Pearlman v. West

11 Vet. App. 443, 1998 U.S. Vet. App. LEXIS 1200, 1998 WL 692326
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 7, 1998
DocketNo. 97-825
StatusPublished
Cited by3 cases

This text of 11 Vet. App. 443 (Pearlman 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
Pearlman v. West, 11 Vet. App. 443, 1998 U.S. Vet. App. LEXIS 1200, 1998 WL 692326 (Cal. 1998).

Opinion

HOLDAWAY, Judge:

The appellant, Evelyn L. Pearlman, appeals a January 1997 decision of the Board of Veterans’ Appeals (BVA or Board) which concluded that she had not submitted a well-grounded claim to establish entitlement to dependency and indemnity compensation (DIC) and accrued benefits. The claim is based on an allegation by the deceased veteran that he was exposed to mustard gas. The Court has jurisdiction of this case under 38 U.S.C. § 7262(a). For the following reasons, the Court will vacate the decision of the Board and remand the matter for readjudication consistent with this opinion.

I. FACTS

The appellant is the surviving spouse of the veteran, Harry J. Pearlman. The veteran served in the U.S. Army from December 1942 to March 1946. Upon induction, the veteran declared that his lungs were “normal.” His service medical records indicate that shortly after induction, he complained of a sore throat, cough, and chest pain. In December 1942, Dr. A.A. Plaut diagnosed him with acute catarrhal nasopharyngitis. That same month, Dr. M.E. Windmiller added to that diagnosis “[pjneumonia, lobar, type undetermined, left base, secondary to common cold.” By January 1943, the veteran stated that he felt fine and did not have any symptoms. His discharge examination noted his bout of pneumonia in service but found his lungs to be normal.

In April 1946, the veteran filed a claim for compensation for a lung disorder. Shortly thereafter, VA denied his claim on the grounds that the condition was not noted on his discharge examination.

In March 1962, Dr. Milton Levine, the veteran’s treating physician, diagnosed him with pulmonary sarcoidosis and alveolar-capillary block. The veteran then attempted to reopen his claim for compensation and enclosed a report from Dr. Levine indicating his diagnosis. In April 1962, VA again denied his claim, finding that any in-service lung condition was resolved prior to discharge and that his current disability was not related to his in-service condition. In response to VA’s decision, Dr. Levine wrote another letter on behalf of the veteran stating that “[i]t is entirely possible” that the onset of the veteran’s condition occurred during military service. The veteran then appealed his decision to the Board. The Board affirmed the VA’s finding in January 1963.

In August 1991, the veteran again attempted to reopen his claim for compensation. He included with his claim: (1) a letter from Dr. Robert Hewlett, dated August 1991, stating that the veteran was currently diagnosed with chronic obstructive pulmonary disease (COPD), bronchiectasis, and sarcoidosis; (2) several medical reports from Dr. John F. Mitchell, dated during 1991, which diagnosed [445]*445him with pulmonary sarcoidosis, COPD, and pneumonia; (3) radiological reports interpreted by Dr. John W. Renner in March 1991, and by Dr. Arthur Diamond in April 1991; and (4) an extensive medical report from Dr. Stephen Brown. Dr. Brown did not note a history of exposure to mustard gas as a contributing cause to the veteran’s lung conditions. However, he did note that prior to stopping thirty-five years before, the veteran had smoked regularly for ten years. In addition, Dr. Brown noted that the veteran had worked for thirty years making Venetian blinds without ever wearing a protective mask. As a consequence of that employment, the veteran’s lungs were exposed to particulates from spray paint and saw-dust. Both Dr. Brown and Dr. Mitchell remarked that this exposure contributed to the veteran’s condition. In November 1991, VA issued a decision denying the veteran’s claim for compensation because he had not presented medical evidence to link his current disability to an in-service occurrence or aggravation.

In October 1992, the veteran wrote a letter to VA claiming for the first time that he was exposed to mustard gas during military service. He stated that he had been required to take part in a secret test of protective equipment during training at Camp Crowder, Missouri. He further stated that he had been especially vulnerable to mustard gas because he had just recovered from pneumonia. Subsequently, he had developed laryngitis, bronchitis, and emphysema. The veteran supported his statement with a medical report from Dr. Hewlett which stated that he was currently treating the veteran for COPD, chronic bronchitis, bronchiectasis, and bullae, and that the veteran also had been treated in the past for laryngitis and emphysema.

In response to his claim, VA sent an inquiry to the Department of the Army (Army) to substantiate his claim of exposure to mustard gas. The Army replied that it did not have any records of mustard gas exposure prior to 1955. VA then sent an inquiry to the historical division of the U.S. Army Chemical and Biological Defense Command which replied that it could not provide any further information on the veteran’s claim. Rather, the reply suggested the possibility that' the veteran was relating his exposure to a non-toxic gas, such as tear gas, during a standard training exercise. In May 1994, VA issued an administrative decision which opined that the veteran was not exposed to mustard gas because the veteran was not stationed where toxic gas testing was known to have taken place, and his service records did not indicate treatment for exposure.

In February 1993, the veteran died as a result of acute respiratory failure due to COPD and pulmonary fibrosis. The appellant, as the veteran’s surviving spouse, then filed a claim for DIC and accrued benefits in August 1993. In June 1994, VA denied her claim on the basis that there was no evidence of mustard gas testing at Camp Crow-der and that there was no evidence in the service medical records indicating treatment for exposure. Subsequently, the appellant appealed that decision to the Board. In her substantive appeal, she responded to the suggestion that her husband was not relating his exposure to mustard gas, but rather his exposure to a more benign agent. She stated that her husband had informed her that the mustard gas testing was a completely separate event from the standard training exercise. He also informed her that he had been told to keep this exposure secret.

After reviewing the evidence, the Board found that the claim was not well grounded because the appellant had not presented competent evidence to support her contention that her husband had been exposed to mustard gas in service. By doing so, the Board necessarily found that a veteran is not competent to testify that he was exposed to mustard gas. Due to the fact that the Board did not find the claim well grounded, the Board did not weigh the credibility of the evidence in the record.

II. ANALYSIS

DIC is paid to the surviving spouse, children, or parents of a qualifying veteran who dies from a service-connected disability. 38 U.S.C. § 1310. For such a death to be considered service connected, it must result from disability incurred in the line of duty. 38 U.S.C. § 101(16).

[446]*446In order to service connect a disability, a claimant has the initial burden of showing that a claim is well grounded. 38 U.S.C. § 5107(a); see Grottveit v. Brown, 5 Vet.App. 91, 92 (1993).

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Cite This Page — Counsel Stack

Bluebook (online)
11 Vet. App. 443, 1998 U.S. Vet. App. LEXIS 1200, 1998 WL 692326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearlman-v-west-cavc-1998.