Marciniak v. Brown

10 Vet. App. 198, 1997 U.S. Vet. App. LEXIS 308, 1997 WL 192394
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 21, 1997
DocketNo. 95-0465
StatusPublished
Cited by37 cases

This text of 10 Vet. App. 198 (Marciniak 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
Marciniak v. Brown, 10 Vet. App. 198, 1997 U.S. Vet. App. LEXIS 308, 1997 WL 192394 (Cal. 1997).

Opinions

NEBEKER, Chief Judge.

The appellant, Ann Marciniak, appeals a March 27, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) which found that new and material evidence had not been submitted to reopen her claims for service connection for the cause of death of her husband, the veteran. After considering the record on appeal and the briefs of the parties, the Court will affirm the Board’s decision for the following reasons.

I. FACTS

The veteran, Henry W. Marciniak, served on active duty from November 1940 to October 1945. Record (R.) at 3. According to a 1980 BVA decision, the veteran’s service medical records (SMRs) revealed hospitalization and treatment for scrub typhus and malaria from August 1944 to January 1945, and two complaints of loose bowel movements with abdominal cramps at that time. R. at 24, 26-32. The 1980 decision also revealed that, in 1950, a hemorrhoidectomy was performed after he complained that he had had bloody stools during the past year. Diagnoses at that time included hemorrhoidal tags and proctitis. R. at 28. The regional office (RO) denied service connection for hemorrhoids, varicosities, and organic disability of the gastrointestinal system, but awarded noncompensable ratings for scrub typhus and malaria. At a hearing in 1965, the veteran reported that he did not have problems with diarrhea until after he had the hemorrhoidectomy in 1950, and that he had recurrent problems until 1962 when the condition became severely disabling. R. at 29.

The veteran died on August 8, 1965, of generalized peritonitis due to adrenal exhaustion, and chronic ulcerative colitis. R. at 12, 24. At the time of his death, he was service connected for scrub typhus and malaria, each of which was rated as noneompensable. R. at 27. At a hearing before the RO, Mrs. Marciniak and friends of the veteran testified that after service, the veteran had complained of blood in his stools and diarrhea. R. at 29. Also submitted was testimony by Mrs. Marciniak’s representative that medical textbooks demonstrated a connection between ulcerative colitis and dysentery. Id. In September 1966, the BVA denied entitlement to service connection for the cause of the veteran’s death. R. at 24.

In 1967, copies of the medical textbook articles were submitted to VA, along with additional statements from Mrs. Marciniak and the veteran’s friends from service, all attempting to link the veteran’s death to his service. R. at 29. In 1971, the BVA again denied Mrs. Marciniak’s claim, noting that the SMRs did not show gastrointestinal symptoms in service and that scrub typhus did not involve an infection or ulceration of the bowel. Regarding the medical textbook articles, the Board stated that the evidence in this particular ease did not involve the circumstances described in the articles. R. at 30.

In 1979, Mrs. Marciniak requested reconsideration of the 1971 decision, and on March 4,1980, the BVA again determined that entitlement to service connection was not established for the cause of the veteran’s death. R. at 31-32. After this decision was ren[200]*200dered, the veteran’s original claims folder was lost. In October 1988, the claims folder was reconstructed after a request to reopen the claim was submitted by the appellant. Her Notice of Disagreement (NOD) was received by VA in April 1990 (R. at 3, 79), and a statement of the case (SOC) was issued in May 1990. The appellant and her son testified before a traveling section of the Board in October 1990, and the appeal was docketed at the Board in March 1991. R. at 78-79. While the Board attempted to procure an independent medical expert’s opinion, the reconstructed claims folder was lost. R. at 3, 18. The RO and BVA being unable to find either the original or the reconstructed files, the veteran’s folder was again reconstructed. R. at 4. The second reconstructed folder contains the last page of the September 1966 BVA decision (R. at 24), a complete copy of the 1980 BVA decision (R. at 26-32), the October 1990 transcript of the testimony offered by Mrs. Marciniak and her son (R. at 37-53), and other miscellaneous documents. No SMRs are in the second reconstructed folder.

On March 27, 1995, the BVA reviewed the available documents, determined that the appellant’s due process rights had not been violated during the appellate process, and declined to reopen her claim as new and material evidence had not been presented since the 1966 denial. R. at 2-20. In the detailed decision, the Board cited 38 U.S.C. § 7104(d) and this Court’s decision in O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) for the proposition that a heightened duty existed to explain thoroughly the reasons and bases for its decision, especially in light of the twice-lost claims folder. R. at 5. The Board determined that the new evidence was not material, as it did not link the veteran’s service-connected conditions to his death. R. at 17-18.

II. ANALYSIS

A. Procedural Due Process

As a preliminary matter, the Court recognizes the unfortunate circumstances under which the Board and Mrs. Marciniak have been required to adjudicate this claim. Having twice lost the claims folder, and being unable to locate the missing SMRs and related documents (R. at 61), the Board was forced to rely on the facts as recorded on the first page of the 1966 BVA decision and in the 1980 BVA decision. The appellant alleges that the Secretary failed in his duty to assist in that the SMRs were not obtained for this appeal and that consequently, prejudicial error exists in the BVA’s factual findings. However, the Court holds that, given the circumstances in the instant case, we must apply a presumption of regularity as to the BVA’s findings of fact in 1980. Cf. Dolan v. Brown, 9 Vet.App. 358, 362 (1996) (absent “clear evidence” that an evidentiary assumption was not properly applied, the Court concluded that the relevant law and evidence had been considered). To hold otherwise would require this Court to presume that the BVA, in its prior decisions on this claim, did not properly discharge its official duties. See Ashley v. Derwinski, 2 Vet.App. 62, 64 (1992) (Court must apply the “presumption of regularity” to “ ‘the official acts of public officers, and in the absence of clear evidence to the contrary, [must] presume that they have properly discharged their official duties.’”) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926)). Such a presumption would be beyond our jurisdiction, as our judicial review of Board decisions did not begin until 1988.

The dissenter’s mistrust of the Secretary and his subordinates is by no means shared by the Court. See infra at 207. That two VA employees not concerned with this case committed criminal acts in destroying VA records is not sufficient reason to adopt a holding based on a suspicion that the Secretary and his subordinates would violate their oaths of office. As the appellant has offered no clear evidence that the BVA was derelict in performing its duties, the Court concludes that all the relevant evidence was considered and, in the 1980 decision, the BVA accurately recorded the facts as they then existed.

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Bluebook (online)
10 Vet. App. 198, 1997 U.S. Vet. App. LEXIS 308, 1997 WL 192394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marciniak-v-brown-cavc-1997.