BVA9508008 DOCKET NO. 93-15 969 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a compensable rating for an anxiety disorder, for the purpose of accrued benefits. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and Mr. [redacted] ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active military service from February 1942 to February 1948 and from November 1950 to September 1951. This appeal comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1992 rating action by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts, essentially, that a compensable evaluation should have been assigned to her husband's service-connected psychiatric disorder prior to his death in April 1991. She further argues that she is entitled to accrued benefits for that disorder. The appellant also maintains that service connection for the cause of the veteran's death is warranted, since stress associated with his psychiatric disorder ultimately resulted in a fatal heart attack. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an increased 10 percent rating for a service-connected anxiety disorder, for the purpose of accrued benefits, is warranted and that the appellant's claim for service connection for the cause of the veteran's death is dismissed as not being well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's claim has been obtained by the RO. 2. The clinical evidence of record at the time of the veteran's death shows emotional tension and other evidence of anxiety, as a result of his service connected anxiety reaction, to be productive of mild social and industrial impairment. 3. The certified cause of the veteran's death nearly 40 years after service, at age 69, was congestive heart failure due to or as a consequence of coronary artery disease. Chronic obstructive lung disease was listed as a significant condition contributing to death, but not related to the underlying cause. 4. There is no objective medical evidence of record that supports the appellant's contention that the veteran's service- connected disability either caused or substantially or materially contributed to his death. CONCLUSIONS OF LAW 1. For the purpose of accrued benefits, an increased 10 percent evaluation for the veteran's service-connected anxiety disorder is warranted. 38 U.S.C.A. §§ 1155, 5107, 5121 (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 9400 (1994). 2. The appellant has not submitted a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist At the outset, the Board notes that we have found that the appellant's claim seeking a compensable rating for the veteran's service-connected psychiatric disorder is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that her claim seeking accrued benefits is not implausible. Further, upon review of the record in this case, we are satisfied that all relevant facts have been fully developed on that issue and that the claim is properly in appellate status. However, the Board does not find that the appellant's claim seeking service connection for the cause of the veteran's death is well-grounded. And since she has failed to satisfy this threshold requirement, there is no duty to assist her further in the development of her claim seeking service connection for the cause of the veteran's death because such development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). II. Entitlement to a Compensable Rating for an Anxiety Disorder, for the Purpose of Accrued Benefits The appellant argues, essentially, that evidence of record at the time of the veteran's death in April 1991, demonstrated sufficient degree of disability, due to an anxiety disorder, to warrant assignment of a compensable disability rating. On this basis, she believes that she is entitled to accrued benefits. In accordance with 38 U.S.C.A. § 5121, periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due and unpaid for a period not to exceed one year, shall upon the death of the veteran, be paid to the veteran's spouse. Accordingly, any benefits to which the appellant may be entitled are payable only for a one-year period preceding the veteran's death. It is essential to the evaluation of a veteran's disability that the disability be viewed in relation to its entire history. 38 C.F.R. § 4.1. Service connection was established, and a noncompensable disability evaluation assigned, for the veteran's anxiety reaction by a rating decision in June 1952. That rating action was based primarily on the veteran's service medical records and the report of a June 1952 VA examination. Review of the service medical records reflect several diagnoses, following various consultations, of a psychiatric disorder. The records further reveal that a Board of Medical Survey, convened for the purpose of evaluating the veteran's fitness for duty, determined in May 1951 that the veteran's psychiatric disorder, diagnosed as manic-depressive reaction (perplexed), rendered him unfit for duty. It was noted in the Medical Board's report that this designation was temporary, and the veteran was to be transferred to a military hospital for further study, treatment, and disposition. On a clinical Board in June 1951, the diagnosis was changed from manic depressive reaction to neurotic depressive reaction. Later that month it was reported that he was doing well and his rapport and affect were normal. In July it was reported that there were no symptoms or objective evidence of illness and no need for further hospitalization. The veteran was thereafter discharged from active service in September 1951. Following discharge, the veteran was examined by VA in June 1952. At that time, the veteran reported nervousness and loss of appetite. He related that at times he felt he had no ambition and did not want to do anything. The VA examiner observed that the veteran's mood was not depressed and there was no evidence of psychotic trends. It was reported that he operated his own gas station, was single, and got along well with people. The diagnosis was anxiety reaction, chronic, moderate, with depressive and obsessive trends. In October 1990, the veteran filed a claim seeking an increased rating for his service-connected psychiatric disorder. In a statement submitted by the veteran in November 1990, he wrote that he received treatment at the VA Medical Center located in Wilmington, Delaware (VAMC Wilmington) and that his first visit was in November 1990. Thereafter, outpatient treatment reports, dated in 1990 and 1991, were received in February 1991. These records reveal that in November 1990, it was observed that the veteran exhibited some psychiatric symptomatology and was mildly depressed. Medication was prescribed. Other records reflect that the veteran and his wife were seen together and she provided some of the history. The veteran's complaints of insomnia, and family problems were noted. The veteran was accorded a VA examination, for rating purposes, in February 1991. He reported that following discharge from service he worked as a mechanic. He reported working continuously until he had to quit because of his heart in 1982. He complained of difficulty falling asleep and that when he did sleep he would dream of his WWII experiences, "my buddies dying." He reported a mental breakdown in service in 1950 and his only memory was a fear of having shock treatments. On mental status examination, it was observed that the veteran's affective responses were appropriate to his thought content. He showed good mood modulation and had a wide range of affective responses. He was oriented in three spheres and denied any compulsive behavior. The diagnosis was mild depression secondary to his physical condition, which prevents him from doing anything physical, and adjustment disorder, depressed mood secondary to an ongoing problem. The examiner further observed the onset of senility, also aggravated by the veteran's physical problems. The examiner stated that the only symptom which might be considered one of post traumatic stress is his nightmares, although he did not present any other symptomatology. It was felt that the diagnosis of this condition was probably not present at this time. Based on the evidence summarized above, the RO denied the veteran's claim for a compensable rating for his service- connected psychiatric disorder in a rating action in April 1991. Notice of the decision was mailed to the veteran on April 25, 1991. He died on April [redacted] 1991. In November 1991, the appellant filed a claim for accrued benefits. In support of her claim, the appellant, along with her nephew, [redacted], appeared and presented testimony at a hearing on appeal conducted by a VA hearing officer. Reading from a prepared statement, the appellant described how the veteran's psychiatric disorder had impacted upon the lives of his family members. The appellant spoke of abuse directed towards both she and her daughter, which was directly caused by the veteran's service-connected psychiatric disorder. It was the appellant's testimony that the veteran spent several hours of each day either sleeping or sitting with a blank stare on his face The appellant further testified that although the veteran performed capably in his position as a mechanic, he was unable to complete his assigned tasks in an expeditious manner. She also stated that she and the veteran seldom went out socially, but he did get along with most of his neighbors. Mr. [redacted] testified that the veteran would become angry and explode in temper tantrums over trivial matters. He also recalled that the veteran was very argumentative. A complete transcript of the hearing testimony is of record. In evaluating the appellant's request for a compensable rating for the veteran's service-connected psychiatric disorder, for purposes of accrued benefits, the Board considers the medical evidence of record at the time of the veteran's death. The clinical findings are compared to the criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Under Diagnostic Code 9400 of the Rating Schedule, a compensable rating is warranted where the evidence demonstrates emotional tension or other evidence of anxiety productive of mild social and industrial impairment. In this regard, we have considered the entire clinical record and taken cognizance of veteran's complaints noted in VA outpatient treatment records and on VA examination, as well as the appellant's testimony. As noted above, the 1991 VA examination was, in significant part, unremarkable for psychiatric symptomatology, with the exception of the finding of mild depression due to the veteran's physical disabilities. There is no indication in the record that the anxiety disorder affected his ability to work as a mechanic or that he lost time from work due to the anxiety disorder. However, it is apparent from the record that the veteran did come to the VA seeking treatment for his psychiatric