Citation Nr: 0022280 Decision Date: 08/23/00 Archive Date: 08/25/00 DOCKET NO. 99-05 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD David T. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from February 1954 to November 1959 and from August 1961 to December 1975. He died on September [redacted], 1998; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1998 rating decision of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). It is noted that the RO also denied entitlement to Dependency and Indemnity Compensation under the provisions 38 U.S.C.A. § 1318, notified the appellant of that determination and addressed that matter in the Statement of the Case. However, the appellant has not specifically raised that issue and did not mention it in a notice of disagreement or substantive appeal, and no argument regarding Section 1318 benefits has been presented by the representative. Accordingly, the Board finds that that matter is not in appellate status and it will not be addressed further. In June 1999, the representative submitted a medical opinion by a physician affiliated with the representative service organization without a waiver of initial consideration by the RO. However, as will become apparent, the case need not be remanded for the RO to consider the opinion. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the appellant's claim has been obtained. 2. The veteran died on September [redacted], 1998. The death certificate identifies the immediate cause of death as cardiorespiratory arrest due to coronary artery disease. 3. At the time of the veteran's death, service connection was in effect for rheumatic heart disease with mitral insufficiency, rated as 100 percent disabling, and arthritis of the lumbar spine, rated as 20 percent disabling. The 100 percent rating had been in effect since July 30, 1997. 4. The competent and probative evidence is in equipoise as to whether rheumatic heart disease caused or contributed substantially or materially to cause the veteran's death and under prevailing legal criteria rheumatic heart disease can not be dissociated from the effects of nonservice-connected arteriosclerotic heart disease. CONCLUSION OF LAW Service-connected rheumatic heart disease contributed to cause the veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1999); VAOPGCPREC 6-2000 (O.G.C. Prec. May 19, 2000); Veterans Benefits Administration Adjudication Procedure Manual M21-1, Part VI, paragraph 11.18f. (2). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service medical records reveal that on the veteran's entrance examination it was noted that he had an apical functional murmur that was not considered disabling. In December 1955, the veteran complained of intermittent chest pain. It was noted that his rheumatic history and the present finding of a systolic mitral murmur suggested that he had mitral insufficiency with apparent inactive rheumatic heart disease. An electrocardiogram (EKG) performed in April 1956 was normal. In November 1957, it was noted that mitral valvular disease was suspected, but that it could not be proven to the examiner's satisfaction. A March 1959 EKG was normal. In April 1959, the veteran reported that he had chest pain. Physical examination revealed a grade II systolic murmur audible over the entire precordium. He was informed that his chest pain was almost certainly not related to cardiovascular disease and that it was most likely musculoskeletal in origin. The veteran underwent a service entrance examination in August 1961, which revealed that the heart was normal, and a December 1961 EKG was normal. On a December 1961 physical examination report, it was noted that the veteran had normal sinus rhythm with no murmurs or clinical cardiomegaly. Physical examinations in June 1964, May 1965, and February 1968 did not reveal any cardiovascular abnormalities. In March 1968, the impression was inactive rheumatic fever. An October 1969 physical examination revealed a grade I systolic murmur at the apex. The veteran underwent a periodic examination in February 1974, to include an EKG. It was noted that he had sinus rhythm that was probably within normal limits. The impressions were normal heart size, question left atrial enlargement, and otherwise normal cardiac series. In April 1974, the veteran was seen by a cardiologist for complaints of shortness of breath. He underwent a physical examination and an EKG. The diagnosis was minimal mitral insufficiency, etiology rheumatic heart disease. It was noted that the EKG was probably within normal limits. The cardiologist indicated that the veteran had minimal mitral insufficiency on the basis of rheumatic fever and opined that the veteran's present complaints of shortness of breath with exertion were probably not of a cardiac origin and were more likely secondary to some lung disease in the face of his long history of cigarette smoking. In December 1975, the veteran indicated that there had not been any change in his medical condition since his last separation examination. The veteran underwent a VA examination in March 1976. He reported that once every two months he had a muscle-like cramp in his left chest along with palpitations and occasionally had shortness of breath. Physical examination revealed that the heart was not enlarged. There was a regular sinus rhythm and grade II/IV systolic mitral regurgitation murmur that was best heard over the apex. The peripheral vessels were felt with ease. It was noted that an EKG was probably normal, and a chest X-ray was normal. The diagnosis was rheumatic heart disease with mitral insufficiency, class II B. In an unappealed April 1976 rating decision, service connection was granted for rheumatic heart disease with mitral insufficiency. A 30 percent disability rating was assigned, effective January 1, 1976. In a March 1978 VA examination report, it was noted that there was no apparent enlargement of the heart. There was a soft systolic murmur at the apex, which was not transmitted, normal sinus rhythm, and no thrills. The lungs were clear to percussion and auscultation. The diagnosis was rheumatic heart disease with mitral insufficiency, Class 2-2. In an unappealed March 1978 rating decision, a 10 percent evaluation was assigned for rheumatic heart disease with mitral insufficiency, effective July 1, 1978. Private medical records received in May 1990 reveal that the veteran was taking medication for prevention of chest discomfort. The veteran underwent another VA examination in August 1990. He reported that he had been in good health until 1988 when he had a severe episode of chest pain. He had been admitted to a private hospital where he was told that he had blocked coronary arteries, but that he probably did not have a myocardial infarction. His current symptoms included more severe and frequent chest pains. He indicated that he could walk at a normal pace for about a quarter or half a mile and that he then had to stop because of shortness of breath. He said that he had not noticed any pedal edema. He reported that he smoked a pack of cigarettes a day. Physical examination revealed that there was a soft grade II to grade VI crescendo systolic murmur heard at the apex. There were no extra heart sounds or arrhythmias and no clinical congestive heart failure or pedal edema. He had good posterior tibial and dorsalis pedis pulses. Chest X- rays revealed no acute cardiopulmonary disease. An EKG revealed normal sinus rhythm and incomplete left bundle branch block. The diagnoses were rheumatic heart disease with valvular heart disease; arteriosclerotic heart disease with atypical chest pain and an abnormal EKG; and moderately compromised hyperlipidemia. In an unappealed September 1990 rating decision, an increased rating for rheumatic heart disease with mitral insufficiency was denied. VA treatment records reflect that the veteran was hospitalized from July 30, 1997, to August 7, 1997, for complaints of burning central chest pain while sitting that was associated with shortness of breath. Chest X-rays revealed mild congestive heart failure. An EKG was unchanged in comparison to one done in July 1997 and revealed a normal sinus rhythm with an incomplete left bundle branch block. The veteran was treated for congestive heart failure and aortic stenosis. It was determined that he was a candidate for an aortic valve replacement, but that he wanted to defer the surgery for several weeks. On the third day of hospitalization, he went into atrial fibrillation with rapid ventricular response, noted to be his first episode ever of atrial fibrillation. He was treated with medication. The discharge diagnoses were atrial fibrillation, congestive heart failure, critical aortic stenosis and angina. In an August 1997 rating decision, a 100 percent disability rating was assigned for rheumatic heart disease with mitral insufficiency, effective July 30, 1997. VA treatment records reflect that the veteran was hospitalized from August 24, 1997, to September 17, 1997, for aortic valve replacement and coronary bypass surgery. On August 25, 1997, the surgery was performed. He was also treated for atrial fibrillation. The discharge diagnoses included coronary atherosclerotic heart disease, two vessel coronary artery disease, elevated left ventricular end diastolic pressure, dilated ventricle; mitral regurgitation, mild to moderate; aortic stenosis, severe, valve area 0.8 centimeters (cm) squared; history of rheumatic fever; congestive heart failure, Class II; systemic arterial hypertension; and recurrent atrial fibrillation. VA medical records show that the veteran was hospitalized from October 17, 1997, to October 29, 1997. The diagnosis was congestive heart failure. It was noted that the veteran would come to the heart station on October 31, 1997. On June 4, 1998, he underwent a regular exercise tolerance test. The final interpretation was the following: uninterpretable for ischemia secondary to left bundle branch block, positive maximal exercise tolerance test by criteria with no chest pain, and digoxin influence present. On June 18, 1998, the veteran underwent an echocardiogram, which revealed mitral regurgitation. On September [redacted], 1998, the veteran died at the Albuquerque, New Mexico VA Medical Center. According to the VA doctor who reviewed his medical records later that month, the veteran complained of chest pain on that day that was not relieved with nitroglycerin. He was advised to call 911. He subsequently arrested en route, and resuscitation efforts in the emergency room were unsuccessful. An autopsy was not performed. The death certificate listed the immediate cause of death as cardiopulmonary arrest, due to coronary artery disease. On September 15, 1998, the veteran's claims file and, apparently, his VA medical records were reviewed by a VA doctor. The doctor noted that during service there was no evidence of systemic hypertension or diabetes mellitus, or a record of serum cholesterol measurement. The doctor indicated that the veteran was a smoker and smoked a pack a day for many years, and noted that, after service, he developed atherosclerotic heart disease, severe aortic stenosis, moderate mitral regurgitation and congestive heart failure, which led to a combined aortic valve replacement and coronary artery bypass surgery in August 1997. He had a complicated course post-operatively and was readmitted in February 1998 with congestive heart failure due to dynamic mitral regurgitation, which required intubation. It was noted that the veteran was subsequently hospitalized in April 1998 for angina and that a nuclear imaging study revealed a large reversible defect in the inferolateral distribution. That study was followed by a cardiac catheterization and placement of two coronary stents. On June 25, 1998, he suffered a sudden cardiac death in Las Vegas, Nevada. He was successfully resuscitated and had an implantable cardioverter defibrillator placed prior to discharge. The veteran was hospitalized from July 8, 1998, to July 11, 1998, at the Albuquerque, New Mexico, VA Medical Center for angina. He underwent a repeat cardiac catheterization, which revealed no change in his coronary anatomy. A nuclear perfusion study on July 22, 1998, showed a mildly dilated left ventricle and no fixed or reversible perfusion defects. An August 12, 1998, echocardiogram revealed the following: a normal left ventricular function with estimated ejection fraction of fifty-five percent, mild to moderate mitral regurgitation secondary to rheumatic valve disease, and a normally functioning prosthetic aortic valve. He was hospitalized from August 26, 1998, to August 28, 1998, for angina. The veteran was hospitalized again from August 29, 1998, to August 30, 1998, after complaining of chest pain and having syncope while working in his yard. The implantable cardioverter defibrillator was interrogated and demonstrated on tachyarrhythmia, which was terminated spontaneously. He was discharged with instructions to avoid working in his yard for one week. The doctor further noted the veteran had two disorders: rheumatic heart disease and atherosclerotic heart disease. As to the rheumatic heart disease, it was noted that there was a successful aortic valve replacement on August 19, 1997, and that the rheumatic heart disease was well compensated at the time of his death with normal left ventricular function and only mild to moderate mitral regurgitation. The doctor indicated that he could not relate his valvular disease as a causative factor in his death. As to the atherosclerotic heart disease, the doctor noted that the veteran had coronary artery bypass surgery on August 18, 1997, and a stent replacement on April 16, 1998. The doctor indicated that the atherosclerotic heart disease was symptomatic and that it was probably causative at the time of the veteran's death. Specifically, he was suffering from cardiac ischemia on the day that he died, which likely led to his demise. The doctor also indicated that during service the veteran's only identifiable risk factor for the development of coronary artery disease was his extensive history of smoking. It was noted that he was seen by cardiologists twice for atypical chest pain, but that it was unlikely based on the available records, although not impossible, that these symptoms represented cardiac ischemia. The doctor concluded that there was no evidence that coronary artery disease was present during active service. The doctor also noted that the current literature does not indicate that there is any evidence that rheumatic heart disease leads to the development of coronary artery disease. In June 1999, the representative submitted a medical opinion dated June 6, 1999 and prepared by a C. Bash, M.D. Dr. Bash indicated that he was a neuroradiologist. He noted the evidence in the claims file and relied on the VA doctor's reporting of treatment in the last year of the veteran's life. Dr. Bash noted that the veteran had valve pathology for which he underwent surgery in 1997 and that the valve pathology was followed by congestive heart failure. He indicated that there was no recognized etiological relationship between rheumatic heart disease and later developing hypertensive or arteriosclerotic changes. Dr. Bash indicated that, when verified rheumatic heart disease has been demonstrated as in this case, the effect of subsequent onset of hypertensive or arteriosclerotic heart disease, which may also produce heart muscle changes and congestive heart failure, cannot be satisfactorily dissociated from the rheumatic changes. Dr. Bash opined that the rheumatic heart disease along with the secondary mitral valve disease (replaced) and secondary dilated cardiomyopathy weakened the veteran's cardiac muscle and lead directly to his longstanding intermittent (October 1997, June and October 1998) congestive heart failure. Dr. Bash concluded that the rheumatic heart disease and the congestive heart failure within a month following the valve replacement were likely major contributing factors that directly caused his cardiopulmonary arrest and death on September [redacted], 1998. Legal Criteria 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; rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. (b) Principal cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. (c) Contributory cause of death. (1) Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause 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. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131. 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). If a veteran had 90 days or more of service during wartime or after December 31, 1946, and if heart/coronary artery disease is manifested to a compensable degree within one year following discharge from service, the disorder will be considered to have been incurred in service. This is a rebuttable presumption. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Paragraph 11.18f. (2) of the Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1, Part VI, states that, if verified rheumatic heart disease has been demonstrated, the effect of subsequent onset of hypertensive or arteriosclerotic heart disease, which may also produce heart muscle changes and congestive failure, cannot be satisfactorily dissociated from the rheumatic changes. The combined cardiac disability should be evaluated as one entity under the service-connected rheumatic heart disease code. VBA Adjudication Procedure Manual M21-1, Part VI, paragraph 11.18f. (2). In VAOPGCPREC 6-2000 (O.G.C. Prec. May 19, 2000), the General Counsel states that paragraph 11.18f. (2) of the VBA manual is substantive. In other words, adjudicators are bound by the conclusion of that paragraph regarding an inability to distinguish symptomatology of rheumatic heart disease from the symptomatology of arteriosclerotic heart disease. However, that paragraph is not binding to the extent that it may adversely affect a veteran by requiring that a particular veteran's cardiac disability be evaluated as one entity, where separate consideration of heart muscle changes and congestive failure following the onset of hypertensive or arteriosclerotic heart disease might produce a higher evaluation. VAOPGCPREC 6-2000 (O.G.C. Prec. May 19, 2000). Analysis The threshold question is whether the appellant has presented evidence of a well-grounded claim. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has defined a well-grounded claim as a claim that is plausible. In other words, a well-grounded claim is meritorious on its own or capable of substantiation. If the claim is not well grounded, the appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The opinion of Dr. Bash, when considered along with the provisions of paragraph 11.18f. (2) of the VBA Adjudication Procedure Manual M21-1, Part VI, renders the appellant's claim of entitlement to service connection for the cause of the veteran's death well grounded. Furthermore, the veteran was in receipt of compensation at the 100 percent rate for his rheumatic heart disease at the time of his death. See 38 C.F.R. § 3.312 (c)(2). Accordingly, the VA has a duty to assist the appellant in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board also finds that all evidence necessary for an equitable adjudication of the appellant's claim has been obtained and that the duty to assist the claimant is satisfied. The evidence does not show that the veteran had arteriosclerotic heart disease until many years after service and there is no competent evidence that it was of service onset or otherwise related to service. However, service connection for rheumatic heart disease had been in effect for many years and there is medical evidence of a worsening of that disorder prior to the veteran's death. When the veteran was examined by the VA in August 1990, he was noted to have rheumatic heart disease with valvular heart disease, along with nonservice-connected arteriosclerotic heart disease. In mid 1997 it was determined that his cardiac problems included critical aortic stenosis for which he then underwent valve replacement in addition to nonservice-related bypass surgery. Following the surgery he was noted to have mitral regurgitation, which was shown by echocardiogram in June 1998, less than three months prior to his death. In his June 6, 1999 statement, Dr. Bash concluded that the veteran's rheumatic heart disease and the congestive heart failure within a month following the valve replacement were likely major contributing factors that directly caused his cardiopulmonary arrest and death on September [redacted], 1998. Congestive heart failure also was diagnosed during the July 30, 1997, to August 7, 1997, VA hospitalization, which was prior to the August 25, 1997, surgery. In any event, paragraph 11.18f. (2) of the VBA Adjudication Procedure Manual M21-1, Part VI, states that, when there is verified rheumatic heart disease, such as in this case, the effect of subsequent arteriosclerotic heart disease cannot be satisfactorily dissociated from the rheumatic heart disease. This paragraph is substantive and binding on adjudicators. VAOPGCPREC 6-2000 (O.G.C. Prec. May 19, 2000). Thus, despite the opinion of a VA physician that he could not relate the veteran's valvular heart disease as a causative factor in the veteran's death, the Board concludes that entitlement to service connection for the cause of the veteran's death is in order. This conclusion is consistent with the cited manual and General Counsel opinion provisions. Also, it should be noted that the provisions of 38 C.F.R. § 3.312 (c)(3) are applicable to the facts of this case but need not be addressed in view of the favorable decision already reached. ORDER Service connection for the cause of the veteran's death is granted. JANE E. SHARP Member, Board of Veterans' Appeals - 15 - - 12 -