Citation Nr: 0006992 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-11 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: To be clarified. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from September 1948 to November 1952. He died June 22, 1997. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The rating decision denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The appellant filed a notice of disagreement with that rating decision in May 1998 and was provided with a statement of the case subsequently in that month. In July 1998, the appellant filed timely her substantive appeal. A personal hearing was held at the RO in March 1999. In April 1999, the RO received additional medical evidence. Subsequently in that month, the RO issued a supplemental statement of the case in which it continued to deny the appellant's claim. FINDING OF FACT The evidence of record shows that the appellant's claim of entitlement to service connection for the cause of the veteran's death is plausible. CONCLUSION OF LAW A well-grounded claim of entitlement to service connection for the cause of the veteran's death has been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION During the veteran's lifetime, service connection was in effect for a disability that had been evaluated throughout its rating history as a psychophysiologic disorder. At the time of his death, a 50 percent evaluation was in effect for "psychogenic musculoskeletal reaction." Service connection had first been granted to the veteran for "psychogenic musculoskeletal reaction" in December 1953. He was discharged from service in October 1952 with that diagnosis. The principal symptoms addressed by that diagnosis were cramps, weakness, and fatigue in the lower extremities after a small amount of walking or other activity involving the legs. However, the medical evidence contained in the claims file documented that the diagnosis of a psychophysiologic disorder had been questioned over the years by both private and VA medical experts beginning at least as early as 1961. The evidence also documented that no clear alternative diagnosis of the veteran's service-connected disorder upon which physicians agreed was ever reached. However, the record indicated that several physicians believed that the veteran's symptoms had a primarily physical, rather than psychological, basis. One finding that was contained in both service and postservice medical records and cited by some of those physicians was an elevated level of spinal fluid protein. Alternative diagnoses were proposed beginning as early as November 1960, when a physician examining the veteran on behalf of VA diagnosed him with sciatic neuritis. Other diagnoses or assessments of a neurological disorder followed. For example, in April 1961, a physician to which the veteran was referred for examination by his regular doctor provisionally rejected the diagnosis of psychogenic musculoskeletal reaction and hypothesized that the veteran had been suffering a widespread disease of the central nervous system for the past 15 years. In September 1961, a second physician concurred with the diagnosis of central nervous system disease and dismissed the diagnosis of psychogenic musculoskeletal reaction. A May 1980 VA inpatient record of a neurological consultation for leg cramps recorded diagnoses of old transverse myelitis, possibly viral in origin, with poliomyelitis as a possible diagnosis, and of questionable spinal myoclonus. In July 1986, a consulting private physician reported that tests suggested carpal tunnel syndrome on the left side and that they documented a generalized, predominantly sensory polyneuropathy, nonspecific type. However, the physician, through his associate, indicated that he was unable to render a final, inclusive diagnosis. A VA outpatient neurological assessment done in May 1991 on account of chronic leg cramps resulted in a diagnosis of moderate generalized peripheral neuropathy. A VA inpatient record dated in August 1995 showed that an admitting diagnosis of involuntary muscle syndrome had been crossed out and a diagnosis of Guillain- Barré syndrome substituted. The "possibil[ity]" of "chronic polyneuropathy" was also noted with the diagnosis. Most significant is the report of a VA examination performed upon the veteran in April 1997 in connection with a claim that he had filed for a total disability rating based upon individual unemployability. The report stated that both because of the August 1995 diagnosis and because muscle fasciculations were clearly visible during the current examination, a diagnosis of "psychogenic muscle weakness" could not be made. Rather, the examiner diagnosed possible Guillain-Barré syndrome. This report was not cited by the RO as evidence it had considered in rendering the July 1997 rating decision now being appealed. Other physicians continued the diagnosis of psychogenic musculoskeletal reaction. The July 1986 consultation report referred to above also noted, apparently on the basis of the physician's review of prior records, that the veteran had been hospitalized in 1969 with severe chest cramps that caused physicians to think, before it was disproved, that the veteran had suffered a myocardial infarction. In addition, the medical evidence of record showed that the veteran