disorder, some depression was noted and medication was prescribed. While his physical conditions were a complicating factor, the record still shows that he exhibited symptoms of anxiety and had a depressed mood secondary to an ongoing problem. In view of the above, we find that the evidence supports a finding of mild social and industrial impairment such as to warrant a 10 percent evaluation under Diagnostic Code 9400. Accordingly, the appellant is entitled to accrued benefits based on a 10 percent rating for the veteran's service-connected anxiety disorder. III. Entitlement to Service Connection for Cause of Death As previously noted, the veteran died on April [redacted] 1991, at age 69. His official death certificate listed the immediate cause of the veteran's death as congestive heart failure, due to, or as the consequence of coronary artery disease. It was further noted that an additional significant condition contributing to the veteran's death, but not related to the underlying cause, was chronic obstructive lung disease. An autopsy was not performed. At the time of the veteran's death, his psychiatric disorder was the only disability for which he was service-connected. There is no contention here that the fatal disease process was evident during or within one year of service, and service connection on a direct or presumptive basis is clearly not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The appellant maintains that service connection for the cause of the veteran's death is warranted because of his psychiatric disorder. Under the applicable criteria, in order to establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to his death. 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The veteran's service medical records do not indicate any complaints or findings relative to organic pathology of the veteran's heart or cardiovascular system. On VA examination in June 1952, the veteran's cardiovascular system was evaluated as normal. However, during his VA examination in 1991 (primarily for psychiatric disorder), the veteran reported a family history of heart disease, and reported that he was forced to resign his position as an auto mechanic in 1982 due to a heart disorder. Other medical evidence currently on file reflects that the veteran was being treated for cardiomyopathy, which had its onset in 1987. The appellant, in her testimony during the January 1993 hearing on appeal, stated that the veteran's service-connected psychiatric disorder caused him to become angry and hostile. Summarizing the appellant's case, the service representative stated that it was the appellant's contention that the stress caused by the service-connected psychiatric disorder resulted in the veteran's death. Upon careful examination of the entire record in this case, the Board finds that there is no clinical objective evidence to support the appellant's assertion that the veteran's service- connected psychiatric disorder led to the development of heart disease or caused his fatal congestive heart failure. Again, we observe that the service medical records do not show any complaints or findings of heart pathology during the veteran's active service. And, while the postservice medical evidence does reveal treatment for cardiomyopathy, there is no evidence linking a cardiovascular disease to the veteran's service-connected psychiatric disorder. We also acknowledge the appellant's statements alleging that the stress from the above-noted psychiatric disorder caused her husband's death. In this regard, we are compelled to point out that the appellant's allegations are completely unsupported by any objective medical evidence of record. The record does not include any independent medical opinions indicating that the veteran's service-connected psychiatric disorder may have contributed to the development of coronary artery disease which led to congestive heart failure. Moreover, the appellant's theory regarding causation is tantamount to a diagnosis that requires medical knowledge, and the evidence does not demonstrate the appellant's competency to render such an opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). Without substantiation, the appellant's claim is clearly without merit, since neither she nor any other lay person without medical expertise is qualified to render medical findings such as those advanced in support of the claim on appeal. A well-grounded claim requires submission of supporting evidence, rather than mere assertions. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Based on the foregoing evidence, the Board finds that the objective medical data of record clearly does not demonstrate a reasonable association between the veteran's service-connected psychiatric disorder and his death. Consequently, we conclude that the appellant cannot meet the initial burden of presenting evidence of a well-grounded claim imposed by 38 U.S.C.A. § 5107(a), and that the claim for service connection for the cause of the veteran's death must be dismissed. ORDER Entitlement to an increased 10 percent rating for an anxiety disorder, for the purpose of accrued benefits, is allowed, subject to the law and regulations controlling the award of monetary benefits. The appellant's claim for service connection for the cause of the veteran's death is not well-grounded and, accordingly, it is dismissed. S. L. COHN 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.