Sandra K. Hupp v. R. James Nicholson

21 Vet. App. 342, 2007 U.S. Vet. App. LEXIS 1102, 2007 WL 2047861
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 18, 2007
Docket03-1668
StatusPublished
Cited by37 cases

This text of 21 Vet. App. 342 (Sandra K. Hupp v. R. James Nicholson) 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
Sandra K. Hupp v. R. James Nicholson, 21 Vet. App. 342, 2007 U.S. Vet. App. LEXIS 1102, 2007 WL 2047861 (Cal. 2007).

Opinions

On Appeal from the Board of Veterans’ Appeals.

GREENE, Chief Judge:

Sandra K. Hupp appeals, through counsel, a July 14, 2003, Board of Veterans’ Appeals (Board) decision that denied her claims for accrued benefits under 38 U.S.C. § 5121 and service connection for the cause of her veteran-husband’s death for the purpose of 38 U.S.C. § 1310 dependency and indemnity compensation (DIC) benefits. Record (R.) at 1-14. Mrs. Hupp argues that (1) the Board failed to provide an adequate statement of reasons or bases for its rejection of favorable medical evidence; (2) VA failed to provide 38 U.S.C. § 5103(a)-compliant notice; (3) the Secretary breached his 38 U.S.C. § 5103A duty to assist by failing to obtain relevant service medical records (SMRs); and (4) the Board erred by failing to notify her, in accordance with 38 C.F.R. § 20.903(b) (2007), of its intention to consider evidence not previously considered and .to allow her time to respond. Appellant’s (App.) Brief (Br.) at 8-17. The Secretary argues that there is a plausible basis in the record for the Board’s denial of service connection and that its determination was supported by an adequate statement of reasons or bases. Secretary’s (Sec’y) Br. at 7-12. He also asserts that a VA regional office (RO) provided Mrs. Hupp section 5103(a)-complying notice or, alternatively, that Mrs. Hupp has failed to demonstrate that she was prejudiced as a result of any notice deficiency. Id. at 12-16. Additionally, he contends that the Board did not [346]*346err under § 20.903 because it did not “rely” on any additional evidence or law not previously considered by the RO. Id, at 16-17. Both parties filed supplemental memoranda of law in light of this Court’s decision in Mayfield v. Nicholson, 19 Vet.App. 103 (2005) (Mayfield I), rev’d on other grounds, 444 F.3d 1328 (Fed.Cir.2006) (Mayfield II). For the reasons set forth below, the July 2003 decision of the Board will be affirmed in part, and vacated in part, and certain matters remanded for readjudication.

I. BACKGROUND

The veteran, Billy C. Hupp, served honorably on active duty in the U.S. Army from November 1965 to October 1966 and from June 1969 to November 1971, including service in Vietnam. R. at 18, 20. In January 1993, a VA physician opined that Mr. Hupp had chronic myelogenous leukemia (CML). R. at 108. In February 1993, Mr. Hupp filed an application for VA disability benefits for “residuals of exposure to Agent Orange” (R. at 99-102), and the RO requested Mr. Hupp’s SMRs from November 1965 to November 1971 (R. at 104). In August 1993, the RO awarded a non-service-connected pension, but denied VA service connection for leukemia on both direct and presumptive bases. The RO found that Mr. Hupp’s CML was not diagnosed until 21 years after discharge from service and his SMRs were negative for any symptoms, complaints, or treatments related to CML. R. at 125. The RO also deferred a decision on service connection for CML as secondary to Agent Orange exposure. Id. In August 1994, the RO denied service connection for CML as secondary to Agent Orange exposure because leukemia was not one of the conditions creating presumptive service connection due to Agent Orange exposure. R. at 133. Mr. Hupp filed a Notice of Disagreement (NOD) that reiterated his belief that his CML had been caused by “exposure to chemical products such as those used in Agent Orange.” R. at 136.

In May 1995, a VA physician stated that Mr. Hupp had been regularly examined at the John J. Pershing VA Medical Center in Poplar Bluff, Missouri, since February 1993 and opined that “because of the quantity, consistency[,] and duration of exposure to [A]gent [OJrange ... there is relations [sic] between the exposure and [Mr. Hupp’s] diagnosis of [CML].” R. at 151. In September 1996, the Board denied service connection for CML. R. at 362-69. The Board determined that “the absence of objective medical evidence demonstrating a causal connection between the veteran’s [CML] and his exposure to chemicals far outweighs the speculations made by [Mr. Hupp] and the VA physician.” R. at 368. Mr. Hupp appealed, and in June 1997 the Court granted the parties’ joint motion for remand. R. at 373-77. On March 4, 1998, the Board remanded the matter to the RO for further development and readjudieation. R. at 381-87. The RO was instructed to refer Mr. Hupp’s claims folder to a physician specializing in hematology and, if possible, Agent Orange-related disease, for an opinion “as to the relationship, if any, between [Mr. Hupp’s] military service in general, and in particular his exposure to herbicide agents while serving in Vietnam, and his diagnosed [CML].” R. at 385-86.

Mr. Hupp died in April 1999, before the RO decided that matter on remand. R. at 439. His death certificate listed his cause of death as intracranial hemorrhage due to or as a consequence of CML. Id. No other conditions were listed as contributing to his death, nor was an autopsy performed on the veteran. Id. In June 1999, Mrs. Hupp, the veteran’s spouse claimed DIC and accrued benefits. R. at 441-42, 450-53. Her application stated: “My husband [347]*347had a service[-]connected disability claim on appeal at the [Board] when he died. I believe his cause of death was service connected since he was trying to service connect for that cause.” R. at 453. Regarding her claim for accrued benefits, Mrs. Hupp’s application stated: “[P]lease see attached 21-4138 for explanation” (R. at 453); that form referred to a VA letter to Mr. Hupp regarding his reported unreim-bursed medical expenses (R. at 445-48). In November 1999, the RO denied, inter alia, Mrs. Hupp’s claims for service connection for the cause of her husband’s death and for accrued benefits. R. at 457-59. Mrs. Hupp appealed and requested that since service connection for her husband’s death was still at issue, before sending her appeal to the Board, the RO should “comply with the directions of the [Board rjemand dated March 4, 1998.” R. at 474.

In January 2000, VA physician Dr. Matthew McCall reviewed the veteran’s medical files and opined that “(1) it is not likely that the veteran’s leukemia was caused by [A]gent [OJrange and (2) it is not likely that the veteran’s leukemia was evident during his years of service.” R. at 479. In March 2000, another VA physician reviewed Mr. Hupp’s SMRs and stated:

It is impossible to say definitely that [Mr. Hupp’s] leukemia was secondary to dioxin exposure. The increase of myloid leukemia in people exposed to dioxin may be increased (Leukemia 1999,' April 12 Supplement § 72-74) — However, due to the rarity of the disease [and] inability to confirm finding in animal model, it is not possible to give conclusive answer.

R. at 481. In July 2000, Dr. McCall reviewed the March 2000 VA physician’s report and the article cited therein and stated:

This was an abstract article that viewed several studies.

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Bluebook (online)
21 Vet. App. 342, 2007 U.S. Vet. App. LEXIS 1102, 2007 WL 2047861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandra-k-hupp-v-r-james-nicholson-cavc-2007.