On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri
THE ISSUES
Whether new evidence is material to reopen a claim for
service connection for the cause of the veteran's death and,
if so, whether the reopened claim should be granted.
REPRESENTATION
Appellant represented by: Sean Kendall, attorney at law
WITNESS AT HEARING ON APPEAL
Appellant and son and appellant's niece
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from November 1942 until
December 1945. The veteran died in March 1982. The
appellant is the widow of the veteran. The veteran's awards
and decorations included the Combat Infantryman Badge and the
Purple Heart Medal. The record reveals that the veteran was
captured by the enemy, but that he escaped and returned to
friendly forces two weeks later.
This appeal initially arose from a September 1995 rating
decision of the St. Louis, Missouri, Regional Office (RO)
that denied the appellant's claim that she had submitted new
and material evidence to reopen her claim for service
connection for the cause of the veteran's death. In a
decision dated in October 1997, the Board of Veterans'
Appeals (Board) found that new and material evidence had not
been submitted and denied the appellant's claim to reopen.
The appellant appealed that determination to the United
States Court of Appeals for Veterans Claims (Court). The
Court determined that the appellant had submitted new
evidence. The Court vacated the Board's October 1997
decision and remanded the case to the Board for further
adjudication. [citation redacted].
Subsequent to the April 1999 decision by the Court, the
appellant submitted additional evidence to the Board. The
appellant also submitted a waiver of review by the RO of the
newly submitted evidence. Accordingly, this evidence has
been considered in the following decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the RO.
2. A May 1990 Board decision denied service connection for
the cause of the veteran's death.
3. The evidence received since the May 1990 decision
includes new evidence which is so significant that it must be
considered in order to fairly decide the merits of the claim.
4. The claim for service connection for the cause of the
veteran's death is well grounded.
5. The veteran died of cardiovascular disease which had its
onset during service.
CONCLUSION OF LAW
1. New and material evidence to reopen the appellant's claim
has been presented and the appellant's claim for service
connection for the cause of the veteran's death is reopened.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999).
2. The claim for service connection for the cause of the
veteran's death is well grounded. 38 U.S.C.A. § 5107 (West
1991).
3. Cardiovascular disease was incurred in service, and
caused, or contributed substantially or materially to cause,
the veteran's death. 38 U.S.C.A. §§ 5107, 1310 (West 1991);
38 C.F.R. § 3.312 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONI. Reopened Claim
The appellant contends that she is entitled to service
connection for the cause of the veteran's death. The Board
denied entitlement to service connection for the cause of the
veteran's death in a May 1990 decision. The Board determined
that the veteran's service-connected anxiety disorder and his
other service-connected disabilities did not cause or
contribute substantially or materially to the veteran's death
from a myocardial infarction as a result of cardiovascular
disease. The Board also determined that the veteran did not
develop a cardiovascular disability as a result of service.
The evidence of record in May 1990 included the veteran's
service medical records; VA medical records and examination
reports; private medical records; a transcript of November
1982 testimony of the appellant before a hearing officer; the
veteran's death certificate; an August 1982 statement from
Alden P. Sargent, M.D., and November 1988, and May 1989
statements from John P. Sargent, M.D.
The service medical records indicate that the veteran had a
blood pressure of 150/86 upon examination for entry to
service, in November 1942. A March 1945 record indicates
that the veteran's blood pressure was 140/90.
On initial VA examination subsequent to service in November
1949, the veteran complained of a frequent sensation of
pressure in the region of his heart at night when lying down.
The veteran complained of sharp epigastric pain with no
relation to food and of having a tight or constricted feeling
around his heart when examined by VA in December 1954. On VA
hospitalization in February 1976 the veteran had a blood
pressure of 160/94.
The veteran's death certificate indicates that the veteran
died in March 1982 of an acute myocardial infarction due to
arteriosclerotic cardiovascular disease. An autopsy was not
performed.
At the time of the veteran's death service connection and a
70 percent rating was in effect for psychoneurosis. Service
connection was also in effect for a prepyloric ulcer, rated
20 percent disabling, and for a scar on the left leg, rated
noncompensable. He had a combined evaluation of 80 percent
and was entitled to a total rating based on individual
unemployability.
In his August 1982 opinion, Dr. Alden P. Sargent noted that
cardiac conditions are adversely affected by stress. He
stated that the veteran's service-connected nervous disorder
should be considered a factor producing the stress that
eventually contributed to his death. In his May 1989
opinion, Dr. John P. Sargent stated that the veteran's
service related "nervous diathesis" was a significant and
probably major factor leading to the veteran's death.
A previously denied claim will be reopened if new and
material evidence is submitted in support thereof.
38 U.S.C.A. § 5108. "New and material evidence" means
evidence not previously submitted to agency decisionmakers,
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with the
evidence previously assembled is so significant that it must
be considered in order to fairly decide the merits of the
claim. 38 C.F.R. § 3.156(a).
The evidence submitted since the May 1990 decision includes
September 1994, May 1996, and November 1996 statements and
attachments from Dr. John P. Sargent; an August 1996 opinion
from a VA physician; a transcript of the appellant's hearing
before a RO hearing officer in March 1997; and an October
1999 statement from Craig N. Bash, M.D.
In his May 1996 statement, Dr. Sargent pointed out that the
veteran's records were replete with reports of chest pain
from 1943 through 1982. It was his professional opinion that
the veteran's symptoms were very suggestive and very possibly
the earliest manifestations of his heart condition,
aggravated by post-traumatic stress disorder, which together
subsequently lead to his premature death. Dr. Sargent went
on to note that while medical professionals at that time
failed to properly diagnose the veteran's heart condition,
there should be some allowance made for the fact that the
medical diagnostic equipment used in the 1940's and 1950's
was less adequate by today's standards.
The record contains an August 1996 opinion from a VA
physician. The VA physician stated that there is no
connection between post-traumatic stress disorder (PTSD) and
aggravation of coronary artery disease, but also stated that
PTSD can cause stress which can increase the oxygen demand
upon the heart.
In an October 1999 statement, Dr. Bash noted that he had
reviewed the veteran's record and he gave a report of the
veteran's medical history. It was Dr. Bash's impression that
the veteran's immediate cause of death was due to a
myocardial infarction as a consequence of progressive
arteriosclerotic cardiovascular disease which was exacerbated
and accelerated both by excessive anxiety and post-traumatic
stress disorder (because the veteran would not take his
cardiac medications). Dr. Bash opined that the veteran had
cardiovascular disease in service which persisted until his
death and was initially manifest by hypertension in service.
Dr. Bash noted that he agreed with Dr. Sargent's opinion that
the veteran's death was directly due to his heart condition,
which was present during his service. Finally, Dr. Bash
stated that he disagreed with the August 1996 VA opinion
because the physician apparently did not do a thorough review
of the medical records.
Since the "new" post May 1990 medical opinions from Dr.
Sargent and Dr. Bash directly link the veteran's
cardiovascular disease to service, this evidence is clearly
probative of a nexus relationship between the cause of the
veteran's death and service-related disability. As such, it
is significant and must be considered in order to fairly
decide the merits of the claim. Consequently, the veteran's
claim must be reopened and considered on a de novo basis.
II. De Novo Adjudication
The Board notes that the record does show that the veteran
had measurements of elevated blood pressure during service.
The Board further notes that two private physicians, one who
examined the veteran while he was alive, and both who
thoroughly examined the veteran's record, have stated that
the veteran developed cardiovascular disease, which later
resulted in his death, during service. As such, there exists
a plausible basis for the claim, and the claim is well
grounded. 38 U.S.C.A. § 5107 (West 1991). The competent
clinical evidence of record which supports the appellant's
claim is assigned a greater probative value than the August
1996 opinion of a VA examiner, as such opinions reflect a
more reasoned analysis based on review of all the evidence of
record. Consequently, the Board finds that the veteran's
death from an acute myocardial infarction resulted from
cardiovascular disease which first developed during service.
Accordingly, the evidence supports the appellant's claim for
service connection for the cause of the veteran's death.
ORDER
The appellant's claim for service connection for the cause of
the veteran's death is reopened, and the appeal to this
extent is granted.
The appellant's claim for service connection for the cause of
the veteran's death is well grounded, and the appeal to this
extent is granted.
Entitlement to service connection for the cause of the
veteran's death is granted.
