Citation Nr: 0006497 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-07 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1151. 4. Entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from July 1942 to December 1945. He died in May 1997. By rating action dated in June 1997 the Department of Veterans Affairs (VA) Regional Office, St. Paul, Minnesota, denied entitlement to service connection for the cause of the veteran's death and entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. The appellant appealed from those decisions. She also appealed from 1998 decisions denying entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318 and 38 U.S.C.A. § 1151. As indicated below, the Board finds that the appellant's claim for service connection for the cause of the veteran's death to be well grounded. The Board believes that further development is warranted in connection with that claim. The claim for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 depends in part upon the disposition of the claim for service connection for the cause of the veteran's death. The claims for dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318 and 38 U.S.C.A. § 1151 will become moot if service connection is granted for the cause of the veteran's death. Thus, appellate consideration of those issues is also being deferred at this time. FINDINGS OF FACT 1. The veteran's death certificate reflects that he died in May 1997. Pneumonia was listed as the immediate cause of death with underlying conditions of congestive heart failure and coronary artery disease. Chronic anxiety state is listed as a significant condition contributing to death. 2. At the time of his death, the veteran had established service connection for conditions including post-traumatic stress disorder, rated 50 percent disabling. 3. The appellant's claim for service connection for the cause of the veteran's death is plausible. CONCLUSION OF LAW The appellant has submitted a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of a well-grounded claim; that is, a claim which is plausible and meritorious on its own or capable of substantiation. If she has not, her appeal must fail. 38 U.S.C.A. § 5107(a); see Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order for a claim for service connection for the cause of the veteran's death to be well-grounded, there must be (1) evidence of the veteran's death; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the in-service injury or disease and the veteran's death. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The veteran's death certificate reflects that he died in May 1997. The death certificate lists pneumonia as the immediate cause of death with underlying conditions of congestive heart failure and coronary artery disease. Chronic anxiety state is listed as a significant condition contributing to death. At the time of his death, the veteran had established entitlement to service connection for conditions including post-traumatic stress disorder, rated 50 percent disabling. Since the veteran had established service connection for a psychiatric condition and a psychiatric disorder is listed on the death certificate as a significant condition contributing to death, the Board concludes that the appellant has submitted a claim which is plausible. Since there are elements of the duty to assist which must be satisfied, the claim must be returned to the regional office before a final resolution can be attained. ORDER The appellant's claim for service connection for the cause of the veteran's death is well grounded. The appeal is granted to this extent. REMAND As noted previously, the veteran's death certificate reflects that he died in May 1997. The death certificate lists pneumonia as the immediate cause of death with underlying conditions of congestive heart failure and coronary artery disease. Chronic anxiety state is listed as a significant condition contributing to death. The appellant contends that prior to the veteran's death he was in a constant state of siege, reliving the war on a daily basis under stress and anxiety. It was reported that the veteran's PTSD symptoms increased in the last months before his death. The veteran's death certificate reflects that his death occurred while the veteran was at Golden Oaks Nursing Home. The death certificate was signed by Delbert R. Nelson, M.D. The Board believes that additional information from Dr. Nelson would be desirable as to the rationale for listing a psychiatric disorder as a contributing factor in the veteran's death. In addition, complete records from the nursing home would be helpful in deciding this claim. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). In light of the foregoing, the Board finds that further development, as specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The appellant should be contacted and requested to provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who treated the veteran within the last 3 years prior to his death. With any necessary authorization, the RO should attempt to obtain and associate with the claims folder copies of all pertinent treatment reports identified by the appellant which are not currently of record. Of particular interest are the records from The Golden Oaks Nursing Home and from Dr. Nelson. The regional office should also contact Dr. Nelson and ask that he submit a statement explaining his rationale and bases for listing a psychiatric disorder as a contributing factor in the cause of the veteran's death on the death certificate. Once received, these records should be associated with the claims folder. 3. The claims file should be reviewed by a VA physician, who had never treated the veteran. The examiner should express an opinion, based on the evidence of record, as to whether it is at least as likely as not that the veteran's service-connected PTSD was a contributory cause of the veteran's death. The examiner must offer complete rationale concerning his opinion. 4. The RO should take any additional steps deemed necessary and then readjudicate the issue of entitlement to service connection for the cause of the veteran's death. If the denial is continued, the appellant and her representative should be sent a supplemental statement of the case and be afforded the appropriate time in which to respond. When the above action has been completed the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the appellant until she receives further notice. The purpose of this REMAND is to obtain clarifying information. The Board intimates no opinion as to the disposition warranted in this case pending completion of the requested action. The appellant is advised that she may submit any additional information or statements to the RO in support of her claims while the case is in remand status. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals Error! Not a valid link