Dobbin v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 99-1461

MAUREEN T. DOBBIN , APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided December 11, 2001 )

John S. O'Dowd was on the brief for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Jacqueline M.

Sims, Deputy Assistant General Counsel; and Jenny Y. Yue were on the brief for the appellee.

Before FARLEY, HOLDAWAY, and GREENE, Judges.

HOLDAWAY, Judge: The appellant, Maureen T. Dobbin, appeals from a July 1999 decision

of the Board of Veterans' Appeals (BVA or Board) which determined that a June 1990 Board

decision that denied her claim for service connection for the cause of her husband's death and

entitlement to dependency and indemnity compensation (DIC) on the basis of 38 U.S.C. § 351 (now

§ 1151) did not contain clear and unmistakable error (CUE). The Court has jurisdiction of the case

under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the

Board.

I. FACTS

The veteran, William B. Dobbin, served on active duty from October 1950 to April 1952.

During service, his left elbow was shattered as a result of a gunshot wound. The diagnosis was

"fracture, compound, comminuted, left, distal humerus and proximal radius and ulna with ulna nerve

involvement." Record (R.) at 35. His residuals included a flail elbow joint and ulnar nerve damage.

X-rays revealed multiple small metallic densities in the soft tissues and in the elbow joint. From

June 1951 to December 1951, the veteran was treated and underwent surgery for the wounds in the

left elbow.

In January 1952, the veteran applied for service connection for the residuals of the gunshot

wounds in the left elbow. In May 1952, he underwent a VA examination. The examiner noted that

the veteran's left shoulder had no evidence of osseous or articular pathology and that it had not

retained metallic foreign bodies. As for the veteran's left elbow, the examiner noted that there was

complete disorganization of the elbow with loss of the normal contours and architecture and with

absence of considerable parts of the condyles of the humerus and of the proximal ends of the radius

and ulna. The left elbow disability was attributed to the gunshot wounds with associated fractures.

In June 1952, a VA regional office (VARO) granted the veteran a temporary 100% rating for a

period of hospitalization, and a 60% rating from October 1, 1952, for the residuals of the left elbow

injury. In September 1964, the veteran was diagnosed with rheumatoid arthritis, with secondary

anemia. That same month, he claimed to have arthritis as a result of the gunshot wounds. The

veteran submitted several doctors reports in support of his claim. One report, dated October 1964,

was from Dr. William Pasquariello. Dr. Pasquariello diagnosed the veteran with rheumatic arthritis

and stated that "[t]he possibility of this rheumatoid arthritis having a traumatic origin (gunshot

wound) must be very seriously considered." R. at 99. In another report, dated the same month,

Robert P. Gerety, M.D., opined that the veteran's rheumatoid arthritis could be secondary to his

military service. In November 1964, the VARO denied the veteran's claim for service connection

for rheumatoid arthritis because there was no basis for concluding that the rheumatoid arthritis,

which was initially manifested in 1964, was related to service. The veteran appealed. In March

1966, the Board affirmed the VARO denial.

At a September 1978 VA examination, the veteran was diagnosed with residuals of gunshot

wounds in the left elbow with loss of use of the left upper extremity and generalized advance

rheumatoid arthritis. The degree of disability was noted to be severe, complete, and irreversible.

In November 1978, the VARO granted to the veteran a special monthly compensation for loss of the

use of one hand. In January 1979, the veteran was diagnosed with advanced rheumatoid arthritis in

the right upper extremity with loss of use of the right upper extremity. The degree of disability was

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noted to be severe with marked ulnar neuropathy with motor, sensory, and reflex changes in the left

with subsequent atrophy and disuse of this upper extremity. The VARO increased the veteran's

special monthly compensation for loss of use of non-service-connected paired extremity in February

1979.

In September 1986, the veteran was hospitalized. He received consultations regarding

infectious disease and oral surgery. The impressions were possible abscess or pseudoaneurysm, right

proximal forearm, renal amyloidosis with end-stage renal disease, chronic active deforming

rheumatoid arthritis, and resolving right preauricular facial abscess. The discharge diagnoses were

hematoma adjacent to dialysis fistula and renal amyloidosis with uremia. In December 1986, the

veteran underwent "resections of the right forearm bovine and fistula, venous anastomosis,

pseudoaneurysm." R. at 401-402. In January 1987, the veteran was diagnosed with bleeding dialysis

fistula, renal amyloidosis with uremia, chronic active deforming rheumatoid arthritis, and angina by

history. In February 1987, the veteran underwent insertion of bovine AV fistula, right brachialary

to right axillary vein; ligation of distal forearm loop AV fistula, right forearm; excision of infected

venous end of loop AV fistula; right forearm; and excision of infected venous end of loop AV fistula

with ligation of vein. The discharge diagnoses were "infected bleeding right forearm arterial venous

fistula," chronic active deforming rheumatoid arthritis, renal amyloidosis with uremia, and angina.

R. at 406-407.

In March 1987, the veteran's disability was reevaluated pursuant to new legislation, and the

VARO granted the veteran additional compensation. In November 1987, the veteran was admitted

to a VA hospital for emergency care. He received hemodialysis. Despite efforts to treat him, the

veteran died on the day of admission. The final diagnoses included fluid overload with bilateral

hydrothorax, hypoxemia, and hypercapnia; chronic active deforming rheumatoid arthritis; renal

amyloidosis with uremia; and bronchitis. The death certificate noted that the immediate cause of

death was uremia that was due to or as a consequence of renal amyloidosis and rheumatoid arthritis

that had its onset approximately 25 years prior to death. Angina and hemodialysis were listed as

other significant conditions or environmental factors.

In November 1987, the appellant, the veteran's widow, filed a VA claim seeking service

connection for the cause of the veteran's death, which she asserted was related to his service-

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connected gunshot wound. The appellant later expanded her claim to include a claim for DIC based

on 38 U.S.C. § 1151 and her allegations that her husband's death resulted from a VA misdiagnosis

of his infection in August 1986 and that the infection resulted from a contaminated water supply used

in the dialysis unit at the Tucson, Arizona, VA Medical Center. She submitted a newspaper article

entitled "Tucson VA patient died after unsterile dialysis." The article reported that in November

1985, one patient died and five others became ill after being treated with contaminated water at the

Tucson VAMC. She also submitted medical articles that related the techniques of debridement and

posted a relationship between retained lead fragments in joints and the development of arthritis.

In October 1989, the VARO determined that the veteran's death was not caused by the VA

medical or surgical treatment, but by renal amyloidosis and rheumatoid arthritis. Consequently, the

VARO denied the appellant's claim. In June 1990, the Board again denied the appellant's claims for

service connection for the cause of the veteran's death and DIC benefits.

In March 1993, the appellant submitted evidence to reopen her claim for service connection

for the cause of the veteran's death. Among the newly submitted evidence were letters from Dr.

Stephen M. Seltzer and Dr. Robert P. Gerety. In his November 1993 letter, Dr. Seltzer stated that

it was reasonable to suggest that the veteran's "end-stage renal disease, which ultimately led to his

death, could have been the result of chronic lead poisoning from his war injuries." Supplemental

(Suppl.) R. at 1. In a letter dated December 1993, Dr. Gerety wrote:

In 1961 I was the Dobbin family doctor and treated Mr. William Dobbin for acute

gout. The progression of his disease convinced me it was related to the lead present

in his shattered elbow, injured in the Korean War. The history of his disease in the

ensuing years makes me even more certain today that he suffered from lead

poisoning.

SR. at 2.

In July 1994, the VARO granted the appellant's claim for service connection for the cause

of the veteran's death due to lead intoxication from shell fragments in his elbow. DIC was awarded

effective April 1, 1993, the date her claim was reopened. In December 1996, the Board determined

that the appellant was not entitled to an effective date earlier than April 1, 1993, for the payment of

DIC benefits. In addition, the Board noted that the appellant's motion for reconsideration of the

Board's June 1990 decision was denied in September 1995, and that an appeal to the Court was

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dismissed for lack of jurisdiction. Therefore, the Board found that its 1990 Board decision was not

subject to review for CUE and that the 1988 VARO decision had been subsumed by the 1990 Board

decision and, therefore, could not be attacked collaterally on the basis of CUE.

In May 1998, the Court affirmed the December 1996 Board decision in part and vacated it

in part and remanded the matter for re-adjudication. The Court affirmed the Board's determination

that the 1988 VARO decision was not subject to collateral attack. It vacated the Board's decision

that the 1990 Board decision was not subject to review for CUE and remanded the case for re-

adjudication of the CUE claim.

On appeal, the Board determined that its June 20, 1990, decision that denied DIC benefits

pursuant to the provisions of 38 U.S.C.A. § 1151 did not contain CUE. The Board determined that

the June 1990 decision of the Board was supported by and consistent with the evidence then of

record.

II. ANALYSIS

"Previous determinations which are final and binding . . . will be accepted as correct in the

absence of clear and unmistakable error." 38 C.F.R. § 3.105(a) (2001). To establish CUE, "[e]ither

the correct facts, as they were known at the time, were not before the adjudicator or the statutory or

regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet.App.

310, 313 (1992) (en banc). The appellant cannot merely disagree as to how the facts were weighed

or evaluated. Id. The standard for this Court's review of a Board decision on the existence of CUE

in a final Board adjudication is limited to whether the Board decision was "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law. . . ." 38 U.S.C. § 7261(a)3(A). The

scope of review under the "arbitrary and capricious" standard is narrow, and a court is not to

substitute its own judgment for that of the agency. If the Board articulates a satisfactory explanation

for its decision, "including a rational connection between the facts found and the choice made, the

Court must affirm." Jordan v. Brown, 10 Vet.App. 171, 175 (1997).

In the decision on appeal, the Board found that at the time of the June 1990 decision, the

record did not contain any evidence that linked the veteran's death to his in-service left elbow

gunshot wounds. The Board stated that:

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There was no medical opinion implicating the veteran's wound residuals, specifically

retained metallic bodies, to the development to rheumatoid arthritis. The medical

literature provided to the Board did mention various complications of lead poisoning

including renal failure. However, Dr. Ogden did state that he knew of no[] way to

link changes from the gunshot wound to the veteran's death.

R. at 17. The evidence before the Board at the time of its 1990 decision consisted of the appellant's

lay statements, the medical articles relating lead poisoning to the development of arthritis, a

newspaper article concerning the November 1985 death of one patient and illness of five other

patients at the Tucson VAMC due to contaminated water, and a statement from the veteran's treating

physician that he knew of no way to link the veteran's gunshot wounds to his death. It is clear that

the Board in 1990 analyzed the credibility and probative value of the evidence it had before it, and

provided adequate reasons and bases for its rejection of any material favorable to the appellant. See

Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, the Board decision here on appeal also

provided adequate reasons and bases as to why the appellant's arguments did not establish CUE.

Therefore, since the appellant has not demonstrated that the Board committed error in its findings

of fact, conclusions of law, compliance with procedural requirements, or articulation of reasons or

bases, the Board's decision must be affirmed and the appellant's motions for oral argument and for

sanctions must be denied.

The Court notes that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114

Stat. 2096, [hereinafter VCAA], was enacted on November 9, 2000. However, the Court finds that

the VCAA has no applicability in this case. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en

banc) (although the VCAA, with its expanded duties, is potentially applicable to a great number of

claims, it is not applicable to CUE.)

III. CONCLUSION

After consideration of the appellant's brief, the Secretary's brief, and the record, the Court

holds that the appellant has not demonstrated that the Board committed either legal or factual error

which would warrant reversal or remand. Accordingly, the Board decision is AFFIRMED.

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