Wray v. Brown

KRAMER, Judge,

dissenting:

Even assuming that there are some cases in which an on-point, expert opinion does not constitute “material” evidence, but cf. Paller v. Principi, 3 Vet.App. 535, 538 (1992) (corroborating medical opinion was “material” for purposes of reopening a claim where corroboration was deemed to be important in light of a split in scientific opinion), and thus does not have to be discussed by the Board, but see Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (“[fulfillment of the reasons or bases mandate requires the [Board] to set forth the precise basis for its decision, to analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant in support of the claim, and to provide a statement of reasons or bases for rejecting any such evidence”), this ease isn’t it.

As the majority correctly points out, one way of establishing service connection for the cause of the veteran’s death would be “if it were shown that the [veteran’s] service-connected disabilities ‘contributed substantially or materially' to cause death; ‘that [they] combined to cause death; that [they] aided or lent assistance to the production of death.’ See 38 C.F.R. § 3.312(c)(1).” Ante at 491. While, admittedly, paragraphs (c)(2) and (e)(4) of 38 C.F.R. § 3.312 throw a damper on the appellant’s ability to use the veteran’s static service-connected disabilities resulting from musculoskeletal injuries as a basis for demonstrating that such disabilities contributed substantially or materially to cause or hasten the veteran’s death, nevertheless, those paragraphs are worded in terms of “generally,” and thus do not establish a strict rule. Thus, based on this standard, the evidence in this case requires a remand.

There are three medical opinions of record which support the appellant’s contention that the veteran’s service-connected disabilities contributed to cause or hasten the veteran’s death. First, Dr. Richardson, who was the veteran’s attending doctor at the time of his death, wrote a July 1989 letter which stated as follows:

Although his death was presumed to be cardiac, [the veteran] had a history of an old injury to his leg that occurred while he was in the Army.
[The veteran] was also very anxious and suffered from insomnia for a good many years.
I think it was entirely possible that these conditions contributed to his demise.

R. at 161. The following notation was at the bottom of Dr. Richardson’s letter: “Addendum to death certificate.” Ibid. Second, Dr. Joyce wrote a January 1990 letter which stated as follows:

I treated [the veteran] for hypertension, diabetes mellitus, pylorspasm [sic], multiple joint pain and anxiety. X-rays in 1985 revealed degenerative changes of left knee.
It is my opinion that these conditions could have contributed to his death on May 20, 1989.

R. at 244. Third, Dr. Williams wrote a May 1990 letter which stated as follows:

[T]o a reasonable degree of medical certainty, it is my expert opinion ... that [the veteran’s] chronic pain condition resulting from his service[-]connected injury did indeed contribute to the hastening of his death.

R. at 251.

The majority relies on Dr. Abrams’ January 1992 report to support the Board’s conclusion that the veteran’s service-connected disabilities did not substantially or materially contribute to cause or hasten the veteran’s death. However, a close examination of Dr. Abrams’ report reveals that his opinion cannot support the Board’s conclusion. Initially, it should be noted that Dr. Abrams was asked only whether the veteran’s service-connected disabilities “cause[d] or contribute[d] substantially to the heart disorder which caused his death,” R. at 583, but was not asked whether the veteran’s service-connected disabilities, irrespective of any causal relationship to the heart disorder, contributed substantially or materially to cause or hasten the veteran’s death. See 38 C.F.R. § 3.312(c)(1) (“[contributory cause of death *495is inherently one not related to the principal cause”). In addition, Dr. Abrams’ report does not reflect any opinion about whether the veteran’s service-connected disabilities contributed to cause or hasten the veteran’s death, nor does the majority or the Board point to any such statement.

For the reasons stated above, I would remand to the Board for a statement of reasons or bases as to why it rejected the above-referenced evidence in support of the appellant’s claim, see Gabrielson, supra, and for a supplemental independent medical expert opinion addressing whether the veteran’s service-connected disabilities contributed substantially or materially to cause or hasten the veteran’s death. See 38 C.F.R. § 3.312(c)(1).