Citation Nr: 0116721 Decision Date: 06/20/01 Archive Date: 06/26/01 DOCKET NO. 96-07 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for heart disease for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran had active duty from August 1948 to October 1953, and was a prisoner of war (POW) in Korea from November 1950 to August 1953. The veteran died on May [redacted], 1995. The appellant is the veteran's widow. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the appellant's claim for service connection for the cause of the veteran's death. The appellant filed a timely appeal, and the case was referred to the Board for resolution. In June 1997, the Board remanded the case back to the RO to consider the additional issue of service connection for heart disease for accrued benefits purposes. The RO denied that issue in August 1997. Following this, the Board remanded the case in July 1998 and again in August 1999. In April 2000, the RO determined that an appeal for the claim for accrued benefits was not timely submitted, and the appellant's representative has indicated that the appellant disagrees with the denial of the timeliness issue. The case is once again before the Board for additional review. FINDINGS OF FACT 1. The VA has fulfilled its duty to assist the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the appeal. 2. At the time of the veteran's death, service connection had been established for frozen hands and feet, rated at 30 percent; shrapnel wounds of the left leg and right shoulder, each rated as 10 percent; malnutrition and mild anemia, rated noncompensable; a scar resulting from a gunshot wound to the right occipital area, rated noncompensable, and mild psychoneurosis, anxiety type, rated noncompensable; a combined rating of 50 percent was in effect. 3. The veteran died on May [redacted], 1995. The certificate of death lists the cause of death as uremia due to or as a consequence of renal failure, due to or a consequence of aortobifemoral graft infection, due to or a consequence of aortoiliac and femoropopliteal arterial occlusive disease. 4. The evidence is in equipoise as to whether the veteran incurred beriberi in service that contributed substantially and materially to the cause of his death. 5. The RO received a substantive appeal on the issue of accrued benefits in July 1999, more than one year after the appellant was notified of an August 1997 rating decision that denied accrued benefits, and more than 60 days following a March 1999 statement of the case on that issue. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, beriberi heart disease was incurred by the veteran in service, and is shown to have contributed substantially and materially to cause the veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5107; 1112(b) (West 1991 & Supp. 2000); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 3.102, 3.304(e), 3.309(c), 3.312 (2000). 2. As a timely substantive appeal was not filed following the August 1997 rating decision, the Board lacks jurisdiction to review the appellant's claim for accrued benefits. 38 U.S.C.A. § 7105 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During the pendency of this appeal legislation was passed that affects the current claim. This new legislation, in pertinent part, eliminates the need for a claimant to submit a well-grounded claim and enhances the VA's duties to notify a claimant regarding the evidence needed to substantiate a claim and to assist a claimant in the development of a claim. See Veterans Claims Assistance Act ("VCAA"), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment of the VCAA and which are not final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). Changes potentially relevant to the appellant's appeal include the establishment of specific procedures for advising the claimant and his or her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. The Board finds that in the instant case the appellant and her representative were advised by the VA of the information required to support her claim and appellant has been assisted in obtaining all relevant available records and in seeking an advisory medical opinion. In an attempt to determine the likelihood of a relationship between the veteran's cause of death and service as alleged, the Board, in April 2001, requested an opinion from VA medical personnel at a VA Medical Center pursuant to 38 U.S.C.A. §§ 5107(a), 7109 (West 1991) and 38 C.F.R. § 20.901 (2000). Thus, the Board will proceed with appellate review. I. Service Connection for Cause of Death The appellant seeks service connection for the cause of the veteran's death. Her main contention is that during the veteran's confinement as a POW in Korea he suffered severe malnutrition and frostbite, and that these led to his heart and circulatory problems, which in turn led to his death. During his lifetime, the veteran had established service connection for frozen hands and feet, rated at 30 percent; shrapnel wounds of the left leg and right shoulder, each rated as 10 percent; malnutrition and mild anemia, rated noncompensable; a scar resulting from a gunshot wound to the right occipital area, rated noncompensable, and mild psychoneurosis, anxiety type, rated noncompensable. A combined rating of 50 percent was in effect. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2000). The principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The contributory cause of death is one that contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service connection may be granted for a disorder that was incurred in or aggravated during the veteran's active duty service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (2000). A number of diseases, including cardiovascular disease, are presumed to have been incurred in service if manifested within a year of separation from service to a degree of 10 percent or more. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.307, 3.309 (2000). In addition, in cases involving former prisoners of war interned or detained not less than 30 days, service connection is also presumed for a number of diseases, which include beriberi heart disease, manifested to a degree of 10 percent or more at any time after discharge. 38 U.S.C.A. § 1112(b); 38 C.F.R. §§ 3.304(e), 3.309(c) (2000). For purposes of presumptive service connection, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema during captivity. Note to 38 C.F.R. § 3.309(c). Generally, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection will be established if the evidence supports the claim or is in relative equipoise; only if a fair preponderance of the evidence is against the claim will the claim be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The veteran's certificate of death shows that he died in May 1995 as a result of uremia due to or as a consequence of renal failure due to or as a consequence of aortobifemoral graft infection due to or as a consequence of aortoiliac and femoropopliteal arterial occlusive disease. The veteran was provided a separation examination in October 1953 which showed no abnormalities. He was also provided an extensive POW medical examination just six days after he was repatriated in September 1953. At the time of his September 1953 examination, his heart size and rhythm were considered normal, and he had no murmur. His blood pressure was 106/66. He had lost 12 pounds in captivity, dropping from 143 to 131 pounds. The report specifically indicates that no edema was present. The veteran was considered of medium build. He had a sore throat, but otherwise no abnormalities with the exception of frostbite of the feet. He denied having had swelling of the hands or feet in captivity. The diagnosis included dermatophytosis of the feet. In September 1954, the veteran made a statement for the record about his prisoner of war experiences. He stated that he was captured and forced to walk many miles for about 17 days in the cold before being led to a prison camp. The enemy forced him to give up his shoes so he was bare foot. He was fed turnips, soy beans, barley, rice and rotted pig. In June 1954, he underwent removal of shrapnel from his scalp at a VA medical facility. No abnormalities of the heart were noted. A VA examination in December 1959 yielded findings of residual of gunshot wounds to the shoulder, leg, and scalp, along with anxiety reaction, chronic, mild. Additional post-service records show that the veteran had a myocardial infarction in 1992 and that he had a history of treatment for extensive coronary artery disease since that time. Records from St. Mary's Medical Center and R. Genovese, M.D., date from 1992 to his death and show essential hypertension, coronary artery disease with bypass surgery, atherosclerotic cerebral vascular disease, status post carotid endarterectomy. The record contains multiple references to the veteran's two-pack per day smoking habit through 1994, but it appears that he quit sometime before his death. A thallium scan report dated in February 1995 shows reversible inferolateral wall ischemic change. In August 1994, the VA sent the veteran a letter inviting him to apply for service connection for ischemic heart disease if, as a POW, he experienced edema due to beriberi. The veteran responded in August 1994 that he did wish to be considered for service connection for his heart condition. That claim was pending at the time of his death in May 1995, and it gave rise to the claim for accrued benefits which will be discussed later in this decision. In April 2001, the Board sought an expert medical opinion from a VA physician as to the likelihood that the veteran's death was related in any way to service. In the April 2001 opinion, the reviewer indicated that the veteran's "arteriosclerotic heart disease, coronary heart disease, and cardio-vascular accident are more likely related to risk factors such as hypertension, hypercholesterolemia and a 50 year smoking history..." The physician further commented that these vascular diseases were not consistent with beriberi heart disease symptoms. He noted that the veteran's discharge from service showed a normal clinical examination with no then-current cardiac condition. He observed that clinical features of beriberi heart disease are generally concurrent with the vitamin deficiency. He stated that patients with beriberi heart disease demonstrate dependent edema, biventricular congestive heart failure, elevated systemic venous pressures, hepatic engorgement, and peripheral neuritis. Thus, he concluded that the veteran's heart disease and subsequent death were not related to beriberi heart disease or otherwise to service. The Board forwarded a copy of this opinion to the appellant's representative, who in turn sought a second opinion on this matter from Craig N. Bash, M.D. In a written statement dated in May 2001, Dr. Bash indicated that he had reviewed the veteran's claims file and that he considered service medical records, post-service medical records, rating decisions, the statement of the case, supplemental statement of the case, x- ray reports, laboratory reports, the VA medical opinion dated April 2001, and medical literature. He opined that it was likely that the veteran suffered from beriberi due to his 33 month POW experience because the positive signs and symptoms (malnutrition, anorexia, headaches, and irritability) outweighed the single absent sign of edema noted in the VA examiner's April 2001 opinion. He also opined that it was likely that the veteran's demise at the age of 65 was substantially contributed to by the veteran's beriberi due to its long-term effects on the veteran's cardiovascular and renal system. Dr. Bash cited medical literature for support of his opinion. Finally, he explained that he discounted the opinion of the VA physician because the physician neither provided medical literature for support of his opinion nor made comments about the other signs and symptoms of beriberi manifested by the veteran. He did indicate that he agreed with the VA examiner's opinion that the veteran also had coexistent factors for heart disease. However, he also observed that such risk factors did not negate the fact that the veteran likely had beriberi due to his POW experiences. Taking all the evidence into consideration, the Board concludes that the record contains both positive and negative evidence with respect to the issue on appeal. The Board acknowledges that one of the underlying causes of the veteran's death was noted to be arterial occlusive disease, and it was noted in Dr. Genovese's records that arterial problems remained a threat to the veteran's health following his surgeries. Dr. Bash clearly stated that beriberi has a long-term effect on the cardiovascular and renal systems. Further, Dr. Bash pointed to evidence which, he found, in conjunction with the veteran's POW experience, to establish that the veteran had signs and