Citation Nr: 1005502 Decision Date: 02/12/10 Archive Date: 02/25/10 DOCKET NO. 07-00 333A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The appellant is the widow of a Veteran who had active military service from June 1953 To May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. In August 2009, the appellant testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. FINDINGS OF FACT 1. The Veteran had active military service in the Republic of Vietnam from March 1968 to March 1969 and from July 1970 to May 1971. 2. Service connection was not in effect for any disability at the time of the Veteran's death. 3. The veteran died on January [redacted], 2003, at the age of 68. The immediate cause of death was adenocarcinoma of the abdomen, due to chronic obstructive pulmonary disease (COPD), as a consequence of post heart transplant. 4. Service treatment records reveal a diagnosis of probable arteriosclerotic heart disease (ASHD) at the time of separation. 5. Post service medical records reveal that the Veteran developed ischemic cardiomyopathy; the Veteran's heart disease was severe enough to require a heart transplant in 1991. 6. The Veteran's heart disease and heart transplant contributed to his death. CONCLUSION OF LAW Arteriosclerotic heart disease, and the resulting heart transplant, is related to service and contributed substantially and materially to the cause of the Veteran's death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2009); 38 C.F.R. § 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim for entitlement to service connection for the cause of the Veteran's death has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). The appellant is the widow of a Veteran who had active service from June 1953 to May 1974. The appellant seeks service connection for the cause of the veteran's death. She contends that the Veteran's ASHD warranted service connection and contributed to cause his death. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of 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 or be etiologically related thereto. 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. However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service- connected disability rendered the veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). The death certificate shows that the Veteran died on January [redacted], 2003, at the age of 68. The immediate cause of death was adenocarcinoma of the abdomen, due to chronic obstructive pulmonary disease (COPD), as a consequence of post heart transplant. No autopsy was conducted. During the Veteran's lifetime, service connection was not established for any disability. A September 1991 rating decision denied service connection for a heart condition and diabetes mellitus. In deciding the claim for service connection for the cause of the veteran's death, the Board must also consider whether the disabilities that caused the veteran's death, that is, adenocarcinoma of the abdomen, or that contributed to the veteran's death, namely, COPD and heart disease requiring a heart transplant, may be service-connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.305. Cancer may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Despite adenocarcinoma of the abdomen, cancer, being listed as the primary cause of the Veteran's death, there is no competent medical evidence showing that cancer became manifest in the Veteran within the first year after his separation from military service. Separation examination of the Veteran was conducted in December 1973. In conjunction with this examination, electrocardiogram testing was conducted and revealed abnormal findings. After cardiology consultation the diagnostic impression was premature ventricular contraction (PVC) etiology unknown, probable ASHD. Medical treatment records dated after service reveal that the Veteran was ultimately diagnosed with ASHD. Records dating from 1981 until his death reveal that the Veteran suffered multiple myocardial infarctions, heart attacks, and that his heart disease was severe enough to require heart transplant surgery in 1991. Progress notes dated in February 1999 list the problem as "ischemic cardiomyopathy status post orthotopic heart transplantation." In January 2006, a VA physician issued a medical opinion. The physician reviewed the medical evidence of record with attention to the Veteran's separation examination. The physician concluded that despite the PVCs noted on the Veteran's separation examination, that he did not have any symptoms of heart disease between 1973 and his first heart attack in 1981. The physician's opinion was that it was not as likely as not that the Veteran had ASHD in service. The appellant testified at a hearing before the Board in August 2009. She testified that between 1974 and 1981, the Veteran did have symptoms of chest pain, but that the medical treatment records related to those complaints were unavailable. She is competent to report the Veteran's symptoms of chest pain. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence shows that the Veteran had an abnormal electrocardiogram on separation examination in 1973; the diagnosis was probable ASHD. The appellant reports that the Veteran had symptoms of chest pain from 1973 to 1981, establishing a continuity of symptomatology. Post-service medical treatment records establish that the Veteran had a heart attack in 1981 and that he had a confirmed diagnosis of ASHD from that point on. The Veteran's heart disease was severe enough to warrant a heart transplant in 1991. The death certificate indicates that the Veteran's ASHD related heart transplant contributed to cause his death. The Veteran also served in the Republic of Vietnam during the Vietnam era. The Board finds the Veteran's ASHD and resulting heart transplant would have warranted service connection had the Veteran been alive and this disability materially contributed to the cause of his death. Accordingly, service connection for the cause of death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs