Citation Nr: 0001976 Decision Date: 01/25/00 Archive Date: 02/02/00 DOCKET NO. 97-32 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether the claim of entitlement to service connection for the cause of the veteran's death is well grounded, and if so, whether the claim should be granted. 2. Entitlement to an evaluation in excess of 10 percent for post-traumatic stress disorder (PTSD) for accrued benefit purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M.S. ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from November 1950 to October 1952. His awards and decorations included the Combat Infantry Badge. This matter came before the Board of Veterans' Appeals (Board) on appeal of a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The claim for entitlement to service connection for the cause of the veteran's death is plausible. 2. The veteran's PTSD was considered no more mild. CONCLUSIONS OF LAW 1. The appellant's claim for service connection for the cause of the veteran's death is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating in excess of 10 percent for PTSD for accrued benefits purposes have not been met. 38 U.S.C.A. §§ 1155, 5107, 5121 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.1000, 4.7, 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The United States Court of Veterans Appeals (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. 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 (West 1991); 38 C.F.R. § 3.312 (1999). Service incurrence of cardiovascular disease may be presumed if it is manifested to a compensable degree within a year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). According to the death certificate, the veteran died in July 1996, at the age of 68, from a myocardial infarction. No autopsy was conducted. At the time of his death, the veteran was not service connected for any disability. An August 1996 Board decision granted service connection for PTSD, and a September 1996 rating decision granted a 10 percent evaluation from April 21, 1992, to July 16, 1996. The veteran's service medical records do not contain any complaints or findings indicative of heart disease. The October 1952 separation examination report indicates that the veteran's heart and vascular system were normal; a chest X- ray was also normal, and his blood pressure was 126/64. According to an August 1953 statement from Dr. C. B. Combs, the veteran was examined and found to have an irregular heart beat and galloping rhythm. Organic heart disease was diagnosed. On VA examination in October 1953, the veteran complained that he felt as if his heart were going to stop, of some shortness of breath, and of a burning sensation in the epigastrium and anterior chest. Cardiovascular examination revealed an apical systolic murmur. Blood pressure readings were 170/80 after exercise and 140/80 two minutes after exercise. Chest X-rays were normal. An electrocardiogram (ECG) revealed occasional premature ventricular contractions; the ECG was interpreted as essentially normal. The diagnosis was no organic heart disease found, functional cardiac murmur. According to a July 1989 medical report from Eli C. Boggs, M.D., the impressions included arteriosclerotic heart disease. Subsequent medical records on file do not involve the veteran's mental problems and do not contain a diagnosis of heart disease. The appellant testified at her personal hearing before the undersigned sitting at the RO in October 1999 that the veteran's heart disease was either incurred in service, or within a year of service discharge, or was etiologically related to his service-connected PTSD. Although the October 1953 VA examiner concluded that the veteran did not have organic heart disease, the August 1953 private medical statement is competent evidence of the presence of organic heart disease less than one year following the veteran's discharge from service. The August 1953 medical statement is sufficient to establish that the appellant's claim is plausible. Therefore, the Board concludes that the appellant's claim for service connection for the cause of the veteran's death is well grounded. With respect to the issue of entitlement to an increased rating for PTSD for accrued benefits purposes, the Board notes that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with 38 U.S.C.A. § 5107(a). Under the provisions of 38 U.S.C.A. § 5121 (West 1991 & Supp. 1999), as relevant here, a veteran's surviving spouse may receive accrued benefits consisting of up to two years of due but unpaid benefits to which the veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (1999). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Under Diagnostic Code 9411, 38 C.F.R. § 4.132, effective at the time of the veteran's death, a 10 percent evaluation is warranted when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment; a 30 percent evaluation is warranted when the veteran's ability to establish and maintain effective or favorable relationships with people is definitely impaired and his psychoneurotic symptoms result in definite industrial impairment. In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to construe the term "definite" in a manner that would quantify the degree of impairment. In a subsequent opinion, the General Counsel of VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93 (Nov. 9 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). September 1992 medical reports from Comprehensive Care Center reveal that the veteran had extreme difficulty hearing and speaking. The veteran's wife indicated that, since the Gulf War, the veteran had talked a lot about his Korean War experiences and had gotten more nervous. The diagnoses were rule out PTSD and Alzheimer's disease. On VA psychiatric examination in November 1992, it was noted that the veteran had severe hearing and memory problems. His wife indicated that, during Desert Storm, he got very upset watching the war. On mental status examination, the veteran was described as markedly hard of hearing despite a hearing aid. Grooming and hygiene were fair. He appeared to be withdraw and showed no emotion. He was oriented to name but not to place, time, or situation. He appeared to be cognitively impaired due to progressing dementia. Insight and judgment were poor. The veteran was considered incompetent. The pertinent diagnoses were PTSD, minimal degree; and primary degenerative dementia, probably secondary to Alzheimer's disease, severe degree, totally disabling. Global assessment of functioning (GAF) was 15. On VA psychological testing in February 1993, it was noted that the veteran was largely unresponsive, displaying severe