Philbrick v. Derwinski

2 Vet. App. 466, 1992 U.S. Vet. App. LEXIS 193, 1992 WL 119004
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 26, 1992
DocketNo. 91-958
StatusPublished
Cited by1 cases

This text of 2 Vet. App. 466 (Philbrick 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
Philbrick v. Derwinski, 2 Vet. App. 466, 1992 U.S. Vet. App. LEXIS 193, 1992 WL 119004 (Cal. 1992).

Opinion

ORDER

Appellant Josephine Philbrick, spouse of deceased veteran James J. Philbrick, appeals a February 14, 1991, Board of Veterans’ Appeals (BVA or Board) decision denying her entitlement to disability and indemnity compensation (DIC), under 38 U.S.C. § 1310 (formerly § 410), for the cause of her veteran husband’s death. James J. Philbrick, BVA 91-04122 (Feb. 14, 1991). Summary disposition is appropriate in this case because it is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

The deceased veteran served on active duty in the military from August 1943 to November 1945. For approximately five months during this time, he was held by the German government as a prisoner of war (POW). At the time of his death, the veteran had been receiving service-connected disability compensation for several maladies and had been awarded noncompensa-[467]*467ble service connection for others. R. at 358-59. The service-connected disabilities included post-traumatic stress disorder, 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. Together, these disabilities rendered him 60% disabled for Department of Veterans Affairs (VA) purposes. See 38 C.F.R. § 4.25 (1991). 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; nor were any of the above service-connected disabilities considered to have caused the heart problems leading to his death. Philbrick, BVA 91-04122, at 6-7.

The Secretary of Veterans Affairs (Secretary) argues that the BVA’s findings should be upheld but that the case should be remanded solely for the Board to supplement its decision by sufficiently articulating the reasons or bases for its existing decision. Appellee’s Brief at 19. Appellant, on the other hand, contends, primarily, that the Board’s findings of fact must be set aside as clearly erroneous. Appellant’s Brief at 16. In the alternative, she requests that the case be remanded so that the BVA may apply the benefit-of-the-doubt-doctrine, under 38 U.S.C. § 5107(b) (formerly § 3007), and fulfill its statutory duty to assist her, under 38 U.S.C. § 5107(a), in developing the facts pertinent to her claim.

Some evidence exists in the record which supports appellant’s theory that the heart problems causing the veteran’s death grew out of his service-connected conditions. See 38 C.F.R. § 3.310(a) (1991). The veteran, himself, had asserted in an appeal to the BVA and, under oath, during a VA hearing, that, during a medical examination conducted in late 1945, the physician instructed him to avoid hiking, marching, heavy work of any kind, and mental strain. The veteran asserted that he received no explanation for these instructions, and the record does not contain any report in which they were set forth. R. at 165, 311.

During appellant’s BVA hearing, she testified, under oath, regarding possible manifestations of heart problems after the veteran’s discharge from service. She stated that beginning before 1950, he fatigued easily and would become short of breath when climbing stairs or walking “for any distance”. R. at 407-08. Her daughter testified, under oath, that she had similar recollections beginning in her early childhood. R. at 410-13.

Appellant’s representative asserted during the BVA hearing that the physician conducting the initial autopsy had no knowledge that the veteran had been a POW. The pathologist stated to the representative that, had he known, he would have conducted different tests. R. at 405. The medical opinion provided by Dr. J.W. Onstad, Chairperson of the Department of Pathology at St. Elizabeth’s Hospital in Yakima, Washington, is most supportive of appellant’s position. R. at 423. He indicated in his report that he reviewed the autopsy report, prepared slides from the deceased, reviewed literature, and engaged in “professional consultation concerning imprisonment with reported vitamin, protein and carbohydrate malnutrition”. Dr. Onstad also noted the similarities between the cause of death of this veteran and that of another former POW on whom he had conducted an autopsy (Appellant’s Brief at 15), stating, inter alia, that Mr. Philbrick “has increased ventricular septal perivascu-lar 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. Dr. Onstad’s theory is supported by evidence in the record suggesting that the [468]*468veteran was malnourished during his internment as a POW. First, the veteran was awarded noncompensable service connection for the residuals of vitamin deficiency. R. at 347. Also, a fellow former POW attested, in a notarized statement, that all but 39 of the 139 POWs in their camp had died and most had died from starvation. Furthermore, the former POW stated that all of the survivors had lost at least 60 pounds. R. at 421. Moreover, the veteran had been awarded service connection for gastrointestinal and hepatic conditions, to which Dr. Onstad referred in his report.

In its February 14, 1991, decision denying appellant entitlement to DIC benefits, the BVA rejected Dr. Onstad’s opinion as “highly speculative and based more on statistics than on specific clinical findings referable to the veteran’s case.” Philbrick, BVA 91-04122, at 5. The Board went on to state that “the cardiovascular disease appears to have been so overwhelming as to cause the veteran’s death irrespective of his service-connected disabilities.” Id. at 6. In addition, the Board offered only a cursory conclusion that the benefit-of-the-doubt doctrine cannot be applied in appellant’s favor.

These excerpts from the BVA decision point to several legal shortcomings in the BVA’s evaluation that require that the case be remanded. First, its dismissal of Dr. Onstad’s medical opinion was too cursory and conclusory to satisfy the statutory requirement that the BVA provide reasons or bases for its findings and conclusions of fact. See 38 U.S.C. § 7104(d)(1) (formerly § 4004); Gilbert v. Derwinski, 1 Vet.App. 49, 56 (1990). Gilbert requires that the Board’s reasons-or-bases analysis be “clear” and “succinct” and its explanations “complete”. Id. at 57. Since Dr.

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Related

Philbrick v. Brown
5 Vet. App. 316 (Veterans Claims, 1993)

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Bluebook (online)
2 Vet. App. 466, 1992 U.S. Vet. App. LEXIS 193, 1992 WL 119004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philbrick-v-derwinski-cavc-1992.