Sussex v. Derwinski

1 Vet. App. 526, 1991 U.S. Vet. App. LEXIS 111, 1991 WL 224390
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 18, 1991
DocketNo. 90-1118
StatusPublished
Cited by8 cases

This text of 1 Vet. App. 526 (Sussex 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
Sussex v. Derwinski, 1 Vet. App. 526, 1991 U.S. Vet. App. LEXIS 111, 1991 WL 224390 (Cal. 1991).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

In a June 28,1990, decision, the Board of Veterans’ Appeals (BVA or Board) denied the appellant’s claim for dependency and indemnity compensation (DIC) benefits on the ground that the record did not establish that her veteran husband’s death resulted from service-connected disability. The appellant, proceeding pro se, argues on appeal to this Court that the Board’s decision was clearly erroneous. For the reasons below, the Board’s decision is vacated and remanded with instructions.

I.

The veteran, Thomas M. Sussex, served on active duty during World War II, from December 17, 1943, to November 29, 1945. R. at 1. From December 21, 1944, to March 30, 1945, he was confined as a prisoner of war (POW) in Germany. R. at 7, 24. Upon his release, the veteran weighed 87 pounds; he had apparently weighed 132 pounds upon entry into service. R. at 25. In approximately 1964, the appellant was diagnosed as having diabetes. R. at 10. One decade later, he was diagnosed with a heart condition. R. at 9. His service records are apparently unavailable. R. at 8.

On September 28, 1983, a Veterans’ Administration (now the Department of Veterans Affairs) Regional Office (VARO) rating board granted a 10-percent disability rating for anxiety neurosis, but denied service connection for the veteran’s heart condition, diabetes, frozen feet, and residuals of malnutrition. R. at 55-57. The decision was not appealed.

The veteran died on November 5, 1985, at the age of 60. The death certificate stated that the immediate cause of death was azotemia (“an excess of urea or other nitrogenous compounds in the blood” (Dor-land’s Illustrated Medical Dictionary 177 (27th ed. 1988))) “due to or as a consequence of ... Kimmelstiel-Wilson Disease” (“a degenerative complication of diabetes” (id. at 701)), which itself resulted from “Diabetes Mellitus”. The certificate also noted that “Cardiomyopathy” (disease of the muscular tissue of the heart (id. at 274)) was a significant condition contributing to death but was not related to the immediate cause of death. R. at 65.

The appellant’s claim for DIC benefits was denied by the VARO on September 21, [528]*5281988, on the ground that the evidence did not establish that death resulted from service-connected disability. R. at 180-181. The appellant’s September 16, 1989, “Appeal to [the] Board of Veterans’ Appeals”, filed on Form 1-9, claimed that the veteran’s death had resulted from his service-connected anxiety neurosis, thereby entitling her to DIC benefits. R. at 193. In support of her appeal, the widow asserted that “[the veteran’s] private physicians have stated that his anxiety condition contributed to his Kimmelstiel-Wilson disease and diabetes mellitus” and submitted with her Form 1-9 the statements of two treating physicians. R. at 189-191.

Discussing the veteran’s condition in a July 23, 1989, letter, Dr. Thomas L. Hack-ett stated that the veteran’s Kimmelstiel-Wilson disease was the “end result” of diabetes and hypertension. He further stated that diabetes has many potential sources, making a determination in a particular case difficult. R. at 190. However, he implicitly proffered starvation as an explanation by comparing the similarity of experiences of the veteran, while imprisoned in Germany, and Native Americans. He stated in pertinent part:

Diabetes is common among the American Indians. One of the explanations is the long history of ‘feast and famine’. The tribes would stuff themselves when food was plentiful and go long periods with little or no food.

R. at 190.

Dr. Charles L. Oppy, the veteran’s physician for many years, stated in an August 17, 1989, letter that to his knowledge there was no history of diabetes in the veteran’s family. Moreover, he stated that the veteran’s “[diabetes] may well have developed from nutritional or infectious insult to his endocrine system at the time of his confinement as a prisoner of war.” R. at 191.

In a decision dated June 28, 1990, the BVA affirmed the VARO rating decision denying DIC benefits. Madonna B. Sussex, (aka Barbara K. Sussex) BVA 90-(June 28, 1990). The Board considered the statements of the two treating physicians but dismissed them {see 38 C.F.R. § 19.-112(b) (1990) (permitting the Board, on its own motion, to consider evidence not before the VARO)), stating in pertinent part:

While we note that two recent statements by private physicians who had treated the veteran have been submitted in support of the current claim, we are unable to conclude that they provide a persuasive basis for a grant of the benefit at issue in light of the evidence with the application of generally accepted medical principles.... [T]he assertion of the existence of a causal relationship between any incidence of the veteran’s period of military service, including his prisoner-of-war captivity, and any of his fatal disease processes is speculative in nature and without any significant support in the evidentiary record.

Sussex, BVA 90-, at 5 (emphasis added). The Board thus concluded that the veteran’s causes of death — heart disease, diabetes, and kidney failure — were not service connected, that they were not “etiolog-ically related to” his service-connected anxiety neurosis, and that, therefore, a disease of service origin “did not cause or contribute substantially or materially to cause the veteran’s death.” Id. at 6.

II.

Under 38 U.S.C. § 7104(d)(1) (formerly § 4004) and Gilbert v. Derwinski, 1 Vet.App. 49, 56 (1990), the BVA is required to include in its decisions not only a written statement of its findings and conclusions but also the reasons or bases for them. Moreover, where, as here, a veteran’s service medical records are unavailable through no fault of his own, the BVA bears a heightened obligation to “explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule”. O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); see also Moore v. Derwinski, 1 Vet.App. 401, 405-06 (1991); Godwin v. Derwinski, 1 Vet.App. 419, 426 (1991). The Board erred in performing both tasks.

The Court has previously delineated what may or may not constitute an adequate statement of reasons or bases. In [529]*529Colvin v. Derwinski, 1 Vet.App. 171, 174-75 (1991), it was stated in pertinent part:

[The BVA may not refute] the expert medical conclusions in the record with its own unsubstantiated medical conclusions. BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or [quoting] recognized medical treatises in its decisions that clearly support its ultimate conclusions.

Id. (Citations omitted.)

The Board’s decision here, which rests upon “generally accepted medical principles” and which dismisses the conclusions of the veteran’s private physicians as “speculative”, does not accord with Col-vin’s

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Bluebook (online)
1 Vet. App. 526, 1991 U.S. Vet. App. LEXIS 111, 1991 WL 224390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sussex-v-derwinski-cavc-1991.