Veteranclaims’s Blog

September 21, 2010

Gabrielson v. Brown, 7 Vet. App. (1994), Reasons and Bases for Rejection of Veterans Evidence

“Accordingly, the BVA decision here contained “neither an analysis of the credibility or probative value of the evidence submitted by and on behalf of appellant in support of [her] claim nor a statement of the reasons or bases for the implicit rejection of this evidence by the Board.” Gilbert, 1 Vet.App. at 59. Therefore, the case should be remanded.”
=======================================
An IME opinion is only that, an opinion. In an adversarial
proceeding, such an opinion would have been subject to cross-examination
on its factual underpinnings and its expert conclusions. The VA claims
adjudication process is not adversarial, but the Board’s statutory
obligation under 38 U.S.C. ù 7104(d)(1) to state “the reasons or bases
for [its] findings and conclusions” serves a function similar to that of
cross-examination in adversarial litigation. The BVA cannot evade this
statutory responsibility merely by adopting an IME opinion as its own,
where, as here, the IME opinion fails to discuss all the evidence which
appears to support appellant’s position,
.”
=======================================

Search Terms: GABRIELSON

UNITED STATES COURT OF VETERANS APPEALS

No. 93-532

Mary F. Gabrielson, Appellant,

v.

Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided September 20, 1994 )

Louis N. Hiken was on the brief for appellant.

Mary Lou Keener, General Counsel, Norman G. Cooper, Assistant General
Counsel, Adrienne Koerber, Deputy Assistant General Counsel, and John C.
Winkfield were on the brief for appellee.

Before FARLEY, HOLDAWAY, and STEINBERG, Judges.

FARLEY, Judge, filed the opinion of the Court. HOLDAWAY, Judge,
filed a concurring opinion.
FARLEY, Judge: Appellant, the widow of veteran Dale E. Previous HitGabrielsonNext Document [
hereinafter the veteran], appeals from a May 3, 1993, decision of the
Board of Veterans’ Appeals (BVA or Board) which denied her claim for
dependency and indemnity compensation (DIC) benefits after concluding that
the cause of the veteran’s death was not service connected. The Court has
jurisdiction pursuant to 38 U.S.C. ù 7252(a). On consideration of the
record on appeal and the briefs filed by the parties, the Court will
vacate the decision of the Board and remand the matter for further
proceedings consistent with this opinion.

