Citation Nr: 0006932 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-08 818A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an effective date earlier than November 1, 1996, for the payment of an award of Dependency and Indemnity Compensation (DIC) benefits. ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The deceased veteran had verified service from April 1943 to December 1945. He was honorably discharged from the service pursuant to a Medical Survey. The appellant is the deceased veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In March 1997, the RO reopened the claim of entitlement for service connection for the cause of the veteran's death based on new and material evidence and denied service connection. The appellant perfected an appeal. By hearing officer's decision dated in January 1998, service connection for the cause of the veteran's death and DIC benefits were granted effective from November 1, 1996, based on the date of the reopened October 1996 claim. The appellant perfected a timely appeal as to the effective date assigned for the grant of service connection for the cause of the veteran's death and DIC benefits. At this juncture, the Board notes that in June 1998, the appellant raised the issue of clear and unmistakable error (CUE) in a prior Board decision dated March 7, 1966 which denied service connection for the cause of the veteran's death. That particular issue is addressed in a separate decision. By VA Form 119 received in September 1998, a personal hearing before a hearing officer on the issue of whether an effective date earlier than November 1, 1996 for the award of service connection for the cause of the veteran's death and DIC benefits was withdrawn. Effective March 1, 1999, the United States Court of Veterans Appeals changed its name to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). The Board acknowledges that the appellant has revoked all powers of attorney and proceeds unrepresented. FINDINGS OF FACT 1. The veteran died in April 1965, at 40 years of age. 2. At the time of his death, the veteran was service- connected for psychoneurosis, anxiety type evaluated as 10 percent disabling. 3. The appellant, widow, submitted a claim for Social Security Administration Benefits and Dependency and Indemnity Compensation benefits or Pension (including Accrued Benefits) from the VA (i.e., VA Form VB 8-4182) that was received by VA in May 1965. 4. In a March 1966 decision, the Board concluded that: (1) a cardiovascular disorder was not incurred in or aggravated by service or manifested to a degree of 10 percent or more within one year following termination of active wartime service; (2) a cardiovascular disorder was not proximately due to or the result of the service-connected psychiatric disorder; (3) the service-connected psychiatric disorder did not materially or substantially contribute to the cause of the veteran's death; and (4) entitlement to service connection of the cause of the veteran's death was not established. 5. In October 1996, the appellant successfully reopened her claim for DIC benefits submitting new and material evidence. 6. By a January 1998 rating decision, the RO awarded service connection for the cause of the veteran's death and DIC benefits were granted effective from November 1, 1996. 7. There is no legal recourse for the assignment of an effective date earlier than November 1, 1996, for the payment of an award for DIC benefits. CONCLUSION OF LAW The criteria for an effective date earlier than November 1, 1996, for the payment of an award of DIC benefits are not met. 38 U.S.C.A. §§ 5107(a), 5110(a) and (d)(1) (West 1991); 38 C.F.R. §§ 3.160(e), 3.400(q)(ii) and (r) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is well-grounded within the meaning of the 38 U.S.C.A. § 5107(a). That is, the Board finds that the appellant has presented a claim which is not implausible when her contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the appellant is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Facts The veteran died in April 1965, at 40 years of age. The veteran's widow, the appellant, filed a claim for benefits with the Social Security Administration completing an application for Dependency and Indemnity Compensation Benefits or Pension (including Accrued Benefits) from the VA (i.e., VA Form VB 8-4182). VA received the claim for VA benefits in May 1965. In 1965, the evidence of record reflected that the veteran was separated from service pursuant to a Medical Survey in December 1945 for psychoneurosis, anxiety type. The veteran was service-connected for psychoneurosis, anxiety type from December 1945 and assigned a 50 percent rating. In April 1946, the veteran was accorded a VA examination which demonstrated that his service-connected disability had improved; the disability was assigned a 30 percent rate effective from August 1946. The veteran was accorded a VA examination in April 1948 which demonstrated improvement in his psychoneurosis, anxiety type; the disability was assigned a 10 percent rate which remained in effect until April 1965. In April 1965, the veteran died suddenly in his automobile. The certificate of death reflects that the immediate cause of death was coronary thrombosis and that the veteran was dead on arrival. An autopsy was not performed. A review of the claims file demonstrates that during his lifetime, to include his military service, the veteran was not diagnosed as hypertensive, experiencing cardiovascular problems, and had not filed any claims for VA benefits for such conditions. In a March 1966 decision, the Board concluded that (1) a cardiovascular disorder was not incurred in or aggravated by service or manifested to a degree of 10 percent or more within one year following termination of active wartime service; (2) a cardiovascular disorder was not proximately due to or the result of the service-connected psychiatric disorder; (3) the service-connected psychiatric disorder did not materially or substantially contribute to the cause of the veteran's death; and (4) entitlement to service connection of the cause of the veteran's death was not established. The appellant did not seek reconsideration and that decision is final. See 38 U.S.C.A. § 7104 (West 1991). The appellant widow filed to reopen the claim for service connection of the cause of the veteran's death in October 1996. The appellant did submit lay statements from friends, family, and neighbors reflecting that the veteran was treated for high blood pressure since the late 1940's until his death. The RO reopened the claim based on this evidence, but denied service connection because the evidence of record showed that the veteran died from a coronary thrombosis. Service medical records did not show any complaints, clinical findings, treatment or diagnosis of the same during active military service, nor did a cardiovascular disorder become clinically evident to a compensable degree within one year of separation from active duty. Moreover, no competent medical evidence had been presented linking the veteran's death from a coronary thrombosis to the anxiety symptoms noted in service. During a personal hearing at the RO in October 1997, the appellant offered private medical opinions, excerpts from medical treatises, and her testimony. Briefly, the medical opinion of Dr. D. O'Connor dated in August 1997 based on his review of the veteran's medical records reflects that if the burden of proof is on [the appellant] it would be difficult to prove conclusively that [military combat] stresses definitely contributed to the veteran's later hypertension. If the burden of proof is on VA, he opined that it would be difficult to prove absolutely that the combat stresses in 1945 did not contribute to the veteran's later hypertension and heart disease. The physician noted "as I read" the records (especially those from October 1945), it is clear that the veteran suffered from extreme and disabling stress during battle on Okinawa. In relevant part, Dr. W. Stratford reported in June 1997 that he reviewed the veteran's service medical records and noted that the diagnosis of combat fatigue is currently referred to as post-traumatic stress disorder. He reported that there is considerable research that indicates anxiety is a substantial contributing factor to a variety of disease processes, one of which can be coronary artery disease or sudden cardiac death. He believes that the medical literature supported the foundation that anxiety is a particularly untreated and abnormal anxiety, such as post-traumatic stress disorder, could serve as a major contributing factor to the development of sudden cardiac death or coronary thrombosis. Briefly, Dr. T. Smith noted in a June 1997 statement that it certainly was plausible that the veteran's combat experiences and the resulting emotional condition contributed to his coronary disease. The acute circumstances of his death implicate the stress of the vehicular accident as the likely immediate precipitant. It is also possible that his combat experiences left him vulnerable to extreme stress reactions to events like auto accidents, thereby increasing his risk of acute cardiac events. In short, it is certainly possible that combat experiences contributed to his coronary disease and eventual coronary death. The physician noted that even with other risk factors such as smoking, 40 years of age is terribly early for a fatal cardiac event. In the absence of a marked family history of early cardiac death, the combat history would become a more plausible contributing factor. In relevant part, a September 1997 medical statement from Dr. J. Knapp reflects that after a review of the veteran's medical records it was hard for him to make any direct tie between the events and descriptions from his service days to his death in 1965 based on the limited amount of information. The blood pressures of 140/98 on two distinct occasions makes one wonder whether or not he was developing hypertension at a fairly young age. Isolated blood pressure readings are very difficult to interpret. While these values may represent a proclivity to hypertension, it also must be recognized that blood pressure varies throughout the day, depending upon one's level of stress, diet, activity, etc. He went on to note that the veteran's death at a young age is clearly not the norm. He suggested that the appellant seek out information from the veteran's clinical providers regarding whether blood pressure was a problem following his military service. If the veteran indeed suffered from ongoing high blood pressure and this could be documented, he believed the appellant had a case for the veteran's premature death from a coronary event, being to some extent related to the hypertension that began shortly after his stressful time in the service. He reported that stress in and of itself had never been conclusively shown to be a risk factor for the development of coronary artery disease. He remarked that high blood pressure has been clearly linked to the development of premature coronary artery disease. In support of her claim for benefits, the appellant submitted summaries of Board decisions as well as journal articles regarding hypertension, anxiety, and post-traumatic stress disorder. Other than the medical opinions reported above and based on a review of the veteran's medical records, the journal articles were not enhanced by a medical opinion and applied to the deceased veteran's circumstances. On the basis of this evidence and her testimony which was primarily limited to the reporting of medical opinions and treatises, service connection for the cause of the veteran's death was granted with basic eligibility for Chapter 35 benefits effective from November 1, 1996, the proper payment date for a claim received in October 1996. The appellant widow disagreed with the effective date, and contends that the effective date should be retroactive to the month following the deceased veteran's death, May 1965. Law and Regulations A claim may be either a formal or an informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (1999). An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier is a finally adjudicated claim. See 38 C.F.R. § 3.160(d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in Section 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.160(e). Section 5110(a), title 38, United States Code, which sets out the general rule for effective dates, states that the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of death compensation or dependency and indemnity compensation for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. See 38 U.S.C.A. § 5110(d)(1). According to 38 C.F.R. § 3.400 which implements the above statutory provisions provides that when new and material evidence has been received after a final disallowance, as in this case, the effective date of an award is the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. §§ 3.400(q)(1)(ii) and (r) (1999); see also Link v. West, 12 Vet. App. 39, 46 (1998) (effective date of reopened claim is date of application to reopen or facts found, whichever is later); Perry v. West, 12 Vet. App. 365 (1999) (veteran could not be awarded an effective date prior to the date of a final disallowed claim); Lalonde v. West, 12 Vet. App. 377 (1999) (even though medical evidence may demonstrate earlier entitlement to service connection, the effective date could not be earlier than the date of claim). A Board determination of the proper effective date is a finding of fact. See Hanson v. Brown, 9 Vet. App. 29, 32 (1996); Scott v. Brown, 7 Vet. App. 184, 188 (1994). Analysis In the present case, the RO received the widow's request to reopen the claim for the cause of the veteran's death in October 1996, more than 30 years after the Board's denial. Since the March 1966 Board decision is final, the effective date for the reopened cause of death claim may not be earlier than the date of the receipt of the claim or the date the entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(d)(1); 38 C.F.R. § 3.400(q)(1)(ii) and (r). A review of the appellant's original claim reveals that the deceased veteran was not diagnosed with hypertension or a cardiovascular disease prior to his death nor was his service-connected disability, psychoneurosis - anxiety type shown to be etiologically related to his cause of death - coronary thrombosis by the facts of record in March 1966. Evidence presented in October 1996 warranted reopening the appellant's claim for service connection for the cause of the veteran's death. However, as indicated by the March 1997 rating decision, the evidence did not consist of a medical opinion establishing an etiological relationship between the cause of the veteran's death and his military service, to include the service-connected psychiatric disorder. The appellant added to the record on appeal. The evidence of record at the time of the January 1998 rating decision which granted service connection for the cause of the veteran's death reflects medical opinions which taken together establish an etiological relationship between the service- connected psychoneurosis - anxiety type, and the immediate cause of the veteran's death, coronary thrombosis. The Board acknowledges the appellant's assertion that her original claim for VA benefits was filed with her application for benefits from the Social Security Administration and received by VA in May 1965. See 38 C.F.R. § 3.160 (1999); see Shields v. Brown, 8 Vet. App. 346, 349 (1995). Notwithstanding that fact, the evidence of record before the Board in March 1966 was without a competent medical opinion that related the deceased veteran's immediate cause of death to any incident of his military service, to include his service-connected psychiatric disability. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (where the determinative issue involves medical diagnosis and etiology, competent medical evidence is required); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Therefore, service connection for the cause of the veteran's death and DIC benefits were not in order earlier than November 1, 1996. See 38 C.F.R. § 3.312 (1999); Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). The law is clear as to the proper effective date, and the Board is not free to ignore or make exceptions to laws passed by Congress. See 38 U.S.C.A. § 7104(c). Thus, the proper payment date for a reopened claim filed in October 1996 is November 1, 1996. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.160(e), 3.400(q)(1)(ii). In conclusion, the Board finds that there is no legal basis upon which to assign an effective date prior to November 1, 1996, for service connection for the cause of the veteran's death and DIC benefits. Entitlement to an effective date earlier than November 1, 1996 must be denied. ORDER An effective date earlier than November 1, 1996, for the payment of an award of DIC benefits is denied. Deborah W. Singleton Member, Board of Veterans' Appeals