deficits in orientation, memory, concentration, and language skills. Although it was determined that the veteran's mental state prevented him from undertaking any psychological tests for PTSD, his wife and 27 year old daughter completed the testing for him. The total score generated by these responses fell below the range of scores typically encountered among true cases of combat-related PTSD, although some noteworthy PTSD symptoms did appear to be present. The diagnostic impressions were presenile dementia, not otherwise specified; and PTSD not indicated, some sub-clinical features of PTSD. On VA psychiatric examination in February 1993, the veteran's wife said that, since their marriage 39 years earlier, he had been a nervous person and had exhibited a startle response, combat-related nightmares, and a 3-4 year history of declining ability to do normal activities. On mental status examination, the veteran had a serious problem with hearing. His affect appeared to be constricted with decreased intensity. He appeared to be anxious but was not verbal. His main problem was noted to be memory loss. It was reported that he had symptoms of nightmares and some startle response. He was considered to have some symptoms of PTSD but did not meet the full criteria. The diagnoses were primary degenerative dementia, Alzheimer's type, at least on clinical presentation; and subclinical presentation of post- traumatic stress disorder, mild in nature. GAF was less than 30. Another VA physician also examined the veteran for psychiatric disability in February 1993. On mental status examination, the veteran was disoriented to time, place, but not to person. He occasionally did not know who his wife was. He was unable to do simple calculations. He did not have any insight into his condition. It was noted that he was unable to handle his own affairs. The diagnosis was organic brain syndrome, severe, possibly Alzheimer's or post- infarct dementia. On VA examination for housebound status or permanent need for regular aid and attendance in May 1993, it was noted that the veteran had severe memory problems, that his speech was incoherent, and that he could not be left alone. Alzheimer's disease was diagnosed. VA outpatient records for May 1993 contain a diagnostic impression of psychosis with severe dementia. The veteran was hospitalized at a VA hospital later in May 1993 for testing. Findings on an electroencephalographic report were considered abnormal due to the presence of moderate generalized slowing, which was considered consistent with diffuse cerebral dysfunction. The hospital discharge diagnosis was Alzheimer's type dementia. The appellant and her daughter testified at the above noted October 1999 hearing that the veteran's PTSD symptomatology was worse shortly before he died and that his significant symptoms of PTSD, including combat nightmares and startle response, were masked by his Alzheimer's. Although it is contended that the veteran's service-connected PTSD was more than 10 percent disabling prior to his death, the Board finds that the medical evidence on file does not support that contention. VA psychiatric examinations in November 1992 and February 1993 concluded that the veteran's PTSD symptomatology was no more than mild, and it was noted by the VA physicians in November 1992 and February 1993 that the veteran's problems were due to his Alzheimer's disease, rather than to his PTSD. The medical evidence prior to the veteran's death shows that his PTSD was no more than mild. Accordingly, the Board concludes that a rating greater than 10 percent for PTSD is not warranted. ORDER The Board having determined that the appellant's claim for service connection for the cause of the veteran's death is well grounded, the appeal is granted to this extent. Entitlement to an evaluation in excess of 10 percent for PTSD, for purposes of accrued benefits, is denied. REMAND The Board having determined that the appellant's claim for service connection for the cause of the veteran's death is well grounded, VA has a duty to assist her in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a). It is not clear to the Board that all available records pertinent to the appellant's claim have been obtained. For instance, there is no medical evidence concerning the veteran's cardiovascular status after the October 1953 examination until 1989. Moreover, although the veteran died in a medical center, the only medical evidence of record pertaining to the veteran's fatal myocardial infarction is the certificate of death. The Board also notes that as discussed above, the record contains conflicting medical evidence concerning whether organic heart disease was present in 1953. In light of these circumstances, the Board is of the opinion that further development of the record is in order to satisfy VA's duty to assist the appellant in the development of facts pertinent to her claim. Accordingly, the claim for service connection for the cause of the veteran's death is REMANDED to the RO for the following actions: 1. The RO should request the appellant to identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who treated or evaluated the veteran for cardiovascular disease following his discharge from service. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained, to include records pertaining to the veteran's fatal myocardial infarction. 2. Then, the RO should arrange for a VA physician with expertise in cardiovascular disease to review the claims folder and provide his or her opinions as to the following matters: Is it at least as likely as not that the veteran manifested cardiovascular disease within a year of his discharge from service and, if so, is it at least as likely as not that the veteran's fatal heart disease was etiologically related to the cardiovascular disease manifested within a year of the veteran's discharge from service? Is it at least as likely as not that the veteran's fatal heart disease was caused or worsened by his service-connected PTSD? The rationale for all opinions expressed should also be provided. 3. Thereafter, the RO should review the claims folder and ensure that all development actions have been completed in full. Then, the RO should undertake any other indicated development and readjudicate the issue on appeal. 4. If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO should issue a Supplemental Statement of the Case and afford the appellant and her representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter 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 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. SHANE A. DURKIN Member, Board of Veterans' Appeals