I.
The veteran was a career Naval officer, serving from June 25, 1965,
until he retired on July 1, 1985. Record (R.) at 124. In the “Report of
Medical History,” dated June 3,
1985, he reported that his health was excellent, and that he used no
medications. R. at 105. Dr. Bothwell, the Navy doctor who examined the
veteran on that day, noted a fine hand tremor. R. at 103-04. She also
recorded the veteran’s statement that he drank five to six ounces of
alcohol a day, and that he denied any past history of alcohol problems,
driving while intoxicated, or “loss of work time” due to alcohol use. R.
at 106. There is no reference in the veteran’s service medical records (
SMRs) to alcohol abuse or liver diseases. R. at 47-102, 108-18. At the
age of 46 and less than three years after his retirement, the veteran died
on May 30, 1988. R. at 121. The records of the private hospital where he
died reported that the veteran “stated that he was drinking three-quarters
of a quart of bourbon every day for the past 30 years.” R. at 153. The
death certificate listed the immediate cause of death as bacterial sepsis ”
due to, or as a consequence of,” liver failure, which, in turn, was “due
to, or as a consequence of,” the “underlying cause,” which was alcoholism
of 30 years’ duration. R. at 121. At appellant’s request, the death
certificate was amended on September 2, 1988, to show that, prior to his
death, the veteran had suffered from alcoholism for 15 years, rather than
30 years. R. at 122. Appellant explained that the attending physician
had misunderstood the veteran’s response when he asked how long the
veteran had been drinking; instead of stating that he had been drinking
since the age of 16 to 18, the veteran had said that he had been drinking
for 16 to 18 years. R. at 204-05.
Appellant, on June 1, 1989, applied for DIC benefits for herself and
two children, claiming that her husband’s death was service connected. R.
at 127-28. In an attachment to the application, appellant claimed that
the veteran’s alcoholism problem “began while in service” and was “related
to stress, [and] pressure while on active duty.” R. at 130, 133. She
also asserted that the alcoholism “did not interfere [with his] job,” that
it became worse after his 1985 retirement, and that “his disability had to
have begun while he was in the service” because “[a] liver is not
destroyed in the three years between discharge and death.” R. at 130. In
a rating decision on August 25, 1989, service connection for the cause of
death was denied for the reason that the SMRs “do not show any treatment
for liver disease” and his alcoholism was “considered to be the result of
willful misconduct.” R. at 139. The rating decision further noted that
the “liver failure is an organic condition that
resulted from his alcoholism. There is no indication that the veteran
was treated for a liver condition in service. There is no indication that
the veteran developed cirrhosis of the liver within the one year
presumptive period following his discharge from service.” Id.
Appellant filed a Notice of Disagreement on April 25, 1990, again
contending that three years would not have been a sufficient period of
time for alcohol to have destroyed the functioning of her husband’s liver
and kidneys. R. at 142. She further alleged that the hand tremor noted
at his retirement physical supported her claim that her husband had
visible signs of alcoholism at that time. Id. Her substantive appeal (VA
Form 1-9), dated October 22, 1990, reasserted that the hand tremors were
alcohol related and that it was her belief that the veteran “was at least
10% disabled from cirrhosis during the presumptive one year period.” R.
at 184.
At a personal hearing on December 19, 1990, appellant testified that
the veteran’s service assignments were stressful, particularly his service
as an admiral’s aide, which placed him in constant demand day and night,
and which required that he attend all the admiral’s parties, where a great
deal of social drinking transpired. R. at 189-90. She further testified
that, although he never drank during the day while he was working, she
estimated that he consumed as much as one-half bottle of liquor nightly ”
toward the end of his career” and that his daily intake for the three
years following his retirement in 1985 until his death “accelerated” to
three-quarters of a bottle. R. at 190, 195, 196. Appellant also
commented that during the last six years of the veteran’s life, she
noticed he had visible hand tremors, particularly in the morning. R. at
193-94. At the conclusion of the personal hearing, the hearing officer
confirmed the prior denial of service connection for the cause of the
veteran’s death. R. at 208-09.
In April 1992 a Board medical adviser, Dr. Jack Rheingold, reviewed
the evidence of record and stated “that it was quite conceivable” that the
liver damage secondary to alcohol might have begun during service or
within the applicable presumption period. R. at 218. The Board then
referred the matter to Dr. Geoffrey Block for an independent medical
expert (IME) opinion, advising him of Dr. Rheingold’s report. R. at 223-
24. The Board asked Dr. Block, a specialist in hepatology, to review the
record and furnish the Board with his opinion as to whether there was
objective medical evidence that cirrhosis was present
during service or within one year thereafter. R. at 224. On November 12,
1992, Dr. Block advised the Board that there was no physical or laboratory
evidence in the record to show that the veteran had any type of liver
disease before his May 1988 admission to the private hospital where he
died. R. at 227. Dr. Block opined that there was evidence to support a
diagnosis of alcoholism and alcohol abuse at the beginning of the
veteran’s terminal hospitalization in May 1988, particularly the widow’s
report of “significantly increased ethanol use following discharge.” R.
at 228, 230. However, Dr. Block concluded that the veteran’s
service record, as well as relevant spousal testimony, did not
otherwise indicate any evidence of interference with routine
duties, personal relationships, or ability to perform the usual
social, professional or personal activities of daily living
. . . . The [veteran’s] accounting of ethanol use at the time
of discharge [5-6 ounces of alcoholic beverages per day] did
not meet standard criteria for making a diagnosis of ethanol
abuse, nor was the reported amount of ethanol use sufficient to
reasonably expect to find significant liver injury in the
absence of overt physical findings.
R. at 228-30. In a January 20, 1993, letter transmitted to the Board with
a letter from her representative, appellant responded to Dr. Block’s
opinion by asserting that there were instances prior to the veteran’s
discharge from service where his alcohol consumption interfered with his
daily living and his personal and social relationships, and that his
liquor consumption during service was actually “1/2 quart of brandy . . .
a day with the amount greatly accelerated after his retirement [to] nearly
a quart a day by the last two years . . . .” R. at 234; see also R at
232-33.
In its May 3, 1993, decision here on appeal, the Board principally
relied on Dr. Block’s IME opinion to deny service connection for the cause
of the veteran’s death. In addition, the Board found that “[t]he evidence
summarized by the IME is consistent with that of record” and concluded:

[T]he appellant contends that the cause of the veteran’s liver
disease was alcoholism, which she claims began during his
period of service. However, the fact that the veteran used
alcohol in service does not, in itself, establish a basis for
the grant of service connection or a basis for a finding that
alcoholism was present in service. There is no diagnosis of
alcoholism in the service medical records and, as noted by the
IME, the medical evidence does not support a diagnosis of
alcoholism. In any case, if in service the veteran did use
alcohol to enjoy its intoxicating effects, and if such alcohol
use had resulted proximately and immediately in disability,
that disability would have been a result of willful misconduct,
and therefore, not one for which service connection could have
been granted. 38 C.F.R. ù 3.301 (1992).

