Hayes v. BrownHayes v. Brown
Appellant, Mildred M. Hayes, appeals a May 17, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) (the second BVA decision) denying entitlement to accrued benefits due her late husband, William C. Hayes, on the bases that neither the veteran nor persons empowered to act for him filed a claim for service connection for esophageal cancer, nor was there an increase in the veteran’s service-connected disabilities during the year prior to his death. We vacate and remand the second BVA decision for additional factfinding.
I. Background — The First BVA Decision
Appellant’s late spouse was a World War II veteran with a long history of cancer and cancer-related medical problems dating back to the discovery of a tumor in his right upper mediastinum in 1944. By 1987, service connection had been established for the following disabilities: Hodgkin’s disease (“a malignant condition characterized by painless, progressive enlargement of the lymph nodes, spleen, and general lymphoid tissue,” Dorland’s Illustrated Medical Dictionary, 457 (27th ed. 1988)) with lobec-tomy of the upper lobe of the right lung
On June 3, 1987, the veteran choked on a piece of food which had lodged in his throat while he was eating. Although he was rescued with the Heimlich maneuver shortly after losing consciousness, the veteran continued to have trouble swallowing after that time. As a result, he subsequently underwent an examination of his swallowing process later that month which revealed a narrowing of the upper esophagus. The veteran’s private physician, Dr. John Cook, III, then referred him to Dr. Thomas Gates, stating in his letter of referral, dated July 8, 1987, “This [area of narrowing of the esophagus] is right under an area of maximal radiation and the concern for development of squamous metapla-sia/carcinoma is obvious.” R. at 34. The veteran then underwent dilations of the esophagus in an attempt to improve his swallowing ability. These dilations, however, caused the veteran to have a substantial systemic reaction requiring medical treatment. R. at 43. From this point onward, the veteran’s medical condition continued to worsen. On November 9, 1987, he filed an informal claim with the Veterans’ Administration (now the Department of Veterans Affairs) (VA) for an increase in his disability rating. R. at 27. On January 21, 1988, a statement was sent to the VA stating that the veteran was totally disabled due to service-connected disabilities. Attached to this statement were documents confirming the information in this paragraph, including a copy of Dr. Cook’s letter to Dr. Gates. The VA attempted to schedule a VA examination for the veteran, but he died, on February 20, 1988, before one could be held. His death certificate listed the immediate cause of death as cardiac arrest due to coronary heart disease. R. at 44. It also listed “metastatic carcinoma arising in the mediastinum” as a “significant condition contributing to death.” Id.
After the veteran’s death, appellant filed a formal claim for accrued benefits with the VA on the grounds that the veteran’s disability rating should have been 100% commencing with the onset of the esophageal cancer in June 1987. R. at 45. Included in the evidence received after death were reports from the University of Texas, M.D. Anderson Hospital and Tumor Institute (R. at 51-58), and Loudoun Memorial Hospital (R. at 70-74). Among other things, these reports indicated the presence of esophageal carcinoma. On December 5, 1988, the Roanoke, Virginia, VA Regional Office (RO) denied appellant’s claim on the ground that there was insufficient evidence on file at the date of the veteran’s death to establish entitlement to an increased disability rating. R. at 77. The RO also stated, however, in the Statement of the Case (SOC), dated February 15, 1989, that, on January 21, 1988, it had
received medical evidence ... showing the veteran was treated for an esophageal stricture and carcinoma of the esophagus that was felt to be the result of radiation treatment for the service-connected Hodgkin’s disease.
R. at 81. On May 8, 1989, a VARO rating decision on appeal confirmed the denial. R. at 87. Appellant then appealed to the BVA.
On February 2, 1990, the BVA, in the first BVA decision, denied appellant’s claim, stating
The evidence of record at the time of the veteran’s death relates to the diagnosis and treatment for adenocarcinoma of the esophagus and a paraesophageal abscess. That evidence does not show that the veteran’s service connected disorders had increased in severity during the year prior to his death; therefore, the Board finds that entitlement to accrued benefits is not warranted.
II. The Case Presently on Appeal— The Second BVA Decision
On May 17, 1991, the BVA issued a new decision (second BVA decision) which denied entitlement to accrued benefits on the bases that neither the veteran nor persons empowered to act for him filed a claim for service connection for esophageal cancer during the veteran’s life, nor was there an increase in the veteran’s service-connected disabilities during the year prior to his death. Mildred M. Hayes, BVA No. 91-16370, at 8-9 (May 17,1991). Certain parts of the second BVA decision should be especially noted:
In this case, neither the veteran nor his representative filed a claim for service connection for esophageal carcinoma; therefore, a claim for accrued benefits based on service connection for that disorder cannot be granted....
In its March 1991 decision, the Court of Veterans Appeals also directed the Board to address several questions regarding the “February 1988 letter” referred to in the evidence portions of the [BVA] decision. Initially, the Board would point out that the letter, dated February 8, 1988, from John H. Cook III, M.D., was date stamped as received by the VA Regional Office in Roanoke, Virginia on March 9, 1988.... [N]either the March 9, 1988[,] material nor anything received after it was considered by the Board in its decision as the documents were not on file at the time of death.
It is also that letter from Dr. Cook, dated February 8, 1988, which was referred to in the February 1989 [SOC] on the issue of entitlement to accrued benefits and in the [BVA] decision; however, the [SOC] incorrectly reported that the letter was received on January 21, 1988_ However, this letter, although dated February 8, 1988, was not received by the VA until March 9, 1988. Since the veteran died on February 20, 1988, it is clear that Dr. Cook’s February 8, 1988, letter was received after the veteran’s death. While the Board referred to the February 8, 1988, letter in general terms in the evidence portion of its decision, it did not consider or otherwise comment on that evidence since it related to esophageal carcinoma, a disability that was neither service connected nor claimed service connected at the time of the veteran’s demise.
Id., at 5-7. Finally, the Board concluded that
even if one were to assume that a valid claim for service connection for esophageal carcinoma had been filed during the veteran’s life, the claim for accrued benefits would nevertheless fail. A review of the evidence of record at the date of death reveals, at best, only a suspicion of active cancer. The death certificate*357 shows a carcinoma as playing a role in his demise; however, there was no evidence of record at time of his death showing that it was related to service or to a service connected disability.... [Section 5121, formerly] [sjection 3021, Title 38, United States Code, which has been in effect for many years and which Congress has not chosen to alter, mandates that only the evidence on file at the time of the veteran’s death be considered. Section 3.1000(d)(4)(i), Title 38, Code of Federal Regulations, speaks of the mere fulfilling of ministerial duties such as certification of necessary documents. That regulation permits the filling in of missing details, not the building of the entire case. To apply the regulation in any other way would be to permit the case to be made almost entirely after the veteran’s death.
Id. at 8 (emphasis added). A timely appeal to this Court followed. The Secretary of Veterans Affairs (Secretary) filed a motion for remand, as discussed in part III.A., infra.
III. The Issues Before the Court
A. Validity of Claim
Title 38, Code of Federal Regulations section 3.160(f) (1992) defines a claim for increase as “[a]ny application for an increase in the rate of a benefit being paid under a current award....” There can be no doubt that the collective submissions the veteran made in November 9, 1987, and January 21, 1988, met this definition. In Akles v. Derwinski,
BVA, in this [second] decision, went beyond the scope of the remand ordered by the Court. Instead of providing a reasoned analysis of its previous decision, the Board proceeded to deny appellant’s claim based on a reason not previously articulated in its 1990 decision, and not identified by the Court....
