Mattern v. West

12 Vet. App. 222, 1999 U.S. Vet. App. LEXIS 321, 1999 WL 88792
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 23, 1999
DocketNo. 96-1508
StatusPublished
Cited by21 cases

This text of 12 Vet. App. 222 (Mattern v. West) 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
Mattern v. West, 12 Vet. App. 222, 1999 U.S. Vet. App. LEXIS 321, 1999 WL 88792 (Cal. 1999).

Opinion

GREENE, Judge:

The appellant, Dolores Mattern, widow of veteran James Mattern, appeals from the September 26, 1996, Board of Veterans’ Appeals (Board) decision that denied her claim for dependency and indemnity compensation (DIC) as not well grounded because she had failed to present evidence establishing that her husband’s death was service connected. The appellant has filed a brief, and the Secretary has filed a brief in opposition. This appeal is timely and the Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a). For the following reasons, the Court will reverse the Board decision and remand the matter.

I. FACTS

Mr. Mattern served on active duty in the U.S. Marine Corps from March 1943 to December 1945 and participated in operations in the Asian-Pacific theater (Ryukyu Island, Marianas Islands, and occupational duty in the Qingdao Peninsula in Mainland China) during World War II. R. at 73-76, 82. His service medical records do not reveal any diagnosis of or treatment for liver problems and he was not service connected for any disease or injury. R. at 11-56, 91. In December 1992, he was diagnosed with hepato-cellular carcinoma and died from this disease in January 1993. R. at 73, 120-24. He did not have hepatitis or a cirrhotic liver. R. at 120-23. Hepatocellular carcinoma is malignant liver cancer, known also as hepatoma. Stedman’s Medioal DictionaRY 224, 28th ed. (1994) [hereinafter Stedman’s]. According to [224]*224the appellant, during her husband’s treatment for his cancer, he was asked by his physicians if he had ever been to China or Southeast Asia. He replied that “the only time in his life he had ever been there was during World War II.” R. at 133. She stated that they were told that the cancer was “very strange for the United States, the type of growth they saw, very, very little if any of this type of growth in Lansing, Michigan.” Id.

The appellant applied for DIC in February 1993, alleging that the cause of her husband’s death was service connected. R. at 56-60, 66. In support of her claim, she presented two letters from Dr. Bergman, one of the veteran’s private physicians. In a letter, dated February 1993, Dr. Bergman stated:

The cause of this disease is largely unknown, but there are several well-known risk factors including ... traveling in South East Asia.... To the best of our knowledge the only risk factor [the veteran] had was travel in the service in South East Asia. It is certainly a distinct possibility that [the veteran] could have been exposed to the etiologic factor during his service and only recently did the clinical disease develop.

R. at 66b, 154, 166. In the other letter, dated August 1993, he stated that it was his personal “feeling that [the veteran’s] malignancy did originate from his activities in Southeast Asia.” R. at 88. After reviewing the claim, VA also requested an opinion regarding the cause of the veteran’s death. Based on his review of the veteran’s medical records, Dr. Jaszewski, Chief of Gastroenter-ology at the VA medical center, opined:

[Although the risk of being exposed to an agent(s) with the potential to cause hepato-cellular cancer is increased in persons traveling to or living in southeast Asia, there is no clear evidence in the patients records to indicate that he was exposed to such an agent nor suffered from any condition that would predispose him to later developing hepatocellular cancer.

R. at 79. In an October 1993 rating decision, a VA regional office denied the appellant’s claim for DIC, concluding that the cause of the veteran’s death was not service connected. R. at 90, 93. She filed an NOD in March 1994 and appealed to the Board in May 1994.

In August 1994, the appellant presented a letter to VA, accompanied by photographs, describing her husband’s World War II experiences in the Marine Corps. R. at 118. She explained that the pictures depicted him in the civilian stockade, “in very close proximity to native people.” Id. She also recounted that he “frequently told tales of working on a railroad on the Qingdao Peninsula where the Marines operated the train, but native labor did the manual work.” Id. She also considered this to be “close proximity and ‘exposure’.” Id. At a personal hearing, she testified again about her husband’s living conditions in China and repeated his reports of his experiences in the Qingdao Peninsula. R. at 131-37. Further, she stated that “he commented many times on the squalor, the filth, the disease, that were very apparent in the ... ‘native quarter’ that was right next to where they were living.” R. at 132. In response to the hearing officer’s question about whether her deceased husband ate “steaks and potatoes,” she testified, “No, nor were they eating K-rations.” R. at 134. She replied that he told her that he ate only local food prepared for him by a native. Id.

The appellant also presented additional medical evidence. Another statement by Dr. Bergman, dated April 29, 1994, concluded that the veteran’s

service in Mainland China certainly is relevant-and his service in the Japanese occupied islands is direct exposure to carriers of hepatitis B.... It’s quite difficult to prove that the initial exposure was during WWII but it’s impossible to prove it wasn’t.... Often no specific incident [of exposure] can be demonstrated.

R. at 140-41. Dr. Clarkson, one of the veteran’s treating physicians, provided a letter in which he stated that he “totally agreed [with] Dr. Bergman that direct or indirect exposure during [the veteran’s] military service was causative.” R. at 139. He further opined that exposure to East Asia is “a common variable for many people who have this grave disease,” and that “the medical literature is [225]*225clearly in support of [the appellant’s] claim.” Id. A statement by Dr. Neiberg, another of the veteran’s physicians, explained that “[h]e-patocellular carcinoma is an unusual tumor in this part of the world, having much more common representation in tropical climates (Southeast Asia)_ [H]epatocellular carcinoma can manifest itself after a long latent period during which it can be totally asymptomatic.” R. at 66a, 166, 175. Finally, the appellant presented excerpts from medical journals describing the epidemiology of hepa-tocellular carcinoma. R. at 143-44,160. Epidemiology is the study of the prevalence and spread of disease in a community. Sted-man’s, at 474. It was noted in one treatise that, in the United States and Europe, this form of cancer

is increasing in incidence but remains relatively uncommon_ In certain other areas of the world, including parts of sub-Saharan Africa, Southeast Asia, Japan ... hepatocellular carcinoma is the most frequent or one of the most frequent malignancies and an important cause of overall mortality.... In most cases hepatocellu-lar carcinoma develops in a cirrhotic liver.... Epidemiologic evidence has also suggested a link between hepatocellular carcinoma and ingestion of aflatoxins, my-cotoxins produced by Aspergillus flavins, a mold that can grow in warm, moist areas and contaminate peanuts and stored grains.

R. at 143-44. Another excerpt from a medical treatise provided as follows:

Aflatoxin Ba, the mycotoxin of the fungus Aspergillus flavins, is a well documented carcinogen in rats, fowl, and fish.

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Cite This Page — Counsel Stack

Bluebook (online)
12 Vet. App. 222, 1999 U.S. Vet. App. LEXIS 321, 1999 WL 88792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mattern-v-west-cavc-1999.