R. at 8-9.
Appellant seeks reversal of the Board’s decision, contending
primarily that it was based on the “clearly erroneous” factual finding
that neither alcoholism nor cirrhosis was present during the veteran’s
service. The alcoholism finding, in particular, is challenged by
appellant because the Board relied on an IME opinion, which in turn
allegedly relied on incomplete information. See Appellant’s Br. at 12.
Appellant also argues that the Board improperly extended the willful
misconduct bar to cirrhosis, a secondary, organic disease. See id. at 22.

II.
A.
Under 38 U.S.C. ù 1310, the surviving spouse of a veteran whose
service-connected disabilities were the principal or contributory cause of
his death, and whose death occurred after December 31, 1956, may be
eligible for DIC. See 38 C.F.R. ù 3.312(a) (1993). For the purpose of
determining DIC eligibility under 38 U.S.C. ù 1310, whether a disability
is service connected is established by applying chapter 11 of title 38 of
the United States Code, which provides, inter alia, that “no compensation
shall be paid if the disability is a result of the veteran’s own willful
misconduct . . . .” 38 U.S.C. ù 1110; see also 38 U.S.C. ù 1310(a) (
requiring that service connection be established under chapter 11 for DIC
purposes); 38 U.S.C. ù 105(a) (describing line of duty and willful
misconduct); 38 C.F.R. ù 3.301(a) (1993) (“Direct service connection may
be granted only when [the] cause of death was incurred or aggravated in
the line of duty, and not the result of the veteran’s own willful
misconduct.”). A service-connected disability is the principal cause of
death when
that disability, “singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically related
thereto.” 38 C.F.R. ù 3.312(b) (1993). A contributory cause of death
must be causally connected to the death and must have “contributed
substantially or materially” to death, “combined to cause death,” or ”
aided or lent assistance to the production of death.” 38 C.F.R. ù 3.312(
c)(1) (1993). In deciding whether a veteran’s death is service connected,
the Board makes a finding of fact which the Court reviews under a “clearly
erroneous” standard of review. 38 U.S.C. ù 7261(a)(4); Gilbert v.
Derwinski, 1 Vet.App. 49, 53 (1990).
Moreover, the Board is required, by statute, to base its decisions on ”
all evidence and material of record” and to provide a “written statement
of [its] findings and conclusions, and the reasons or bases for those
findings and conclusions, on all material issues of fact or law presented
on the record.” 38 U.S.C. ùù 7104(a), (d)(1). In Gilbert, this Court
noted:
In view of the mandate of [ù 7104(d)] that the BVA
articulate with reasonable clarity its “reasons or bases” for
decisions, and in order to facilitate effective judicial review,
the Board must identify those findings it deems crucial to its
decision and account for the evidence which it finds to be
persuasive or unpersuasive. These decisions must contain clear
analysis and succinct but complete explanations. A bare
conclusory statement, without both supporting analysis and
explanation, is neither helpful to the veteran, nor “clear
enough to permit effective judicial review”, nor in compliance
with statutory requirements.
Gilbert, 1 Vet.App. at 57. Fulfillment of the reasons or bases mandate
requires the BVA 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 its reasons or bases for rejecting any such
evidence. See, e.g., Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991);
Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991); Hatlestad v. Derwinski,
1 Vet.App. 164, 169-70 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 149-
50 (1991); Willis v. Derwinski, 1 Vet.App. 66, 70 (1991); Gilbert, 1 Vet.
App. at 59.

