fragment from his left lung. R. at 119, 135, 205, 209, 221, 227. He required treatment for infections at the wound site. R. at 284, 290-91. During this time, his disability rating varied from 40% to 100%. R. at 115, 189.

[361]*361A September 1951 intravenous pyelogram (an x-ray of the kidney and ureter, Dor-land’s at 1393, 1470) (IVP), showed essentially normal kidney functions. R. at 324. A VA physician’s examination report noted in April 1952: “Heart: Not enlarged to percussion. Regular in rate, rhythm and force. No murmurs. Sounds of good quality.” R. at 349. In June 1955, the BVA found that the residuals of the pleural cavity injury warranted a 40% rating and that the muscle-group-II injury warranted a 30% rating — for a combined rating of 60%. R. at 469-70.

In February 1963, the veteran was hospitalized at a VA facility for a duodenal ulcer with partial obstruction, idiopathic (of unknown causation, Dorland’s at 815) diaphragmatic hernia, and chronic pancreatitis probably secondary to ulcer disease; surgery for these conditions was performed in April 1963. R. at 493, 495-500. He was hospitalized in a VA facility in September 1965 for fever of unknown origin and pain, and a summary VA medical report indicated that he had been hospitalized earlier that year in a private hospital where laboratory tests and an exploratory laparotomy had shown no abnormalities. R. at 513. (A laparotomy is an incision to gain access to the abdominal organs, Dorland’s at 896, 1263, 1843.) A September 1965 VA medical certificate noted: “Heart is enlarged.” R. at 509. An IVP and EKG performed during this hospitalization were normal. R. at 514. He was treated in the VA hospital with a cordotomy (interruption of the lateral spinothalamic tract of the spinal cord, Dorland’s at 381) to relieve pain consistent with chronic pancreatitis, and was discharged in February 1966. R. at 513-14.

The veteran was hospitalized at a private facility from March 8 to March 15, 1979, for chronic obstructive pulmonary disease (COPD), congestive heart failure, and myocardial ischemia. R. at 605. In May 1979, VA denied reimbursement for the services rendered at the private facility. R. at 532. The veteran filed a Notice of Disagreement (NOD) in June 1979. R. at 534. A September 1979 examination report by Dr. Seymour Dayton, Chief of Staff at the San Diego, California, VA Medical Center (VAMC), stated:

There is no reason to regard that [March 1979] hospitalization to have been a consequence of the patient’s residual pleural cavity injuries.... It is highly unlikely that the hospitalization was related to the patient’s other service-connected disorder which is recorded as “residual wounds muscle group 2nd left.” However, that appears to be an incomplete statement of the diagnosis, so I would not wish to be highly emphatic on the latter point.

R. at 537. In September 1979, VA asked Dr. Dayton for clarification of the last sentence and he replied that the description “residual wounds muscle group 2nd left” “doesn’t identify the location or the extent of the injury”. R. at 541.

From September 18 to 28, 1979, the veteran was admitted to a VAMC for atypical right chest pain and organic heart disease. R. at 562-65. An examining VA physician noted that the veteran’s 30-year history of smoking two and one-half packs of cigarettes per day was a risk factor for heart disease. R. at 562. A November 16, 1979, report by Dr. William Jenson, Associate Chief of Staff, Ambulatory Care, at the San Diego VAMC, who had reviewed the veteran’s records regarding his appeal, stated, in relevant part:

4. The patient gives a 30-year history of smoking two and one-half packs of cigarettes per day, which would likely account for the [COPD],
5. I would agree with the evaluation by Dr. Seymour Dayton that the present pulmonary and cardiac conditions would not be considered to be directly or primarily caused by his shrapnel chest wounds and subsequent thoracoplasty.

R. at 573.

The veteran appealed to the BVA for reimbursement of his private hospitalization costs and service connection for a heart condition secondary to and aggravated by the service-connected pleural condition. R. at 558-59. In April 1981, the Board (following remand to obtain records of the March 1979 hospitalization) denied service connection for a heart disorder as secondary to the veteran’s service-connected pleural cavity residuals, and denied reimbursement for private hospitalization. R. at 581, 617-21.

[362]*362In December 1981, the veteran fíled a claim for a total disability rating based on individual unemployability (TDIU). R. at 624, 643. A February 1982 examination by VA physician Chris Matthews (also signed by Professional Services Coordinator Dr. David Miller), stated:

[Patient] is severely compromised [with] evidence on exam of severe LV dysfunction [and] also severe restrictive lung disease.

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Cite This Page — Counsel Stack

Bluebook (online)
7 Vet. App. 359, 1995 U.S. Vet. App. LEXIS 52, 1995 WL 29007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lathan-v-brown-cavc-1995.