Citation NR: 9619719 Decision Date: 07/18/96 Archive Date: 07/31/96 DOCKET NO. 93-05 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of death. REPRESENTATION Appellant represented by: J. Nicholas Klein, III, attorney ATTORNEY FOR THE BOARD Thomas H. Tousley, Counsel INTRODUCTION The veteran had active military service from September 1944 to November 1946. He died in September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The appellant is the veteran’s surviving spouse. CONTENTIONS OF APPELLANT ON APPEAL The appellant and her representative contend that the veteran’s service-connected right above the knee amputation contributed substantially and materially to the veteran’s death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to service connection for the cause of the veteran’s death. FINDINGS OF FACT 1. The appellant has submitted a well grounded claim for service connection for the cause of death, and the evidence is sufficient to equitably decide her appeal. 2. At the time of the veteran’s death in September 1991, service connection was in effect for an above the knee amputation of the right leg, evaluated as 60 percent disabling; and for arthritis with synovitis of the left knee with loose bodies and crepitation, evaluated as 10 percent disabiling for a combined disability rating of 70 percent. 3. The death certificate indicates that the veteran died as the result of hepatic encephalopathy/hepatic failure due to alcoholic cirrhosis of the liver due to alcoholism, and that a cerebrovascular accident was an other significant condition contributing to death, but not resulting in the underlying cause of death. 4. The veteran’s cirrhosis of the liver due to alcoholism was initially diagnosed many years after service, and has not been related to service by competent medical evidence. 5. A psychiatric disorder was initially diagnosed more than 10 years after service, and the veteran’s alcoholism has not been related by competent medical evidence to a psychiatric disorder. 6. The veteran’s cerebrovascular accident that has been claimed to have resulted from the effects of the veteran’s service-connected right above the knee amputation was not a major contributing cause of the veteran’s death due to hepatic encephalopathy/hepatic failure. CONCLUSIONS OF LAW 1. Cirrhosis of the liver due to alcoholism was neither incurred in nor aggravated by the veteran’s active military service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 105(a), 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1995). 2. The veteran’s service-connected right above the knee amputation did not contribute substantially or materially to his death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Based on a May 1992 statement of a physician, Robert M. Paschall, D.O., who was treating the veteran at the time of his death, the Board determines that the appellant has submitted a well grounded claim for service connection for the cause of death within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that the evidence is sufficient to equitably decide her appeal. Dependency and indemnity compensation shall be paid to a surviving spouse if a veteran dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 1991). The evidence must establish that the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1995). A service-connected disability will be considered the principal cause of death if it was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (1995). To be a contributory cause of death, it must be shown that it contributed substantially or materially to the cause of death, that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (1995). Service connection may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a) (1995). When a chronic disease is shown during service, subsequent manifestations of the same disease are service- connected unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1995). Service connection can be established by presumption for certain chronic diseases manifest to a degree of 10 percent or more within one year after service, such as cirrhosis of the liver. 38 C.F.R. §§ 3.307, 3.309 (1995). However, presumptive periods are not intended to limit service connection for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1995). Service connection can be established for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1995). The term “disability” includes “any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition.” Allen v. Brown, 7 Vet.App. 439, 448 (1995). (Emphasis in original). At the time of the veteran’s death in September 1991, service connection was in effect for an above the knee amputation of the right leg, evaluated as 60 percent disabling; and for arthritis with synovitis of the left knee with loose bodies and crepitation, evaluated as 10 percent disabling, for a combined disability rating of 70 