B.
The IME report reaches a two-fold conclusion: neither a diagnosis of
alcoholism nor a diagnosis of liver impairment could be supported at the
time of the veteran’s retirement from service. It is clear from a reading
of his opinion that the IME based his conclusions primarily upon the
statement made by the veteran and documented on the report of his
discharge physical (R. at 106) that he had been drinking five to six
ounces of alcohol per day. See R. at 228 (IME indicates that “drinking 5-
6 ounces of alcoholic beverages per day (duration not recorded) . . .
would [not] indicate alcohol abuse”); R. at 229-30 (IME statement that the
veteran’s “accounting of ethanol use at the time of discharge did not meet
standard criteria for making a diagnosis of ethanol abuse”). Neither the
IME opinion nor the Board’s decision references appellant’s testimony that
the veteran’s actual liquor consumption was 16 to 24 ounces a day lasting
over a period of either 15 or 30 years. R. at 190, 195-96. Similarly,
the Board decision fails to discuss the letters of January 1993 from
appellant and her representative, in response to the IME opinion, which
assert that the veteran’s use of alcohol interfered with his daily living
and provide motives for why the veteran would have understated the amount
of his alcohol consumption at the time of discharge. See R. at 232-34.
Under these circumstances, the IME opinion here raises more questions than
it purports to answer and indeed provides a weak foundation upon which to
base a decision.
An IME opinion is only that, an opinion. In an adversarial
proceeding, such an opinion would have been subject to cross-examination
on its factual underpinnings and its expert conclusions. The VA claims
adjudication process is not adversarial, but the Board’s statutory
obligation under 38 U.S.C. ù 7104(d)(1) to state “the reasons or bases
for [its] findings and conclusions” serves a function similar to that of
cross-examination in adversarial litigation. The BVA cannot evade this
statutory responsibility merely by adopting an IME opinion as its own,
where, as here, the IME opinion fails to discuss all the evidence which
appears to support appellant’s position,
. Accordingly, the BVA decision
here contained “neither an analysis of the credibility or probative value
of the evidence submitted by and on behalf of appellant in support of [her]
claim nor a statement of the reasons or bases for the implicit rejection
of this evidence by the Board.” Gilbert, 1 Vet.App. at 59. Therefore,
the case should be remanded. See Ledford v. Derwinski,
3 Vet.App. 87, 89-90 (1992) (“A remand is required where the BVA fails to
provide an adequate statement of the ‘reasons or bases’ for its findings
and conclusions, with respect to both the merits and the application of
the ‘benefit of the doubt’ under 38 U.S.C. ù 5107(b)”). On remand, the
Secretary will be given the opportunity to review the evidence of record,
including all of the evidence pertaining to the amount of alcohol consumed
by the veteran during service, to readjudicate appellant’s claim, and to
provide sufficient reasons or bases for its credibility and factual
findings and conclusions, including its consideration of the benefit-of-
the-doubt doctrine. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991
); see also 38 U.S.C. ù 5107(b) (requiring the Board to resolve all
doubt in a claimant’s favor when a balance of positive and negative
evidence exists); Williams v. Brown, 4 Vet.App. 270, 273-74 (1993) (Board
must consider and discuss the benefit-of-the-doubt doctrine where ”
significant evidence” supports a claim).

III.
In the penultimate paragraph of its decision, the Board gave three
reasons for rejecting appellant’s claim that her husband’s alcoholism
began in service: (1) the veteran’s use of alcohol did not establish a
diagnosis of alcoholism; (2) no such diagnosis appears in the veteran’s
SMRs; and (3) its adopted IME opinion that the medical evidence did not
support a diagnosis of alcoholism, but see Part II. B, infra (discussing
the IME opinion). The Board, apparently assuming for the sake of argument
that a diagnosis of alcoholism existed in service, then stated:

In any case, if in service the veteran did use alcohol to enjoy
its intoxicating effects, and if such alcohol use had resulted
proximately and immediately in disability, that disability
would have been a result of willful misconduct, and therefore,
not one for which service connection could have been granted.
38 C.F.R. ù 3.301 (1992).

R. at 9 (emphasis added). As appellant here correctly contends, that
statement of the law is incorrect when applied to the facts of this case,
and to the extent that it affected the Board’s determination, a remand is
also required because the Board erred as a matter of law.
Alcohol dependence is deemed by statute to be the result of willful
misconduct and cannot itself be service connected. See 38 U.S.C. ùù
105(a), 1110. However, prior to November 1990, disabilities secondary to
alcoholism were not covered by the “willful misconduct” bar. The VA
regulation at that time stated that “[o]rganic diseases and disabilities
which are a secondary result of the chronic use of alcohol as a beverage,
whether out of compulsion or otherwise, will not be considered of willful
misconduct origin.” 38 C.F.R. ù 3.301(c)(2) (1990). It was for the
express purpose of “preclud[ing] payment of compensation for certain
secondary effects arising from willful misconduct,” including “injuries or
disease incurred during service as the result of . . . the abuse of
alcohol,” that 38 U.S.C. ù 1110 was amended by the Omnibus Budget and
Reconciliation Act of 1990, Pub. L. No. 101-508, ù 8052, 104 Stat. 1388-
1, 1388-351 (1990) (OBRA). See H.R. Conf. Rep. No. 964, 101st Cong., 2d
Sess. 997 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2702. As amended,
38 U.S.C. ù 1110 now provides that “no compensation shall be paid if the
disability is a result of the veteran’s own willful misconduct or abuse of
alcohol or drugs.” (Emphasis added.) However, the statutory amendment
applied only to claims filed after October 31, 1990. See OBRA, ù 8052(b
). As of this writing, the Secretary has yet to reflect the statutory
change in the corresponding regulation, 38 C.F.R. ù 3.301(c)(2), but the
VA Adjudication Procedure Manual, M21-1 [hereinafter M21-1] now provides
that “[f]or claims filed after October 31, 1990, the law prohibits
granting service connection for primary and secondary disabilities
resulting from abuse of alcohol or drugs. DIC can no longer be paid for
death resulting from similar etiology.” M21-1, Part IV, para. 11.04 e.(1)(
a) (emphasis added).
As the Secretary concedes, the willful misconduct bar would extend to
cirrhotic liver failure found to be a secondary organic disease only if
the DIC claim had been filed after October 31, 1990. See Secretary’s Br.
at 27. Here, however, appellant’s DIC claim was filed on June 1, 1989,
sixteen months prior to the “after October 31, 1990,” effective date of
the amendment to 38 U.S.C. ù 1110. The misstatement of the proper legal
standard by the Board was error, but the error was harmless because it did
not, as of yet, result in prejudice to appellant. See 38 U.S.C. ù 7261(
b); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991). However, if on
remand the Board’s “[i]n any case” scenario comes to pass and the
Board determines that there is a factual predicate for a diagnosis of
alcoholism during the veteran’s military service, then the Secretary must
apply the correct legal standard.

IV.
There is pending before the Court a motion by the Secretary to strike
the extra-record material attached to appellant’s brief. The provisions
of 38 U.S.C. ù 7252(b) require that review in this Court “shall be on the
record of proceedings before the Secretary and the Board.” See Moore v.
Derwinski, 1 Vet.App. 401, 406 (1991). The Court has held that it is ”
precluded by statute from considering any material which was not contained
in the ‘record of proceedings before the [Secretary] and the Board.'”
Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (citing 38 U.S.C. ù
4052(b) currently found at 38 U.S.C. ù 7252(b)); see also Obert v. Brown,
5 Vet.App. 30, 32 (1993); cf. Bell v. Derwinski, 2 Vet.App. 611, 612-13 (
1992) (per curiam) (holding that VA records predating the Board decision
on appeal are deemed to have been constructively “before the Secretary and
the Board”). Since the materials appended to appellant’s brief were not a
part of the “record of proceedings before the Secretary and the Board,”
they were not considered by the Court in reaching its decision. See
Obert, 5 Vet.App. at 32 (Court refused to consider appendix to appellant’s
brief containing material not before the Secretary and the Board). In
view of the disposition of this appeal, the Secretary’s motion will be
denied as moot. Of course, appellant is free to submit additional
material and argument to the Board on remand. See Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992).

V.
It is therefore decided, upon consideration of the foregoing, the
record on appeal, and the parties’ briefs, that the Board decision of May
3, 1993, is VACATED, and the matter is REMANDED for further proceedings
consistent with this opinion. Upon consideration of the Secretary’s
motion to strike the extra-record material and appellant’s motion in
opposition thereto, both motions are DENIED as moot.

HOLDAWAY, Judge, concurring: I concur with both the result and,
based on our precedential case law, the analysis in Judge Farley’s
excellent opinion. I do feel compelled to point out, however, that the
evidence that was “inadequately” discussed in the reasons or bases part of
the BVA decision was contradictory and that the contradictions were those
of the appellant and her deceased husband. The husband gave a quite
different account of his service drinking habits at the time of his
retirement than he did later on. Moreover, his wife, the appellant,
testified that the heavy drinking began only toward the end of his career.
We now ask the Board, through the guise of the judicially enhanced reasons
or bases statutory provision, to decide which version of this evidence was
truthful and then, somehow, explain why they selected the version they did
. I wish them well in this endeavor. The Court has engrafted
requirements on the statutory reasons or bases provision that are simply
not contained in the statute. It is now our precedent and I accept it.
However, it is one cat that I would like to walk backwards, at least a
little bit.

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