Citation Nr: 0201398 Decision Date: 02/11/02 Archive Date: 02/20/02 DOCKET NO. 97-27 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1310 (West 1991) on the basis of service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Marshall O. Potter, Jr., attorney ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran served on active duty from July 1940 to November 1946, and from December 1946 to February 1960. He died on December [redacted], 1996. The appellant is the surviving spouse of the deceased veteran. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions issued by the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is set forth in the Board's remand dated January 17, 2001. FINDINGS OF FACT 1. The veteran, who was honorably discharged in February 1960 with twenty years of active duty service, died at the age of 75 in December 1996, due to acute myocardial infarction. Probable sepsis, arteriosclerotic heart disease, hypertension and peptic ulcer disease were listed on the death certificate as other significant conditions "contributing to death but not resulting in the underlying cause." 2. A medical opinion from a physician who reviewed the evidence in the claims file in September 2000 indicated that the veteran's weight loss and poor nutrition were caused by his service-connected ulcer disease and that this disorder "significantly contributed to his demise." CONCLUSION OF LAW Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION For the reasons and bases set forth below, the Board concludes that the appellant is entitled to DIC benefits under 38 U.S.C.A. § 1310 on the basis that her late husband's service-connected ulcer disease was a contributory cause of his death in December 1996. The veteran served on active duty from July 1940 to November 1946, and from December 1946 to February 1960. Service connection was in effect during the veteran's lifetime for duodenal ulcer, rated 20 percent disabling, and traumatic arthritis of the lumbar spine, rated 10 percent disabling. The veteran died in December 1996, at the age of 75; the immediate cause of death was acute myocardial infarction. Probable sepsis, arteriosclerotic heart disease, hypertension and peptic ulcer disease were reported as significant conditions contributing to his death but not resulting in the underlying cause of death. Dependency and indemnity compensation (DIC) benefits are payable to benefits-eligible claimants (surviving spouse, children, and parents) when any veteran dies after December 31, 1956, from a service-connected or compensable disability; the standards and criteria for determining whether or not a disability is service connected shall be those applicable under chapter 11 of title 38, United States Code. See 38 U.S.C.A. § 1310(a) (West 1991). Pursuant to regulations, to establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 C.F.R. § 3.312 (2001). A disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In a merits-based review of a claim, the Board has the duty to assess the credibility and weight given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) and cases cited therein. Once the evidence is assembled, the Board must determine whether the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The appellant, the veteran's surviving spouse, alleges that his hypertension disease and his service-connected ulcer disorder were contributory causes of his death within the meaning of the law and VA regulations for purposes of DIC benefits. In support of her claim, she submitted extracts from the medical literature discussing hypertension and involuntary weight loss, supporting lay statements from family members, who attested to their knowledge of the veteran's long-term problems with his health due to his ulcer disease, and a medical-opinion statement from a Dr. C. N. Bash, M.D., dated September 28, 2000. Dr. Bash's statement of September 2000 reflects that he reviewed the evidence in the claims file, including the service medical records, the report of a VA examination conducted in December 1951, hospital admission summaries dated in 1965 and 1990, the terminal hospital summary reports dated in 1996, the death certificate, and x-ray, laboratory and nurse/physician reports dated in 1990-96, and based on this review together with appropriate reference to relevant medical literature, he concluded that (1) the veteran's elevated blood pressure readings noted in service were the beginning of the hypertension that directly contributed to his demise by way of development of coronary artery disease, and (2) that there was a reasonable medical certainty that his service-connected peptic ulcer disease significantly contributed to his demise by way of weight loss and malnutrition during the last 18 months of his life. In discussing the hypertension, Dr. Bash offered the following analysis in support of his conclusion: There is a reasonable probability that this patient's demise due to [myocardial infarction] was caused by his longstanding service acquired hypertension, that resulted in coronary artery disease, which lead to a large dysfunctional heart, that resulted in very poor cardiac output (ejection fraction of 14%) from the heart to the heart and other vital organs (accounting for his strokes, congestive heart failures and ischemic hepatitis), which combined with his preexisting coronary artery disease and the stress of his acute pneumonia resulted in Myocardial infarction and death. Regarding the relationship between the veterans' ulcer disease and the cause of his death, Dr. Bash offered the following analysis: This patient is service connected for peptic ulcer disease and had chronic gastric ulcer problems documented in the chart during multiple endoscopies with biopsy (Dec. 1994 and Sept. 1995). The patient also had a significant weight loss during the last 18 months prior to his death (250 Lbs. To 160 Lbs. as documented in the chart) which was most likely due to the fact that he was unable to eat solid foods, had pain following meals (family history), digest food or absorb food (retained food documented on endoscopy) due to the severity of his [peptic ulcer disease] and this [peptic ulcer disease] lead [sic] to malnutrition and a weakened immune system likely making him more susceptible to infections and the consequences of his terminal pneumonia. This pneumonia ultimately stressed his heart causing it to fail by way of myocardial infarction. It is my opinion that this patient's chronic [peptic ulcer disease] and chronic hypertensive disease significantly contributed to his demise. With respect to the above, Dr. Bash specifically pointed to the findings reported on the death certificate by the treating physician at the time of his death, Dr. Douglas, stating, "This opinion is supported by the death certificate that states that [peptic ulcer disease] significantly contributed to his death (Dr. Douglas) and the attached literature references which states that patients with weight loss of greater than 5 kilograms have a significant increase in mortality from coronary heart disease (Lee, Yaari)." The evidence shows that the veteran had a history of significant weight loss and malnutrition in the year and a half period prior to his death, which based on the medical opinion of Dr. Bash, was related to his long-term problems with his ulcers. Hence, as there is no evidence showing an alternative cause for his weight loss and poor nutrition, two components which Dr. Bash opined led to his weakened immune system and resulting terminal pneumonia and life-ending heart attack, the Board finds that these components were in all likelihood caused by the digestive symptoms that were well- established elements of the service-connected ulcer disease. In this regard, the Board finds that when the appellant's contentions are read together with the veteran's medical history, the supporting lay statements of family members, and the medical-opinion statement of Dr. Bash made in September 2000, the Board concludes that the service-connected ulcer disease was a contributory cause of death under 38 C.F.R. § 3.312(c)(1), warranting entitlement to DIC benefits. The above-cited regulation, 38 C.F.R. § 3.312(c)(1), specifically provides that a contributory cause of death is ". . . inherently one not related to the principal cause, . . . . but one that, "aided or lent assistance to the production of death." Hence, when these provisions are applied to the facts of this case, it seems reasonable to conclude that the veteran's significant weight loss and poor nutrition weakened him considerably in the last few years of his life, and that but for his ulcer disease, he would not have experienced the degree of weight loss and poor nutrition which, as stated by Dr. Bash, made him more susceptible to contracting the pneumonia which combined with the coronary heart disease led to his demise in December 1996, by heart attack. The Board is, of course, aware that the medical evidence of record and Dr. Bash's statement of September 2000 is not clearly dispositive to a favorable outcome for the appellant's appeal - neither his statement nor the terminal hospital records specifically state that his rapid weight loss and poor nutrition were due to his ulcer disease or that such a state of health was responsible for weakening his immune system and causing "probable sepsis." Nevertheless, in view of the facts in this case - a long history of chronic peptic ulcer disease and related digestive problems, with a history as well of the significant weight loss prior to death - and the fact that Dr. Bash believed that the service- connected peptic ulcer disease was responsible for the weight loss (and by implication, to a weakening immune system that made him more susceptible to the terminal pneumonia) - the Board will consider that the evidence for and against the claim is in equipoise, which requires resolution of all reasonable doubt in favor of the appellant. Accordingly, the law provides that in such a situation, the benefits must be awarded and therefore, service connection for the cause of the veteran's death is warranted. 38 C.F.R. § 3.102 (2001). Section 3.102 of 38 C.F.R. makes clear that reasonable doubt is a "substantial" doubt and one within the range of possibility as distinguished from pure speculation or remote possibility. Id. For the reasons herein set forth, the lay, medical and other documentary evidence that the appellant has amassed in support of her claim on appeal is fairly read by the Board to raise a reasonable doubt as to whether the veteran's death is service connected. With respect to the above, the Board finds that notwithstanding the recent amendments to the law governing the duty to notify and the duty to assist enacted by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified as amended at 38 U.S.C. § 5103) (hereinafter, "the VCAA"), no undue prejudice to the appellant is evident by a disposition herein, as the Board's decision constitutes a complete grant of the benefits sought on appeal. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); see also Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997) (where appealed claim for service connection is granted, further appellate-level review is terminated as the Board does not retain appellate jurisdiction over additional elements of claim: original disability rating and effective date). (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the veteran's death for purposes of payment of DIC benefits to the appellant as surviving spouse is granted. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals