Mintz v. Brown

6 Vet. App. 277, 1994 U.S. Vet. App. LEXIS 182, 1994 WL 67095
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 8, 1994
DocketNo. 92-1161
StatusPublished
Cited by24 cases

This text of 6 Vet. App. 277 (Mintz 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
Mintz v. Brown, 6 Vet. App. 277, 1994 U.S. Vet. App. LEXIS 182, 1994 WL 67095 (Cal. 1994).

Opinion

FARLEY, Judge:

In a single-judge memorandum decision dated September 28,1993, this Court vacated and remanded the May 19, 1992, decision of the Board of Veterans’ Appeals (BVA or Board). The Secretary moved for reconsideration of the Court’s decision on October 26, 1993. The Court granted the Secretary’s motion on December 23, 1993, vacated the memorandum decision, and referred this matter to a panel. For the reasons set forth below, the Court will affirm the May 19, 1992, decision of the Board.

I. Factual and Procedural Background

Appellant is the widow of veteran Jerry W. Mintz, who died on August 28, 1988. The Death Certificate listed the immediate and sole cause of death as “Advanced Coronary Artery Disease”; no other underlying causes or contributing conditions were listed. R. at 85. At the time of his death, the veteran was service connected for post-operative residuals of a missile wound of the right hip with total hip replacement, evaluated as 70% disabling, and residuals of a penetrating wound to the bladder, evaluated as 10% disabling; the combined service-connected rating was 70%. R. at 60. In addition, the veteran had received a total disability rating based on individual unemployability, effective June 16, 1970, which had remained in effect until his death. Id.; R. at 45-46, 48.

In an October 6, 1988, rating decision, the VA Regional Office (RO) determined that the cause of the veteran’s death was neither itself service connected nor shown to have been related to any service-connected disability. R. at 90. The rating decision did establish basic entitlement to Dependency and Indemnity Compensation (DIC) and basic eligibility for educational benefits under Chapter 35. Id. The VA also authorized $355.00 for the veteran’s burial expenses, which included $55 for transportation. R. at 87-88; see also 38 U.S.C. §§ 2302; 2308.

By letter dated April 24, 1989, appellant was advised that her application for DIC was approved. R. at 95-96. The following month, appellant inquired of the VA whether her husband’s death had been service connected. R. at 98. In a May 30, 1989, letter, the VA informed appellant that

Your husband’s death was not service connected. However, due to his total disability evaluation being in effect for 10 continuous years immediately preceeding [sic] his death, Dependency and Indemnity Compensation benefits are payable. You were notified of this by our letter dated April 24, 1989.
If you disagree with our decision, you have one year from the date of our letter dated [279]*279April 24,1989, to file a Notice of Disagreement [NOD].

R. at 99. On March 12, 1990, appellant filed an NOD contending that her husband’s death resulted from lack of proper treatment at a VA medical center (VAMC). R. at 100. She requested a Statement of the Case (SOC) and additional time in which to formulate her appeal. R. at 99-100.

On June 6,1990, Robert P. Brewer, Jr., an assistant state service officer with the North Carolina Department of Administration, Division of Veterans Affairs, wrote to the Winston-Salem RO on appellant’s behalf:

The claimant did receive notification of DIC entitlement based on [the] veteran[’]s having permanent and total disabling service^] connected conditions for at least ten years immediately prior to death, however, the claimant has stated she specifically wants the VA to further pursue[,] issuing her [an SOC], and appealing the issue that service connection for the cause of death should be established in that the medications prescribed, and provided to the veteran by VAMC for his service[-]con-neeted disabilities could have contributed to, and/or hastened his untimely death....

R. at 115. In a rating decision dated June 25, 1990, the RO determined, with reference to the October 1988 denial of service connection for the veteran’s death, that the NOD was “not accepted” because it was not filed within the one-year period established by 38 U.S.C. § 7105(b)(1) and (c). R. at 117. With respect to what it described as appellant’s “[r]eopened claim for s[ervice] Connection] for cause of vet’s death,” the RO concluded that “[s]ince widow has established entitlement to DIC under one law, consideration of DIC under 38 U.S.C. [§ 1151] ‘as if death were service connected is not in order.” R. at 118. In response, appellant filed a statement in support of claim in which she requested copies of the October 6, 1988, rating decision and any additional rating sheets involving her DIC benefits because she was “formulating [her] appeal.” R. at 119.

