Murphy v. Derwinski

1 Vet. App. 78, 1990 U.S. Vet. App. LEXIS 24, 1990 WL 303142
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 8, 1990
DocketNo. 90-107
StatusPublished
Cited by304 cases

This text of 1 Vet. App. 78 (Murphy v. Derwinski) 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
Murphy v. Derwinski, 1 Vet. App. 78, 1990 U.S. Vet. App. LEXIS 24, 1990 WL 303142 (Cal. 1990).

Opinion

FARLEY, Associate Judge:

Appellant filed a claim seeking service connection for her husband’s death from glioblastoma multiforme, a type of cancer. The Board of Veterans’ Appeals (BVA) affirmed the denial of service connection based upon the finding that no causal relationship had been shown between an earlier, service connected, form of cancer and the glioblastoma multiforme. We vacate the BVA decision and remand with directions that the BVA either (a) provide “reasons or bases” for the conclusion that appellant failed to submit a well grounded claim because no such relationship could exist; or (b) assist appellant in the gathering of records and determine whether such a relationship did, in fact, exist.

I.

The facts giving rise to this appeal may be briefly summarized. Appellant, Bonnie J. Murphy, is the widow of Lt. Col. Francis B. Murphy who retired from the United States Air Force in June 1970. Within five months after retirement, an epidermoid carcinoma was found on the right base of the veteran’s tongue. Following a course of radiation therapy, a radical right tongue-jaw-neck dissection was performed and the tumor was excised. Service connection was established for residuals of the epider-moid carcinoma and the surgery. A subsequent examination reported no evidence of a recurrence of the epidermoid carcinoma, R. at 29, and the record in this case does not contain any such evidence. Appellant did indicate that the veteran had skin cancers surgically removed three times as an outpatient during 1986 and 1987. R. at 60. The veteran died on June 10, 1988. The death certificate lists the cause of death as glioblastoma multiforme (“[A] rapidly growing tumor, usually confined to the cerebral hemispheres_” Dorland’s Illustrated Medical Dictionary 699 (27th ed. 1988)). The time between the onset of the condition and the veteran’s death is listed on the death certificate as four months.

Appellant sought benefits based upon the argument that, since her husband’s 1970 cancer was service connected, and he died due to cancer, service connection should be granted. In addition, appellant appears to suggest that additional medical records should be obtained and reviewed along with the tissue slides of the 1970 cancer. In a decision dated December 8, 1989, the BVA affirmed the denial of service connection for the veteran’s death. The Board found, inter alia, that: “No causal relationship has been shown between the service-connected residuals of epidermoid carcinoma and the development of glioblastoma multiforme.” Bonnie J. Murphy, loc. no. 934379 at 6 (BVA Dec. 8, 1989). It concluded that: “Glioblastoma multiforme was not incurred in or aggravated by active service, was not proximately due to or the result of service-connected disability, and may not be presumed to have been incurred in active service.” Id. This timely appeal followed.

II.

The issue presented to this Court for review has changed during the course of this appeal. In her Statement of Issues, appellant originally asked that we determine whether the BVA “clearly erred in denying service connection for the cause of the veteran’s death.” However, in her brief, appellant stated that the issue was: “Whether the Secretary arbitrarily failed to discharge his duty to assist Appellant in developing evidence in support of Appellant’s claim and, further, arbitrarily failed to explain the reasons for his inaction.” Br. of Appellant at 1. It is the latter issue which we will address.

Section 3007(a) of title 38 provides:

Except when otherwise provided by the Secretary in accordance with the provi[81]*81sions of this title, a person who submits a claim for benefits under a law administered by the Department of Veterans Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information [from the head of any Federal department or agency].

38 U.S.C. § 3007(a) (1988).

Thus, it is true, as appellant argues, that the Secretary and the Department of Veterans Affairs (VA) have a statutory duty to assist claimants during the non-adversarial process of claims adjudication. The issue, then, is not whether such a duty exists but under what circumstances does it arise.

As we have noted in the past, § 3007(a) establishes “chronological obligations.” Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The initial burden is on the shoulders of the veteran or the claimant: “[A] person who submits a claim ... shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” § 3007(a). Because a well grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 3007(a).

The BVA may conclude that a claim was not well grounded, that the claimant did not or could not meet the initial burden imposed by § 3007(a), and that there was no duty to provide assistance to the claimant. Such a conclusion, especially if it is medical or scientific in nature, like all other findings and conclusions of the BVA, must be supported by “a written statement of ... the reasons or bases for those findings and conclusions.” 38 U.S.C. § 4004(d)(1) (1988); see also Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Although the Secretary appears to argue to the contrary in this appeal, Br. of Appellee at 11, the fact that a BVA panel may include a physician is not by itself sufficient for the purposes of the statute, the veteran or this Court. BVA decisions must include the “reasons or bases” for medical conclusions, even those opined by a BVA physician; a mere statement of an opinion, without more, does not provide an opportunity for the veteran to explore a basis for reconsideration or for this Court to review the BVA decision “on the record” as required by 38 U.S.C. § 4052(b) (1988). The specific type of support will depend upon the nature of the particular claim, but such “reasons or bases” could include relevant portions of medical treatises and journals, epidemiological studies, perhaps even references to legal decisions on the same issues. Moreover, as we have noted, the BVA

will find it easier to fulfill this mandate since Congress recently imposed a similar requirement on the Secretary when claims are denied. In 1989, Congress enacted 38 U.S.C.A. § 3004(a)(2) (West Supp.1990), which provides that “[i]n any case where the Secretary denies a benefit sought, the notice ... shall also include (A) a statement of the reasons for the decision, and (B) a summary of the evidence considered by the Secretary.” The legislative history makes it clear that this requirement “would not be met by such terms as ‘service connection not found’ or other such conclusory statements.” 135 Cong.Rec. S16466 (daily ed. Nov.

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Bluebook (online)
1 Vet. App. 78, 1990 U.S. Vet. App. LEXIS 24, 1990 WL 303142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-derwinski-cavc-1990.