Philbrick v. Brown

5 Vet. App. 316, 1993 U.S. Vet. App. LEXIS 285, 1993 WL 298380
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 11, 1993
DocketNo. 91-958
StatusPublished

This text of 5 Vet. App. 316 (Philbrick 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
Philbrick v. Brown, 5 Vet. App. 316, 1993 U.S. Vet. App. LEXIS 285, 1993 WL 298380 (Cal. 1993).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, widow of World War II veteran James J. Philbrick, appealed from a February 14, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to disability and indemnity compensation (DIC) under 38 U.S.C.A. § 1310 (West 1991) for the cause of her veteran husband’s death. Josephine Phil-brick in the case of James J. Philbrick, Supp.R. at 105-11. On May 26, 1992, the Court vacated the BVA decision and remanded the matter to the Board for readju-dication because of, inter alia, the failure of the Board to provide adequate reasons or bases for its findings and conclusions, and the failure of the Secretary of Veterans Affairs (Secretary) to carry out his duty to assist. The Court retained jurisdiction. Philbrick v. Derwinski, 2 Vet.App. 466 (1992) (single-judge order).

On October 21, 1992, the Board issued a new decision, again denying the appellant’s DIC claim. Josephine Philbrick in the case of James J. Philbrick, BVA 92-_ (Oct. 21, 1992). On November 16, 1992, the appellant filed an opposition to the Board’s October 21, 1992, decision and requested further review by the Court. On January 15, 1993, the Secretary filed a response to the appellant’s opposition. On January 25, 1993, the appellant filed a response to the Secretary’s January 15, 1993, response. On April 1,1993, the appellant, through her representative, filed a motion to expedite the Court’s decision, citing the appellant’s fragile health. Also pending before the Court is the appellant’s motion for oral argument, held in abeyance by the Court’s August 30, 1991, order. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the appellant’s motion for oral argument will be denied, the Board’s decision will be vacated and the matter remanded, and the appellant’s motion to expedite the Court’s decision will be denied as moot.

I. Background

■ The deceased veteran served on active duty in the U.S. Army from August 1943 to November 1945. R. at 10. Between December 1944 and May 1945, he was held by the German government as a prisoner of war (POW). R. at 60, 76. At the time of his death in February 1989, the veteran had [318]*318been receiving service-connected disability compensation for several maladies and had been awarded noncompensable service connection for others. R. at 358-59. His adjudicated service-connected disabilities, which gave him a combined rating of 60% pursuant to 38 C.F.R. § 4.25 (1992), included post-traumatic stress disorder (PTSD), residuals of frozen feet, stomach ulcer, irritable bowel syndrome, hepatitis, peripheral neuropathy of the extremities, inactive pyo-derma, residuals of vitamin deficiency, and residuals of pellagra. In its February 1991 and October 1992 decisions, the BVA concluded that the veteran’s cause of death— congestive heart failure due to ventricular septal defect, which, in turn, was due to myocardial infarction (R. at 370) — was not itself shown to be service connected, and that none of the above service-connected disabilities had caused the heart problems leading to his death. Supp.R. at 110-11; Philbrick, BVA 92-, at 6.

The appellant filed her DIC claim in March 1989. R. at 372. In an August 1989 personal hearing at the Seattle, Washington, VA Regional Office (RO), she testified, under oath, regarding possible manifestations of heart problems following the veteran’s discharge from service. She stated that, in 1947, when she had first met the veteran, he had fatigued easily and would become short of breath when climbing stairs or walking “for any distance”. R. at 407-08. The appellant’s daughter testified, under oath, that she had similar recollections of her stepfather’s condition at the time she first met him in 1947. R. at 410-13. During the hearing, the appellant’s representative asserted that the pathologist who had conducted the initial autopsy did not know that the veteran had been a POW and that he therefore had failed to conduct appropriate tests. R. at 405.