In an October 11, 1990, letter, appellant was advised that the “evidence does not establish that the veteran’s death was due to a service[-]conneeted disability.” R. at 120. Appellant was informed that her DIC benefits would continue due to the total disability rating having been in effect for ten years and advised of her “procedural and appeal rights.” Id. On November 2, 1990, appellant noted her exception and requested that the VA issue an SOC so that she could proceed with her appeal. R. at 122. The VA forwarded an SOC in November 1990 (R. at 124-27), and appellant perfected her appeal to the Board, again asserting that the veteran died as a result of the medication which the VA prescribed in connection with its treatment of appellant’s service-connected disabilities. R. at 129. The Winston-Salem RO conducted a hearing on February 28, 1991, at which appellant and her brother, David Bates, testified concerning appellant’s claim that the veteran’s death had resulted from improper medical treatment by the VA. R. at 130-43. Appellant expressed her disagreement with the VA’s finding that the veteran’s death was non-service-connected. R. at 131, 143. When testifying on appellant’s behalf, Mr. Bates stated: “We feel that his death was untimely and that it was the direct [result] of his care and medications that he received from the wounds that he had sustained in Vietnam.” R. at 138. A VA hearing officer issued a decision on March 15, 1991, in which he concluded that the evidence did not demonstrate that the veteran’s service-connected disabilities either “materially contributed to or hastened his death” and affirmed the “prior determination that service-connection is not in order for cause of death.” R. at 153.

In a July 3, 1991, decision, the Board remanded appellant’s claim in order for the RO to obtain the veteran’s VA treatment records for two years prior to his death, and to allow appellant to submit additional evidence in support of her claim that the veteran’s service-connected disabilities or the treatment which he received for these disabilities “caused or contributed substantially or materially to the cause” of his death. R. at 161-63. The Board stated that the purpose of the remand was to “procure clarifying data and to aid the appellant in the prosecution of her appeal.” R. at 162.

[280]*280Pursuant to the BVA remand, the RO obtained the veteran’s treatment records from the VAMCs in Salisbury and Durham, North Carolina, and requested that appellant submit medical evidence to support her claim. R. at 164-99.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Paul Cardoza v. Denis McDonough
Veterans Claims, 2024
Nia Barnett v. Robert L. Wilkie
Veterans Claims, 2019
Barry D. Braan v. Robert A. McDonald
28 Vet. App. 232 (Veterans Claims, 2016)
09-35 606
Board of Veterans' Appeals, 2015
David L. Hornick v. Eric K. Shinseki
24 Vet. App. 50 (Veterans Claims, 2010)
Sharon L. Youngman v. James B. Peake
22 Vet. App. 152 (Veterans Claims, 2008)
Michael Seri v. R. James Nicholson
21 Vet. App. 441 (Veterans Claims, 2007)
Robert J. Ingram v. R. James Nicholson
20 Vet. App. 156 (Veterans Claims, 2006)
Eugene P. King v. R. James Nicholson
19 Vet. App. 406 (Veterans Claims, 2006)
Daniel W. Beverly v. R. James Nicholson
19 Vet. App. 394 (Veterans Claims, 2005)
Alleman v. Principi
16 Vet. App. 253 (Veterans Claims, 2002)
Kilpatrick v. Principi
16 Vet. App. 1 (Veterans Claims, 2002)
DeSousa v. Gober
10 Vet. App. 461 (Veterans Claims, 1997)
In re the Fee Agreement of Cox
10 Vet. App. 361 (Veterans Claims, 1997)
YT v. Brown
9 Vet. App. 195 (Veterans Claims, 1996)
Barnett v. Brown
8 Vet. App. 1 (Veterans Claims, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 277, 1994 U.S. Vet. App. LEXIS 182, 1994 WL 67095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mintz-v-brown-cavc-1994.