percent. The death certificate indicates that the veteran died as the result of hepatic encephalopathy/hepatic failure due to alcoholic cirrhosis of the liver due to alcoholism, and that a cerebrovascular accident was a significant condition contributing to death, but not resulting in the underlying cause of death. The appellant and her representative do not contend, and the evidence does not show, that the primary cause of the veteran’s death, his liver disease, was incurred in or aggravated by service. The service medical records are negative for evidence of liver disease. VA medical records do not show a diagnosis of cirrhosis until a hospitalization of the veteran in the middle of 1989 for the right above the knee amputation. There has not been submitted a medical diagnosis or opinion relating the veteran’s cirrhosis to service. The Board notes that the death certificate indicates the veteran’s cirrhosis was caused by alcoholism. Service connection cannot be established for the primary disease of alcoholism. 38 U.S.C.A. § 105(a) (West 1991). However, this law does not preclude disability compensation being paid for alcohol abuse resulting from a service connected disorder, such as a psychiatric disorder. At the time of the veteran’s death, the RO had assigned a 70 percent rating for the nonservice-connected disorder of anxiety reaction. However, there is no evidence of a medical diagnosis or opinion relating the veteran’s alcoholism to a psychiatric disorder. Furthermore, assuming for the sake of argument, but not finding, that the veteran’s alcoholism was due to a psychiatric disorder, the evidence does not establish incurrence in or aggravation of a psychiatric disorder during service. The service medical records do not reveal complaints, findings, or diagnoses referable to psychiatric abnormalities. The medical records show the initial diagnosis of a psychiatric disorder was during a VA hospitalization in September 1958 when the treating physicians diagnosed psychophysiologic respiratory reaction. Anxiety neurosis was not diagnosed until a hospitalization in 1971. Although it was noted in the September 1958 VA hospitalization report that he related that he had experienced nervousness since separation from service, service connection cannot be established on a presumptive basis for an anxiety disorder manifesting itself during the year following separation from service. In addition, although a treating VA physician diagnosed schizophrenia during a hospitalization in 1977, the diagnosis was made many years after service, the evidence does not show it was present at the time of death, and it has not been related to service by medical diagnosis or opinion. The appellant and her representative contend that the veteran’s service-connected right above the knee amputation contributed substantially or materially to the his death. In support of their contentions, they provided the previously mentioned May 1992 letter from Dr. Paschall who stated: Prior to admission in September 1991 the [veteran] had fallen and struck his head. He then had a cerebral hemorrhage and went into epileptic seizures which were then extremely difficult to control. He then ultimately died [in September 1991] from a fulminant, overwhelming failure of blood clotting related to underlying liver disease. It is my opinion that had he not fallen, because of his amputation, the day prior to admission he would not have had a cerebral hemorrhage and would not have ultimately succumbed in this manner. Thus, the appellant and her representative argue that the residuals of the blow to the veteran’s head, which resulted from a fall due to the service-connected disability of amputation of one leg, combined with the nonservice-connected cirrhosis of the liver to produce death. The Board notes that VA treatment records and VA Compensation and Pension examinations are replete with references to the veteran reporting that he had fallen on many occasions, and findings of bruises on the veteran’s body. In addition, it was noted in the Dr. Paschall’s admission note of the veteran’s last hospitalization that the veteran had been “stumbling around” during the previous few days and that he had fallen the day before admission. The family denied that he had experienced any significant head injury, but indicated that he became more “ataxic” and began to experience seizures. Dr. Paschall further noted that the veteran had ingested alcohol of an unknown quantity. Upon admission to the hospital, the veteran experienced right focal status epilepticus for an hour. Dr. Paschall indicated that a CAT scan showed an hemorrhagic stroke in the left temporal lobe. Dr. Paschall’s diagnostic impression was: 1) right focal status epilepticus secondary to hemorrhagic infarction left temporal lobe; 2) hemorrhagic infarction left temporal lobe; 3) gastrointestinal bleed, low grade; 4) coagulopathy probably secondary to alcoholic liver disease; 5) probable alcoholic cirrhosis; 6) longstanding history of alcoholism; 7) impending delirium tremens; 8) hypertension; 9) history of Bilroth II. Dr. Paschall also dictated the discharge summary of the veteran’s last hospitalization. Dr. Paschall related that the veteran presented in focal status epilepticus from a left temporal lobe hemorrhagic infarction. He added that the veteran was subsequently found to have fairly fulminant hepatic encephalopathy. He noted that there had been fairly good improvement early on with the use of Lactulose. He related that the coagulopathy did not respond to treatment. He reported that the veteran was given fresh frozen plasma after which his condition stabilized, and that the veteran was then transferred from the intensive care unit (ICU) to the “floor.” He finished the summary by stating the veteran had been doing fairly well, but that the veteran developed a massive gastrointestinal bleed probably secondary to a variceal rupture, and died in a hepatic coma. Dr. Paschall related in a statement dated in December 1992 that the veteran was not stumbling around prior to the hospitalization because of being drunk, but probably because of hepatic encephalopathy. He stated that the amputation caused the veteran to be more ataxic. Dr. Paschall then added: The [veteran’s] falling around probably came from his hepatic encephalopathy, and his amputation caused him to be more ataxic. He then fell and began to bleed even more, suffered a temporal lobe hemorrhage and refractory seizures, and ultimately succumbed from fulminant liver failure. Upon initial review of the case, the Board determined that this case involved sufficient medical complexity to warrant obtaining an opinion from an independent medical expert (IME). 38 C.F.R. § 3.328 (1995). Philip Wasserstein, M.D., Assistant Professor of Neurology; Director, Neurology Outpatient Department; Stanford University Medical Center; reviewed the veteran’s claims folder and responded in March 1996 as follows: 1) The first question was the underlying cause of the temporal lobe hemorrhagic infarction and when this pathology had its inception. If the lesion was in fact a hemorrhagic infarction (see below), this pathology would have had its inception most likely in the 24 hours preceding this admission to the hospital. While some change from his baseline status (stumbling around) occurred in the days prior to his development of status epilepticus, loss of balance would not be an expected symptom of temporal lobe infarction or hemorrhage. It may be useful to explain what a hemorrhagic infarction is, and why I have some reservation about that as the definitive cause for the veteran’s temporal lobe pathology. An infarction refers to a loss of tissue due to loss of blood flow, generally from blockage of a blood vessel. A hemorrhagic infarction usually occurs when a blood vessel is initially blocked, resulting in the death of the tissue which the blood vessel supplies, with subsequent bleeding into the area of the damaged tissue when flow is re-established. When there is bleeding into the brain, there is considerable risk of developing seizures, that is, electrical discharges which may result in jerking movement of the limbs and alteration in consciousness. In general, it is quite difficult to be certain that an abnormality of the brain (generally referred to as a “lesion”) seen on CT scan with characteristics of hemorrhagic infarction is definitively representative of that diagnosis, or whether some other type of brain pathology is causative of the lesion seen on CT scan. Of relevance to this case, head trauma with damage to a temporal lobe from trauma and subsequent bleeding into the temporal lobe could result in a CT appearance similar to that of hemorrhagic infarction. However, there is no documented history of significant head trauma, and the radiologist interpreting the CT scan evidently did not consider that diagnosis in his interpretation.... In evaluating the statements of Dr. Paschall and Dr. Wasserstein and the records of the veteran’s last hospitalization, there is a question as to whether the veteran fell due to the problems in ambulating associated with the service-connected right above the knee amputation or due to the effects of the nonservice-connected hepatic encephalopathy. Furthermore, this evidence raises the question of whether the blow to his head was sufficient to cause the brain lesion. Dr. Wasserstein indicates that the veteran’s brain lesion shown by the CAT scan may have resulted from a hemorrhagic infarction, which would most likely be due to a blocked artery. However, Dr. Wasserstein also opined that the abnormalities may have resulted from a blow to the head. Therefore, in view of the evidence of a history of experiencing many falls in his life, it is plausible that the veteran’s service-connected right above the knee amputation, at least in part, may have led to the temporal lobe lesion. However, the Board need not make definitive findings on those issues because the evidence must also establish that the brain lesion contributed substantially or materially to the veteran’s death. In regard to this determinative issue, Dr. Wasserstein stated: 2) The next question is whether the left temporal lobe (or, I may say, a left temporal lobe lesion) had a causal or significantly contributory role in the veteran’s death, and if so, to what extent. As best as I can determine, the temporal lobe lesion and resultant seizures did play a contributory role to his death, but not a major one. While his seizures and the medication given for seizures would put him at risk for hepatic coma, which may be fatal, the discharge summary describes him as having fairly good improvement with [Lactulose], sufficient that he was able to be transferred from the intensive care unit to the “floor” (an area of the hospital with less intensive monitoring and care of patients). He evidently developed a massive [gastrointestinal] bleed, considered likely due to a variceal rupture, and this factor evidently caused his fatal hepatic coma rather than the temporal lobe abnormality and resultant seizures. Although the Board is prohibited from offering its own unsubstantiated medical opinion in reaching its decision, see Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), the Board has the responsibility to make the ultimate findings regarding whether service connection has been established based on the evidence which includes a careful review and weighing of medical opinions in a case. See Santiago v. Brown. 5 Vet.App. 288, 292 (1993); Stegman v. Derwinski. 3 Vet.App. 228, 229-230 (1992). In this case, the evidence cited by Dr. Wasserstein contained in the hospitalization records dictated by Dr. Paschall fail to support Dr. Paschall’s May 1992 opinion that the veteran would not have died if he had not sustained a cerebral hemorrhage. Those hospitalization records show that the veteran became stabilized after treatment for the bleeding in the brain. The direct cause of death indicated by Dr. Paschall in the hospitalization records was massive bleeding in the veteran’s gastrointestinal area, not in the brain, probably resulting from a rupture of a variceal, which bleeding could not be stopped as a result of the veteran’s body’s inability to coagulate the blood due to his alcoholic liver disease, which then caused the veteran to lapse into a coma and die. According to the pertinent discharge diagnosis, Dr. Paschall attributed the veteran’s coagulopathy to the alcoholic liver disease, and not to the cerebral hemorrhage. The essence of Dr. Paschall’s May 1992 opinion is that the veteran’s cerebral hemorrhage debilitated the veteran’s health to the extent that the veteran was unable to resist the fatal effects of the massive gastrointestinal bleeding. However, Dr. Paschall has not pointed to any medical evidence that indicates the effects of the cerebral hemorrhage prevented treatment of the massive gastrointestinal bleeding or that they accelerated the gastrointestinal bleeding. It must be remembered that it is not enough that a disorder casually shared in producing death. Hence, the regulatory requirement that the disorder contributed substantially or materially to producing death. Dr. Wasserstein’s medical opinion that the temporal lobe lesion was not a major contributory cause of death supports the Board’s finding that the veteran’s cerebral hemorrhage did not contribute substantially or materially to producing the veteran’s death. The Board has considered, but does not find applicable to this case, the decision in Allen v. Brown, 7 Vet.App. at 448. Finally, the Board notes that 38 C.F.R. § 3.310(b) provides that ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee shall be held to be the proximate result of the service-connected amputation. There is evidence in this case that the veteran had hypertension during his lifetime. Although Dr. Paschall’s diagnosis of history of hypertension at the time of the veteran’s death indicates that the disorder was not significant at that time, service connection for the cause of the veteran’s death cannot be established on this basis since no physician has linked the veteran’s hypertension to the cerebral hemorrhage, and since the Board has determined that the veteran’s cerebral hemorrhage did not contribute substantially or materially to his death. The Board determines that the preponderance of the evidence is against entitlement to service connection for the cause of death, precluding the application of the benefit of the doubt in the appellant’s favor under 38 U.S.C.A. § 5107. ORDER Service connection for the cause of the veteran’s death is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -