Citation Nr: 0323909 Decision Date: 09/15/03 Archive Date: 09/23/03 DOCKET NO. 01-05 302A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to eligibility for Dependents' Educational Assistance under 38 U.S.C.A. chapter 35. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Darryl M. Springer, Law Clerk INTRODUCTION The veteran had active service from December 1969 to September 1971; the veteran died in June 1998; the appellant is the veteran's widow. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision from the Department of Veterans Affairs (VA) Pittsburgh, Pennsylvania Regional Office (RO). While the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318 had been part of the current appeal. In light of the current decision granting service connection for cause of the veteran's death, as this is the greater benefit, the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318 is moot. Therefore, the Board will consider the issues on appeal to be as listed on the title page of this decision. In this case, the appellant filed a claim for entitlement to service connection for multiple sclerosis for accrued benefits. It is noted that prior to the veteran's death of June 1998, the veteran had a claim pending for entitlement to service connection for multiple sclerosis. By rating action of November 1999, service connection for multiple sclerosis was granted at 100 percent disabling beginning in September 1994. However, by that rating action was voided and the rating action not promulgated due to the veteran's death. This issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal on the issues on appeal have been obtained by the RO. 2. The veteran died in June 1998; according to the death certificate, the immediate cause of death was multiple sclerosis. 3. At the time of the veteran's death, service connection was not in effect for any disability. 4. The veteran's multiple sclerosis, which was the cause of his death, is related to his service. Symptoms were shown within 7 years after the separation from service. CONCLUSIONS OF LAW 1. A disability of service origin caused or contributed substantially or materially to cause of death. Multiple sclerosis may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312, 3.326 (2002). 2. The statutory requirements for eligibility for chapter 35 Dependents' Educational Assistance benefits have been met. 38 U.S.C.A. §§ 3500, 3501, 5103A , 5112 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.807, 21.3020, 21.3021 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable decision in this case, the Board finds that all duty to assist and to notify the appellant pursuant to the VCAA is satisfied. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2002). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(c) (2002). Where a veteran served 90 days or more during a war period or after December 31, 1946 and multiple sclerosis becomes manifest to a degree of 10 percent or more within 7 years from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). A death certificate shows that the veteran died in June 1998 with an immediate cause of death being multiple sclerosis. An autopsy was not performed. The veteran's service medical records show no complaints, history, treatment, or diagnosis of the presence of multiple sclerosis. On pre-induction examination in September 1969 and separation examination in July 1971, the veteran's neurological examinations were within normal limits. In September 1979, a letter from a private medical examiner stated that the veteran was seen for symptoms of numbness and tingling in both legs in August 1979. These symptoms had been present for weeks before the veteran was admitted to the private medical facility. The veteran stated that when he bent his head forward, he felt numbness and tingling extending down the back into the anterior part of his legs and down to his toes, and the pain was only exacerbating by bending his head or torso forward. The veteran stated that the symptoms persisted without letup for approximately two weeks. Another examiner also evaluated the veteran in the facility and the impression was that the veteran could possibly have a sensory polyneuropathy or multiple sclerosis. Private medical records from July 1990 to May 1994 showed that the veteran was seen for multiple sclerosis. In July 1990 the veteran stated that he was in good health until 11 years prior to the examination when he experienced double vision. On VA examination of August 1994, the veteran's wife stated that when she first met the veteran he had the beginning symptomatology, manifested by poor memory, in 1973. It was stated that the definitive diagnosis of multiple sclerosis was made in 1979. The veteran showed complaints of poor memory, bladder and bowel incontinence, no ambulation, and needed help in dressing and personal care. The findings was that the veteran obviously had multiple sclerosis, he was stiff, had spontaneous unusual movements of the arms and legs, had very poor memory, and was not capable of managing his affairs or the affairs of his wife. A statement in October 1996 by a registered nurse and neighbor of the veteran stated that in 1977 she noticed that the veteran has an odd gait at times. She stated that the gait could be best described as a wide-based stiff legged, non-knee bending walk. Then nurse stated that the gait was more pronounced in the evening or after a lot of activity such as mowing the lawn. The nurse also stated that the veteran had mentioned the numbness and tingling in his hands to her. On VA examination of August 1997, the veteran reported a history of numbness of the hands and legs with associated weakness of the legs beginning in 1973 and he first saw a physician in 1979 due to worsening of the problem, which resulted in a diagnosis of multiple sclerosis. The examiner stated that the veteran had multiple sclerosis, previously relapsing, remitting and now chronic progressive type with total disability. The examiner stated that the symptoms began with complaints of paresthesias and intermittent weakness as far back as 1973 or 1974. The examiner also stated that the complaints would certainly be consistent with the natural course of this man's illness resulting in severe disability over a 35-year period. The examiner opined that it was entirely possible that the veteran's symptoms began in the early 1970s and it is quite likely that they began prior to 1978. On VA examination of May 1999, the examiner reported that the veteran had clinically definite multiple sclerosis with a history of symptoms beginning about 1973. The examiner further stated that it was therefore highly likely that the veteran's multiple sclerosis began prior to 1978. In this case, resolving all reasonable doubt in favor of the appellant, the Board finds that the veteran's multiple sclerosis was related to his service as commented by VA examiners in August 1997 and May 1999. The findings were that the symptoms of multiple sclerosis began prior to 1978 and the presumptive period for service connection for multiple sclerosis would be within this time period. As such, the Board finds that the evidence is at least in equipoise in this case. Therefore, the Board finds that the evidence supports the appellant's claim. 38 C.F.R. § 3.102 (2002). Because of the aforementioned grant, the eligibility for Dependents' Educational Assistance under the provisions of Chapter 35, Title 38, United States Code is also established. ORDER Entitlement to service connection for the cause of the veteran's death is granted. Entitlement to eligibility for Dependents' Educational Assistance, chapter 35, Title 38, United States Code is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.