Citation Nr: 1331035	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  13-02 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a heart disorder, including a heart attack, for purposes of accrued benefits.

2.  Entitlement to an initial disability rating higher than 10 percent for a stomach ulcer. 

2. Entitlement to service connection for the cause of the Veteran's death.



REPRESENTATION

Appellant represented by:	Robert Brown, Jr., Attorney at Law


WITNESSES AT HEARING ON APPEAL

Appellant & Son


ATTORNEY FOR THE BOARD

L. Crohe, Counsel


INTRODUCTION

The Veteran had active service from August 1956 to June 1958.  The Veteran died in July 2011, and the appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

The appellant testified at a Video Conference hearing before the undersigned Veterans Law Judge in August 2013.  A copy of the transcript of this hearing has been associated with the Virtual VA claims file.  At the time of the hearing, the appellant submitted additional evidence and waived initial consideration of this evidence by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1304(c). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The Veteran had a claim for entitlement to service connection for a heart attack and stomach ulcers pending at the time of his death, and a claim for accrued benefits was received within one year after his death.

2.  The evidence of record at the time of the Veteran's death did not establish that the Veteran had a heart disorder began in service, within the first post service year, was otherwise related to service, or that there was a continuity of symptomatology since his discharge from service.   

3.  A November 2012 rating decision granted service connection for stomach ulcers and assigned a 10 percent disability evaluation effective August 2, 2010.  

4.  The appellant appealed the initial 10 percent disability rating for stomach ulcers.   

5.  The evidence of record at the time of the Veteran's death revealed a mild stomach ulcer disability; there was no evidence moderate, moderately severe, or severe disability.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a heart disorder, including a heart attack, for accrued benefits purposes, have not been met.  See 38 U.S.C.A. § 1131, 1154(b), 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.1000 (2013).

2.  The criteria for an initial rating greater than 10 percent for stomach ulcer, for accrued benefits purposes, have not been met.  38 U.S.C.A. §§ 1111, 1155, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.312, 3.1000, 4.1114, Diagnostic Code 7304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) requires the United States Department of Veterans Affairs to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 

VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim.  VA will inform the claimant of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide.  38 C.F.R. § 3.159(b).  VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).

These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Here, VA sent a letter to the appellant in January 2012 that addressed the notice elements concerning the accrued benefits claim.  In the January 2012 letter, VA explained the evidence necessary to substantiate the appellant's accrued benefits claim, as well as the legal criteria for entitlement to such benefits.  VA also provided notice regarding how disability ratings and effective dates for the award of benefits will be assigned if service connection is granted or a higher evaluation is awarded.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The appellant's higher initial rating claim for a stomach ulcer, for accrued benefits purposes, is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the appellant on the issue of service connection for a stomach ulcer, and because the appellant was fully informed of the evidence needed to substantiate her claim, the Board finds no prejudice to the appellant in proceeding with the present decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also See Dingess, 19 Vet. App. at 490-91.  In Dingess, the Veterans Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess, supra.

In light of the foregoing, the Board finds that VA has discharged its duty to notify. For the reasons discussed above, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal.

The Board also concludes VA's duty to assist has been satisfied.  Prior to the Veteran's death, he submitted multiple private treatment records.  A review of the record reveals that the Veteran's service treatment records could not be obtained because of a fire-related incident.  Attempts to obtain this information from other sources were unsuccessful.  In September 2012 correspondence, the appellant was notified that the service treatment records were unavailable and for her to submit any relevant records in her possession.  Any further attempts to obtain the Veteran's service treatment records would be futile.  

As explained below, at the time of the Veteran's death there was no credible evidence that the Veteran sustained a heart disorder, including a heart attack during service alleged by him prior to his death or that his stomach ulcer disability was more than mild.  The Veteran died before a VA examination could be provided to assess the nature and etiology of his current heart disorder as well the severity of his service-connected stomach ulcer.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328  Fed. Cir. 2006).

II.  Accrued Benefits

The appellant seeks to establish her entitlement to accrued benefits on the basis that, prior to his death in July 2011, the Veteran had submitted letters dating back to when he was in service reflecting that his heart problems began in service.  In addition, she asserts that the severity of symptoms his stomach ulcers included throwing up on a regular basis, and ultimately, caused or contributed to his death from aspiration/acute myocardial infarction due to status post colon resection (10 days) due to advance atherosclerosis (years). 

Benefits, to which a beneficiary was entitled at his death, based on evidence on file at the date of death or under existing ratings or decisions, i.e., accrued benefits, will be paid to survivors as provided by law.  38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). 

Applications for accrued benefits must be filed within one year after the date of death.  38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c).  In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or else be entitled to them under an existing rating or decision.  Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998).  Further, a "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death.  38 C.F.R. § 3.1000(d)(5).

The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier.  38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104. 

"Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death.  38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). 

In July 2010, the Veteran's representative submitted an informal claim for service connection for a stomach ulcer and a heart attack.  The representative noted that the Veteran first began to suffer these ailments while he service in Korea in 1957 and 1958.  The Veteran provided contemporaneous letters that he sent to his wife that described the symptoms and diagnoses of these two ailments during his military service in Korea.   

While the Veteran's service connection claims were being developed, and prior to adjudication of the claim, VA was informed of the Veteran's death in July 2011.  In November 2011, the appellant submitted a claim for any accrued benefits.  A November 2012 rating decision, the RO ultimately granted service connection for a stomach ulcer and assigned a 10 percent disability rating, effective August 2, 2010.  The appellant appealed the assigned disability rating.  As the Veteran had a claim for service connection for a stomach ulcer and a heart attack pending at the time of his death, the appellant filed a claim for accrued benefits within one year of the Veteran's death, and the appellant appealed the downstream issue of a higher initial rating assigned for the stomach ulcer, the Board will consider the merits of the claims based on the evidence of record at the time of the Veteran's death.  See 38 C.F.R. § 3.1000. 

As noted above, entitlement to accrued benefits is determined based on evidence in the file or constructively of record at the time of his death.  38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000.  As the Veteran died in July 2011, evidence which was not of record or constructively of record at that time may not be considered in the adjudication of the appellant's claim for accrued benefits.  For instance, a testimony provided by the appellant and her son in which they reported that the Veteran's heart problems began in service and continued since that time as well as his stomach ulcer resulted in the Veteran routinely throwing up and being hospitalized at least twice a year, was clearly not in the file or constructively of record at the time of the Veteran's death.  Likewise, the July 2011 autopsy report from OU Medical Center Laboratory was not associated with the claims file until August 2013.  Therefore, neither the testimony nor the autopsy report may be considered in the adjudication of the appellant's claim for accrued benefits. 

a) Service Connection 

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Certain diseases, to include cardiovascular-renal disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  The Board notes the claims file does not include a diagnosis of a cardiovascular disease in service or within one year of service.  As such, service connection on a presumptive basis is not warranted for any of the above condition. 

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102.

Here, prior to his death, the Veteran sought entitlement to service connection for a heart attack.  The Veteran submitted correspondence to his wife dated in April 1958, in which he reported that he had a sharp pain last night around his heart, but that it didn't last longer than two or three seconds.  He stated that "it knocked [him] out for as long as it lasted and then it hurt all night and was still hurting this morning, and it scared [him].  He was a nervous wreck, however, when he went to the doctor in the morning the doctor said that it was a muscle loose from the Veteran's heart and was caused from him being so nervous.  He was given some pills to help him calm down.  

In May 1958 correspondence, the Veteran reported that his heart has not hurt in the last day or two.  He sometimes would get a little pain, but it always went right away.    

Treatment record from memorial Hospital of Texas County dated in June 1997 revealed that the Veteran was involved in a motor vehicle accident.  Vital signs, chest, and cardiac examinations were normal.  He was admitted for observation and evaluation of persistent abdominal pain.  A subsequent treatment record noted that the Veteran underwent an esophagogastroduodenscopy, which revealed a perforated gastric ulcer with generalized peritonitis and acalculous cholecystitis.  He became short of breath and post procedural chest X-ray revealed pneumoperitoneum.  When questioned he did not have chest pain, or palpitations.  Physical examination revealed diminished breath sounds in both lung fields.  An EKG revealed sinus tachycardia and a portable chest AP showed poor inspiratory effort with air under the diaphragm.  He was sent for exploratory surgery.  Post operative chest X-ray was suggestive of fluid overload.  A follow up note revealed acute respiratory failure (secondary to fluid overload), fluid overload, and acute exacerbation of chronic obstructive pulmonary disease.  He was transferred to Integris Baptist Medical Center and placed on a ventilator.  

Treatment records from Dr. M.S. include an October 2006 treatment record that noted a history of chest pain, right bundle branch bloc, previous heart attack.  A myocardial spect scan showed no evidence of significant infarct or ischemic changes.  A Portable Chest X-ray revealed persistent left basilar scar or atelectasis.  Treatment records dated in March 2007 noted that the Veteran had a questionable history of previous myocardial infarction who presented with complaints of an "erratic heartbeat".  He reported that he was sitting at home when he felt that his heartbeat was irregular.  Dr. M.S. noted that the Veteran had a history of a 1997 car wreck that was complicated by "encephalopathy gerdinitis" and multiple other complications.  The record reported that a nuclear stress test in October 2006 did not show any significant ischemic defects.  Due to a cardiac murmur, which was suspicious for aortic stenosis, the Veteran was going to do an echocardiogram for further evaluation.  A March 2007 echocardiogram demonstrated normal LV size and function.  The valves were pliable with no significant hemodynamic abnormalities.  There was no pericardial effusion or intracardiac thrombi.   A March 2007 electrocardiogram revealed a trigeminal rhythm.  

A treatment record from St. Anthony Hospital dated in January 2008 revealed that the Veteran had unstable angina and underwent left heart catheterization with left ventriculogram and coronary angiography with screening of the renal arteries.

In August 2010 correspondence, the Veteran reported that he did not have records from the physician that treated his condition upon returning home as the treating physician left the Veteran's hometown in the 1970's and had been deceased for many years.  

Regrettably, the Veteran's service treatment records could not be obtained due to a fire-related incident.  Attempts to rebuild the file from other sources were unsuccessful. Where "service medical records are presumed destroyed . . . the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened."  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).

The Board has reviewed all relevant post-service medical evidence.  The record does establish that the Veteran had a heart disorder at the time of his death with a history of a heart attack. 

Next, even if the Board were to accept, as credible, the Veteran's lay statements discussing an in-service chest pains, and his assertion that his heart disorder was related to service, the Board finds that the claim for service connection for a heart disorder, including a heart attack, for accrued benefits purposes, must be denied due to lack of competent evidence linking the Veteran's heart disorder, including a heart attack to service. 

In this regard, the Board notes that there is no medical evidence of record even suggesting that there exists a medical nexus between any current disability and any incident of service, to include the in-service correspondence that noted that the Veteran experienced pain around his heart.  The private medical report does not include any medical indication that the Veteran's history of a heart attack, or any other heart abnormalities were related to his period of service. None of the private medical records treatment records of record reflects any such comment to this effect, and neither the appellant nor her representative has identified any evidence or opinion of record (or, constructively of record) at the time of the Veteran's death that even suggests a medical nexus between the heart disorders during the Veteran's lifetime and his service.

The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  Barr v. Nicholson, 21 Vet.App. 303, 307 (2007).  The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ["[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"].  However, at no point prior to his death, did the Veteran assert that he has experienced heart pain since his period of service.  Rather, he has only asserted that he had pain in his heart during his period of service.  In short, the Veteran's lay statements regarding his in-service heart pain fail to provide evidence regarding continuity of symptomatology in order to relate his current chronic disorder to his period of service.  See 38 C.F.R. § 3.303(b); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Additionally, in the April 1957 letter, the Veteran indicated that he was told by a doctor that he pulled a muscle loose from his heart as a result of being so nervous.  In the May 1957 letter, the Veteran indicated that he did not have heart pain for the last day or two.  

The Board further notes that the first documented evidence of any heart related problems comes approximately 39 years since the Veteran's discharge from service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). 
On a review of the evidence of record at the time of the Veteran's death, absent credible evidence of a continuity of symptomatology since service, any assertion by the Veteran that there existed a medical relationship between his current heart disorder and his period of service is a matter of medical etiology that is beyond the competency of a lay person.  As the Veteran was not shown to be other than laypersons without the appropriate medical training and expertise, he is not competent to render a probative (persuasive) opinion on such a medical matter.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  Hence, the lay assertions in this regard have no probative value. 

For all the foregoing reasons, the Board concludes that the claim for service connection for a heart disorder, including a heart attack, for accrued benefits purposes, must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine.  However, as no competent, probative evidence supports a finding that the Veteran's heart disorder, including a heart attack are medically-related to the Veteran's military service, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). 

b) Increased Rating 

For historical purposes, the Veteran originally was granted service connection for a stomach ulcer in a November 2012 rating decision.  A 10 percent disability rating effective August 2, 2010, was assigned under Diagnostic Code 7304.  

Under the applicable criteria, disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of 2 ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  However, in the Fenderson decision, the Court noted an important distinction with respect to an appeal involving a veteran's disagreement with an initial rating assigned at the time a disability is service connected.  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 1994).  However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" are required.  See Fenderson, 12 Vet. App. at 126. 

The Veteran's stomach ulcer was assigned a 10 percent rating effective from August 2, 2010 using criteria found at 38 C.F.R. § 4.114, Diagnostic Code 7304, based on that is mild with recurring symptoms once or twice yearly.  

A 20 percent rating is warranted for symptoms that are moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations.

A 40 percent rating is warranted for symptoms that are moderately severe, that is, less than severe but with impairment of health manifested by anemia and with weight loss; or for recurrent incapacitating episodes averaging 10 days or more in duration at least four times per year.

A rating of 60 percent is warranted for severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.

The Veteran did not undergo a VA examination to evaluate his stomach ulcer disability in conjunction with the service connection claim that was pending at the time of his death.  As such, the medical evidence is limited to the private treatment records in the claims file at the time of his July 2011 death.

In the November 2012 rating decision, the RO noted that the grant of service connection was based on written correspondence indicating that the Veteran had stomach problems in service and went to the doctor on the morning of September 11, 1957 and was told that he had ulcers.  He was given medicine and a list of foods not to eat. The RO also noted that the most recent relevant treatment record was form Memorial Hospital of Texas County, which revealed a perforated gastric ulcer that was repaired in 1997.  The RO also noted that more recent medical record dated from 2006 through 2008 documented treatment for heart problems, with no mention of gastric symptoms.  The treatment records noted that Pepcid Complete and Rolaids, taken as needed, were listed as the Veteran's medications, but no symptoms, or regularity of the need for these over the counter medicines were of record.  Based on that limited medical information available at the time of the decision, the RO awarded the 10 percent rating for mils gastric ulcer.  The Veteran passed away in July 2011 before a specific examination could be provided to evaluate the Veteran's stomach ulcer.  As a result, there is scant medical evidence of record on which to base an evaluation.  

Letters dated in September 1957 refer to the Veteran being treated for ulcers.  

A treatment record from Dr. P.C.B. dated in June 1994 revealed that the Veteran had a definite gastric ulcer in the antral area.
Treatment records dated in June through July 1997 from Memorial Hospital Texas County and Integris Baptist Medical Center reveal that the Veteran was involved in a motor vehicle accident and had persistent abdominal pain, among other ailments.  An esophagogastroduodenscopy revealed a perforated gastric ulcer.  A chest x-ray showed pneumoperitoneum.  He underwent an exploratory laparotomy, cholecystectomy, and repair of perforated gastric antral ulcer.  

More recent medical records dated from 2006 through 2008 did not mention any gastric symptoms.  

In sum, what scant medical evidence there is fails to show that any of the criteria required for a higher, 10 percent, rating were met.  Because there was no examination given, there is no evidence moderate disability.  Specifically, there was no evidence of recurring episodes of severe symptoms (pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, anemia, weight loss) occurring two or three times a year and averaging ten days in duration, or evidence of continuous moderate manifestations of the disease.   There also was no evidence of anemia or weight loss, or a moderately severe or severe disability.  

Having reviewed all of the pertinent and probative medical evidence of record, the Board find that the evidence the Veteran's disability picture as regards his service-connected bilateral stomach ulcers, for purposes of accrued benefits, and covering the period from the initial effective date to the date of his death, more nearly approximates the criteria required for presently assigned 10 percent rating and that higher ratings were not warranted. 

Extraschedular Consideration

Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. 

The Board finds that the schedular evaluation assigned for the Veteran's service-connected stomach ulcers is adequate in this case, for accrued benefit purposes. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability.  Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For the foregoing reasons, a preponderance of the evidence is against a rating in excess of 10 percent for stomach ulcers for accrued benefits. 


ORDER

Entitlement to service connection for a heart disorder, including a heart attack, for the purposes of accrued benefits is denied.

Entitlement to an initial rating in excess of 10 percent for stomach ulcers, for purposes of accrued benefits, is denied.


REMAND

Additional development is needed before the Board can adjudicate the Appellant's claim.

The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. § 3.159(c)(4).

The Veteran's death certificate revealed that he died at Integris Southwest Medical Center; however the terminal hospital records from Integris Southwest Medical Center have not been associated with the claims file.  As such records may have some bearing on the veteran's claim, they should be secured.  Additionally, during the August 2013 Video Conference hearing, the appellant, her son, and her representative contend that the Veteran was hospitalized at least twice a year since service due to his stomach ulcer; however, the last dated record related to treatment for the Veteran's gastrointestinal problems was dated in June 1997.  As more recent treatment records may have some bearing on the Veteran's claim, they should also be obtained and associated with the claims file.  See 38 C.F.R. § 3.159(e)(2).

The Veteran's certificate of death also revealed that the Veteran's immediate cause of death was aspiration/acute myocardial infarction due to status post colon resection (10 days), due to advanced atherosclerosis (years).  

During the April 2013 hearing, by the appellant and her son reported that the Veteran's heart problems began in service and continued since that time.  They also reported that his stomach ulcer resulted in the Veteran routinely throwing up and being hospitalized at least twice a year.  They contended that the Veteran was hospitalized in July 2011 and underwent a procedure to remove a colon polyp.  Prior to the procedure the Veteran exhibited stomach problems, including throwing up on a routine basis.  After the procedure, the Veteran began to vomit and died as a result of aspirating on his vomit.  They believe that his heart disorder was related to service and that his service-connected stomach ulcer caused or contributed to his death.  

In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death.  38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2013).  In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death.  38 C.F.R. § 3.312(b) (2013).  In determining whether a service-connected disability contributed to cause death, it must be shown that it contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c)(1) (2013). 

Given the complex nature of the Veteran's heart disorder, stomach ulcer, and his death, a medical opinion should be obtained. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The appellant should be asked to identify all sources of treatment the Veteran received for the conditions that caused or contributed to his death (listed on his death certificate) specifically including any treatment relating to his stomach ulcer from his discharge from service until he died.  The RO should obtain copies of complete treatment records (those not already in the claims folder) from all identified sources, specifically including any hospitalization records for his stomach ulcer as referred to during the April 2013 hearing as well as terminal records from Integris Southwest Medical Center. 

2.  After the completion of #1 above, the paper claims file and Virtual VA paperless claims file should be forwarded to an appropriate medical specialist for review and an opinion. The Reviewer should provide an opinion as to: 

a) whether it is at least as likely as not (50 percent or greater probability) that a colon disorder and/or heart disorder, including advanced atherosclerosis, acute myocardial infarction, and a heart attack were related to the Veteran's active service, including September 1957 as well as April and May 1958 letters that reflect that the Veteran experienced heartburn, pain around his heart, and was told that he pulled a muscle loose.  

The reviewer should consider the in-service correspondence as well as the appellant and her son's testimony indicating that the Veteran had heart problems since service.  

b)If so, the reviewer should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the a colon disorder and/or heart disorder, including advanced atherosclerosis, acute myocardial infarction, and a heart attack caused or materially contributed to the Veteran's death. 

c) The reviewer should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the service-connected stomach ulcers caused or materially contributed to the Veteran's death.  

The examiner should consider the appellant and her son's testimony indicating that the Veteran vomited frequently as a result of his stomach ulcers, including before and after his colon surgery and ultimately caused him to aspirate and die.  

The reviewing physician should explain the rationale for all opinions given. 

3. The RO should readjudicate this claim and verify that the requested development has been accomplished in a manner that is consistent with this Remand, and if the benefits sought on appeal remain denied, the appellant should be provided with a Supplemental Statement of the Case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal.  The appropriate period of time should be allowed for response. 

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. 2012).




______________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs