Citation Nr: 0930578 Decision Date: 08/14/09 Archive Date: 08/19/09 DOCKET NO. 99-24 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for the cause of the Veteran's death for the period prior to October 7, 2004. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from May 1942 to October 1945. He was a prisoner of war (POW) of the German government from November 1944 to April 1945 and he died in April 1994. The appellant, who is the Veteran's widow, initially appealed a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In October 2000, the appellant testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. In August 2001, the Board of Veterans' Affairs (Board) remanded the appellant's claim to the RO for further development. In an August 2002 decision, the Board denied the appellant's claim. The appellant appealed the Board's August 2002 decision to the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court"). In that litigation, a brief was filed by the appellant averring that remand was required due to the VA's failure to provide her with sufficient notice pursuant to the notice provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (now codified at 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2008)). In an Order of October 2004, the Court vacated the Board's decision and remanded the matter. As set forth in detail below, the VCAA substantially amended existing law regarding the requirement of a well-grounded claim and the notice and assistance to be afforded claimants for Veteran's benefits. A copy of the Court's Order in this matter has been placed in the claims file. Thereafter, on May 11, 2005, the Board again denied the appellant's claim. She appealed the Board's May 2005 decision to the Court. In that litigation, a Joint Motion for Remand was filed by the VA General Counsel and the appellant averring that remand was required to enable the Board to address the potential applicability of 38 C.F.R. § 3.309(c) (effective October 7, 2004) to the appellant's claim for service connection for the cause of the Veteran's death. This regulatory change added atherosclerotic heart disease to the list of presumptive disabilities for former POWs for which service connection is warranted. See 61 Fed. Reg 60,083 (Oct. 7, 2004) (now codified at 38 C.F.R. § 3.309(c) (2008). In an Order of April 2007, the Court vacated the Board's decision and remanded the matter, pursuant to the Joint Motion. A copy of the Court's Order in this matter has been placed in the claims file. In a November 2006 rating decision, the RO granted the claim for service connection for the cause of the Veteran's death, effective from May 12, 2005. Then, in a September 2007 decision, the Board granted service connection for the cause of the Veteran's death for the period from October 7, 2004, but no earlier pursuant to the regulatory change that added atherosclerotic heart disease to the list of presumptive disabilities for former POWs for which service connection is warranted. See 61 Fed. Reg 60,083 (Oct. 7, 2004) (now codified at 38 C.F.R. § 3.309(c) (2008). The appellant appealed the Board's September 2007 decision to the Court. In that litigation, a Joint Motion for Remand was filed by the VA General Counsel and the appellant, averring that the matter of entitlement to service connection for the cause of the Veteran's death for the period prior to October 2004 should be remanded to the Board for further development and adjudication. In a December 2008 Order, the Court granted the Motion and remanded this matter to the Board for compliance with the instructions in the Joint Motion. On another matter, the appellant's attorney has requested a decision on a motion concerning attorney fees. Correspondence from the RO indicated that such funds had been released. No other motion appears to be properly before the Board on this matter. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In light of points raised in the Joint Motion, and the Board's review of the claims file, further RO action is warranted. In the November 2008 Joint Motion, the parties agreed that a remand was required because the Board failed to provide an adequate statement of reasons or bases and to afford the appellant an adequate medical "examination" (more likely meaning "opinion") in compliance with VA's duty to assist. On remand, the parties agreed that VA must obtain an adequate medical examination (opinion) that discusses and reviews the medical literature regarding the relationship between stress and heart disease, as well as both the favorable and unfavorable evidence of record. When the appellant submitted her petition to reopen the claim for service connection for cause of the Veteran's death in June 1999, heart disease, other than beriberi heart disease, was not listed as a disease for which entitlement to service connection is presumed for former POWs. See 38 C.F.R. § 3.309 (1999). Effective prior to October 7, 2004, if a Veteran was a former prisoner of war (POW) and was interned or detained for not less than 30 days, certain diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after service discharge or release from active military service, even though there is no record of such disease during service, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. These listed diseases are avitaminosis; beriberi (including beriberi heart disease); chronic dysentery; helminthiasis; malnutrition (including optic atrophy associated with malnutrition); pellagra; any other nutritional deficiency; psychosis; any of the anxiety states; dysthymic disorder (or depressive neurosis); organic residuals of frostbite (if it is determined that the Veteran was interned in climatic conditions consistent with the occurrence of frostbite); post-traumatic osteoarthritis; irritable bowel syndrome; peptic ulcer disease; peripheral neuropathy except where directly related to infectious causes, and cirrhosis of the liver. At the time of the Veteran's death, service connection was in effect for bilateral pes planus, evaluated as 10 percent disabling, and mixed psychoneurosis, bronchitis, and pharyngitis, all evaluated as noncompensable. The Veteran died in April 1994; his death certificate lists the causes of death as cardiac arrest, coronary heart disease, and renal failure. The appellant contends that the cause of the Veteran's death was related to his active military service, and thus service connection for the period prior to October 7, 2004 is warranted. She has alleged that the Veteran died from coronary heart disease and renal failure that she maintains was incurred during active service, including his POW experience from November 1944 to April 1945. Specifically, the appellant claims that a service-related vitamin deficiency or malnutrition contributed to the Veteran's heart disease; that he had edema and swelling of the legs, warranting a finding of beriberi heart disease; and that the Veteran's service-connected mixed psychoneurosis and stress contributed to his heart disease. On these points, there are several medical opinions of record, both favorable and unfavorable to include an August 1999 letter from C.W.M., M.D., in which he concluded that "I am not sure how accurately one can state that his cardiac disease was caused by military service and his time as a prisoner of war. Certainly, however, this kind of stress and physical and emotional experience has been found to make these problems more frequent and make their management more difficult." In an October 1999 written statement, D.W.T., M.D., who treated the Veteran in 1993 and 1994, wrote that the Veteran's "cardiac problems were related to atherosclerotic cardiovascular disease and resultant poor heart function because of prior heart damage. I believe there is a good possibility that during the time he spent as a POW malnutrition could have adversely affected his cardiac status and that certainly the extreme stress of being a POW put him at higher risk of developing a heart disease. His other risk factors included his age, as well as a life-long history of tobacco use. In conclusion, I feel that it is likely that [the Veteran's] time spent as a POW contributed to the development of cardiac disease." In December 2000, a VA physician stated that, "Upon careful review of all of the available records, there is no clear indication that the Veteran's confinement as a POW contributed to the development of his heart condition." The VA physician based this conclusion on several facts. The VA examiner noted that there was no evidence that the Veteran, in fact, had beriberi heart disease or heart disease due to thiamine deficiency. In contrast, the evidence indicated that the Veteran was, in fact, a life long tobacco user. The VA physician concluded that, "In the presence of the highly significant known risk factor of tobacco use, it is highly likely that tobacco was a major culprit in the genesis and progression of the Veteran's coronary artery disease." This VA doctor also noted that the Veteran was non-diabetic and it was not clear whether hyperlipidemia may have been contributory to the development and progression of his coronary artery disease. As to the other theories under which the appellant claimed service connection for the cause of the Veteran's death, the VA physician further stated that "it is less than likely that the Veteran's heart condition was the result of stress due to being a POW or due to his service-connected psychoneurotic condition." This VA doctor noted that the role of stress in the etiology or genesis and progression of coronary artery disease remains controversial. The VA physician also opined that "it is less than likely that the Veteran's heart condition was the result of malnutrition/vitamin deficiency during his time as a POW." In support of this conclusion, he cited the Veteran's statements in the April 1985 POW assessment that he felt pretty good. The VA physician noted that if "nutritional stress factors," apparently meaning nutritional or stress factors, had played any significant role in the development of his heart disease, those effects would have been clearly manifest by 1985, and the Veteran would not have stated that he felt "pretty good" at that time. In a September 2005 medical evaluation, C.N.B., M.D., a neuro-radiologist with reported expertise in the area of spine disease, said that he reviewed the Veteran's medical records and opined that the Veteran's heart disease was as likely as not caused by his service time. Dr. B. further opined that it was at least as likely as not that the Veteran's post-traumatic stress disorder (PTSD) associated- symptoms and sympathoadrenal axis hormone increase likely substantially increased his risk for myocardial infarction. Finally, Dr. B. expressed disagreement with the 2000 VA examiner's opinion for its failure to discuss the Veteran's 1944 chest condition or chest pains and the abnormal 1947 chest x-ray, failure to provide supportive medical literature, and failure to discuss Drs. M.'s and T.'s favorable opinions, that Dr. B. said indicated that the VA examiner may not have the entire record to review. Appended to Dr. B.'s report is a copy of a journal article entitled "Electrocardiogram Abnormalities Among Men With Stress- Related Psychiatric Disorders: Implications for Coronary Heart Disease and Clinical Research", Boscarino, J.A., and Chang, J. (Ann Behav Med, 1999, 21 (3): 227-234). In light of the appellant's contentions and the conflicting medical opinions, the Board finds that additional medical opinions by a panel of at least two physicians, is needed to fairly resolve the claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4)(i)(C) (2008); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this matter is REMANDED for the following actions: 1. The appellant should be issued a VCAA letter explaining the need for additional evidentiary development of her claim. The letter should comply with Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. Thereafter, the RO should arrange for a panel of at least two physicians with the appropriate expertise, to review the Veteran's claims file and provide a single, collaborative report that renders the following opinions: Is it as likely as not (50 percent chance or greater) that (a) a service-related vitamin deficiency or malnutrition contributed to the Veteran's heart disease and can such deficiency be found based on the evidence on file? (b) did the Veteran have edema and swelling of the legs, warranting a finding of beriberi heart disease? (c) was a principal or contributory cause of death causally linked to any incident of service? (d) did the Veteran's service- connected mixed psychoneurosis and stress cause or aggravate (worsen beyond its natural progression) the Veteran's heart disease? Or, (e) is the heart disease which caused his death related to malnutrition or beriberi heart disease, or is it more likely caused by other factors? The designated physicians are requested to comment on the medical opinions referenced above, to include an August 1999 letter from C.W.M., M.D; an October 1999 written statement from D.W.T., M.D.; a December 2000 VA physician's opinion report; and a September 2005 medical evaluation from C.N.B., M.D. The physicians should provide a complete rationale for any opinions expressed. If any conclusion is based on the results of scientific studies, these studies should be identified. 3. Thereafter, the RO should readjudicate the claim for service connection for cause of the Veteran's death for the period prior to October 7, 2004, in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the appellant and her attorney should be provided with a SSOC. An appropriate period of time should be allowed for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2008).