In addition to going beyond what the Court apparently contemplated as the purpose of its remand, BVA’s 1991 determination [second BVA decision], that a claim for service connection for esophageal cancer was not filed, construes too strictly the requirements of an “informal claim.”Section 3.155 of title 38 [C.F.R.], states that an informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits....” (38 C.F.R. § 3.155 ). Here, at the time of his claim, the veteran’s physicians were unable to establish a definitive diagnosis; however, it was known that the area of concern was “right under an area of maximal radiation” which the veteran had received for his service-connected Hodgkin’s disease (R. at 34), and there was a concern that the area might be cancerous. (R. at 34, 43). As stated in appellant’s brief, if VA determined that the form of appellant’s claim was incorrect or insufficient, the proper course would have been for VA to inform*358 the veteran or his representative. [38 U.S.C.A.]§ 5103(a) . (Appellant’s brief at 14). Additionally, as appellant points out, the regional office rating board in this same case previously accepted a claim for an increased rating as a claim for secondary service connection, without requiring this veteran to file a claim for service connection.
Motion of Appellee, at 3-4. As appellant has eloquently stated in her brief:
For VA to be aware that the veteran’s claim was insufficient and to keep silent all the while it was pending in order to use that formality as a basis of denial, would not only be unconscionable, it would violate the fundamental principle underlying the ex parte nature of veterans' claims and the heightened duty of VA to assist veterans. Here, the BVA’s decision necessarily has as its implicit premise the erroneous notion that (1) the veteran was required to specify that he was claiming a new service connection as opposed to increase, and (2) that VA has no duty to inform veterans when their claims are insufficient to obtain the benefits they seek. Otherwise, it is inescapable that the BVA would be openly suggesting that it be allowed to convert what would be VA’s own illegal inaction or breach of duty to assist into a defense or bar against the widow's claim.
Br. of Appellant, at 14.
But there is also an even more fundamental flaw in the BVA’s determination regarding denial of accrued benefits on the hypothesis that the veteran had not filed a valid claim during his life. The claim at issue here is that filed by appellant, not that filed by the veteran. Under
B. Title 38, United States Code Annotated,
Title 38, United States Code Annotated,
Title 38, Code of Federal Regulations, section 3.1000(d)(4)(i) (1992) further provides:
(4) Evidence in the file at date of death ... will be considered to have been met when there is on file at the date of the veteran’s death:
(i) ... evidence, including uncertified statements, which is essentially complete and of such weight as to establish service connection [for a compensable disease or injury,] or [an increase in the] degree of disability for [a previously service-connected] disease or injury when substantiated by other evidence in file at date of death or when considered in connection with the identifying, verifying, or corroborative effect of the death certificate.
speaks of the mere fulfilling of ministerial duties such as certification of necessary documents. That regulation permits the filling in of missing details, not the building of the entire case. To apply the regulation in any other way would be to permit the case to be made almost entirely after the veteran’s death.
Hayes, BVA No. 91-16370, at 8. Whatever redundancy and lack of clarity is contained in this regulation, what is clear is that
Dr. Cook’s letter, dated February 8, 1988, establishes a causal connection between the veteran’s service-connected condition and esophageal cancer. See
Close scrutiny of the evidence in the file at date of death reveals the following. Based on the undisputed facts, we know that the veteran was service-connected for the following: Hodgkin’s disease with lo-bectomy of the upper lobe of the right lung with rib resection and adenocarcinoma of the left breast; X-ray burn scar (from radiation) of the lateral neck; hypothyroidism; and status post squamous cell carcinoma of the neck. There is suspicion of esophageal cancer related to appellant’s radiation treatment. The only radiation treatment referenced in the record is for appellant’s service-connected Hodgkin’s disease. R. at 15-16. Finally, we know, from the death certificate, that a contributing cause of death was metastasis from the mediasti-num. Dorland’s Illustrated Medical Dictionary, 921 (27th ed. 1988), defines me-diastinum as
the mass of tissues and organs separating the two lungs, between the sternum in front and the vertebral column behind, and from the thoracic inlet above to the diaphragm below. It contains the heart and its large vessels, the trachea, esophagus, thymus, lymph nodes, and other structures and tissues....
The issue thus becomes: did the BVA err by not finding esophageal cancer to be present based on the evidence described in the preceding paragraph. What we do not know, for certain, at date of death, is from which organ or tissue in the mediastinum, the cancer contributing to death came. While it is quite possible that it came from suspected esophageal cancer, alternatively, it may have come from one of the service-connected organs (the lung, ribs, breast, thyroid, and neck), or it may have come from somewhere else (a non-service-connected organ) in the mediasti-num. The BVA simply could not determine with exactitude where the cancer referenced in the death certificate arose. In this regard, and as previously quoted in part II., supra, the BVA stated:
A review of the evidence of record at the date of death reveals, at best, only a suspicion of active cancer. The death certificate shows a carcinoma as playing a role in his demise; however, there was no evidence of record at time of his death showing that it was related to service or to a service connected disability.
Mildred M. Hayes, BVA No. 91-_, at 8. Based on the date-of-death-evidence of record, which shows only suspected esophageal cancer, we cannot conclude that this determination is implausible and therefore, it cannot be deemed clearly erroneous. See Gilbert v. Derwinski,
One final regulatory provision needs to be considered. Appellant argues, in essence, that 38 C.F.R. 3.1000(d)(4)(H) permits consideration of evidence “affecting entitlement” not in the file at date of death. Br. of Appellant, at 19-22. While not a model of clarity, the language of the regulation applies only to cases involving reductions in accrued benefits as a result of hospital treatment, or institutional or domiciliary care by the VA and claims for increases in accrued benefits as a result of the existence of dependents. Neither situation is present in this case. Whatever difficulties the Court may encounter in coming to grips with this regulation in the future, the Court does not have to consider it in this case.
C. Title 38, United States Code Annotated,
In our prior decision in Hayes,
While
However, the regulatory framework that has been established to implement
VA Manual, M21-1, 115.25(a) permits certain government documents to be considered as being in the file at date of death even though actually put into the file post date of death:
a. Evidence in File at Date of Death. Evidence “in file” includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death:
(1) Service Department records;
(2) Reports of VA hospitalization;
(3) Reports of treatment of examinations in VA medical centers including those in outpatient treatment folders;
(4) Reports of hospitalization, treatment or examinations authorized by VA; and
(5) Reports of autopsy made by VA on the date of death.
In addition, VA Manual, M21-1, 115.25(b) states, in relevant part, that “[t]he cited regulations [
Title 38, C.F.R. § 3.327(b)(1) deals with scheduling a reexamination in a compensation case and provides that
any hospital report and any examination report from a military hospital or from a State, county, municipal or other government hospital or recognized private institution which contain descriptions, including diagnoses and clinical and laboratory findings, adequate for rating purposes, of the condition of the*361 organs or body systems for which claim is made may be deemed to be included in the term “Department of Veterans Affairs examination.”
With consideration of these hospital reports, the evidence of record would show that what was at first reported as a suspicion of esophageal cancer related to an area of maximal radiation has indeed been confirmed as such cancer. In addition, the evidence of record shows that the only radiation received was for treatment of a service-connected condition.
No determination has yet been made as to whether these reports are to be deemed to be VA examinations. If so deemed, the BVA must then factually determine whether this additional evidence is sufficient, when taken together with the evidence described in part III.B., supra, to show entitlement to service connection for esophageal cancer pursuant to
Because of the result reached here, we do not reach the issues of whether Dr. Cook’s letter of February 8, 1988, must also be permitted either as “verifying or corroborating evidence ‘in file’ at date of death,” Manual, 115.25(b), or on the basis that “a claimant may confirm the prima facie evidence in file at the date of death by submitting evidence in connection with the claim for accrued benefits.” Manual, 1127.-08(b). However, in the event that the BVA’s factfinding on remand results in a determination adverse to appellant, the BVA shall also adjudicate appellant’s claim pursuant to these Manual provisions. In such instance, the BVA should clarify the meaning to be imputed to these provisions. In addition, the VA, at the earliest possible opportunity, may wish to clarify its policy as to what evidence submitted after death may be considered.
IV. CONCLUSION
The BVA decision is REVERSED as to its determination that no valid claim has been filed for accrued benefits, AFFIRMED insofar as it inferentially may have concluded that there was insufficient evidence in the file at date of death under