Citation Nr: 0003651 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-13 522 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for ischemic heart disease, claimed as secondary to his prisoner of war status. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from August 1943 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the RO. FINDINGS OF FACT 1. The veteran was a prisoner of war (POW) of the German Government for approximately six months during World War II. 2. The veteran has presented evidence of a claim of service connection for ischemic heart disease which is plausible. CONCLUSION OF LAW The claim of service connection for ischemic heart disease is well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309(c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves a question of medical diagnosis or causation, competent evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). Where a veteran was a prisoner of war and detained for thirty or more days, the following diseases, if manifest to a degree of 10 percent or more at any time after active service, will be presumed to have occurred in service and shall be service connected even though there is no record of such disease during service: avitaminosis; beriberi (including beriberi heart disease); chronic dysentery; helminthiasis; malnutrition (including optic atrophy associated with malnutrition); pellagra; any other nutritional deficiency; psychosis; any of the anxiety states; dysthymic disorder (or depressive neurosis); organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite; post- traumatic osteoarthritis; irritable bowel syndrome; peptic ulcer disease; and peripheral neuropathy, except where it is directly related to infectious causes. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(c). Additionally, the note in 38 C.F.R. § 3.309(c) explains that, "[f]or purposes of this section, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema during captivity." This presumption of in-service occurrence may be rebutted by "any evidence of a nature usually accepted as competent to indicate the time of existence of inception of disease." 38 C.F.R. § 3.307(d). Additionally, "medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease." Id. However, "[t]he circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the prisoner of war experience." 38 C.F.R. § 3.304(e) (1999). The veteran's August 1997 claim for VA benefits included a three-page statement detailing his claimed disabilities and the conditions during his experience as a POW of the German Government from December 1944 to April 1945. The veteran recounted that, while a POW, he received no water and little food. Additionally, he stated that, as a POW, he had been relocated six times, which involved marches through snow and cold temperatures and resulted in painful and frozen feet. The veteran also stated that he developed a severely swollen right leg after his release from Germany. In a September 1997 typed statement, the veteran noted that he was not given a medical examination after returning from the POW camp, nor after returning to the United States of America from Europe, nor before reporting to his next military assignment after returning from Europe. With this statement, the veteran enclosed copies of his May 1945 ex- prisoner of war identity card, registration card, Purple Heart medal, POW camp identification tag, and a copy of a September 1951 notice of a monetary award issued to cover his December 1944 to April 1945 internment. An October 1997 VA report of miscellaneous neurological disorders examination noted an impression of distal peripheral neuropathy, more in the veteran's lower extremities. The report also noted that the distal peripheral neuropathy might be related, in part, to the veteran's POW experience and that it was also a complication of his diabetes. In February 1998, the RO found that the veteran's service medical records were unavailable based on a response from the National Personnel Records Center, which stated that the veteran's service medical records might have been destroyed by a 1973 fire, and that that agency failed to respond to a request to obtain the veteran's medical records from alternate sources. The veteran's representative submitted an April 1998 request to amend the veteran's claim for VA benefits to include a claim of service connection for ischemic heart disease. The record also included an undated VA Former POW Medical History in which the veteran indicated that, while he was a POW, he experienced the following: physical torture; forced marches; frostbite; a 45 pound weight loss; dysentery; numbness, tingling or pain in his fingers or feet; aches and pains in his muscles and joints; swelling in his joints; swelling of his legs and/or feet; and beriberi. A June 1998 report of VA heart and hypertension examination noted that the veteran had been a POW during World War II and that the veteran's file contained no documented history of beriberi heart disease. The report also noted that the veteran's ischemic heart disease had not been associated statistically with beriberi heart disease, even if it were present. Additionally, the report noted that the veteran's type II diabetes mellitus and hypertension were predisposing factors to the development of ischemic heart disease. The report also noted that it was the opinion of the examiner that there was no relationship between the veteran's POW status and any potential beriberi heart disease with his ischemic heart disease. Furthermore, the report noted that the veteran's coronary artery disease was more likely related to his type II diabetes mellitus and chronic hypertension. In a June 1998 rating decision, the RO noted that the Former POW Medical History was incomplete and informed the veteran that service connection for ischemic heart disease was denied. The rating decision noted that, although the veteran was a former POW and claimed swelling of his lower extremities while a POW, the medical evidence indicated that there was no relationship between the veteran's POW status and any potential beriberi heart disease with his ischemic heart disease and that his ischemic heart disease was most likely due to his type II diabetes mellitus and chronic hypertension. The record indicates that the veteran was a former prisoner of war for thirty or more days. The record contains no direct diagnosis of ischemic heart disease, but it does contain the June 1998 VA report of heart and hypertension examination which refers to "his ischemic heart disease." At least for well-groundedness purposes, the medical evidence referring to the veteran's current ischemic heart disease, when considered with the veteran's assertions that he experienced swelling of his lower extremities while a POW, and the presumption of service connection established by 38 U.S.C.A. § 1112(b) and 38 C.F.R. §§ 3.307 and 3.309(c), establishes a well-grounded claim. ORDER As the claim of service connection for ischemic heart disease is well grounded, the appeal to this extent is allowed, subject to further action discussed hereinbelow. REMAND If a veteran was a POW for thirty or more days, with a diagnosis of beriberi heart disease, the beriberi heart disease would be presumed service connected, absent medical evidence sufficient to rebut that presumption, as detailed hereinabove. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(c). The "diagnosis" of ischemic heart disease in the June 1998 VA medical report was not a direct diagnosis, but rather a statement which referred to a disease the veteran presumably had. Furthermore, the report noted that the veteran's ischemic heart disease was more likely due to the veteran's hypertension and type II diabetes mellitus. However, the Board finds that the June 1998 VA medical report suggests the possibility that it was issued in the absence of the details of the veteran's experiences as a POW. Indeed, although the veteran's Former POW Medical History indicated that the veteran believed he had acquired beriberi during his captivity, the June 1998 VA medical report noted that the veteran's file contained no documented history of beriberi heart disease. Although the veteran's history of hypertension and type II diabetes mellitus were discussed throughout the medical report and listed as contributing factors for the development of ischemic heart disease, no evaluation was made of the circumstances and duration of the veteran's confinement as a POW and the impact of those conditions as to the veteran's development of ischemic heart disease. 38 C.F.R. § 3.304(e) specifically states that"[t]he circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the prisoner of war experience." Here, when "determining whether [the] disability manifested subsequent to service [wa]s etiologically related to the prisoner of war experience" the report merely stated that "[t]he patient was a prisoner of war in WWII." 38 C.F.R. § 3.304(c). Given that the VA medical evidence does not directly provide a diagnosis of ischemic heart disease and that the VA medical evidence does not address circumstances of the veteran's POW experience, an additional VA examination must be scheduled. In light of the foregoing, the Board is REMANDING this case for the following action: 1. The RO should take appropriate steps to contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the claimed ischemic heart disease since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. The RO should schedule the veteran for a VA examination to determine the nature and likely etiology of the claimed ischemic heart disease. The claims folder must be made available to and reviewed by the examiner prior to the requested examination. All indicated tests must be conducted. The veteran should elicit from the veteran and record a full clinical history, to reflect consideration of the likely conditions and duration of the veteran's POW experience. Based on his/her review of the case, the examiner should provide an opinion as to whether the veteran suffers from current disability due to beriberi heart disease or ischemic heart disease and experienced "localized edema" during his period of captivity as a POW. A complete rationale for each opinion expressed must be provided. 3. After undertaking any additional development deemed appropriate, the RO should conduct a review of the veteran's claim of service connection for ischemic heart disease. Due consideration should be given to all pertinent laws and regulations. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals