Opinion · United States Court of Appeals for Veterans Claims
Tirpak v. Derwinski
2 Vet. App. 609
- Type
- Opinion
- Court
- United States Court of Appeals for Veterans Claims
- Jurisdiction
- Federal
- Date
- 1992-07-20
- Topic
- general
holding that a physician’s statement that a service-connected disorder “may or may not” have prevented medical personnel from averting a Veteran’s death was not sufficient | holding that a doctor’s opinion that the veteran’s service connected disability “may or may not” have contributed to his cause of death was insufficient to well ground the claim | holding that a doctor’s opinion that the veteran’s service-connected condition “may or may not” have contributed to his cause of death was inadequate nexus evidence to well grounded the claim | holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “the veteran’s death may or may not have been averted” | holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “the veteran’s death may or may not have been averted” | holding that a doctor’s statement that a veteran’s death “may or may not” have been avoided but for his service-connected disabilities was speculative and did not justify a belief that the appellant’s claim was well grounded | indicating that a doctor's opinion was too speculative when phrased in equivocal, may or may not be related language | explaining that medical evidence which merely indicates that an alleged disorder may be related to service is too speculative to establish the presence of any such relationship | holding physician statement that veteran’s death “may or may not” have been averted if medical personnel had been able to intubate him, a procedure complicated by his service-connected injuries, insufficient to well ground claim for service connection for veteran’s cause of death | claim must be accompanied by supportive evidence that “must ‘justify a belief by a fair and impartial individual’ that the claim is plausible” | doctor’s opinion expressed in terms of “may or may not” is not a .sufficient basis for a well-grounded claim | medical evidence as to nexus expressed as “may or may not” not sufficient to well ground claim | Court denied VA motion to remand for statement of reasons or bases where the claim was not well grounded | Secretary’s motion to remand Board decision due to inadequate statement of reasons or bases denied because claim was not well grounded | doctor’s opinion expressed in terms of “may or may not” is not a sufficient basis for a well-grounded claim | for purposes of well-grounded claim requirement, claimant must submit supporting evidence which justifies a belief by a fair and impartial individual that the claim is plausible | medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death | medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death | claim not well grounded, as a matter of law, because doctor’s opinion, which stated veteran’s death may or may not have been related to his service-connected disability, was speculative | medical evidence that is speculative, general or inconclusive in nature cannot support a claim | doctor’s opinion that veteran’s death may or may not have been averted if medical personnel could have effectively intubated him was too speculative to make appellant’s claim for death benefits well grounded | evidence must justify a reasonable belief that the claim is "plausible” | “may or may not: language by a physician is too speculative | "may or may not" language by a physician is too speculative
Citator
- Cited by
- 79 opinions
Appellant, Mary Ann Tirpak, appeals a February 28, 1991, Board of Veterans’ Appeals (Board or BVA) decision which found that her husband, a veteran, did not die as a result of service-connected injuries. The Secretary of Veterans Affairs (Secretary) filed a motion for remand. We affirm the Board’s decision and hold that appellant’s claim was not well-grounded as required by 38 U.S.C. § 5107(a) (formerly § 3007(a)).
I.
The veteran served in the United States Army from 1943 to 1947. At the time of his death, he was receiving compensation for a number of service-connected disabilities incurred in combat, including deformities of the tongue, lower jaw, and chin, as well as facial nerve paralysis. On January 9, 1989, he suffered an acute myocardial infarction; paramedics attempted intubation, but were unable to confirm the position of the tube visually and so removed it. The veteran died later that day at the hospital. The death certificate listed acute myocardial infarction as the cause of death. R. at 275.
On January 23, 1989, appellant filed an application for Dependency and Indemnity Compensation (DIC) asserting that her husband’s service-connected injuries made it impossible for the paramedics to intubate her husband properly, and that consequently his death should be considered service-connected. The Regional Office (RO) denied her claim, finding that no evidence showed her husband’s service-connected disabilities materially contributed to or hastened his death and, therefore, appellant was not entitled to DIC benefits. R. at 294-295.
Subsequently appellant was granted a personal hearing. At that time she submitted a statement from William P. Barnard, M.D., the physician who attempted to intubate the veteran at the hospital. He wrote: “In retrospect it seems quiet [sic] reasonable to presume that intubation was made difficult due to Mr. Tirpak’s old wounds. If intubation had been successful, Mr[.] Tirpak may or may not have survived the cardiac arrest.” R. at 304. The Hearing Officer’s Decision considered Dr. Barnard's statement, but said it was speculation to assume that the veteran’s service-connected disabilities hastened the veteran’s death. R. at 316. The BVA decision of February 28, 1991, continued the denial of service connection for cause of death and DIC benefits. Appellant subsequently appealed to this Court. In response to appellant’s brief, the Secretary filed a motion for remand pointing to the Board’s failure to provide an adequate statement of reasons or bases and to make a credibility determination of appellant’s sworn testimony. At oral argument, however, when the Court inquired whether this claim was in fact well-grounded under 38 U.S.C. § 5107(a), counsel for the Secretary — for the first time in these proceedings — took the position that this case ought to be summarily affirmed given appellant’s failure to submit a well-grounded claim under section 5107(a).
II.
Our analysis must begin with the governing statute, 38 U.S.C. § 5107(a), which provides, in pertinent part:
... a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.
(Emphasis added.) In Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990), we defined a well-grounded claim as “a plausible claim,
Although the claim need not be conclusive, the statute provides that it must be accompanied by evidence. In ordinary civil actions, a complaint alone will commence the action — no other evidence is required. See Fed.R.Civ.P. 3. Unlike civil actions, the Department of Veterans Affairs (previously the Veterans’ Administration) (VA) benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must “justify a belief by a fair and impartial individual” that the claim is plausible. 38 U.S.C. § 5107. The requirement of a justified belief is not unlike the requirement of the Fourth Amendment to the Constitution of the United States that, objectively, all the facts and circumstances presented justify a reasonable belief that the intrusion (an arrest or a search) is appropriate to the end sought. See U.S. Const. amend. IV; United States v. Henley, 469 U.S. 221, 232, 105 S.Ct. 675, 682, 83 L.Ed.2d 604 (1985); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968).
Here, the only conceivable evidentiary support submitted by appellant was Dr. Barnard’s letter, which stated that the veteran’s death may or may not have been averted if medical personnel could have effectively intubated her husband. Such a statement is speculative and would not “justify a belief by a fair and impartial individual that the claim is well grounded”, 38 U.S.C. § 5107(a), particularly in light of the medical records and the death certificate which directly attribute the veteran’s death to an acute myocardial infarction. Consequently, VA was not required to carry the claim to full adjudication, since the claim failed, as a matter of law, to be well-grounded under section 5107(a). Any error in the subsequent administrative proceedings is therefore harmless. Sanchez v. Derwinski, 2 Vet.App. 330, 333 (1992); Kehoskie v. Derwinski, 2 Vet.App. 31, 34 (1991).
The motion to remand is DENIED, and the decision of the Board is AFFIRMED for the above reason; no view is expressed as to the opinion of the Board.