The appellant submitted a medical opinion provided by Dr. J.W. Onstad, chairperson of the Department of Pathology at St. Elizabeth’s Hospital in Yakima, Washington. R. at 423. He indicated in his report that he had reviewed the autopsy report, prepared slides from the veteran’s body, reviewed literature, and engaged in “professional consultation concerning imprisonment with reported vitamin, protein and carbohydrate malnutrition”. Dr. Onstad, noting the similarities between the cause of death of this veteran and that of another former POW on whom he had conducted an autopsy (see Betty J. Ivy, No. 91-989 (U.S.Vet.App. Apr. 13, 1993) (unpublished memo, decision remanding to the Board)), stated, inter alia, that the veteran had “increased ventricular septal perivascular and interstitial fibrous tissue similar to that seen in [the other former POW]”. Ibid. He concluded:

[I]n my professional opinion, Mr. James J. Philbrick more probable [sic] than not suffered irreversible heart damage (myocardial fiber loss) as a prisoner of war. Undernutrition and starvation have been reported to be associated with marked reduction of heart size corresponding to the loss of body weight. Any gastrointestinal [or] hepatic diseases/dysfunction would accentuate the underlying protein and carbohydrate malnutrition, as well as vitamin deficiency.

Ibid. The appellant also submitted a notarized statement from Harold W. Winters, who stated that he had been interned as a POW in the same camp as the veteran. Mr. Winters stated that all but 39 of the 139 POWs in that camp had died, most of starvation. Furthermore, he stated that all of the survivors had lost at least 60 pounds during internment. R. at 421. Additionally, prior to his death the veteran had testified under oath at a VA hearing that, during an in-service medical examination conducted in late 1945, the physician had instructed him to avoid hiking, marching, heavy work of any kind, and mental strain. The veteran asserted that he had received no explanation for these instructions, and the record does not contain any report in which they were set forth. R. at 165, 311.

Following the remand ordered by the Court, the appellant submitted additional evidence in support of her claim, including, inter alia, a May 1992 statement by Dr. Onstad, a December 1991 statement by Dr. Howard L. Platter, POW Medical Coordinator at the Spokane VA Medical Center [319]*319(MC), and a second affidavit, executed in May 1991, by Mr. Winters as well as an affidavit executed by Mr. Winter’s spouse. Supp.R. at 143,136-38,123-26. In his May 1992 statement, Dr. Onstad stated that he had reviewed the veteran’s medical records and autopsy report, including tissue samples, and considered his review “far more accurate than any examination conducted prior to Mr. Philbrick’s demise”. His findings were as follows:

There is currently ample evidence to support the conclusion that avitaminosis (most especially vitamin B complex deficiency) associated with protein and/or carbohydrate malnutrition may lead to cardiac atrophy and diminished “organ reserve”. Thus the smallest of “disease insults” may result in premature demise.

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

Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
Murphy v. Derwinski
1 Vet. App. 78 (Veterans Claims, 1990)
Littke v. Derwinski
1 Vet. App. 90 (Veterans Claims, 1990)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
White v. Derwinski
1 Vet. App. 519 (Veterans Claims, 1991)
Philbrick v. Derwinski
2 Vet. App. 466 (Veterans Claims, 1992)
Espiritu v. Derwinski
2 Vet. App. 492 (Veterans Claims, 1992)
Quarles v. Derwinski
3 Vet. App. 129 (Veterans Claims, 1992)
Hatlestad v. Derwinski
3 Vet. App. 213 (Veterans Claims, 1992)
Russell v. Principi
3 Vet. App. 310 (Veterans Claims, 1992)
Barclay v. Brown
4 Vet. App. 161 (Veterans Claims, 1993)
Williams v. Brown
4 Vet. App. 270 (Veterans Claims, 1993)
Bernard v. Brown
4 Vet. App. 384 (Veterans Claims, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
5 Vet. App. 316, 1993 U.S. Vet. App. LEXIS 285, 1993 WL 298380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philbrick-v-brown-cavc-1993.