Schoonover v. Derwinski

3 Vet. App. 166, 1992 U.S. Vet. App. LEXIS 268, 1992 WL 205561
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 25, 1992
DocketNo. 90-1328
StatusPublished
Cited by1 cases

This text of 3 Vet. App. 166 (Schoonover 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
Schoonover v. Derwinski, 3 Vet. App. 166, 1992 U.S. Vet. App. LEXIS 268, 1992 WL 205561 (Cal. 1992).

Opinion

IVERS, Associate Judge:

Appellant, Vera E. Schoonover, appeals from a July 18, 1990, Board of Veterans’ Appeals (BVA or Board) decision which upheld the denial for service connection for the death of her veteran husband, thereby denying death and indemnity compensation (DIC) benefits for appellant. For the reasons set forth below, the Court vacates the BVA decision and remands the case to the Board for readjudication consistent with this opinion.

I. BACKGROUND

Veteran, James F. Schoonover, served in the United States Army from January 17, 1941, to June 30, 1967. R. at 1. During his Army career, veteran spent fifteen months in combat in the Southwest Pacific during World War II. R. at 24. On July 18, 1952, veteran underwent a surgical excision of a mole on his face. The diagnosis was “[b]asal cell, carcinoma, site unknown.” R. at 50. Captain Marvin B. Rodney, Medical Corps, stated in his report that “[t]here is some question that this lesion is completely excised.” Id. This turned out to be the first of many skin treatments involving the removal of basal cell carcinomas from veteran’s skin.

On January 11, 1954, veteran was diagnosed as having otosclerosis. R. at 89. Otosclerosis is the “growth of spongy bone in the inner ear where it gradually obstructs the oval window or round window or both and causes progressively increasing deafness.” Webster’s Medical Desk Dictionary 503 (1986). On July 16, 1956, veteran had a cyst removed from his left ear lobe. R. at 123. On May 19, 1967, veteran had a papule on his left cheek which was diagnosed as a basal cell epithe-lioma. R. at 245.

Prior to discharge, veteran’s Physical Profile Record listed him as having high blood pressure and hearing loss, mild, bilateral. His duty was not to involve strenuous physical activity. R. at 246. After discharge, veteran underwent a Veterans’ [167]*167Administration (now Department of Veterans Affairs) (VA) examination. He was diagnosed as having “[h]ypertension, essential, presently treated, presently normo-tensive,” “arteriosclerosis, generalized, mild,” “arteriosclerotic heart disease, with history of old right bundle branch-block, Class I-A,” and “albuminuria — mild—unknown cause.” R. at 262. On October 17, 1967, veteran was granted service connection by the VA for “generalized arteriosclerosis and essential hypertension” evaluated at twenty-percent disabling, and for “defective hearing, bilateral, conductive,” at ten-percent disabling. R. at 368-69.

From November 12, 1969, to October 4, 1976, veteran periodically received treat-mentifor basal cell carcinomas. R. at 269, 271, 284, 305, 315, 333, 345, 352. On May 25, 1977, veteran underwent a special cardiovascular examination. R. at 372. Veteran was diagnosed with “[e]ssential hypertension, moderate; controlled on treatment” and “[m]inimal peripheral arteriosclerosis.” Id. In March 1986, veteran received treatment for adenocarcinoma and a liver condition. R. at 396-98. On July 25, 1986, a pigmented skin lesion was found near his left ear which was diagnosed as a nodular melanoma. R. at 456. From October 24, 1986, to November 12, 1986, veteran received treatment for the nodular melanoma including a “wide excision of the melanoma with partial left auri-culectomy, left superficial parotidectomy, left periauricular neck dissection and advancement flap reconstruction.” R. at 402.

Veteran underwent a VA examination on October 14, 1987. R. at 377-90. As a result of that examination, veteran’s disability rating increased for arteriosclerotic heart disease with atrial fibrillation and hypertension to sixty percent, and to thirty percent for his bilateral defective hearing. R. at 391. Veteran had a total rating of seventy-percent disabled. R. at 392. In April 1988, veteran began receiving treatment for melanoma, metastatic to his lungs. R. at 426. By August 22, 1988, veteran’s melanoma metastasized to his brain. R. at 433.

On September 16, 1988, veteran died. His death certificate listed the cause of death as “brain metastases” of “[one] month[’s]” duration “as a consequence of [a] malignant melanoma” of approximately “[two] years.” R. at 435. Under “[o]ther significant conditions,” or “conditions contributing to death but not related to cause given,” “essential hypertension” and “chronic atrial fibrillation” were noted. Id.

On October 4, 1988, appellant filed an Application for DIC or Death Pension by Surviving Spouse or Child. R. at 437. Medical records of the veteran were requested by the VA on October 4, 1988. R. at 436. The rating board, in a February 10, 1989, rating decision, denied service connection for veteran’s death. R. at 436. Appellant filed her Notice of Disagreement on August 23, 1989. R. at 447-48. Additional medical records were requested by the VA on September 5, 1989. R. at 449. The rating board confirmed the previous rating on November 16, 1989. R. at 505. A Statement of the Case was sent to appellant on November 30, 1989. R. at 507-10. The denial for service connection for the death of the veteran was upheld by the BVA on July 18, 1990. Appellant made a timely appeal to this Court. The Court has jurisdiction to hear this case pursuant to 38 U.S.C. § 7252 (formerly § 4052).

II. ANALYSIS

A. Service Connection for Death

Service connection for death is governed under 38 U.S.C. § 1310 (formerly § 410). Guidelines for determining whether death is serviced-connected are found in 38 C.F.R. § 3.312 (1991). In order for a surviving spouse, children, or parents to recover DIC benefits from the VA, section 1310 requires that the veteran’s death must occur after December 31, 1956, and that he must have been “discharged or released under conditions other than dishonorable from the period of active military, naval, or air service in which the disability causing such veteran’s death was incurred or aggravated,” or “died while in the active military, naval, or air service.”

[168]*168Here, veteran was honorably discharged and died after December 31, 1956. The only question remaining is whether his service-connected disorders either directly caused or contributed to his death. According to § 3.312(a), a veteran’s death will be considered to have resulted from a service-connected disability “when the evidence establishes that such disability was either the principal or a contributory cause of death.”

At the time of veteran’s death, he had a combined total disability rating of seventy percent, for, among other things, arteriosclerosis and hypertension. The death certificate listed brain metastases as the immediate cause of death. However, the death certificate also listed essential hypertension and chronic atrial fibrillation as “conditions contributing to death but not related to cause given.” R. at 435. Under 38 C.F.R. § 3.312(b), the Board is correct that his service-connected disabilities were not the principal cause of death. However, 38 C.F.R.

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Bluebook (online)
3 Vet. App. 166, 1992 U.S. Vet. App. LEXIS 268, 1992 WL 205561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schoonover-v-derwinski-cavc-1992.