BVA9505528 DOCKET NO. 93-00 768 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her mother ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The veteran served on active duty from January 1969 to January 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. REMAND Initially, the Board has found that the appellant's claim is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that her claim is plausible in the sense that it is capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based, in part, on an elevated blood pressure reading of 134/90, which was recorded at the time of the September 1970 separation medical examination. Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to her claim. The record reflects the veteran died in July 1991 with the cause of death reported as an acute myocardial infarction due to coronary artery disease. This diagnosis was confirmed by the report of autopsy. At the time of the veteran's death, service connection was in effect for post-traumatic stress disorder, rated as 50 percent disabling and chronic low back pain with degenerative disc disease, rated as 40 percent disabling. The combined evaluation was 70 percent. The veteran was also in receipt of individual unemployability benefits effective from September 1986. It is the appellant's contention that essential hypertension was present during service and that this disability caused or contributed substantially to the veteran's death. In the alternative, she also asserts that the service-connected post- traumatic stress disorder caused the coronary artery disease. In response to a request by the Board, a VA medical adviser , on May 12, 1993, rendered an opinion as to the relationship between the post-traumatic stress disorder and essential hypertension. A second medical adviser's opinion was obtained on October 12, 1993, as to whether the blood pressure reading recorded at the time of the separation examination represented the initial manifestations of the essential hypertension which was diagnosed subsequent to service. The United States Court of Veterans Appeals, in Austin v. Brown, 6 Vet.App. 547 (1994), held that the method the Board was utilizing in obtaining VA medical advisers' opinions was procedurally defective. The veteran in a statement received in August 1977, indicated that he had received treatment for his back in November 1976 at the Audie Murphy Hospital. The RO requested the hospital summary in August 1977 and was informed that the veteran had not bee hospitalized. It appears that the veteran was referring to outpatient treatment. A review of the evidence shows that the most recent VA medical treatment records on file from that facility are dated in April 1987. The record reflects that the veteran apparently was receiving treatment at a VA medical facility prior to his death. These records may contain pertinent information with regards to the appellant's current claim. In accordance with the statutory duty to assist the appellant in the development of evidence pertinent to her claim, the case is REMANDED for the following actions: 1. The RO should furnish the appellant the appropriate release of information forms in order to obtain copies of the actual treatment records from J. L. Love, D.O., who treated the veteran from August 1975 to January 1976. 2. The RO should obtain any additional outpatient treatment records from the VA facility located in Salisbury, North Carolina, covering the period from July 1976 up to the veteran's death. and the medical records from the Audie Murphy VA Medical Center located in San Antonio, Texas, for any outpatient treatment records, to include those from November 1976, at which time the veteran reportedly received treatment for his back disorder. 3. Thereafter, it is requested that the veteran's adjudication claims folder be reviewed by a cardiovascular specialist in order to render opinions regarding the following questions. It is requested that the examiner express his or her opinions as to the degree of medical probability, expressed in percentage terms, if feasible and appropriate. (a) Was essential hypertension causally related to the veteran's death in July 1991? (b) If yes, when was the essential hypertension initially manifested clinically, and if manifested more than one year following the veteran's release from active duty, what is the clinical significance of the elevated blood pressure reading recorded at the time of the separation medical examination? (c) Was the veteran's post-traumatic stress disorder causally related to the essential hypertension, or cardiovascular disease? (d) Did the veteran's service- connected post-traumatic stress disorder and chronic lumbosacral strain with degenerative disc disease result in such debilitating effects and general impairment of health as to render the veteran materially less capable of resisting the disease (diseases) which resulted in his death. A complete rationale on which the opinions are based should be included. 4. The RO is to inform the VA examiner that the VA medical adviser's opinions, dated in May and October 1993, remains part of the record. However, in view of Austin, supra, they are not to be relied on by the examiner in rendering his or her opinions. A copy of this Remand is to be furnished to the VA examiner. Thereafter, the case should be reviewed by the RO. If the benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).