Citation Nr: 0204863 Decision Date: 05/22/02 Archive Date: 06/03/02 DOCKET NO. 96-47 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Veteran represented by: Sean Kendall, Esq. WITNESSES AT HEARINGS ON APPEAL Appellant Appellant's daughters ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran had active service from February 1952 to May 1976. He died on April [redacted], 1996. The appellant is the veteran's widow. Her claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision, in which the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), denied service connection for the cause of the veteran's death. In September 1998, the Board affirmed the RO's decision. The veteran appealed the Board's September 1998 decision to the United States Court of Appeals for Veterans Claims (Court), and in an Order dated March 2001, the Court vacated the Board's decision and remanded the claim to the Board for readjudication pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001)). In January 2002 the appellant's attorney was provided with a copy of a medical opinion obtained by the Board. In February 2002 the attorney advised the Board that the opinion supported the claim and there was no additional evidence or argument to submit. FINDINGS OF FACT 1. VA has notified the appellant of the evidence needed to substantiate her claim and has obtained and fully developed all relevant evidence necessary for the equitable disposition of that claim. 2. The veteran's fatal cardiac disease had its onset during active service. CONCLUSION OF LAW A disability of service origin caused the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.312 (2001), as amended by 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.102). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue before the Board is whether the appellant is entitled to service connection for the cause of the veteran's death. In May 1996, the RO denied this claim and the appellant appealed this decision. While the appeal was pending, the President signed into law legislation that eliminates the need for a claimant to submit a well-grounded claim and enhances the VA's duties to notify a claimant regarding the evidence needed to substantiate a claim and to assist a claimant in the development of a claim. See the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West. Supp. 2001)). The change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment of the VCAA and which are not final as of that date. 38 U.S.C.A. § 5107, note (Effective and Applicability Provisions) (West Supp. 2001). Further, during the pendency of this appeal, in August 2001, the VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. The VA has indicated that, with the exception of the amended provisions of 38 C.F.R. §§ 3.156(a), 3.159(c) (the second sentence), and 3.159(c)(4)(iii), "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Where the law or regulations change after a claim has been filed or reopened but before the administrative or judicial appeal process is completed, the version of the law or regulations most favorable to the appellant applies unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In this case, the RO has not indicated that it developed the appellant's claim pursuant to the VCAA. However, as explained in greater detail below, prior to the enactment of the VCAA, the RO took action that is consistent with the notification and assistance provisions of the VCAA. In any event, due to the favorable outcome in this appeal, the Board's decision to proceed in adjudicating the appellant's claim does not prejudice the appellant in the disposition thereof. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). First, as required by the VCAA, VA notified the appellant of the information needed to substantiate her claim and explained to her who was responsible for obtaining such information. See 38 U.S.C.A. §§ 5102, 5103 (West Supp. 2001). Specifically, in a rating decision issued in May 1996, a letter notifying the appellant of that decision, a statement of the case issued in October 1996, and supplemental statements of the case issued in January 1997 and March 1997, the RO informed the appellant that it had denied her claim because she had not submitted medical evidence linking the cause of the veteran's death to his service-connected disability (evidence that was previously required to well ground a claim and that is still required to grant a cause of death claim on the merits), notified her of the evidence needed to substantiate her claim and of the regulations pertinent to her claim, and provided her an opportunity to submit additional evidence, including medical evidence linking the veteran's cause of death to his period of active service, and to present additional argument, including in the form of hearing testimony, in support of her claim. In letters issued to the appellant and her representative in June 2001 and January 2002, the Board provided the appellant additional opportunities to submit evidence and argument in support of her claim. Second, as required by the VCAA, VA fulfilled its duty to assist the appellant in obtaining and fully developing all of the evidence relevant to her claim. See 38 U.S.C.A. § 5103A (West Supp. 2001). For instance, the RO secured and associated with the claims file all evidence identified by the appellant as being pertinent to her claim, including outpatient treatment records and reports of hospitalization. The appellant has not reported, and the Board is not aware of, any other outstanding evidence that needs to be obtained in support of the appellant's claim. In addition to obtaining all pertinent evidence, the VA developed the medical record to the extent necessary to decide the appellant's claim. Specifically, pursuant to 38 C.F.R. § 20.901 (2001), the Board sought a medical expert opinion from a physician at a VA Medical Center regarding the appellant's claim, and as requested, the physician reviewed the entire claims file and offered an opinion as to the relationship between the veteran's death and his period of active service. The appellant contends that she is entitled to Dependency and Indemnity Compensation (DIC) benefits on the basis that her spouse, the veteran, died of a service-connected disability. DIC benefits may be paid to a veteran's surviving spouse in certain instances, including when a veteran dies of a service-connected disability. 38 U.S.C.A. § 1310 (West 1991). A veteran's death will be considered as having been due to such a disability when the evidence establishes that the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2001). The principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The veteran in this case had active service from February 1952 to May 1976. During this time period, he complained of and was treated for chest pains and pressure, night sweats and a flushing warm sensation with swelling of the left hand and wrist on use. Specifically, in February 1955, the veteran reported slight pains in the heart area of two and a half weeks duration. An examiner noted that the veteran had a systolic heart murmur, known since age 13, recorded blood pressure of 124/74 and nervousness, and diagnosed vegetative imbalance. A subsequently conducted electrocardiogram (EKG) indicated normal tracings. In November 1958, the veteran reported non- radiating chest pain when running and an examiner noted an occasional dropped beat and apical systolic murmur and diagnosed cardiac asthenia. An EKG was within normal limits. During the next eight days, the veteran twice saw examiners for chest pain when overworked and burning pain over the left anterior chest at night and in the morning. X-rays revealed essentially normal heart and lungs. Meprobamate was prescribed. During a May 1959 annual physical examination, an examiner noted no abnormalities of the heart and recorded blood pressure of 120/70. A chest x-ray was normal. The veteran next complained of heart burns in November 1961, but an EKG conducted at that time revealed tracing within normal limits. Findings of clinical evaluations, blood pressure readings, chest x-rays and an EKG revealed no cardiac abnormalities again in October 1962, July 1964, and September 1971. During the first two evaluations, the veteran reported a negative history of chest pain, chest pressure, and high and low blood pressure. During the latter evaluation, the veteran reported a history of pressure in the left anterior chest that increased with no known factor and occasional night sweats, and the examiner noted chest pain of undetermined etiology. Blood pressure readings taken during these evaluations included 134/76, 122/64 and 126/70. In November and December 1975, the veteran complained of a "flushing" warm sensation with swelling of the left hand and wrist with use (fishing, hammering, writing). He was evaluated by multiple examiners who found that the veteran was overweight and noted blood pressure of 142/82 and 140/80. In December 1975, an examiner assessed the veteran's heart as normal, except for a 2/6 short systolic ejection murmur along the "LSB," which he considered to be of undetermined significance. Later that month, an examiner noted that the veteran had a bruit of the subclavian artery, and possibly, thoracic outlet syndrome. During two visits for an unrelated condition in January 1976, examiners recorded the veteran's blood pressure as 110/74, 120/80 and 154/82. Following discharge, the veteran intermittently continued to express cardiac-related complaints, but no examiner diagnosed a cardiac disorder until 1981. During a September 1976 VA examination, the veteran voiced no complaints related to his cardiovascular system, and an examiner noted no pertinent findings. The veteran's chest x-ray was normal and his blood pressure was 130/70. In July 1978, the veteran sought treatment at an Army medical facility for general malaise, dizziness, and fatigue, which he primarily experienced following physical exercise. An examiner recorded blood pressure of 130/90. During a visit for a sore throat and swollen glands in January 1979, the veteran reported that he had no shortness of breath or chest pain and an examiner recorded blood pressure of 120/74. In February 1981, the veteran reported burning chest pain of up to one year's duration, which he associated with exertion and shortness of breath. Blood pressure readings were 162/122, and 170/95, and an EKG was abnormal. An examiner diagnosed angina. In March 1981, an examiner diagnosed arteriosclerotic heart disease manifested by angina and positive treadmill test, and hypertension, off Dyazide for three weeks. Once a medical professional definitively diagnosed the veteran with a cardiac disorder, the veteran received ongoing inpatient and outpatient treatment and medication for hypertension and progressive cardiac disease. In September 1981, an examiner recorded a history of the onset of angina in February 1980, with the possible onset of exertional angina in 1975, and blood pressure of 110/70. He also noted that the veteran was taking Inderal and Dyazide, and diagnosed chronic angina (stable and well controlled) since February 1981 and a history of high blood pressure. In July 1991, the veteran was hospitalized due to chest pain. On discharge, diagnoses included: (1) Myocardial infarction was ruled out; (2) Acute upper gastrointestinal (GI) bleed, acute pyloric ulcers; (3) Probable extravascular hemolytic transfusion reaction; (4) Anemia secondary to GI bleed; (5) Acute renal failure resolved, acute hepatic failure resolved; (6) Mild chronic obstructive pulmonary disease (COPD); and (7) Hypertension. In August 1991, the veteran was again hospitalized with severe lower extremity edema, and complaints of orthopnea and shortness of breath, without chest pain. On discharge, diagnoses included: (1) Congestive heart failure probably secondary to either ischemic or hypertensive cardiomyopathy; (2) Hypertension, essential, well controlled; and (3) Probable COPD. During a June 1992 VA vascular examination, the veteran reported a history of hypertension, beginning in 1970 or 1971, which was not treated. He also reported that, in 1974 or 1975, he experienced left arm weakness, and in 1976 to 1977, he developed shortness of breath and chest tightness. At that time, an examiner allegedly conducted an exercise tolerance test and prescribed Inderal for high blood pressure. The examiner also prescribed Nitroglycerin, but the veteran reportedly never needed to use that medication and it was thus discontinued. The veteran also reported that his symptoms increased during the year preceding the examination, thereby necessitating hospitalization. The examiner noted that the veteran's heart sounds were somewhat distant from the heart showing a normal sinus rhythm with a grade 2/6 rough apical systolic murmur. He diagnosed, in part, essential vascular hypertension, currently controlled, arteriosclerotic cardiovascular disease with angina pectoris and status post congestive heart failure. In August 1994, an examiner noted a mild worsening of the veteran's congestive heart failure symptoms. A MUGA scan conducted at that time indicated marked left ventricular dysfunction. During a hospitalization for syncope in November 1995, an examiner noted an 18-year history of hypertension and congestive heart failure secondary to a GI bleed in 1990. Chest x-rays conducted at that time disclosed cardiomegaly. An examiner diagnosed syncope times two probably secondary to arrhythmia (myocardial infarction ruled out). The veteran underwent cardiac catheterization, which revealed dilated ischemic cardiomyopathy, inducible sustained ventricular tachycardia and severe three vessel coronary artery disease without viable targets for revascularization. In January 1996, an examiner assessed cardiomyopathy with recurrent ventricular tachycardia. The veteran then underwent implantation of a defibrillator and a non- thoracotomy lead system. In February 1996, an examiner diagnosed severe ischemic cardiomyopathy with symptomatic bradycardia, myocardial infarction ruled out, pacer status, hypertension. The veteran died on April [redacted], 1996. His official certificate of death lists the cause of death as electromechanical dissociation due to or as a consequence of severe ischemic cardiomyopathy. At the time of the veteran's death, service connection was in effect for hearing loss, evaluated as 40 percent disabling, lumbosacral strain with osteoporosis, evaluated as 20 percent disabling, thoracic outlet syndrome, evaluated as noncompensable, and residuals of a wound to the right knee, evaluated as noncompensable. (The veteran filed a claim for service connection for hypertension and arteriosclerotic heart disease during his lifetime, but the RO denied that claim in May 1993.) Following the veteran's death, the appellant filed a claim for DIC benefits. During hearings held before a hearing officer in January 1997, and before the undersigned Board Member in May 1998, she and her daughters argued that the veteran's chest pain, which first manifested in service, represented the onset of the veteran's fatal cardiac disease. In support of this argument, the appellant has submitted opinions from John W. Johnston, M.D, a U.S. Navy family practice physician, and Craig N. Bash, M.D., a private neuroradiologist and an Assistant Professor of Radiology, which address the relationship between the veteran's fatal cardiac disease and his active service. Dr. Johnston's opinion indicates that, given the natural history of atherosclerotic heart disease, it is highly probable that the veteran had that disease years before he was diagnosed with angina in 1981. Dr. Bash's opinion indicates that the veteran's fatal cardiac disease first manifested during active duty. In November 2001, the Board referred the appellant's claim to a physician at the Central AL Veterans Healthcare Medical Center in Montgomery, Alabama, for an expert medical opinion on the questions of whether it is at least as likely as not that the veteran's cardiovascular disease, the cause of his death, had its symptomatic onset in service or in the first post-service year, and whether it is at least as likely as not that a service- connected disability caused, contributed to or hastened his death. The request was referred to a Staff Cardiologist, who prepared an opinion based on a review of the veteran's claims file. This physician essentially found that: (1) The veteran had pain dating back to 1958 that was very suggestive of anginal pain especially given associated coronary risk factors of hypertension and smoking; (2) The veteran's hypertension began in service; (3) The veteran never had a non-invasive workup (exercise stress test) to determine the nature of his symptoms until years after his discharge; and (4) In 1991, the veteran had a myocardial infarction and developed severe ischemic cardiomyopathy, which eventually caused his death. Based on these findings, the physician indicated agreement with Dr. Johnston's February 1997 opinion and concluded that the veteran's cardiovascular disease likely had its symptomatic onset during his service. The Board finds the aforementioned medical opinions of record, particularly that of the VA Staff Cardiologist, which is based on a complete review of the claims file and includes rationale, competent medical evidence linking the veteran's death to his period of active service. Inasmuch as this evidence supports a finding that the veteran's fatal cardiac disease had its onset during active service, the Board concludes that a disability of service origin caused the veteran's death. The evidence thus supports the appellant's claim of entitlement to service connection for the cause of the veteran's death and the claim is granted. ORDER Entitlement to service connection for the cause the veteran's death is granted. STEVEN L. COHN 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.