Citation Nr: 0003786 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-07 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from January 1943 to November 1945. The issues on appeal arise before the Board of Veterans' Appeals (Board) from a rating decision of February 1998 from the Department of Veterans Affairs (VA) Regional Office (RO) located in Baltimore, Maryland. The appellant was afforded a personal hearing before a local hearing officer at the RO in July 1998. FINDINGS OF FACT 1. The certificate of death indicates that the veteran died in September 1997, and that the immediate cause of death was hypertensive arteriosclerotic cardiovascular disease. 2. At the time of his death, the veteran was service- connected for major depression with post-traumatic stress features. 3. A letter dated in September 1997, and submitted by a VA physician, as well as treating physician of the veteran, includes an opinion which indicates that the veteran's hypertension was due to his service-connected major depression and post-traumatic stress features. 4. The appellant has presented competent medical evidence of a nexus between the veteran's service-connected major depression and post-traumatic stress features and his death. CONCLUSION OF LAW The appellant's claim of entitlement to service connection for the cause of the veteran's death is well grounded. 38 U.S.C.A. § 5107 (West 1991); Ramey v. Brown, 9 Vet. App. 40 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the 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. § 5107(a) (West 1991) 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). For service connection for the cause of death of a veteran, the first requirement, evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die), but the last two requirements must be supported by evidence of record. Ramey v. Brown, 9 Vet. App. 40, 46 (1996). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical 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). Generally, the Board should consider only the evidence that is or may be favorable to the claim in deciding whether a claim is well grounded. See Arms v. West, 12 Vet. App. 188, 195 (1999) (noting that generally "only the evidence in support of the claim is to be considered and generally a presumption of credibility attaches to that evidence in order to decide whether or not any VA claimant has sustained the claimant's burden of submitting a well-grounded claim under section 5107(a)") (emphasis in original). The law provides dependency and indemnity compensation for a spouse of a veteran who dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 1991). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1999). In this case, the appellant contends that the veteran's service-connected disabilities, particularly his service-connected major depression with post-traumatic stress features, contributed to his death. This determination involves medical causation and therefore "competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Review of the evidence of record in this case reveals that a certificate of death indicates that the veteran died in September 1997, and that the immediate cause of death was hypertensive arteriosclerotic cardiovascular disease. At the time of his death, the veteran was service-connected for major depression with post-traumatic stress features. A letter dated in September 1997, and submitted by a VA physician, Dr. C. M., a treating physician of the veteran at VA Medical Center (VAMC), includes an opinion which indicates that the veteran's hypertension was due to his service-connected major depression and post-traumatic stress features. In light of this medical opinion, the Board finds that the appellant's claim for service connection for the cause of the veteran's death is well grounded. See 38 U.S.C.A. § 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.310, 3.312 (1999). ORDER The claim of entitlement to service connection for the cause of the veteran's death is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for the cause of the veteran's death is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The appellant contends, in essence, that the veteran's service-connected conditions contributed materially and substantially to the ultimate cause of his death, hypertensive arteriosclerotic cardiovascular disease. At the time of his death, the veteran was service-connected for major depression with post-traumatic stress features, rated as 70 percent disabling; below knee amputation, left, rated as 40 percent disabling; reactive depression, rated as 30 percent disabling; degenerative osteoarthritis, right knee, rated as 10 percent disabling; and malaria, rated as noncompensable. As indicated above, a VA medical opinion, dated in September 1997, has been submitted into the evidence of record. This opinion, in the form of a letter from Dr. C. M., in noting that the veteran had died from hypertensive arteriosclerotic cardiovascular disease, indicated that the veteran's hypertension was due to his service-connected major depression and post-traumatic stress features. However, there is also conflicting medical evidence of record, i.e., opinions from VA physicians, Drs. R.P. and C.H. Therefore, the Board concludes that the case should be remanded for further development of the evidence to determine whether the well grounded claim may be substantiated. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990) (A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation). Concerning this, the Board notes that evidence of record shows that the veteran was afforded treatment at the Geriatrics Clinic at the VAMC located in Baltimore, Maryland, and these treatment records have not been obtained. In addition, treatment records, if any, closest to the time of the veteran's death in September 1997 should be obtained on remand if possible. Since the issue concerning eligibility to dependents' educational assistance under 38 U.S.C. Chapter 35 is inextricably intertwined with this claim, it must necessarily be held in abeyance at this time. Therefore, to ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should furnish the appellant with the appropriate release of information forms in order to obtain copies any VA, military, and private medical records not previously submitted. The RO should notify the appellant that she may submit additional evidence, to include medical records, in support of her claims. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 2. The RO should obtain and associate with the claims folder all VA records associated with treatment afforded the veteran at the VAMC in Baltimore, Maryland, to include, but, not be limited to, treatment records reflecting treatment received by the veteran in the VAMC Geriatrics Clinic. 3. The RO should attempt to contact the above-mentioned VA physician, Dr. C. M., if available, in order to provide him the opportunity to supplement his September 1997 opinion by referencing any and all authority used by him, to include citing recognized medical treatises that clearly support his ultimate conclusions. 4. Thereafter, it is requested that the veteran's claims folder be reviewed by the appropriate specialist(s) in order to render opinions as to the following: a) Whether the veteran's service-connected major depression with post-traumatic features contributed substantially or materially to cause the veteran's death due to hypertensive arteriosclerotic cardiovascular disease? b) If no, whether the service- connected below left knee amputation, reactive depression, degenerative osteoarthritis of the right knee, and/or malaria contributed substantially or materially to cause the veteran's death due to hypertensive arteriosclerotic cardiovascular disease? If these opinions cannot be stated with certainty, the specialist(s) should state them within a range of probability or likelihood, i.e., "very likely", "likely", "not likely", "not very likely", etc., and provide a complete rationale for the opinion expressed in the report. Concerning the rationale for the opinion, the specialist(s) should be requested, in the course of reviewing the veteran's claims folder, to note and provide comment, for example, regarding the medical statements/opinions submitted from Dr. C. M. (September 1997), Dr. B. C. (October 1997), Dr. C. C. H. (April 1998), and Dr. R. P. (undated). 5. After undertaking any additional development deemed appropriate, the RO should readjudicate the issues in appellate status. If the benefits sought are not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case and an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the case. The appellant need take no action unless she is further informed. 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 or by the Court 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. KATHLEEN K. GALLAGHER Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).