Citation Nr: 0003740 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-29 409 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Survivors and Dependents Education assistance pursuant to 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from June 1969 to May 1971. He died on March [redacted], 1986. The appellant is his surviving child. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 1993 rating decision of the RO. FINDING OF FACT The appellant's claim of service connection for the cause of the veteran's death is plausible. CONCLUSION OF LAW The appellant has submitted evidence of a well-grounded claim of service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1310, 5107(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court") has further defined a well- grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in-service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Furthermore, VA may award dependency and indemnity compensation to a veteran's survivors based on the veteran's death from a substance abuse disability secondarily service connected under 38 C.F.R. § 3.310(a). See VAOPGCPREC 7-99 (June 9, 1999). The evidence shows that the veteran died on March [redacted], 1986. At the time of his death, service connection had been established for anxiety disorder, evaluated as 10 percent disabling, and hypertension, evaluated as 10 percent disabling. The death certificate lists the cause of the veteran's death as hemorrhagic gastritis/esophageal varices, with shock due to alcoholic cirrhosis of the liver. A VA psychiatric examination report dated in March 1985 indicates that the veteran's alcohol use quieted his nerves considerably. Although in no way conclusive, the Board finds that this opinion provides the plausibility to establish a well-grounded claim. The VA examination suggests that the veteran's alcohol abuse might have been caused or aggravated by his service-connected anxiety disorder. Further, it is clear that the veteran's alcohol abuse led to his death. Thus, in light of the Court's holding in Barela v. West, 11 Vet. App. 280 (1998) and VAOPGCPREC 7-99, the Board finds that the appellant's claim is well grounded. ORDER As the claim of service connection for the cause of the veteran's death is well grounded, the appeal to this extent is allowed, subject to further action, as discussed hereinbelow. REMAND In order to fulfill VA's duty to assist, the RO should obtain all outstanding medical records concerning the veteran's alcohol abuse as well as any terminal hospital reports. 38 U.S.C.A. § 5107(a). As the claim for education assistance is dependent on the outcome of the cause of death claim, consideration of that issue should be deferred until the cause of death claim is finally resolved. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate action to contact the appellant in order to request that she identify the names, addresses, and approximate dates of treatment for any VA and non-VA health care providers who treated the veteran for his anxiety disorder and alcohol abuse following service. The appellant should be asked to identify any health care providers who may have treated the veteran's terminal condition just prior to his death. 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. After undertaking any additional development deemed appropriate, the RO should review the issues on appeal. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the appellant and her 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 appellant need take no further action until he is otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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