Veteranclaims’s Blog

March 18, 2009

Meaning of "pertinent" in veterans claims

Filed under: pertinent; 3007(a); Murphy; No. 90-107 — veteranclaims @ 10:25 pm

One item in veterans claims is different is that the Secretary is obliged to obtain all relevant facts that are pertinent to the claim, “not just those for or against the claim.”

The Secretary, then, is obligated under ù 3007(a) to assist “such a claimant in developing the facts pertinent to the claim.” Within the non-adversarial process of
VA claims adjudication, the word “pertinent” takes on an even stronger meaning; the Secretary’s duty applies to all relevant facts, not just those for or against the claim. Having been codified by Public Law 100-687, this obligation is more than a matter of policy or executive discretion; it is mandated by statute.

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U.S. Court of Appeals for Veterans Claims
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. 90-107
MURPHY.107
Search Terms: PERTINENT Note: Pursuant to 38 U.S.C. ù 4067(d)(2)
(1988) this decision will become the decision
of the Court thirty days from the date hereof.

UNITED STATES COURT OF VETERANS APPEALS

No. 90-107

Bonnie L. Murphy, Appellant,

v.

Edward J. Derwinski,
Secretary Of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Argued October 11, 1990 Decided November 8, 1990)

Andrew H. Marshall (non-attorney practitioner) and John J.
Corcoran argued the case, and Edward J. Kowalczyk (non-attorney
practitioner) was on the brief for appellant.

Stephen A. Bergquist, with whom Raoul L. Carroll, General
Counsel, Barry M. Tapp, Assistant General Counsel, and Andrew J.
Mullen, Deputy Assistant General Counsel, were on the brief, for appellee.

Before KRAMER, FARLEY, and HOLDAWAY, Associate Judges.

FARLEY, Associate Judge: Appellant filed a claim seeking service
connection for her husband’s death from glioblastoma multiforme, a type of
cancer. The Board of Veterans’ Appeals (BVA) affirmed the denial of
service connection based upon the finding that no causal relationship had
been shown between an earlier, service connected, form of cancer and the
glioblastoma multiforme. We vacate the BVA decision and remand with
directions that the BVA either (a) provide “reasons or bases” for the
conclusion that appellant failed to submit a well grounded claim because
no such
relationship could exist; or (b) assist appellant in the gathering of
records and determine whether such a relationship did, in fact, exist.

I.
The facts giving rise to this appeal may be briefly summarized.
Appellant, Bonnie J. Murphy, is the widow of Lt. Col. Francis B. Murphy
who retired from the United States Air Force in June 1970. Within five
months after retirement, an epidermoid carcinoma was found on the right
base of the veteran’s tongue. Following a course of radiation therapy, a
radical right tongue-jaw-neck dissection was performed and the tumor was
excised. Service connection was established for residuals of the
epidermoid carcinoma and the surgery. A subsequent examination reported
no evidence of a recurrence of the epidermoid carcinoma, R. at 29, and the
record in this case does not contain any such evidence. Appellant did
indicate that the veteran had skin cancers surgically removed three times
as an outpatient during 1986 and 1987. R. at 60. The veteran died on
June 10, 1988. The death certificate lists the cause of death as
glioblastoma multiforme (“[A] rapidly growing tumor, usually confined to
the cerebral hemispheres . . . .” Dorland’s Illustrated Medical
Dictionary 699 (27th ed. 1988)). The time between the onset of the
condition and the veteran’s death is listed on the death certificate as
four months.
Appellant sought benefits based upon the argument that, since her
husband’s 1970 cancer was service connected, and he died due to cancer,
service connection should be granted. In addition, appellant appears to
suggest that additional medical records should be obtained and reviewed
along with the tissue slides of the 1970 cancer. In a decision dated
December 8, 1989, the BVA affirmed the denial of service connection for
the veteran’s death. The Board found, inter alia, that: “No causal
relationship has been shown between the service-connected residuals of
epidermoid carcinoma and the development of glioblastoma multiforme.”
Bonnie J. Murphy, loc. no. 934379 at 6 (BVA Dec. 8, 1989). It concluded
that: “Glioblastoma multiforme was not incurred in or aggravated by active
service, was not proximately due to or the result of service-connected
disability, and may not be presumed to have been incurred in active
service.” Id. This timely appeal followed.

II.
The issue presented to this Court for review has changed during the
course of this appeal. In her Statement of Issues, appellant originally
asked that we determine whether the BVA “clearly erred in denying service
connection for the cause of the veteran’s death.” However, in her brief,
appellant stated that the issue was: “Whether the Secretary arbitrarily
failed to discharge his duty to assist Appellant in developing evidence in
support of Appellant’s claim and, further, arbitrarily failed to explain
the reasons for his inaction.” Br. of Appellant at 1. It is the latter
issue which we will address.
Section 3007(a) of title 38 provides:
Except when otherwise provided by the Secretary in accordance
with the provisions of this title, a person who submits a claim
for benefits under a law administered by the Department of
Veterans Affairs shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. The Secretary
shall assist such a claimant in developing the facts pertinent
to the claim. Such assistance shall include requesting
information [from the head of any Federal department or agency
.]
38 U.S.C. ù 3007(a) (1988).

Thus, it is true, as appellant argues, that the Secretary and the
Department of Veterans Affairs (VA) have a statutory duty to assist
claimants during the non-adversarial process of claims adjudication. The
issue, then, is not whether such a duty exists but under what
circumstances does it arise.
As we have noted in the past, ù 3007(a) establishes “chronological
obligations.” Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op.
at 10 (Oct. 12, 1990). The initial burden is on the shoulders of the
veteran or the claimant: “[A] person who submits a claim . . . shall have
the burden of submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.” ù 3007(a).
Because a well grounded claim is neither defined by the statute nor the
legislative history, it must be given a common sense construction. A well
grounded claim is a plausible claim, one
which is meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the initial
burden of ù 3007(a).
The BVA may conclude that a claim was not well grounded, that the
claimant did not or could not meet the initial burden imposed by ù 3007(a
), and that there was no duty to provide assistance to the claimant. Such
a conclusion, especially if it is medical or scientific in nature, like
all other findings and conclusions of the BVA, must be supported by “a
written statement of . . . the reasons or bases for those findings and
conclusions.” 38 U.S.C. ù 4004(d)(1) (1988); see also Gilbert v.
Derwinski, U.S. Vet. App. No. 89-53 (Oct. 12, 1990). Although the
Secretary appears to argue to the contrary in this appeal, Br. of Appellee
at 11, the fact that a BVA panel may include a physician is not by itself
sufficient for the purposes of the statute, the veteran or this Court.
BVA decisions must include the “reasons or bases” for medical conclusions,
even those opined by a BVA physician; a mere statement of an opinion,
without more, does not provide an opportunity for the veteran to explore a
basis for reconsideration or for this Court to review the BVA decision “on
the record” as required by 38 U.S.C. ù 4052(b) (1988). The specific type
of support will depend upon the nature of the particular claim, but such “
reasons or bases” could include relevant portions of medical treatises and
journals, epidemiological studies, perhaps even references to legal
decisions on the same issues. Moreover, as we have noted, the BVA
will find it easier to fulfill this mandate since Congress
recently imposed a similar requirement on the Secretary when
claims are denied. In 1989, Congress enacted 38 U.S.C.A. ù
3004(a)(2) (West Supp. 1990), which provides that “[i]n any
case where the Secretary denies a benefit sought, the notice
. . . shall also include (A) a statement of the reasons for
the decision, and (B) a summary of the evidence considered by
the Secretary.” The legislative history makes it clear that
this requirement “would not be met by such terms as ‘service
connection not found’ or other such conclusory statements.” 135
Cong. Rec. S16466 (daily ed. Nov. 21, 1989) (Explanatory
Statement on the Compromise Agreement on H.R. 901 as Amended,
the “Veterans Benefits Amendments of 1989”).
Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 12-13 (Oct.
12, 1990).
Once the claimant has “submitted evidence sufficient to justify a
belief by a fair and impartial individual that the claim is well grounded,”
the claimant’s initial burden has been met. The Secretary, then, is
obligated under ù 3007(a) to assist “such a claimant in developing
the facts pertinent to the claim.” Within the non-adversarial process of
VA claims adjudication, the word “pertinent” takes on an even stronger
meaning; the Secretary’s duty applies to all relevant facts, not just
those for or against the claim. Having been codified by Public Law 100-
687, this obligation is more than a matter of policy or executive
discretion; it is mandated by statute.
Indeed, as the Senate Veterans’
Affairs Committee commented with respect to the Secretary’s duty to assist:
Although the claimant has the burden of submitting evidence in
support of the claim, that evidence may be in the veteran’s
service record or other governmental records and, therefore, in
the control of the Federal Government. In such situations, the
VA should be responsible for providing the material – or seeing
that it is provided – needed to make the determination on
eligibility.
S. Rep. No. 418, 100th Cong., 2nd Sess., 33-34 (1988).
When a claimant submits a properly filled out and executed VA form 21-526,
Veteran’s Application for Compensation and Pension, the Secretary has the
veteran’s biographical, family, medical, and service data. This
information will enable the Secretary to fulfill his statutory duty to
assist the claimant by securing any relevant VA, military or other
governmental records. In addition, if private medical, hospital,
employment or other civilian records would assist the development of “the
facts Previous HitpertinentNext Hit to the claim”, the Secretary would be able to request them
from the claimant or, upon authorization, obtain them directly.

III.
It is not disputed that the veteran received service connection for
cancer in 1970 and that he died of cancer in 1988. The BVA decision, as
well as the Statement of the Case prepared by the Regional Office,
essentially concluded that the claimant did not submit a well grounded
claim and that, therefore, the Secretary did not have a duty under ù 3007(
a) to assist the claimant. The reason the claim was not well grounded,
and
why further development was unnecessary, was because: “The glioblastoma
multiforme, reported as the immediate cause of the veteran’s death, was
primary in nature and is in the category of rapidly growing carcinomas
. . . . [It] was reported to have its onset four months prior to death.”
Murphy at 5. From this, the BVA concluded that: “No causal relationship
has been shown between the service-connected residuals of epidermoid
carcinoma and the development of glioblastoma multiforme.” Murphy at 6.
Appellant argues that she did indeed submit a well grounded claim: “
The average person would have the same belief as the widow that a cancer
‘is a cancer is a cancer’ and that if a veteran was service connected for
cancer and died of cancer that there would be a direct relationship
between the two.” Br. of Appellant at 8. Appellant’s argument continues,
having met her initial burden, she is entitled to the assistance of the
Secretary “in developing the facts Previous HitpertinentNext Document to the claim.” Specifically,
appellant seeks a remand with a direction that the Secretary obtain and
review the veteran’s post-service medical records and tissue slides of his
1970 cancer so that she can demonstrate the “direct relationship between
the two” cancers.
It is not clear from the decision whether the BVA concluded that the
claim was not well grounded or that the claimant had failed to demonstrate
that there was a relationship between the two episodes of cancer. If the
BVA did conclude that the claim was not well grounded because there was
no “medical-scientific basis”, Br. of Appellee at 10, for such a
relationship, a remand is necessary because the BVA decision did not
contain the requisite statement of “reasons or bases” for such a
conclusion. On the other hand, if the finding of the BVA that “no causal
relationship has been shown” between the epidermoid carcinoma and the
glioblastoma multiforme is taken at face value, it necessarily means that
the claimant submitted a well grounded claim which was not “shown” by the
evidence. In such event, a remand is necessary because the Secretary
denied the appellant the opportunity to make such a showing by failing to
provide the assistance required by ù 3007(a).

IV.
For the reasons noted above, the decision of the BVA is vacated and
remanded. On remand, if the BVA concludes that the claim is not well
grounded because the glioblastoma multiforme is not medically or
scientifically related to the epidermoid carcinoma, it must provide “
reasons or bases” for such a scientific or medical conclusion. If,
however, the BVA concludes that the claim is well grounded, the Secretary
shall secure and review the records of the veteran’s post-service
hospitalization and determine whether those records show that a causal
relationship does, in fact, exist.
It is so Ordered.

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