had peripheral vascular disease. He had first been diagnosed with that disorder in 1987, when it was characterized as left iliofemoral arteriosclerotic vascular disease. However, in assessing the possible etiology of the disease, a VA examiner in January 1989 expressed the opinion that the veteran's symptoms in 1950's as documented in prior records were consistent with claudication, even though peripheral vascular disease had not yet been diagnosed. However, the examiner concluded that because the veteran's pulses were found to be normal then, he did not have undiagnosed peripheral vascular disease. In April 1987, the veteran underwent an in situ venous bypass graft in his left lower extremity. In June 1995, after it was discovered that it had failed, the graft was revised. The veteran's service entrance examination was negative for musculoskeletal and neurological disorders. The Certificate of Death, included in the claims file, listed probable myocardial infarction as the immediate cause of death of the veteran. It was indicated that the veteran died in a hospital emergency room. A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1999). 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. § 3.312(b); Ashley v. Brown, 6 Vet. App. 52 (1993). To be a contributory cause of death, the disability 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. § 3.312(c); Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992). When considering whether a condition was a contributory cause of death, "it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection." 38 C.F.R. § 3.312(c); Ventigan v. Brown, 9 Vet. App. 34 (1996). The appellant contends that the service-connected disorder of the veteran was misdiagnosed, at least insofar as it was diagnosed as a psychogenic disorder. She theorizes that the veteran had peripheral vascular disease during service. In the alternative, and without abandoning her contention that the veteran's musculoskeletal problems were not psychologically based, she maintains that because his musculoskeletal debility prevented him from exercising, the veteran developed peripheral vascular disease, which then should be service connected on a secondary basis. Further, and on the basis of the new medical evidence introduced into the record in March 1999, the appellant contends that peripheral vascular disease was at least a contributing cause of the myocardial infarction that apparently caused the veteran's death. A claim for service connection for the cause of a veteran's death is a new claim, regardless of the status of adjudications concerning service-connection claims brought by the veteran during his or her lifetime. See 38 C.F.R. § 20.1106 (1999); Zevalkink v. Brown, 6 Vet. App. 483 (1994). Therefore, the claim must be well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995); Johnson v. Brown, 8 Vet. App. 423 (1995). A well- grounded claim is one which is either meritorious on its own or capable of substantiation. Such a claim need not be established conclusively in order to satisfy the claimant's initial burden of producing evidence under 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It is enough if the evidence shows that the claim is plausible. Id. In particular, for a claim for service connection for the cause of a veteran's death to be well grounded, competent evidence of record must show: a current disability (a requirement that is always satisfied, the current disability being the condition that caused the veteran to die, see Ramey v. Brown, 9 Vet. App. 40 [1996]); the incurrence or aggravation of an injury or disease during service (if not already established by a prior grant of service connection for the condition claimed to have caused or contributed to the veteran's death); and a nexus, or causal relation, between the in-service injury or disease and the current disability. Caluza, 7 Vet. App. at 506; Johnson v. Brown, 8 Vet. App. 423. When the issue involves questions of medical causation or medical etiology, only expert medical evidence will be regarded as competent. Id.; Grottveit v. Brown, 5 Vet. App. 91 (1993); Voerth v. West, 13 Vet. App. 117 (1999). Clearly, the first and second elements of a well-grounded claim have been fulfilled in this case. (The Board notes, however, that the exact nature of the inservice disease demonstrated by the record and for which the veteran had been granted service connection remains open to question.) Furthermore, with the medical evidence that was introduced into the record in April 1999, a well-grounded claim has resulted. That evidence consisted of a letter dated March 23, 1999 from the veteran's long-time physician, Dr. Traywick, received into the record in April 1999. In the letter, Dr. Traywick expressed the opinion that although the exact nature of the veteran's service-connected neuromuscular disorder had not been diagnosed, there was a medical relation between it and the veteran's peripheral vascular disease because both involved or were affected by ischemic conditions. Dr. Traywick also opined "with certainty" that peripheral vascular disease affected the veteran's coronary arteries and thereby helped to cause the myocardial infarction. Although Dr. Traywick's opinion leaves questions pertinent to the appellant's claim unanswered, the Board finds that it is sufficient to well-ground the appellant's claim. ORDER The claim of service connection for the cause of the veteran's death is well grounded. To this extent, the appeal is allowed. REMAND Once there is a well-grounded claim, VA acquires a duty to assist a claimant in the development of evidence pertinent thereto. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This duty includes obtaining medical records, Littke v. Derwinski, 1 Vet. App. 90 (1990) and obtaining a medical opinion where necessary. Ashley v. Brown, 6 Vet. App. 52 (1993). It has been held that obtaining an advisory medical opinion is a valid way for VA to fulfill its duty in this regard. Id. After a careful review of the evidence of record, the Board has determined that additional development must be completed by the RO. Specifically, the record indicated that the veteran died at East Cooper Community Hospital in Mt. Pleasant, South Carolina. There is no evidence the RO has attempted to procure the veteran's terminal records from that facility. The records should be obtained and associated with the claims file. In addition, there are conflicts in the medical evidence. In need of clarification is the exact nature of the disorder for which the veteran had been granted service connection. For example, competent evidence of record raised the question whether the service-connected disorder was a psychogenic musculoskeletal disorder or was misdiagnosed peripheral vascular disease, central nervous system disease, or generalized peripheral neuropathy. Therefore, the veteran's claims files should be forwarded to a physician specializing in neurology and/or cardiovascular matters for an opinion concerning these matters. In addition, the Board notes that although Disabled American Veterans has acted on behalf of the appellant, no document signed by the appellant appointing her representative is contained in the claims file. The appellant now should be asked to formally appoint a representative. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should write the appellant and request that she sign and submit VA Form 21-22 identifying her representative, if any. A blank VA Form 21-22 should be included with the RO's letter, a copy of which should be placed in the claims file. Both a copy of the RO's letter to the appellant and any executed VA Form 21-22 received from the appellant should be placed in the claims file. 2. The RO should obtain from the appellant the names and addresses of all private physicians and private facilities that provided treatment to the veteran, excluding those for which the RO currently has the complete records. After securing the necessary releases from the appellant, the RO should obtain copies of the veteran's medical records from the providers named by her and associate them with the claims file. 3. After securing the necessary release from the appellant, the RO should obtain a copy of the veteran's terminal medical records from East Cooper Community Hospital, and associate them with the claims file. 4. After securing the necessary release from the appellant, the RO should obtain a copy of all medical records of Dr. J. Paul Traywick concerning the veteran other than those currently in the claims file and place them therein. 5. The RO should obtain from any VA facility where the veteran was treated the complete, original medical records pertaining to treatment of the veteran and associate them with the claims file. If clarification is needed from the appellant as to which VA facilities may have treated the veteran, the RO should contact her. 6. After this development has been completed, the RO should forward the claims folders for review by an appropriate specialist. A copy of this Remand should be provided to the specialist. The physician should be asked to determine the exact nature of the veteran's service-connected disorder (to include the question whether that disorder was peripheral vascular disease); the exact nature of any neurological disorder that, in the judgment of the physician, the veteran experienced during service or thereafter; the relation between the disorder for which the veteran was granted service connection and both peripheral vascular disease and any neurological disorder that he is found to have had; and the causal relation between the foregoing disorders, or combinations thereof, and the myocardial infarction identified on the Certificate of Death as the probable cause of the veteran's death. The physician should be asked to submit a written opinion, and a copy thereof should be associated with the claims file. 7. Thereafter, the RO must review the claims files to ensure that the above- designated development has been conducted and completed in full. If any development is incomplete, including if the medical review does not include all opinions requested, the RO must take appropriate corrective action. Afterwards, the RO should again review the entire record and adjudicate the claim on its merits. If the determination remains unfavorable to the appellant, the RO should furnish her and her representative, if any, with a supplemental statement of the case and afford a reasonable opportunity to respond, in accordance with 38 U.S.C.A. § 7015 and 38 C.F.R. § 19.31. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals