Citation Nr: 0326688 Decision Date: 10/07/03 Archive Date: 10/15/03 DOCKET NO. 96-38 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from November 1945 to December 1965. This matter comes to the Board of Veterans' Appeals (Board) from an April 1996 rating decision of the Department of Veterans Affairs (VA) Denver, Colorado, Regional Office (RO), in which the RO denied entitlement to service connection for the cause of the veteran's death. The appellant, the veteran's surviving spouse, perfected an appeal of that decision. This case was previously before the Board in February 1998, at which time the Board remanded the case to the RO for additional development. Following the completion of that development the RO returned the case to the Board, and in a June 2000 decision the Board denied entitlement to service connection for the cause of the veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and, based on a Joint Motion for Remand, in a December 2000 order the Court vacated the Board's June 2000 decision and remanded the case to the Board for consideration of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA), and re-adjudication. The appeal again came before the Board, and in a May 2002 decision the Board determined that VA had complied with the requirements of the VCAA by informing the appellant of the evidence needed to substantiate her claim and assisting her in obtaining all relevant evidence. The Board again denied entitlement to service connection for the cause of the veteran's death, on the basis that the most probative evidence established that the cause of the veteran's death was not related to service or a service-connected disorder. The appellant also appealed the May 2002 decision to the Court. As the result of a Joint Motion for Remand, in a February 2003 order the Court vacated the Board's May 2002 decision and again remanded the appeal to the Board for re- adjudication. In the Joint Motion the parties found that the Board had failed to provide sufficient reasons and bases for the determination made regarding compliance with the VCAA. The parties noted that although the appellant had been notified of the evidence needed to substantiate her claim, she had not been notified of the evidence she was required to submit, and the evidence that VA would obtain on her behalf. As will be shown below, the Board has modified its analysis of the requirements of the VCAA to correct the error noted in the Joint Motion. FINDINGS OF FACT 1. The provisions of the VCAA pertaining to VA's duty to notify the appellant of the evidence needed to substantiate her claim and to assist her in developing the relevant evidence are not applicable to the appellant's claim, in that her appeal was not pending before VA on the date of enactment of the VCAA. 2. The veteran died in January 1992 due to sepsis. 3. Sepsis was not shown during service and is not shown to be related to an in-service disease or injury or a service- connected disorder. 4. At the time of the veteran's death service connection had not been established for any disorder. 5. A disorder that was incurred in service did not cause or substantially or materially contribute to cause the veteran's death. CONCLUSION OF LAW The cause of the veteran's death was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.5, 3.303, 3.310, 3.312 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records indicate that in April 1964 he complained of pain in the chest, which after examination was found to probably not be due to cardiac disease. His blood pressure was then 150 millimeters (mm)/100 mm, and the treating physician noted that the veteran was very anxious. In December 1964 the veteran was given a limited profile for effusion in the left knee, and diagnostic testing was then negative for gout or arthritis. He was treated for pain in the low back and hips on multiple occasions during service, which was variously assessed as the result of a fatty tumor, lumbosacral strain, and in July 1965 as rheumatoid spondylitis or rheumatoid arthritis of the left sacroiliac joint. On separation from service in September 1965 the veteran reported having or having had swollen or painful joints; pain or pressure in the chest; cramps in his legs; arthritis or rheumatism; bone, joint, or other deformity; and foot trouble. He also stated that he was unable to bend due to back pains, and that he could not lay flat without leg or hip pain. In commenting on those complaints the examining physician made reference to a lipoma on the right shoulder. Physical examination revealed no relevant abnormalities, other than the lipoma on the right shoulder, and the veteran's blood pressure was then 118 mm/82 mm. The service medical records are otherwise silent for any relevant complaints or clinical findings, including testing for or a diagnosis of hypertension. The veteran did not apply for VA compensation benefits during his lifetime, and service connection had not been established for any disorder at the time of his death. Treatment records from the Walter Reed Army Medical Center (Walter Reed) show that the veteran was hospitalized in September 1986, on transfer from Providence Hospital, for evaluation of hypertension and the new onset of diabetes mellitus. The diabetes mellitus was detected after admission to Providence Hospital, at which time the veteran had reported symptoms lasting for the previous week. He had not seen an internist for at least five years, and stopped using his blood pressure medication eight months previously. His past medical history was significant for degenerative joint disease in both knees, hypertension of five years in duration, and cardiomegaly by chest X-ray for more than 10 years. He later reported having had hypertension for 20 years. His medication for hypertension was again given, which brought his blood pressure within the range of normal. He was also given insulin for the control of diabetes. The death summary covering the veteran's final hospitalization at Walter Reed indicates that he was admitted to that facility in December 1991 on transfer from the D.C. General Hospital due to having had a right thalamic stroke. On admission the physician noted that the veteran had a history of hypertension, insulin-dependent diabetes mellitus, renal insufficiency, peptic ulcer disease, a prior cerebrovascular accident in November 1990, anemia, a seizure disorder, and gouty arthritis. Four days prior to admission he experienced the acute onset of a right-sided headache, weakness, diaphoresis, diplopia, and left-sided paralysis. A computerized tomography (CT) scan conducted at D.C. General Hospital had shown a large thalamic hemorrhagic stroke with blood in the third and fourth ventricles. On admission to Walter Reed the veteran was lucid, alert, and in no acute distress, although unable to move his left side. His blood pressure was then 198 mm/ 102 mm. He later developed a fever, mild mental status changes, apneic episodes, and markedly increased hypertension, which the attending physician assessed as sepsis, and antibiotics were initiated. He was also treated for gout in the right knee and elbow. He developed symptoms consistent with sepsis syndrome, and mechanical ventilation was applied. The use of antibiotics continued, but no source of the fever or sepsis could be determined. He later developed nosocomial pneumonia associated with the mechanical ventilation. He remained febrile and had progressive renal and liver dysfunction, and the attending physician found that his course was consistent with a progressive septic syndrome without clear etiology. A CT scan of the sinuses showed pansinusitis, which persisted and a sphenoid drainage was performed. The veteran had declining mental status and evidence of multiple organ failure and the mechanical ventilation was discontinued. He expired shortly thereafter. According to the death summary, the diagnoses at death consisted of septic syndrome, pansinusitis, fungal colonization of the bladder, right thalamic hemorrhagic stroke, hypertension, gouty arthritis, insulin-dependent diabetes mellitus, multi-organ system failure with renal and hepatic insufficiency, a history of peptic ulcer disease, and follicular dermatitis. The original death certificate shows that the veteran died in January 1992, with the immediate cause of death being sepsis. The death certificate was signed by the physician who attended the veteran during his final hospitalization. In July 1995 the appellant asked Walter Reed to amend the death certificate on the basis that the veteran had manifested a heart attack, [hypertension], stroke, gout, and several other illnesses during service and after his retirement from active duty. She asserted that the death certificate did not clearly state the series of illnesses leading up to his death, which was needed in order for her to obtain the government benefits she sought. In August 1995 the staff of Casualty/Mortuary Affairs at Walter Reed asked the registrar of vital statistics to amend the death certificate to indicate that the immediate cause of death was sepsis, right thalamic stroke; due to or a consequence of pulmonary congestion and hypostasis; due to or a consequence of hypertensive renal disease; due to or a consequence of gouty arthropathy. Other significant conditions contributing to death but not related to the underlying cause consisted of diabetes mellitus and renal insufficiency. The registrar of vital statistics then certified that the requested changes had been made to the death certificate. The letter from the staff of Casualty/Mortuary Affairs to the appellant indicates that the changes were made to the death certificate because those disorders were reflected in the veteran's medical chart during his last admission to Walter Reed. In her August 1996 substantive appeal the appellant asserted that the veteran's hypertension had its onset during service, and that hypertension substantially contributed to cause his death. She and her son provided testimony before the undersigned in November 1997, at which time her son stated that the veteran had been treated for a blood disorder and pulmonary problems during service. He also asserted that the disorders treated during service were related to the disorders that caused the veteran's death. He stated that the veteran was noted to have diabetes in 1948, and that he was found to have gout while in service. The appellant testified that the veteran received treatment at Fort Carson, Colorado, from 1965 to 1972, and at Walter Reed from 1972 until his death. She stated that hypertension was diagnosed while the veteran was in service, and that he first had hypertension in 1955. She described this "hypertension" as the veteran holding his head, and receiving medication. She also stated that the veteran was given blood pressure medication just before he retired from service, and in making that statement she referenced April and December 1964 service medical records. She further stated that there were times that the veteran could not walk due to musculoskeletal problems, and that he was often limited to quarters due to those problems. She testified that he had syphilis in service that was not treated, and asserted that the syphilis had stayed in his blood stream and contributed to his death. As a result of the Board's February 1998 remand, the RO requested a medical opinion from a VA physician regarding the relationship, if any, between the disorders documented during service and the cause of the veteran's death. In a January 2000 report John E. Hill, M.D., who is board-certified in internal medicine and cardiology, summarized the data pertaining to the veteran's death in January 1992, as documented in the death summary from Walter Reed, and found that the veteran died of sepsis, not the stroke that had precipitated his hospitalization. He noted that on entering the hospital the veteran was stable and in no acute distress, and that his recovery was anticipated had it not been for the onset of sepsis. He stated that the stroke was not related to the ultimate cause of death, but that sepsis was the overwhelming cause. He found that the diabetes, renal insufficiency, and gouty arthritis had no significant contribution to the veteran's final illness and death, in that they were not related to the sepsis. Dr. Hill noted the report of the September 1986 hospitalization at Walter Reed, showing the new onset of diabetes mellitus and that the veteran had had hypertension for 20 years. He also summarized the service medical records, noting the various blood pressure readings, multiple negative chest X-rays, and the treatment of syphilis and multiple musculoskeletal disorders. He found significant the notation in April 1964 that the veteran was "very anxious" at the only time in service that he had an elevated blood pressure reading. Dr. Hill stated, following a review of the entire claims file, that there was no evidence of the veteran having hypertension or diabetes while in service. He also found no clear evidence of the veteran having had gouty arthritis while in service, although the joint fluid in the left knee may or may not have been related to gouty arthritis. There was only one reference to pulmonary congestion, that being in April 1964, and Dr. Hill found that had the April 1964 symptoms been caused by chronic cardiovascular disease, the disease would have been manifested by progressive symptomatology from that point. He found no evidence of hypertensive renal disease prior to 1965. He also found that there was no relationship between terminal sepsis, pulmonary congestion, hypostasis, hypertensive renal disease, gouty arthropathy, diabetes mellitus, or renal insufficiency and any disease or injury shown before December 1965. Following the December 2000 remand by the Court, the appellant's representative submitted a medical opinion from Craig N. Bash, M.D., a neuroradiologist, in support of the appellant's claim. In an October 2001 report Dr. Bash stated that he had reviewed the claims file and found that the veteran had hypertension during service, that the first symptoms of gouty arthritis and spine disease occurred during service, and that the veteran died from a combination of sepsis and a stroke. He also stated that, in his opinion, the service-related gouty arthritis and back disorder had made it impossible for the veteran to exercise, thereby increasing his risk for cardiovascular disease and contributing to cause his death. He found that the hypertension was related to service, that the stroke was secondary to hypertension, and that the stroke was responsible for the veteran developing sepsis because otherwise he would not have been hospitalized. In explaining those opinions Dr. Bash referenced specific findings regarding the veteran's musculoskeletal complaints documented in the service medical records, the elevated blood pressure reading in April 1964, the death summary, and the death certificate. He disagreed with Dr. Hill's assertion that hypertension was not shown during service, by referencing the single blood pressure reading of 150 mm/100 mm in April 1964. He cited to medical texts showing that a diastolic blood pressure reading of 90-104 mm represented mild hypertension, and that long-standing hypertension was a well known cause of cardiovascular disease. He stated that the fact that subsequent blood pressure readings, a chest X-ray, and an electrocardiogram (EKG) were normal did not refute the onset of hypertension, because the disease could be asymptomatic for 15-20 years and because X-ray and EKG changes often "lagged behind" the blood pressure changes. He also found that a single, normal blood pressure reading in 1965 was not sufficient to rule out hypertensive disease, in that multiple readings should be taken over multiple days to rule out hypertension. Dr. Bash also found that the evidence of non-traumatic effusion in the knees was evidence of the onset of gouty arthritis in service, and that Dr. Hill's assessment that the effusion may or may not represent gout had to be interpreted as a finding that it was gout. He also found that the effusion had to be considered gout, because no other explanation for the finding had been given. Dr. Bash stated that the stroke resulting in the December 1991 hospitalization was caused by hypertension, that the veteran would not have developed sepsis but for the hospitalization, that his musculoskeletal complaints prevented him from exercising, and that the hypertension and gouty arthritis had, therefore, contributed to his death. In support of that assertion he cited a medical text that pertained to the increased incidence of hypertension and ischemic heart disease in persons with spinal cord injuries and amputees. He then noted that Dr. Hill had not referred to any medical texts in support of his opinion. The Veterans Claims Assistance Act of 2000 The Duty to Notify and to Assist The statute pertaining to VA's duty to inform the appellant of the evidence needed to substantiate her claim and to assist her in developing the relevant evidence was revised subsequent to the Board's June 2000 decision. See, in general, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). This law, which was enacted on November 9, 2000, redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The regulations have also been modified to implement the provisions of the VCAA. See 38 C.F.R. § 3.159 (2002). The appellant's appeal was initially remanded by the Court in December 2000 due to the intervening enactment of the VCAA, in order for the Board to consider the applicability of the new statute to the appeal. In a decision issued in February 2001, the Court interpreted the VCAA and held that all provisions of the VCAA applied retroactively to claims pending on the date of enactment. See Holliday v. Principi, 14 Vet. App. 282-83 (2001), mot. for recons. denied, 14 Vet. App. 327 (2001) (per curium), motion for review en banc denied, No. 99-1788 (U.S. Vet. App. May 24, 2001) (per curium) (en banc). Based on the holding in Holliday, in the May 2002 decision the Board found that the provisions of the VCAA applied to the appellant's claim, and that VA had complied with the requirements of the VCAA in terms of notifying her of the evidence needed to substantiate her claim, and developing that evidence. In a decision issued in June 2002, the Court held that the notice provisions of the VCAA require VA to inform an appellant not only of the evidence needed to substantiate the claim, but to also inform an appellant of the evidence he or she is required to submit, and the evidence that VA will obtain on his or her behalf. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Because Quartuccio was decided after the Board's decision in May 2002, the Board did not address that specific issue in the May 2002 decision. In February 2003 the parties moved the Court to vacate the May 2002 decision and remand the case to the Board due to the intervening decision in Quartuccio, which resulted in the February 2003 order from the Court. The parties did not, however, address intervening precedent decisions issued by the United States Court of Appeals for the Federal Circuit (Federal Circuit) pertaining to the applicability of the VCAA. In Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), the Federal Circuit determined that Section 3(a) of the VCAA, which pertains to the revised duty to notify and to assist, has no retroactive affect. In other words, the duty to notify and assist provisions of the VCAA apply only to claims pending before VA on the date of enactment of the VCAA, which was November 9, 2000. The Federal Circuit further clarified the applicability of the VCAA to claims filed prior to the date of enactment in Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002). In Bernklau the Federal Circuit found that if an appeal was decided by the Board prior to November 9, 2000, even though that case was on appeal to the Court on November 9, 2000, the duty to notify and assist provisions of the VCAA are not applicable to that claim. The Court addressed the Federal Circuit's decisions in Dyment and Bernklau in Shoffner v. Principi, 16 Vet. App. 208, 215 (2002). In Shoffner the Court denied remand of the case to the Board by finding that the duty to notify and assist provisions of the VCAA were not applicable to the veteran's claim because the appeal was decided by the Board prior to enactment of the VCAA, and his case was on appeal to the Court when the VCAA was enacted. In the instant appeal, the Board denied the appellant's claim of entitlement to service connection for the cause of the veteran's death in June 2000, prior to the enactment of the VCAA. The case was pending at the Court on November 9, 2000, in that the Court did not remand it to the Board until December 2000. Because the appeal was not pending before VA when the VCAA was enacted on November 9, 2000, the duty to notify and assist provisions of the VCAA are not applicable to the appellant's claim. Although the those provisions of the VCAA are not applicable to the appellant's claim, the statute and regulation in effect prior to November 2000 required VA to assist appellants in the development of claims. See 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998); 38 C.F.R. § 3.159 (1995). The relevant evidence consists of the veteran's service medical records, records of treatment at the Walter Reed Army Medical Center, the testimony of the appellant and her son, the January 2000 VA medical opinion, and the October 2001 medical opinion from Dr. Bash. The appellant has not alluded to the existence of any other evidence that is relevant to her appeal. The Board concludes that all relevant data has been obtained for determining the merits of the appellant's claim and that VA has fulfilled its obligation to assist her in the development of the facts of her case. Standard of Proof In the June 2000 decision the Board found that the claim of entitlement to service connection for the cause of the veteran's death was not well grounded. The VCAA eliminated the concept of a well grounded claim and superseded the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curium order), in which the Court held that VA could not assist in the development of a claim that was not well grounded. Unlike Section 3(a) of the VCAA, which has no retroactive effect, the section of the VCAA eliminating the concept of a well grounded claim was given retroactive effect. See VCAA, Pub. L. No. 106-475, § 7. Accordingly, the standard of review to be applied in adjudicating the appellant's appeal is as follows. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2002). When there is an approximate balance of positive and negative evidence regarding the merits of a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102 (2002). The Federal Circuit has held that "when the positive and negative evidence relating to a veteran's claim are in 'approximate balance,' thereby creating a 'reasonable doubt' as to the merits of his or her claim, the veteran must prevail." Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Board is precluded from considering law in the adjudication of an appeal that has not been previously considered by the RO, unless the Board's application of the law in the first instance is not prejudicial to the appellant. Bernard v Brown, 4 Vet. App. 384 (1993). In denying service connection for the cause of the veteran's death in April 1996, the RO denied service connection based on the substantive merits of the claim and provided the substantive law to the appellant in the August 1996 statement of the case. The Board can, therefore, apply the standard of review shown above in evaluating the appellant's claim without prejudice to her. Relevant Laws and Regulations Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2002). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (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(a) (2002). Where a veteran served for 90 days in active service, and a cardiovascular disorder, including hypertension, develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. The issue involved will be determined by the 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. 38 C.F.R. § 3.312(a) (2002). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b) and (c) (2002). Analysis The original death certificate indicates that the veteran's death was caused by sepsis. No other underlying diseases or contributing causes were shown. "Sepsis" is defined as the presence in the blood or other tissues of pathogenic microorganisms or their toxins. Dorland's Illustrated Medical Dictionary 1507 (27th Ed.). Although the death certificate was revised approximately three years later to include additional disorders as causing death, the additional disorders were added by the staff of Casualty/Mortuary Affairs, based on the appellant's request, and there is no evidence of a medical determination having been made that the additional disorders in fact were the underlying or contributing causes of death. The veteran's attending physician signed the original death certificate, but there is no indication that he subsequently determined that the additional disorders caused the veteran's death or that he authorized the changes made in 1995. The Board finds, therefore, that the revision to the death certificate is of low probative value in determining the cause of death. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (lay persons are not competent to provide evidence of medical causation). Based on review of the evidence pertaining to the veteran's final hospitalization, Dr. Hill concluded that the veteran's death had been caused by sepsis, and that no other impairment contributed significantly to cause his death. Dr. Hill supported that conclusion with analysis of the medical evidence, and it is highly probative. Dr. Bash also concluded that the veteran's death was caused by sepsis. He also found that hypertension had contributed to cause the death on the basis that, in the absence of hypertension and the resulting stroke, the veteran would not have been hospitalized and would not have contracted the sepsis. That conclusion is speculative, however, in that the medical evidence indicates that the cause of the sepsis could not be determined. Dr. Bash did not provide any opinion regarding the specific cause of the sepsis, nor did he cite to any medical evidence establishing the cause. With the etiology of the sepsis undetermined, it is unknown whether the veteran contracted the microorganisms prior to entering the hospital, incidentally to being in the hospital, or as a direct result of being hospitalized. Dr. Bash also found that gouty arthritis and a back disorder that had been incurred in service contributed to cause the veteran's death. That opinion is also speculative, in that he based the opinion on the conclusion that the musculoskeletal disorders had prevented the veteran from exercising, thereby increasing the risk of developing a cardiovascular disease, including hypertension. The claims file is, however, devoid of any evidence regarding the veteran's lifestyle in terms of his exercise habits. Although the appellant testified that he had ongoing musculoskeletal complaints that at times affected his daily activities, there is no evidence indicating that the musculoskeletal disorders prevented him from exercising, or that in his case the failure to exercise significantly increased the risk of developing hypertension. Dr. Bash did not define the risk factors contributing to the development of cardiovascular disease, or discuss the applicability of any other risk factors and their relative significance. In order to establish service connection for the cause of death, it is not sufficient to show that a disease or injury casually shared in producing death; it must be shown that a direct causative relationship existed between a disability that was incurred in service and the veteran's death. Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); 38 C.F.R. § 3.312(c). Assuming that the sepsis that caused the veteran's death was contracted while he was hospitalized, and assuming that hypertension was incurred in service, those facts do not establish a direct causative relationship between hypertension and the sepsis. In addition, assuming that a chronic musculoskeletal disorder was incurred in service, that assumption does not reflect a direct causative relationship between the musculoskeletal disorder and the sepsis. The Board finds, therefore, that Dr. Bash's opinion is not probative of a direct causative relationship between the cause of death and a service-connected disability. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (evidence is not probative if it does not show that a service-connected disorder caused, rather than was a contributing factor to, the death of the veteran). For these reasons the Board finds that the original death certificate and opinion by Dr. Hill are more probative than the amendment to the death certificate and the opinion provided by Dr. Bash. See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (unpublished decision), cert. denied 120 S. Ct. 1251 (2000) (it is not error for the Board to value one medical opinion over another, as long as a rationale basis for doing so is given). The preponderance of the evidence shows, therefore, that the veteran's death was caused by sepsis, and that no other disease caused or substantially or materially contributed to cause his death. The veteran's service medical records are silent for any complaints or clinical findings related to sepsis, and the appellant does not claim otherwise. She asserts that he had a number of medical problems that had their onset during service, which combined to cause his death. As a lay person the appellant is competent to provide evidence of observable symptoms. Savage v. Gober, 10 Vet. App. 488, 496 (1997). She is not, however, competent to relate those symptoms to a given diagnosis, or to provide the etiology of a medical disorder. Her assertions, and those of her son, are not, therefore, probative of a relationship between a service- connected disorder and the veteran's death. At the time of the veteran's death, service connection had not been established for any disorder. Based on review of the evidence in the claims file, Dr. Hill concluded that chronic hypertension, diabetes mellitus, a chronic pulmonary disorder, and hypertensive renal disease were not shown during service. Although Dr. Bash found that gouty arthritis had its onset during service, he based that opinion on the finding of left knee effusion in December 1964. Diagnostic testing at that time, however, did not reveal elevated uric acid, and no diagnosis of gout was then made. There is no further reference in the medical records to the veteran having gout until September 1986, more than 20 years following his separation from service. Dr. Bash also found that hypertension had its onset during service, based on the elevated blood pressure recorded in April 1964. As Dr. Bash pointed out in his opinion, however, a single blood pressure reading cannot be relied upon in establishing or ruling out a diagnosis of hypertension. In accordance with 38 C.F.R. § 3.104, Diagnostic Code 7101, a diagnosis of hypertension requires readings to be taken two or more times per day on at least three different days. None of the veteran's blood pressure readings prior or subsequent to April 1964 were elevated, nor was a diagnosis of hypertension entered. There is no medical documentation of the veteran having hypertension until September 1986, more than 20 years following his separation from service. Although the September 1986 treatment record shows a 20 years history of hypertension, that finding was apparently based on the veteran's reported history, in that no reference was made to contemporaneous medical records, and is not probative of the onset of hypertension. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (an opinion that is based on the veteran's recitation of medical history is of no probative value). For the reasons shown above the Board also finds that a disorder that was incurred in service, or during the one year presumptive period following the veteran's separation from service, did not cause or substantially or materially contribute to cause his death. The Board has determined, therefore, that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the veteran's death. (continued on next page) ORDER The claim of entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ Michael A. Pappas Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2