Citation Nr: 0015798 Decision Date: 06/15/00 Archive Date: 06/22/00 DOCKET NO. 98-08 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran, who had active duty for training from January to July 1958 and served on active duty in March and April 1961 and from October 1961 to August 1962, died in January 1998. This appeal arises from an April 1998 rating decision which denied the appellant's claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The cause of the veteran's death in January 1998 was reported to be cardiac arrest due to respiratory failure. 2. A physician has indicated that he is of the opinion that the veteran's death was due to central nervous system respiratory failure and cardiac arrest and was secondary to severe hyponatremia followed by hypernatremia and that the severe hypernatremia was a direct result of the medications the veteran was taking to control his service-connected psychiatric disability. CONCLUSION OF LAW The 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, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (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) 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). 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). 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). In the instant case the appellant has contended that it was the medication used to treat the veteran's service-connected disability which caused his death. The record reflects that the veteran was service-connected for schizophrenic reaction, paranoid, and a 50 percent disability evaluation was in effect at the time of his death. The record shows that the veteran had been on various medications for treatment of this disability for more than thirty-five years before his death. Craig N. Bash, M.D., in a January 2000 statement, indicated that he had reviewed the veteran's claims file. Dr. Bash stated that it was his opinion that the veteran's death was directly related to the medications he was taking to control his service-connected disability. The Board finds that this evidence is sufficient to justify a belief by a fair and impartial individual that the appellant's claim is well-grounded, and the appellant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the appellant in developing the facts pertinent to the claim. 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). While Dr. Bash reported that he had reviewed the veteran's claims file, the current record may not include all of the medical records covering the veteran's treatment as it does not appear that treatment records were requested from E. Freeman Smith, M.D. Based upon the above, the Board is REMANDING the appellant's claim to the originating agency for the following action: 1. The originating agency, after obtaining appropriate authorization, should request the veteran's treatment records from Dr. Smith. All documents obtained should be associated with the claims file. 2. Upon completion of the above, the originating agency should refer the claims file to a board of two VA neurologists. The physicians are requested to review the claims file, including the VA treatment records, the private medical records and the January 2000 report from Dr. Bash. Based on a comprehensive review of the record, the physicians should proffer an opinion, with supporting analysis, as to whether it is at least as likely as not that the medications which the veteran was taking for his service-connected psychiatric disability either caused or materially or substantially contributed to his death. 3. When the above development has been completed the originating agency should review the appellant's claim. If the determination made remains unfavorable to the appellant, a supplemental statement of the case which provides a summary of the evidence received since the most recent supplemental statement of the case should be issued to the appellant and her representative. They should be given the appropriate period of time in which to respond. Following completion of the above, the case should be returned to the Board for further consideration, if in order. No action is required by the appellant until she receives further notice. The purpose of this REMAND is to obtain additional medical information and ensure all due process. 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 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. F. JUDGE FLOWERS Member, Board of Veterans' Appeals