Wilkinson v. Brown

8 Vet. App. 263, 1995 U.S. Vet. App. LEXIS 774, 1995 WL 615655
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 20, 1995
DocketNo. 93-1203
StatusPublished
Cited by5 cases

This text of 8 Vet. App. 263 (Wilkinson v. Brown) 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
Wilkinson v. Brown, 8 Vet. App. 263, 1995 U.S. Vet. App. LEXIS 774, 1995 WL 615655 (Cal. 1995).

Opinion

STEINBERG, Judge:

The appellant, veteran Charles E. Wilkinson, appeals a July 12, 1993, Board of Veterans’ Appeals (BVA or Board) decision denying the reopening of his claim of entitlement to service connection for a heart condition. Record (R.) at 6-13. The appellant filed an informal brief. The Secretary filed a motion for summary affirmance. For the reasons that follow, the Court will vacate the BVA decision and remand the matter to the Board for further development and readjudication in accordance with this opinion.

I. Background

The veteran served on active duty with the United States Armed Forces from March 1953 to April 1955. R. at 18. A January 1953 preinduction examination report not included in the record on appeal (ROA) apparently showed the veteran’s “heart, chest[,] and vascular system to be normal”. See R. at 47. In January 1955, the veteran was hospitalized and found to have a cardiac murmur and an atrial septal defect. Ibid. He was transferred to Brooke Army Hospital, Texas (BAH), where a “systolic murmur” was heard and chest x-rays revealed an enlarged heart. See R. at 47-48 (the ROA does not contain the medical records from the BAH). His blood pressure was reported to be 140/88 and the findings by BAH were “strongly suggestive of congenital heart disease”. R. at 47-48. Cardiac catheterization was performed and “the results were consistent with an atrial septal defect, which was held to have preexisted service”. Ibid; R. at 26, 31. At the time of his discharge in April 1955 he apparently “was asymptomatic and was being separated from the service when a chest film showed cardiac enlargement”. See R. at 47.

In April 1956, the veteran filed a claim with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) for VA disability compensation for a heart condition. R. at 21. The application noted that while in service he had received treatment at BAH during March and [265]*265April 1955. R. at 22. A May 1956 VA medical report referred to BAH records and noted a “[hjistory of easy fatigability” that “existed all through his period of service”. R. at 26, 31. His complaints then were that he had “difficulty in breathing” and “drainage from [his] nose”. Ibid. Examination of his cardiovascular system revealed a “harsh septolic murmur” and blood pressure of 132/80. R. at 27. A chest x-ray stated that “[t]he appearance of the heart suggests congenital pathology.” R. at 28. The diagnosis was “congenital heart disease, specifically atrial septal defect”. R. at 31.

A May 1956 VARO decision denied service connection for “septal defect, atrial”. R. at 33. The RO concluded that the veteran’s “[constitutional or developmental abnormality [was] not a disability under the law.” Ibid. In June 1956, the veteran filed a VA Form 1-9 (Substantive Appeal to the BVA) (1-9 Appeal) stating that there was nothing wrong with his heart until he was in Korea, at which time he “began to have shortness of breath” and that neither he “nor anyone else knew of any heart condition until [his] hospitalization early in 1955”. R. at 38. A July 1956 RO decision on appeal confirmed and continued the prior denial. R. at 41.

In December 1956, a BVA decision denied service connection for heart disease; the BVA noted that the 1955 BAH records showed a systolic heart murmur and an enlarged heart, findings “strongly suggestive of congenital heart disease”, and determined that these “results were consistent with an atrial septal defect, which was held [by the BAH] to have preexisted service.” R. at 47-48. The Board found that the evidence did not establish that “the veteran’s heart disease manifested by systolic murmur was incurred or aggravated during active service”. R. at 48.

In July 1957, VA received a letter from the veteran seeking to reopen his claim and noting that he had been told by his doctor not to work. R. at 51-53. A July 1957 VA hospital report stated that the veteran had been admitted to the hospital from June 26, 1957, to July 15, 1957, with complaints of “mild exer-tional dyspnea of 6 months duration”. R. at 55. (Dyspnea is “[s]hortness of breath, a subjective difficulty or distress in breathing ... [which] occurs normally during intense physical exertion or at high altitude”, STED-MAN’S MEDICAL DICTIONARY 480 (25th ed. 1990).) The diagnosis was: “Organic heart disease”; “[e]tiology — congenital anomaly”; “[a]batomy — anomalous pulmonary veins draining into right auricle, possible inter-auricular septal defect”. R. at 56. The veteran was admitted to the same VA hospital for approximately one month in December 1957 with complaints of “precordial chest pain” and “shortness of breath”. R. at 60. The diagnosis was the same as above. R. at 61, 65. A June 1959 RO decision denying entitlement to VA non-service-con-neeted pension noted that the etiology of the veteran’s organic heart disease was congenital and concluded that the disability “neither meets [the] minimum schedular requirement for pension purposes nor is of such severity as to permanently preclude [the] veteran’s employment.” R. at 68.

A December 1961 VA hospital report stated that the veteran had been admitted for approximately two weeks following complaints of chest pain. R. at 75-76. The diagnosis remained congenital heart disease. R. at 76. A June 1962 private medical report stated that he had been examined the week before and complained of, inter alia, cardiac murmur. R. at 70. The impression was, inter alia, cardiac systolic murmur and hypertension. Ibid. A March 1963 RO decision confirmed the June 1959 RO denial. R. at 80, 82.

A December 1966 private medical report from Dr. Robinson of the University Hospital, Ann Arbor, Michigan, included the following diagnosis: (1) “[a]trial septal defect”; (2) “[a]nomalous pulmonary venous connection”; and (3) “[h]ypertension, etiology undetermined”. R. at 90. The report noted that “[t]welve years ago the [veteran] first noted dyspnea on exertion and chest pain”, and that the “dyspnea has gradually increased in the last 8 years”. Ibid. His blood pressure was 200/120. Ibid. A July 1967 VA examination report noted that a cardiac catheteri-zation had been performed at the University Hospital in December 1966. R. at 84. A VA electrocardiographic record noted a normal [266]*266sinus rhythm with “[n]o definite evidence of myocardial damage.” R. at 86. A September 1967 RO decision denying entitlement to non-service-connection pension referred to an April 1967 statement from Dr. Leach (not in the ROA) stating that the veteran was under his care for treatment of, inter alia, hypertension and atrial septal defect. R. at 95. An October 1967 letter from Dr. Leach stated what had been referred to as having been stated in the April 1967 statement. R. at 97.

A November 1967 letter from Dr. McSwain stated: “[The veteran] [wa]s ill due to [Hypertension and has been judged to be permanently disabled because of this [Hypertension. This extends back to the last of 1964.” R. at 102. A February 1968 VA medical report noted that the veteran’s father had “died of [á] heart condition at the age of 50”, and included a diagnosis of, inter alia, atrial hypertension and septal defect. R. at 111, 117-18. A February 1968 VA chest x-ray report was negative and stated that there was no “cardiac enlargement”. R. at 133. April 1968 VA medical records reported a diagnosis of, inter alia, congenital atrial sep-tal defect and hypertension, and noted that the veteran had decided against recommended surgery. R. at 119, 126, 129.

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Bluebook (online)
8 Vet. App. 263, 1995 U.S. Vet. App. LEXIS 774, 1995 WL 615655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkinson-v-brown-cavc-1995.