symptoms of beriberi as a POW. Dr. Bash pointed out that although there was no evidence or report of localized edema at the time of separation or repatriation examinations in 1953, and the veteran specifically denied edema, there were other signs of beriberi in the record. Dr. Bash supported his opinion with a list of the signs and symptoms of beriberi as noted in pertinent medical literature. Although the contrary VA expert opinion was considered, the Board finds that the opinion of Dr. Bash adequately rebuts this opinion. The Board finds the opinion of Dr. Bash to be well-supported and to be sufficient to place the evidence in this case in relative equipoise. Thus, the Board finds that with the resolution of reasonable doubt in the appellant's favor, it is as likely as not that the veteran incurred beriberi in service and that this disease contributed substantially and materially to the cause of the veteran's death. Therefore, service connection for the cause of the veteran's death is warranted. II. Accrued Benefits Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case has been furnished to the appellant. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (2000). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction, the RO, mails the statement of the case to the appellant or within the remainder of the one year period from the date of mailing the notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. § 20.302(b) (2000). In the absence of a proper and timely substantive appeal, the Board is without jurisdiction to determine the merits of the case. See 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554, 556 (1993). In August 1999, the VA General Counsel issued an opinion that held that the Board does have the authority to address the question of timeliness of a substantive appeal in the first instance. Further, the Board may dismiss an appeal in the absence of a timely-filed substantive appeal. However, adequate notice and opportunity to be heard on the question of timeliness must be given to an appellant to assure fundamental due process rights. VAOPGCPREC 9-99 (issued August 18, 1999). An August 1997 rating decision denied service connection for heart disease for accrued benefits purposes. The appellant was informed of that rating decision and her appellate rights in correspondence dated later that month. A copy of the rating decision was enclosed with the correspondence. In November 1997, the Board received correspondence from the appellant's representative which was accepted as a notice of disagreement, and the case was remanded to the RO for a supplemental statement of the case (SSOC) on the issue of accrued benefits. Following the return of the case to the Board, additional written argument from the representative was received in July 1999, and it was requested that this document be considered a substantive appeal in lieu of a VA Form 9 with respect to the issue of service connection for a heart disorder for accrued benefits purposes. This was more than 60 days following the March 1999 SSOC, and more than one year following notice of the August 1997 rating decision. According to procedures determined to be in accordance with VAOPGCPREC 9-99, the case was remanded in December 1999 in order for the RO to determine whether the substantive appeal with respect to the issue of entitlement to service connection for heart disease for accrued benefits purposes was timely submitted. See 38 C.F.R. §§ 20.202, 20.203 (2000). As is customary, the appellant was sent a copy of the remand. In January 2000 correspondence, the RO informed the appellant, in essence, that the Board had raised the issue of the timeliness of her substantive appeal. A photocopy of the correspondence was sent to the appellant's representative. The RO invited the appellant and her representative to make an argument on this point within 60 days of the correspondence. No response came from either the appellant or her representative, and the RO informed the appellant in April 2000 correspondence that it found her substantive appeal (the representative's July 1999 written argument) untimely because it was received over 60 days after the SSOC and one year after the August 1997 rating decision. The case was returned to the Board. In an informal hearing presentation dated in September 2000, the appellant's representative disagreed with the RO's April 2000 findings, stating that the appellant was not given reasons for the RO's decision. The representative also informed the Board that a notice of disagreement had in fact been filed with the April 2000 decision, and that a remand was in order so that the RO could issue a SSOC on the issue of timeliness. The Board will address the issue of timeliness of the substantive appeal for accrued benefits as provided in VAOPGCPREC 9-99. The Board has determined that the notice and opportunity now accomplished by letter in procedures initiated in the wake of VAOPGCPREC 9-99 were provided to the appellant by way of the 1999 remand. The Board is also of the opinion that there is no prejudice to the appellant in proceeding with her appeal, regardless of the RO's treatment of this matter since the procedural change does not have any substantive effect regarding the appellant's entitlement to the claimed benefits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (the Board must consider whether the claimant is prejudiced when the Board addresses a question that has not been addressed by the RO; and the Board must set forth an adequate statement of reasons and bases for its decision). Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning the timeliness issue. Id. Moreover, the Board finds that all relevant facts have been properly developed, and that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained. See generally, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The appellant has failed to demonstrate that she filed a timely substantive appeal. See 38 C.F.R. § 20.203 (2000). As neither the appellant nor her representative filed a timely substantive appeal following the August 1997 rating decision, the Board is without jurisdiction to hear the merits of her claim for accrued benefits. Accordingly, this portion of the appeal is dismissed. ORDER Service connection for cause of the veteran's death is granted. The appellant's claim of service connection for heart disease for accrued benefits purposes is dismissed. S. L. KENNEDY Member, Board of Veterans' Appeals