Citation Nr: 0334761 Decision Date: 12/11/03 Archive Date: 12/24/03 DOCKET NO. 99-08 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Sean A. Ravin, Esquire ATTORNEY FOR THE BOARD J. Barone, Associate Counsel INTRODUCTION The veteran had active service from June 1944 to August 1946. The veteran died in March 1998. The appellant is the veteran's surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. When the case was before the Board in March 2001, it was remanded for additional development. The case was returned to the Board for further appellate consideration in May 2002. The appellant was scheduled to testify before the undersigned member of the Board in October 2000. She informed the RO of her inability to attend that hearing in a July 2000 statement, and did not thereafter indicate a desire to reschedule the hearing. When the appellant's case was before the Board in July 2002, the claim was denied. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2003 the Court granted a joint motion of the parties, vacated the Board's July 2002 decision denying entitlement to service connection for the cause of the veteran's death and remanded the appeal to the Board for action consistent with the joint motion. FINDINGS OF FACT 1. All relevant evidence and information necessary for an equitable disposition of the appeal have been obtained. 2. The veteran died in March 1998 due to the effects of coronary artery disease. 3. At the time of the veteran's death, service connection was in effect for residuals of a gunshot wound, to include complete paralysis of the right sciatic nerve. 4. The veteran's service connected sciatic nerve disability played a significant causal role in his development of coronary artery disease. CONCLUSION OF LAW A disability incurred in or aggravated by active duty caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran was in receipt of an 80 percent evaluation for residuals of a gunshot wound, to include complete paralysis of the right sciatic nerve, from September 1946 until his death in March 1998. His service medical records include no reference to abnormalities of the cardiovascular system. A March 1948 VA examination report indicates that the veteran's cardiovascular system was normal. In addition, there is no other medical evidence of record suggesting that the veteran had cardiovascular disease in service or until decades thereafter. As noted above, the veteran died in March 1998. An emergency room report indicates that the veteran had gone outdoors and was later found face down on the ground. He remained in persistent asystole, with no response to medications and no change in his underlying rhythm. The attending physician indicated that she had spoken with Dr. Coughlin, who had related a history of bypass graft surgery and myocardial infarction and indicated that the veteran's heart disease had been severe. The emergency room physician related Dr. Coughlin's suspicion that the veteran's arrest had a cardiac etiology. The veteran's family indicated that he had complained of indigestion in the last few days prior to his death, but had not complained of chest pain, pressure or any typical anginal symptoms. The family refused an autopsy. The diagnostic impression was cardiopulmonary arrest. Medical information submitted to the coroner in March 1998 by Dr. Coughlin indicates that he had last seen the veteran alive in August 1997. He indicated that the veteran had a history of coronary artery bypass graft in 1982, acute inferior wall myocardial infarction in 1995, hypertension, osteoarthritis, Paget's disease and sciatic nerve injury from surgery during World War II. Based on medical records and his knowledge of the veteran, Dr. Coughlin opined that the probable cause of death was cardiac arrest due to coronary artery disease. The RO denied service connection for the cause of the veteran's death in April 1998. In her notice of disagreement, the appellant contended that it was not known to a certainty that coronary artery disease had killed her husband because no autopsy was performed. She noted that the veteran's legs had been bad since service, with one being totally paralyzed. She related that neighbors had seen him fall in the yard and that he had fallen in the house on numerous occasions. She opined that a fall had killed him. In a March 1999 statement, the veteran's daughter stated that her father had extreme trouble with his legs and would stumble and fall in the house and in the yard. She stated that he also experienced difficulty getting out of the car. The veteran's son discussed the veteran's increasing inability to ambulate without stumbling. He related that he had observed the area where his father had fallen, and opined that his father had died due to the fall and a subsequent blow to the head. Lay statements from the appellant's neighbors were received in April 1999. They relate that the veteran had an increasingly difficult time walking and that he stumbled and fell on several occasions. In her April 1999 substantive appeal, the appellant maintained that the veteran's service-connected sciatic nerve paralysis substantially contributed to his death. She related that later in his life, the veteran's right leg became unstable and would give out, causing him to fall. She opined that on the morning of his death, the veteran's leg had given out on him, causing him to fall and strike his head. In March 2001, the RO wrote to the appellant, indicating that further evidence was needed to substantiate her claim. The appellant was asked to identify all health care providers who might possess records supportive of her claim. The RO also asked the appellant to submit a statement from a physician supporting her contention that the veteran's service- connected disability played a material, causal role in his death. In April 2001, the appellant submitted a letter from Hanger Prosthetics and Orthotics, Inc. The letter indicates that the veteran had been fitted with custom molded arch supports. The appellant also submitted copies of treatment records revealing degenerative disease of the veteran's left knee. She contended that though the veteran had a history of heart trouble, he had suffered no symptoms just prior to his death. An April 2001 statement from Dr. Coughlin indicates that he first saw the veteran in 1992, and that the veteran had a sciatic nerve injury from World War II. Dr. Coughlin stated that the veteran had marked atrophy of the right leg muscles secondary to the injury, resulting in osteoarthritis. He also noted that the veteran had disability secondary to the right leg atrophy, with left leg osteoarthritis from overuse secondary to the right leg dysfunction. He provided no opinion concerning a relationship between the veteran's service-connected disability and his death. In an April 2002 statement, the appellant maintained that VA had not proved that her husband's death was caused by coronary artery disease. She contended that the information she provided had established her theory that her husband's service-connected disability had caused the fall that led to his death. In November 2003, the Board received the report of an independent medical evaluation by Craig N. Bash, M.D. Dr. Bash indicated that he had reviewed the veteran's medical records, to include all records within the veteran's claims file. He pointed out that the veteran had suffered a serious nerve injury in the 1940s, resulting in loss of use of his leg, knee and foot. He noted that such injury prohibited the veteran from ambulating normally. He opined that the veteran's disability caused him to become cardiovascularly deconditioned due to an inability to exercise, and that this lead to the veteran's death due to acute myocardial infarction. He indicated that the literature supported an association between mobility problems and the development of cardiovascular disease, and concluded that the veteran's myocardial infarction was likely due to his inability to exercise. II. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law in November 2000 and is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the present appeal. The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. As explained below, the Board has determined that the information and evidence currently of record are sufficient to substantiate the appellant's claim. Therefore, no further development is required to comply with the VCAA or the implementing regulations. III. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Service connection may also be established for disease initially diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of cardiovascular disease may be presumed if it is manifested to a compensable degree within a year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2003). Additional disability resulting from the aggravation of a nonservice- connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for the cause of a veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the veteran's 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 of death, 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, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The certificate of death indicates that the veteran died in March 1998 due to coronary artery disease. The emergency room report chronicling the veteran's death indicates cardiopulmonary arrest, and the veteran's private physician opined that the probable immediate cause of death was cardiac arrest due to coronary artery disease. However, the evidence currently of record also includes a statement from Dr. Bash which opines that the veteran's service-connected gunshot wound residuals played a material causal role in the veteran's fatal myocardial infarction. Dr. Bash specifically indicated that the veteran died from an acute myocardial infarction, which was very likely due to his inability to exercise because of his service connected disability and his associated, resultant coronary artery disease. This medical opinion is based on a review of the veteran's pertinent medical history and is properly supported. Therefore, the Board is satisfied that the evidence supporting the claim is at least in equipoise with that against the claim. Accordingly, the Board concludes that service connection for the cause of the veteran's death is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the veteran's death is granted. Shane A. Durkin 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