Citation Nr: 0814474 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-11 872A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death, to include pursuant to the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from January 1944 to December 1945. He died on February [redacted], 2003. The appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of August 2003 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in St. Petersburg, Florida, which denied service connection for the cause of the veteran's death. In April 2007, a motion to advance this appeal on the docket, due to the appellant's age, was granted. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (c) (2007). The appeal was remanded by the Board in May 2007 for further development. Such has been completed and this case is returned to the Board for further consideration. FINDINGS OF FACT 1. The veteran died on February [redacted], 2003. His death certificate reflects that the immediate cause of death was cardiogenic shock due to or as a consequence of pericarditis. 2. The appellant was married to the veteran at the time of his death. 3. Prior to his death the veteran was service-connected for the following: traumatic arthritis of the right hip rated at 40 percent disabling; traumatic arthritis of the lumbar spine rated at 40 percent disabling; ankylosis of the right knee rated at 30 percent disabling, degenerative disease of the left hip rated at 20 percent disabling, neuroma of the right patellar nerve rated at 10 percent disabling and osteoarthritis of the right knee rated at 10 percent. He was awarded a total rating based on individual unemployability due to service-connected disabilities as of January 1998. 4. There is no competent medical evidence that links the veteran's fatal pericarditis to an incident or event in service, nor was it shown to be caused or aggravated by medications used to treat the veteran's service-connected disabilities. 5. Competent medical evidence fails to show the veteran's pericarditis leading to his death was in any way related to the VA mastectomy surgery in 1999 as there was no invasion of the chest cavity or trauma to the heart from this surgery and there is no evidence of carelessness, negligence, lack of proper skill, error of judgement or similar instance of fault on the part of the VA for this surgery in 1999. CONCLUSIONS OF LAW 1. The veteran's fatal pericarditis was not caused by, or substantially or materially contributed to by, a disability or disease incurred in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2007). 2. The cause of the veteran's death was not due to VA hospital care, or medical or surgical treatment. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the appellant's claim on appeal was received in March 2003 and the RO adjudicated this claim in August 2003. Prior to the August 2003 rating on appeal, the appellant was provided a letter in June 2003 notifying her of the VA's duty to assist in her dependency and compensation (DIC) claim. Subsequent notice letters were sent by the VA in June 2003, September 2004 and June 2007. The notices explicitly provided the veteran with the legal criteria for entitlement to service-connection for cause of the veteran's death, and the June 2007 notice additionally provided the appellant with the legal criteria for prevailing on claims under 38 U.S.C.A. § 1151. These letters provided initial notice of the provisions of the duty to assist as pertaining to entitlement to DIC based on service-connection for cause of death, as well as under 38 U.S.C.A. § 1151, which included notice of the requirements to prevail on these types of claims, of her and VA's respective duties, and she was asked to provide information in her possession relevant to the claim. The duty to assist letters notified the appellant that VA would obtain all relevant evidence in the custody of a federal department or agency. She was advised that it was her responsibility to either send medical treatment records from the veteran's private physician regarding treatment, or to provide a properly executed release so that VA could request the records. The appellant was also asked to advise VA if there were any other information or evidence she considered relevant so that VA could help by getting that evidence. The Board observes that, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the U.S. Court of Appeals for Veterans Claims (Court) determined that, when adjudicating a claim for service connection for the cause of a veteran's death, VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a claim for service connection for the cause of a veteran's death must include: (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was not provided with a statement regarding the veteran's service-connected conditions prior to his death or an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition in any of the duty to assist letters issued. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. Although the appellant was not provided with proper notice regarding the veteran's pre-death service-connected disabilities or an explanation of the evidence and information required to substantiate DIC claim based on these previously service-connected conditions; the Board notes that the appellant has actual knowledge of the disabilities for which the veteran was granted service connection and those for which he was not service-connected. The service- connected conditions were listed in the August 2003 rating on appeal as well as in the April 2004 statement of the case (SOC) which appellant received. After receiving the SOC, the appellant contended that the medication prescribed by the VA contributed to his fatal heart condition. The representative in a February 2007 brief listed the veteran's service- connected conditions in detail in arguing that such conditions could have contributed to his death. The Board observes that the nature of these contentions reflects that the appellant has actual knowledge of the disabilities for which the veteran was granted service connection and those for which he was not service-connected for by the VA and the arguments presented by the appellant and her representative show a knowledge of the evidence needed to prevail based on these service-connected conditions. Thus the appellant is not shown to be prejudiced in this instance. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, such notice was provided in the June 2007 notice. VA has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service medical records, VA medical records and examination reports, non-VA medical records and lay statements have been associated with the record. A medical opinion was obtained in December 2007 regarding the appellant's contentions in terms of the cause of the veteran's death. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection - cause of death To establish service connection for the cause of the veteran's death, evidence must be presented which in some fashion links the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1310 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2007); Ruiz v. Gober, 10 Vet. App. 352 (1997). In short, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability was a contributory cause of the death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. For veterans who had service of ninety (90) days or more during a war period or peacetime service after December 31, 1946, and any chronic disease of the cardiovascular system, is manifest to a compensable degree within a year of discharge, there is a rebuttable presumption of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112, 1113 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Furthermore, the Court has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service- connected. A disability or death is a qualifying additional disability or qualifying death if it was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and (2) the proximate cause of the disability or death was (A) carelessness, negligence lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. Under 38 C.F.R. § 3.361(d), the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The Board notes that the appellant's claim under 38 U.S.C.A. § 1151 was filed after October 1, 1997 and as such must be adjudicated in accord with the current version of 38 U.S.C.A. § 1151. VAOPGCPREC 40-97, 62 Fed. Reg. 15566 (1997). Thus, to prevail, the appellant must show that the veteran's death was either an unforeseen event or the result of VA negligence, or in other words, that VA was at fault in the veteran's death. The veteran died on February [redacted], 2003. His death certificate reflects that the immediate cause of death was cardiogenic shock due to or as a consequence of pericarditis. Appellant is his widow. Appellant filed her DIC claim on March 10, 2003. The appellant alleges that the veteran's heart condition leading to his death should be service-connected either as due to shrapnel she alleges he sustained in service, or as secondary to medication taken to treat his service-connected conditions. Prior to his death the veteran was shown to be service-connected for the following: traumatic arthritis of the right hip rated at 40 percent disabling; traumatic arthritis of the lumbar spine rated at 40 percent disabling; ankylosis of the right knee rated at 30 percent disabling, degenerative disease of the left hip rated at 20 percent disabling, neuroma of the right patellar nerve rated at 10 percent disabling and osteoarthritis of the right knee rated at 10 percent. He was awarded 100 percent due to individual unemployability as of January 1998. Alternately, the appellant also alleges that his fatal heart condition was caused by surgery at the VA to remove the veteran's left and right breasts, which is shown to have taken place in July 1999. Service medical records are negative for any heart problems, and also fail to show that the veteran ever sustained any shrapnel wounds to the chest region or any other areas of his body. His induction examination of January 1944 revealed normal cardiovascular findings. The records do reflect treatment for a right knee injury sustained in May 1945, with a September 1945 knee examination revealing that the vascular system showed no gross abnormalities of arteries or veins and that his heart was not enlarged to percussion, with sounds full and regular with no murmurs heard. His November 1945 separation examination revealed his blood pressure to be 126/88 with heart tones of good quality with no thrills or murmurs. VA records from shortly after discharge reveal treatment for other medical problems with no evidence of heart problems shown, including treatment for an allergic reaction to penicillin in May 1948 which revealed a negative chest X-ray. Likewise a September 1948 VA examination revealed his pulse to be 76 sitting and standing, 94 immediately after exercise and 80 following 3 minutes of exercise with no arrhythmia of pulse and his blood pressure was 114/64. His cardiovascular system was deemed normal, with his heart not enlarged, no murmurs and blood pressure within normal limits. VA hospital records from September to October 1950 for complaints of headaches and right knee complaints revealed no findings or complaints regarding his cardiovascular system. Likewise, records from December 1951 to January 1952 for cellulitis and arthritis of the right knee contain no findings or complaints of heart problems with the heart not enlarged, with no murmurs or irregularities shown on physical examination. An October 1952 hospital record for right knee complaints revealed a negative chest X-ray except for an area of increased density of the left rib interspace. Again no cardiovascular complaints or findings were specifically noted. Likewise VA records from September 1969 through January 1970 which addressed urinary and prostate symptoms with surgery to correct such problems in September 1969 are negative for findings of heart problems. The VA treatment records from June 1973 as well as January and February 1975 address treatment for vertigo complaints but with no associated heart complaints such as palpitations or shortness of breath reported in June 1973. The February 1975 record did note elevated blood pressure findings of 150/98 and 140/90, but the electrocardiogram (ECG or EKG) was noted to be normal. The rest of the records from 1975 all address orthopedic complaints, with nothing regarding his heart. VA records from 1982 reflect treatment for osteoarthritis of multiple joints as well as prostate and urinary problems. The veteran was also said to have questionable hypertension during a September 1982 hospital stay, which was never proven during this stay. A February 1983 VA examination noted cardiac findings of hypertension for which he took medication. He denied headaches, but noted episodes of dizziness with complaints of dyspnea with activity such as raking his yard. He had no orthopnea, paroxsymal nocturnal dyspnea (PND) or pedal edema. He denied chest pain. Heart examination showed no enlargement, murmurs, rubs or thrills. Rhythm was regular and there was no peripheral edema, with peripheral pulses normal. The electrocardiogram (EKG) revealed sinus rhythm, left axis deviation and nonspecific ST-T changes. The diagnosis was hypertension with no other cardiovascular diagnosis made. In October 1983, the veteran was seen for chest pain of 8 months duration described as pressure like in character. He was noted to have been diagnosed with arteriosclerotic heart disease (ASHD) with angina pectoris and had been taking antiangina medications with no relief. Following examination and treatment the veteran was diagnosed with left sided chest pain probably due to severe degenerative disc disease (DDD) of the cervical spine. The veteran was repeatedly assured that the chest pain was not due to ischemic heart disease. VA treatment records throughout the rest of the 1980's mostly address other disabilities, including complaints related to arthritis, but did include some findings of heart complaints. In this regard, an October 1984 hospital record for subjective rotational vertigo, revealed remarkable cardiac findings for systolic click but no gallops, murmurs or rubs. The diagnosis included mitral valve prolapse and atypical chest pain. A February 1989 record noted a history of myocardial infarction (MI) in January 1989. VA records from a March 1992 revealed no significant findings regarding his heart, but the discharge diagnosis included coronary artery disease (CAD) among others. VA records from 1995 through 1996 document more clear heart pathology and symptomatology. In January 1995, he reported increased blood pressure and chest pain. In April 1995 he stated that he was hospitalized for 5 days at Hutchison Hospital for a heart attack. Another April 1995 record documented recent paroxysmal tachycardia. His medical history in May 1995 was shown to include CAD, status post PTLA, occasional flat angina, CHF and history of tachyarrhythmia. A June 1995 ECG was abnormal showing sinus bradycardia and septal infarct. VA records reflect that in July 1996 the veteran underwent a cardiac perfusion testing and was diagnosed with a small area of reversible thallium deficit in the right coronary distribution near the cardiac apex. An August 1996 EKG was abnormal with nonspecific S & T wave abnormality. Chest X- ray from the same month yielded an impression of tortuosity of the aortic arch, otherwise essentially negative chest. Another August 1996 record diagnosed the veteran with improving stable angina following hospitalization for epigastric chest pain. A September 1996 VA examination was limited to orthopedic findings. VA records from 1997 through 1998 continued to document cardiovascular findings, including a diagnosis of high blood pressure and by August 1997 he was noted to have 2 new diagnoses from a cardiologist he saw in the office, with assessment of changing angina, questionably stress related and was also felt to possibly have a small blockage. Plans included a prescribed nitro patch. An October 1997 general note revealed no complaints of chest pain and he was assessed with hypertension stable, arteriosclerotic heart disease, quiet. He was also diagnosed with degenerative joint disease and traumatic joint disease, stable. An October 1998 abdominal computed tomography (CT) scan revealed some density surrounding the heart suggesting a small pericardial effusion. Additionally a small pleural effusion was noted. The diagnosis was small pleural effusion and probable pericardial effusion. VA treatment records from 1999 also document some cardiac complaints. In June 1999, the veteran was seen for left pleuritic chest pain and was also seen by general surgery for left breast mass. Following testing, including a June 1999 EKG, normal left ventricle (LV) systolic function, ejection fraction of 69 percent and concentric left ventricular hypertrophy (LVH), as well as a June 1999 chest X-ray, revealed normal heart findings. A small pleural effusion on the left was noted and he was discharged with prescriptions including Percocet for severe pain, Tylenol for pain, nitroglycerin for chest pain as well as other medications for other problems or whose uses were not otherwise indicated. He underwent a mammogram in July 1999 with a diagnosis of bilateral gynocomastia. A July 1999 chest X-ray showed no active cardiac or pulmonary abnormalities, no significant change since June 1999. In July 1999, the veteran underwent bilateral subcutaneous mastectomies. He was noted to have a history of bilateral gynocomastia for approximately the past year increasing in size and becoming painful. He underwent a preoperative mammogram dictated as subcutaneous gynocomastia. The operation itself involved a subcutaneous incision down to the subcutaneous tissue and dissections of both pectoralis muscles carried all the way down to the pectoralis major muscles. There were no complications and the specimen was bilateral subcutaneous tissues, gynocomastic tissues sent to pathology. There was no indication that the surgery involved the area near the heart. A few days post surgery also in July 1999 his dressings were dry and there was minimal drainage in the JP drains. Post surgical records did not document any complications, aside from psychiatric complaints shown in August 1999. A social work followup 2 weeks post surgery did note the wife reporting the veteran having numerous "anxiety attacks" with complaints of flutters in the heart and a battery of tests diagnosing anxiety or panic attacks. Subsequent records from September through the end 1999 documented ongoing psychiatric complaints as well as other medical complaints with no mention of any problems with his surgical site. Private hospital records reflect that the veteran was seen in October 1999 and November 1999 with chest pain, with a past medical history significant for coronary ulcers, and probable gastroesophageal reflux. A February 2000 VA medication list reflects that the veteran was prescribed multiple medications including acetaminophen for pain. No other medications were clearly indicated for service-connected arthritis complaints. VA records from 2000 reflect ongoing cardiac complaints. In March 2000, the veteran was noted to have been in Lee Hospital the previous week with lower left abdomen pain and was kept in intensive care for a week and told he had fluid in his lungs as well as weak heart muscles. In April 2000, he was seen for complaints of chest pressure on the left and did not have nitroglycerin pills with him. His medical history included CAD since the 1970s, history of hypertension, diffuse osteoarthritis of the spine, left shoulder and legs. He also had a history of pericardial effusion in 1998. Following physical examination he was diagnosed with established CAD with chronic stable angina, consider the possibility of noncardiac chest pain since the EKG was unchanged. An April 2000 EKG revealed normal left ventricle (LV) systolic function, ejection fraction of 69 percent and concentric left ventricular hypertrophy (LVH). Also in April 2000, a pharmacologic cardiac perfusion revealed normal perfusion and normal wall motion. EKG revealed no change, no angina, with maximum heart rate of 44 percent and maximum workload of 1 metabolic equivalents (METS), pulse 59 and blood pressure 120/80. A July 2000 general medical checkup revealed occasional left sided chest pain. VA records from 2001 included an April 2001 record documenting removal of a lesion in the chest wall area and complaints of shortness of breath and dizziness. He was noted to have heart angina and was diagnosed with an anterior chest wall sebaceous cyst. The rest of the treatment records from 2001 document treatment for various medical problems with no significant cardiovascular findings, although in December 2001 he was noted to have hypertension and CAD among his multiple problems. Private hospital records reveal that in February 2002 the veteran was hospitalized for chest pain. On physical examination his cardiac profile essentially was normal and tests showed no acute changes. The diagnosis was atherosclerotic heart disease. VA records from 2002 reflect that in February 2002, the veteran was seen for complaints of left arm and chest pain as well as shortness of breath and was advised to go to the nearest emergency room. A follow-up note in March 2002 reflects that the veteran did not go to the emergency room as advised, and was no longer complaining of chest pain. In April 2002, his systolic blood pressure was elevated and he was noted to have not taken his blood pressure medications. The VA's active medication list reported throughout 2002 documented multiple medications for multiple medical conditions including aspirin prescribed for cardiovascular problems, but also documented a prescription of acetaminophen for pain and diclofenac for a shoulder problem. No other medications were clearly indicated for arthritis complaints. VA records indicated that on February 3, 2003 the veteran was hospitalized for chest pain with a diagnosis of pericarditis and chest X-ray showing bibasilar infiltration changes. He was noted to have expired on February [redacted], 2003. Private treatment records detailed the veteran's final hospitalization from February 3, 2003 to February [redacted], 2003. The discharge report documented that he was admitted to the emergency room with pleuritic type chest pain. A 2-D echo showed the presence of pericardial effusion but no evidence of tamponade. Myocardial infarction was ruled out with serial enzyme and EKG. He was started on Indocin for possible pericarditis. On the second hospital day he became hypotensive. He was given multiple boluses of IV fluids. He stated that he did not wish to be resuscitated or placed on life support. Treatment was continued conservatively with IV fluids. He remained hypotensive, and eventually developed shock and expired. The final diagnosis was cardiogenic shock, pericarditis, arteriosclerotic heart disease with CAD, history of hypertension. He was also said to have a history of pernicious anemia and breast cancer. The report of a December 2007 VA claims file review and medical opinion reflects that the examiner reviewed the records in the claims file and answered three questions regarding the cause of the veteran's death. Regarding the first question as to whether it was at least as likely as not the result of carelessness, negligence, lack of proper skill, error of judgment or similar instance of fault on the part of the VA for treatment rendered from 2000 in general for the breast/chest region, to include any related damage to the pericardium, the examiner answered as follows. The review of the medical records revealed that the veteran was hospitalized in June 1999 for a pleuritic chest pain diagnosed as costrochondritis. During admission, history and medical examination the veteran complained of a left breast mass that was evaluated by General Surgery. Excisional biopsy was recommended and in July 1999 the veteran had subcutaneous biopsies in July 1999 with a diagnosis of ductal hyperplasia in both breasts as well as areas of atypical duct hyperplasia in the right breast. There was no invasion of the chest cavity or trauma to the heart. The veteran was noted to have been followed up and treated appropriately, and healed without sequela. His complaints of chest pain were always taken seriously, evaluated and treated in a reasonable and medically appropriate manner. His death from pericarditis occurred almost 4 years after this mastectomy. Pericarditis was noted to be inflammation of the pericardium often with fluid accumulation. Pericarditis may be caused by many disorders such as infection, MI, trauma, tumors, metabolic disorders but was often idiopathic. Therefore, it was not likely that the veteran's death was the result of carelessness, negligence, lack of proper skill, error of judgment or similar instances of fault on the part of the VA. Regarding the question of whether it was at least as likely as not that the medication prescribed by the VA to treat various disorders including the veteran's service-connected arthritis of the right hip, left hip, right knee and lumbar spine, anklylosis of the right knee and right patellar nerve neuroma caused or aggravated the veteran's heart problems and in doing so, caused or hastened his death, the examiner answered as follows. Review of the medical records showed that the veteran was treated for his musculoskeletal service- connected conditions with oxycodone/tylenol and Naproxen. Both these drugs were used for limited amounts of time. There was no indication that these drugs caused or contributed to the veteran's pericarditis and as a matter of fact these drugs were routinely used to treat pericarditis. He had not used the usual drugs that one might relate to pericarditis to include anticoagulants, procainamide, hydralazine and phenytoin. Therefore, it was not likely that the medications used to treat the veteran's service-connected conditions caused, contributed to or hastened his death. Regarding whether it was at least as likely as not that the veteran's death was related to any incident in service including shrapnel alleged by the appellant to have injured the veteran's heart, the examiner stated as follows. The veteran's death was in no way related to any incident in service. Pericarditis was acute in onset and occurred more than 50 years after service. There was no evidence to substantiate the appellant's claims that there were shrapnel wounds to the veteran's heart. The examiner noted that the surgery in June 1999 to remove both breasts due to progressive gynocomastia demonstrated no incision was made into the chest cavity. Biopsy revealed ductal hyperplasia with no evidence of shrapnel. There was no evidence of subsequent injury that year. There was evidence of removal of a sebaceous cyst in April 2001 sent for biopsy and diagnosed as consistent with ruptured epidermal inclusion cyst with abscess formation but no evidence of shrapnel injury. Therefore, the veteran's death was not due to any inservice injury or cause, nor was it due to shrapnel wound. Based on a review of the evidence, the Board finds that entitlement to DIC benefits is not warranted as based on service connection for cause of the veteran's death. Additional entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is not warranted. In reference to entitlement to service connection for the cause of the veteran's death, a review of the evidence as detailed above fails to show that the veteran's heart disorder which led to his death either began in service or was manifested to a compensable degree within a year of his discharge from service. There was no evidence of shrapnel wounds in service shown, despite the appellant's contentions. He did not have evidence of even elevated blood pressure shown until February 1975 and was described as having questionable hypertension in 1982, with actual heart problems such as arteriosclerotic heart disease (ASHD) with angina pectoris shown in 1983. The opinion from the VA examiner in December 2007 VA claims file review was that there was no evidence to substantiate the appellant's claims that there were shrapnel wounds to the veteran's heart and that the pericarditis that led to his death was acute in onset. Likewise, the examiner opined that it was less than likely that the veteran's medications being used to treat his musculoskeletal service-connected conditions caused or contributed to the fatal pericarditis and in fact pointed out that the drugs used to treat such conditions were often used to treat heart conditions such as pericarditis. There is no evidence presented to contradict this opinion that was based on review of the claims file. Thus, service connection for the cause of the veteran's death is not warranted on a direct, presumptive or secondary basis. The Board has also considered the appellant's claim for entitlement to benefits for the cause of the veteran's death under the provisions of 38 U.S.C.A. § 1151 based on the veteran's VA treatment, and more specifically as alleged by the appellant, as a result of complications from VA surgeries in July 1999. Again the opinion of the VA examiner in December 2007 is that the evidence fails to show the veteran's pericarditis leading to his death was in any way related to the VA mastectomy surgery in June 1999 to remove both breasts. The examiner pointed out that the evidence revealed that there was no invasion of the chest cavity or trauma to the heart from this surgery. The veteran was noted to have been followed up post surgery and treated appropriately, and healed without sequela. His complaints of chest pain were always taken seriously, evaluated and treated in a reasonable and medically appropriate manner. His death from pericarditis was noted occurred almost 4 years after this mastectomy. The examiner found no evidence of carelessness, negligence, lack of proper skill, error of judgment or similar instance of fault on the part of the VA for this surgery in 1999 on the breast/chest region, and no relationship between this surgery and the fatal pericarditis. Again there is no evidence presented to contradict this opinion that was based on review of the claims file. In sum, the Board finds that the preponderance of the evidence is against a claim for service connection for cause of the veteran's death, to include pursuant to the provisions of 38 U.S.C.A. § 1151, and must be denied. The Board has considered the applicability of the doctrine of reasonable doubt under 38 U.S.C.A. § 5107(b) in connection with the appellant's claim; however, as the preponderance of the evidence is against the claim, that doctrine is inapplicable. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs