Sammarco v. Derwinski

1 Vet. App. 111, 1991 WL 146351
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 10, 1991
DocketNo. 90-200
StatusPublished
Cited by55 cases

This text of 1 Vet. App. 111 (Sammarco 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
Sammarco v. Derwinski, 1 Vet. App. 111, 1991 WL 146351 (Cal. 1991).

Opinion

MANKIN, Associate Judge:

Appellant, widow of a veteran (Widow), appeals from a December 27, 1989, Board of Veterans’ Appeals’ (BVA or Board) decision which determined that her deceased husband’s fatal heart disease was not service-connected. She had sought dependency and indemnity compensation under 38 U.S.C. § 410 (1988). We remand in light of Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

Because of our determination that the BVA decision is inadequate under Gilbert, we do not address appellant’s underlying claim for benefits or her contention that the “benefit of the doubt” standard in 38 U.S.C. § 3007(b) (1988) should have been invoked.

This Court has jurisdiction by virtue of 38 U.S.C. § 4052 (1988).

Facts

Mr. Sammarco was granted a discharge in 1946. R. at 1. In October 1948, a Veterans’ Administration (VA) rating board awarded him disability compensation, retroactive to January 1948, for a ten-percent disability due to a “nervous heart condition.” R. at 43. Five years later, in 1953, even though he was diagnosed, upon a VA examination, as having “minimal tortuosity [112]*112(twisting) of the aorta” (R. at 54), “[n]o evidence of organic heart disease” was found. R. at 59. Further VA examinations, 1962 and 1963, resulted in a diagnosis that he had hypertension. R. at 60, 74. In April 1964, a VA rating board granted him a ten-percent rating for psychoneurosis, anxiety reaction, and neurocirculatory asthenia with tachycardia, retroactive to January 1948, with an additional ten-percent rating for varicose veins, retroactive to May 1963; it denied his request for compensation based upon hypertension. R. at 79. No appeal was taken.

Mr. Sammarco died in December of 1987 at 73 years of age. The cause of death was recorded on the death certificate as “cardiogenic shock, due to or as a consequence of myocardial infarction, due to or as a consequence of atherosclerotic heart disease.” R. at 99.

The dispute in this case stems from the fact that, according to the BVA, while in service Mr. Sammarco was reported to have had tachycardia. Clemente T. Sam-marco, loc. no. 935050, at 2 (BVA Dec. 27, 1989). Appellant’s basic contention is that Mr. Sammarco’s tachycardia was a symptom of the heart disease which ultimately caused his death. Br. at 3, 5. Appellee argues that Mr. Sammarco’s tachycardia was caused by anxiety neurosis and was not a symptom of heart disease. Br. at 14-15. Appellee further contends that even if tachycardia evidenced heart disease, Mr. Sammarco’s death was caused by hardening of the arteries as distinct from heart disease. Br. at 15. The BVA found that at the time of Mr. Sammarco’s death ten-percent ratings for “service connection [were] in effect for psychoneurosis, anxiety reaction (formerly diagnosed as neurocirculato-ry asthenia with tachycardia), and for bilateral varicose veins.... ” Clemente T. Sammarco, loc. no. 935050, at 5-6 (BVA Dec. 27, 1989).

ANALYSIS

Appellant contends that the BVA decision must be remanded because the BVA failed to satisfy the requirements of 38 U.S.C. § 4004(d)(1) (1988). We agree. “[S]trict adherence by the Board to the requirements of 38 U.S.C. § 4004(d)(1) is required.” Gilbert v. Derwinski, 1 Vet.App. 49, 59 (1990). Under 38 U.S.C. § 4004(d) (1988) the BVA is required to provide in its decision “reasons or bases” for its findings of material fact and conclusions of law. This is especially necessary for conclusions of a scientific or medical nature. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Integrated with the “reasons or bases” requirement of § 4004(d)(1) is the requirement that the BVA decision include “a written statement of the Board’s findings and conclusions ... on all material issues of fact and law presented on the record_” § 4004(d)(1) (emphasis added). Material issues of fact are those issues upon which the outcome of the case depends. Gilbert v. Derwinski, 1 Vet.App. 49, 50-51 (1990). Since material issues of fact are not addressed in the Findings of Fact other than in global terms the BVA decision fails to satisfy the obligation to provide “findings ... on all material issues.” § 4004(d)(1).

The BVA decision of December 27, 1989, contains four findings of fact, only two of which address disputed issues, and two conclusions of law. The findings and conclusions are not explained or supported by “reasons or bases”, and the appellant’s contentions are not directly addressed. Only findings number three and four of the BVA’s Findings of Fact in this case address disputed issues. Finding number three declares simply:

There is no direct cause-and-effect or etiological relationship between the veteran’s service-connected disabilities and the fatal heart disease.

Clemente T Sammarco at 6. Given that this determination is decisive of the entire case, a reasoned discussion of how this determination was reached is obviously required. The relevant portion of the decision entitled “Discussion and Evaluation” merely restates this finding. In light of appellant’s contention that tachycardia was a symptom of heart disease and that it was [113]*113supported by some evidence, finding number three fails on two counts: it fails to explain how the determination was reached, and it fails to address the Widow’s contention. Finding number four is similarly unhelpful:

The veteran’s service-connected disabilities did not contribute substantially in causing the veteran’s death.

Id. Again no elaboration or analysis is provided. We are not able to understand what the BYA found regarding whether Mr. Sammarco had tachycardia at the time of his death.

Appellee concedes arguendo that the BVA decision is inadequate by arguing that the rule of prejudicial error is applicable. Br. at 15-18. Appellee cites 38 U.S.C. § 4061(b) (1988) which directs this Court to “take due account of the rule of prejudicial error.” Because of the BYA’s complete lack of reasoned analysis, we cannot say the error was not prejudicial. The accepted rule under Fed.R.Civ.P. 52, the Rule of Civil Procedure analogous to § 4004(d)(1), is that “[w]here the trial court fails to make findings, or to find on a material issue, and an appeal is taken, the appellate court will normally vacate the judgment and remand the action for appropriate findings to be made.” 5A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 52.06[2] (2d ed. 1982), cited with approval in Pullman-Standard v. Swint, 456 U.S. 273, 292 n. 22, 102 S.Ct. 1781, 1792 n. 22, 72 L.Ed.2d 66 (1982) (emphasis added).

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