Citation Nr: 0304592 Decision Date: 03/13/03 Archive Date: 03/24/03 DOCKET NO. 97-33 901A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: John F. Cameron, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from January 1946 to January 1947, from August 1950 to August 1953, and from October 1961 to August 1962. The appellant is the veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 1997 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for the cause of the veteran's death and eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. The Board remanded the case in September 1998 and July 1999. In June 2000 the Board denied service connection for the cause of the veteran's death and Chapter 35 eligibility. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2001 Joint Motion, the parties (the appellant and the VA Secretary) asked the Court to vacate the Board decision and remand the case. In a September 2001 Order, the Court granted the motion. The case was subsequently returned to the Board. In January 2002, the appellant submitted additional evidence to the Board. The Board subsequently undertook additional evidentiary development. The appellant was notified that additional evidence that had been obtained, and she submitted additional written argument to the Board in February 2003. FINDINGS OF FACT 1. The veteran died in August 1997, at the age of 68 of an acute myocardial infarction, due to, or as a consequence of, coronary artery disease. 2. At the time of the veteran's death, service connection was in effect for a right knee disorder, evaluated as 20 percent disabling, and a hiatal hernia, evaluated as 10 percent disabling. 3. The veteran's cardiovascular disease is not of service origin and is not related to his service-connected disabilities, to include any medications prescribed for the service connected disabilities. 4. A service connected disability was not involved in the veteran's death CONCLUSIONS OF LAW 1. Cardiovascular disease was not incurred in or aggravated by active duty nor may cardiovascular disease be presumed to have been incurred in service.38 U.S.C.A. §§ 1101, 1110,1112,1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.308 (2002). 2. Cardiovascular disease was not proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310 (2002). 3. A service-connected disease or disability did not cause or contribute substantially or materially to the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2002). 4. The criteria for basic eligibility for entitlement to Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A §§ 3500 and 3501 (West 2002); 38 C.F.R. § 3.807 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of the VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Pursuant to the VCAA, the VA has a duty to notify the appellant of any information and evidence needed to substantiate and to complete her claim. In the statement of the case and a number of supplemental statements of the case, and earlier Board Remands, the appellant has been effectively informed of the requirements necessary to substantiate her claim. Also, in October 2002 the Board informed the appellant of the VA's duties under the VCAA and what evidence the VA would attempt to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has a further duty to assist the appellant in obtaining evidence necessary to substantiate her claim. The Board is satisfied that all pertinent, available evidence has been obtained. As the appellant has not cited any records of relevant post-service treatment in addition to those that have already been obtained and associated with the claims folder, and as pertinent medical opinions relative to her claim have been obtained, the duty to assist has been satisfied. The Board finds that the requirements of the VCAA have been met. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1992). Service connection may also be granted for certain chronic diseases, such as cardiovascular disease, if manifested to a compensable degree within one year following service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). Service connection may also be granted for a disability, which is proximately due to, or the result of a service connected disease or injury. 38 C.F.R. § 3.310. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Dependency and indemnity compensation may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For the service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. For a service- connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal relationship. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. 3500 and 3501 (West 2002); 38 C.F.R. 3.807 (2002). Factual Background The official death certificate shows that the veteran died in August 1997, at age 68. The immediate cause of death was acute myocardial infarction, due to, or as a consequence of, coronary artery disease. Other significant conditions contributing to death were coronary artery bypass graft and a urinary tract infection. An autopsy was not performed. At the time of his death, service connection was in effect for a right knee disorder, evaluated as 20 percent disabling, and hiatal hernia, evaluated as 10 percent disabling. The appellant contends that the veteran's death was the result of medications that he took to treat his service-connected hiatal hernia. It is asserted that he was allergic to nitroglycerin, which, she says, caused his coronary artery disease. She has also asserted that medications for his service-connected conditions may have contributed to his death. During her videoconference hearing before the undersigned member of the Board in January 1999 she testified that the veteran was prescribed nitroglycerin for his hiatal hernia, prior to any heart condition. She stated that she requested an autopsy but one was not performed. A review of the service medical records fails to disclose any evidence of heart disease. The veteran was seen at the dispensary on two occasions in October 1961 for severe chest pain. A diagnosis of heart disease was not made at those times. He was seen on several occasions in July and August 1962 for substernal pain. It was determined that the pain was epigastric in nature. The June 1962 separation examination clinically evaluated the heart as normal. A chest x-ray was negative. Beginning in 1950, the veteran received treatment at VA and private facilities. He was hospitalized at a private facility in March 1977 for chest pain. At that time it was reported that a myocardial infarction was ruled out. A VA examination was conducted in August 1978 in order to evaluate the right knee disability and hiatal hernia. The clinical history indicated that the veteran had been hospitalized at a private facility in June 1978 for chest pain, which radiated down the left arm "(MI)" and for hypertension. Pertinent medication listed was anti-hypertensive medications. Received in August 1978 was a statement from the veteran dated on August 17, 1978 in which he reported chest and stomach problems. VA outpatient records dated in 1980 show that the veteran was prescribed nitroglycerin for arteriosclerotic heart disease and angina. The veteran was evaluated at a VA facility in November 1981 for the hiatal hernia. He stated that when he had attacks "they" think he is having a heart attack. All EKGs and stress tests were normal. The veteran indicated that his symptoms were relieved by nitroglycerin. It was noted that a February 1981 EKG showed anterior lateral eschemia. Other VA medical records in the early 1980's also seem to indicate heart disease. During a March 1982 VA hospitalization, an EKG was reported to have been abnormal and to have indicated that he had had an old myocardial infarction of indeterminate age. He was hospitalized at a VA facility in April 1985. The diagnosis was arteriosclerotic heart disease. The veteran was hospitalized at private facility in May 1989 for arteriosclerotic heart disease. He underwent a five- vessel by-pass. Medications prescribed at discharge did not include nitroglycerin. The veteran was hospitalized at a VA facility on August 19, 1997 for dizziness. While sleeping, monitoring equipment sounded. He did not respond to treatment and expired on August [redacted], 1997. The diagnosis was probable acute myocardial infarction, arteriosclerotic heart disease, coronary artery bypass graft 1989. His chart reflected that he was not taking nitroglycerin at the time of admission. Subsequently received was a list of the medications prescribed by the VA from 1995 until his death. These records show he was allergic to nitroglycerin. The appellant submitted literature regarding Nitrostat. It was indicated that the medication might cause dizziness, lightheadedness, or faintness. People who had been using for several weeks should not suddenly stop using it as it may result in angina attacks. A hearing was held at the RO in February 1998. At that time the appellant testified that following the veteran's discharge from service he experienced severe symptoms associated with the hiatal hernia. The appellant indicated that nitroglycerin relieved the symptoms. She stated that the VA prescribed nitroglycerin when the veteran did not have any heart disease. She testified that the veteran was allergic to the nitroglycerin and that this contributed to his death. A VA physician in February 2000 reviewed the records in the veteran's adjudication claims folder. It was noted that the veteran had a history of coronary artery disease and coronary artery bypass graft in 1989. An EKG in the record suggested that there was an old inferior myocardial infarction. It was noted that there was nothing to suggest that the veteran was taking nitroglycerin at the time of the admission to the hospital and he doubted that this medication was the cause of the veteran's old inferior myocardial infarction, despite having an allergy and being prescribed for a hiatal hernia. He concluded that there was nothing in the record to suggest that the myocardial infarction was due to any adverse reaction to medications. In 2000, numerous medical records were submitted. These records show treatment for many medical conditions including the veteran's heart condition in the 1990's. A 2002 statement from a psychologist reflects that the veteran was treated in the 1990's for anxiety and depression associated with his medical condition. She also submitted a statement by the veteran, dated August 17, 1978. Another VA physician, an internist, reviewed all the veteran's medical records in January 2003. The VA physician noted that the veteran had a history of coronary artery disease and coronary artery bypass graft in 1989. An EKG in the record suggested that there was an old inferior myocardial infarction. The doctor reviewed the medications that the veteran was taking over the years such as Tylenol, aspirin, Lodine, Antacids, and nitroglycerin. The doctor reported that the veteran's death was most likely related to cardiac arrhythmia due to previous heart damage from a myocardial infarction. The doctor noted that he could find no evidence that any of the medications that the veteran was taking prior to his death or that the veteran's service-connected conditions of a knee condition or his hiatal hernia had any bearing on his death. The doctor said that he concurred with the VA physician who reviewed the veteran's claims file in February 2000; that is, that there was nothing to suggest that the fatal myocardial infarction was due to any adverse reaction to any medications. The doctor concluded specifically that it was unlikely that the veteran's cardiac arrhythmia and death were related to any medications taken previously or to the veteran's service- connected knee condition or hiatal hernia. Analysis With regard to the appellant's testimony and statements attributing the veteran's medications for his service- connected conditions or symptoms of his service-connected hiatal hernia being a causative factor in his fatal heart disease, she is not qualified to express an authoritative and probative opinion regarding any medical causation of the coronary artery disease that led to the veteran's death. As such her lay opinions cannot be accepted as competent evidence to the extent that they purport to establish such medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The service medical records do not demonstrate the presence of heart disease. The first post-service clinical evidence confirming the presence of heart disease was many years after service. The appellant has not submitted any competent medical evidence nor is there any competent medical evidence of record, which establishes a relationship between the heart disease and the veteran's periods of active duty either directly or presumptively. Regarding entitlement to cause of death on a secondary basis, the 1980 and 1981 VA outpatient records indicate that the veteran was taking nitroglycerin for chest pain. The November 1981 record indicates that this heart disease had not been clinically confirmed. In any event such speculation as to an etiological role of the nitroglycerin or other medications the veteran was taking for his knee in the veteran's death has been put to rest when VA physicians in February 2000 doubted nitroglycerin was the cause of the veteran's old inferior myocardial infarction, despite having an allergy and being prescribed for a hiatal hernia and that there was nothing in the record to suggest that the myocardial infarction was due to any adverse reaction to medications. A VA internist reviewed this medical opinion in 2003, and concurred that there was nothing in the record to suggest that the myocardial infarction was due to any adverse reaction to medications. There is no medical evidence of record, which indicates contraindicates the medical opinions that effectively refute the appellant's assertion that medication's for the veteran's service-connected conditions may have contributed to his fatal heart attack. Also, there is no medical evidence which indicates that the right knee disorder and/or hiatal hernia were involved in the veteran's death The veteran's fatal cardiac condition may not be considered service-connected on either a direct or secondary basis. The evidence indicates that the cause of death, a heart attack from coronary artery disease, was overwhelming, and the established service-connected conditions did not substantially or materially contribute to his death. As the evidence shows that a service-connected disability or associated medications did not cause or contribute to the veteran's death, there is no basis for service connection for the cause of the veteran's death. The preponderance of the evidence is against the claim. Thus, the benefit-of-the- doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the claim for Survivors' and Dependents' Educational Assistance Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code, such benefits may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists, in pertinent part, if the veteran had a permanent total service-connected disability at the time of his death or if the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500 and 3501 (West 1192); 38 C.F.R. § 3.807 . As noted above, the veteran died many years after service of a non-service-connected disability. At the time of the veteran's death in 1997, his combined disability rating was 30 percent. Since service connection has not been established for the cause of the veteran's death, and the remaining criteria have not been met, it follows that the appellant is not entitled to the Dependents' Educational Assistance on this basis. Therefore, he was not in receipt of a total and permanent disability evaluation due to service-connected disability at the time of his death. Under these circumstances, the appellant does not meet the basic eligibility requirements for entitlement to Chapter 35 Dependents' Educational Assistance, and her claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER The claim for service connection for the cause of the veteran's death is denied. Entitlement to Chapter 35 Dependents' Educational Assistance is denied. ROBERT P. REGAN Member, 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.