Citation Nr: 1318307	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  09-46 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for hypertension for accrued benefits purposes.

2.  Entitlement to service connection for a heart disorder, not including hypertension, for accrued benefits purposes.

3.  Entitlement to service connection for the cause of the Veteran's death.  


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 




INTRODUCTION

The Veteran served on active duty from August 1953 to June 1955.  The Veteran died on April [redacted], 2008.  The appellant is the Veteran's spouse.  

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of August 2008 by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA).  In August 2011 and September 2012, the Board remanded this matter for additional evidentiary development.  The development has been completed as requested and the claims are now before the Board for final appellate consideration.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Board notes that it has reviewed the claims file, to include documents of record that have been included in the virtual VA folder.  No relevant evidence has been included in the claims file since the most recent supplemental statement of the case dated in January 2013.  38 C.F.R. §§ 19.31, 20.1304(c) (2012). 


FINDINGS OF FACT

1.  The Veteran died in April 2008 at the age of 75; cardiopulmonary arrest was certified as the immediate cause of death. 

2.  The appellant is the Veteran's surviving spouse.  

3.  The appellant timely filed claims for accrued benefits and Dependency and Indemnity Compensation (DIC) based on service connection for cause of the Veteran's death.  

4.  At the time of his death, the Veteran had claims pending for entitlement to service connection for hypertension and congestive heart failure.  

5.  Hypertension and a heart disorder were not present in service, did not manifest to a compensable degree within one year of separation, are not shown to be related to service, nor are they due to or aggravated by a service-connected disability.


CONCLUSIONS OF LAW

1.  The appellant is not entitled to accrued benefits based upon the Veteran's pending claim for service connection for hypertension.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.160, 3.1000 (2012).

2.  The appellant is not entitled to accrued benefits based upon the Veteran's pending claim for service connection for a heart disorder.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.160, 3.1000 (2012).

3.  A service-connected disability did not cause the Veteran's death nor did it contribute substantially or materially to cause the Veteran's death; service connection for the cause of the Veteran's death is not warranted.  38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1310, 1318 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to notify and assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  Notice which informs the Veteran of how VA determines disability ratings and effective dates should also be provided.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).  

During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Hupp v. Nicholson, 21 Vet. App. 342 (2007), which held that, in the context of a claim for DIC, VCAA notice must include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or 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.  Hupp v. Nicholson, 21 Vet. App. 342 (2007).

In letters dated in June 2008 and September 2011, the appellant was apprised generally of the information and evidence necessary to establish her claim for service connection for the cause of the Veteran's death and; of the evidence that VA would seek to provide; and of the information and evidence that she was expected to provide.  Additionally, the June 2008 letter informed the appellant of the information and evidence necessary to establish her claim for accrued benefits; of the evidence that VA would seek to provide; and of the information and evidence that she was expected to provide.  In relevant part, the September 2011 letter informed her that the Veteran was not service connected for a heart disorder or for hypertension.  She was further informed that to support her claim, she should submit evidence showing that a disability incurred or aggravated during service was the primary or contributory cause of death.  Since the Veteran did not have any service-connected disabilities, notice as to the evidence and information required to substantiate a DIC claim based on a previously service-connected condition was not required.  These notices together satisfy VA's duty to notify.  

In August 2011 and September 2012, the Board remanded the case for further development.  The agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

In a November 2011 letter, submitted to the appellant pursuant to the August 2011 remand, the appellant was asked to provide the names and addresses of health care providers who treated the Veteran from the time of his discharge from service.  She was also informed that service dental records, service treatment records, service personnel records, and Social Security Administration (SSA) records were requested.  VA medical records were obtained and associated with the claims file.  SSA records were requested but a September 2011 response indicated that such records were destroyed.  Terminal hospital records from Central Baptist Hospital were obtained and associated with the claims folder on remand.  A September 2011 response indicated that the Veteran's service treatment records (STRs) and service personnel records were destroyed in a fire.  In the November 2011 letter, the appellant was informed that these records were not obtained and was informed that she could submit records in her possession or alternate sources of evidence to substitute for STRs.  She was also informed the SSA records could not be obtained.  She was encouraged to send any information or evidence within 10 days.  38 C.F.R. § 3.159(e).   

In an October 2012 letter, submitted to the appellant pursuant to the September 2012 remand, the appellant was advised that VA continued to seek additional information regarding private medical treatment the Veteran may have received since his discharge from service.  The record indicates that the appellant did not respond to that letter.  

Based on this background, the Board finds that VA has given the appellant every opportunity to express her opinions with respect to the issues now before the Board, and that VA has obtained, or has attempted to obtain, all known documents that would substantiate the assertions she has made.  

Accrued benefits

The appellant contends that she is entitled to accrued benefits based on the Veteran's pending claims of service connection for hypertension and a heart disorder at the time of his death.

When a Veteran had a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid, based on existing ratings or decisions or other evidence that was on file when he died.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998).  Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996).

Under 38 U.S.C.A. § 5121(c), there is a requirement for an accrued benefits claim that the application "must be filed within one year after the date of death." 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(a), (c).  The Veteran died in April 2008, and the appellant initiated her claim in June 2008.  Thus, she meets the requirement for filing an accrued benefits claim.  The adjudication of an accrued claim is limited to the evidence physically or constructively of record at the time of the Veteran's death. 38 C.F.R. § 3.1000(a); see also Ralston v. West, 13 Vet. App. 108, 113 (1999); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993).  

The appellant contends that the Veteran's hypertension and congestive heart failure were attributable to his active military service.

In August 2006, the Veteran had filed claims for entitlement to service connection for hypertension and heart disabilities secondary to hypertension.  These claims were adjudicated by the RO in April 2007, but the period for appealing the denial of the claims had not expired before the Veteran died.  Thus, the claims are still considered to be "pending claims" because they had not been finally adjudicated by the time of the Veteran's death, that is, they had not become final by the expiration of one year after the date of notice of the disallowance.  The RO also denied special monthly compensation benefits in that decision.  In light of this decision, consideration of entitlement to special monthly compensation benefits is not warranted.  38 C.F.R. §§ 3.160(c), (d); 3.1000(d)(5); see also 38 C.F.R. §§ 20.1103, 20.1104.

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a).

Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition.  38 C.F.R. §§ 3.303(b), 3.307, 3.309.  Certain chronic diseases such as cardiovascular-renal disease (including hypertension) will be presumed to have been incurred in service if manifested to a compensable degree within one year after service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  38 C.F.R. § 3.303(b).  The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service.  38 C.F.R. § 3.303(d).   

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

As indicated earlier, the Veteran's STRs were apparently destroyed while in the possession of the government.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (under such circumstances, the Board has a duty to particularly consider the benefit-of-the-doubt rule on all aspect of the Veteran's claim).  However, his June 1955 separation report of medical examination is of record.  According to the  PULHES profile noted on the report, the Veteran's "P" - i.e., his physical capacity or stamina - was assigned a "2."  The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  While the "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  The Veteran was assigned a "1" in each of the other categories (i.e., "U" through "S".  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).  

It is not clear why the Veteran's physical capacity or stamina - "P - was rated as less than optimal, but the June 1955 separation report does provide specific information regarding blood pressure and the heart.  The report notes a normal blood pressure reading of 120/82.  See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012) (hypertension means diagnostic blood pressure predominantly 90mm or greater, or systolic blood pressure predominantly 160mm or greater with a diastolic blood pressure of less than 90mm).  And the report indicates that the separation medical examination found the Veteran's heart and vascular system to be normal.  Hence, while the Veteran was found to be limited in some way at separation from service, his heart and blood pressure was found to be normal.  

Twenty-eight years after service, in October 1983, the Veteran underwent VA medical examination for a claim to nonservice-connected pension benefits.  During the examination, the Veteran denied having a history of a heart disorder.  But the examiner stated:

Patient has long-standing hypertension dating back to approximately 1952 but has only been on medication for the last 15 years.  His control has been variable but he denies any sequella of his hypertension other than on several occasions he has been told of "enlarged heart".  He denies any difficulty with stroke or seizures or known MI.  He does have recurrent difficulty with palpation and substernal chest discomfort described as a shooting episodic discomfort, non-radiating noted primarily on exertion.  The pain is relieved by rest.  He does not require NTG for treatment.  He denies any recurrence of the chest discomfort since approximately February 1982.  He denies any history of known heart disease, heart murmur, etc.

Physical examination revealed blood pressure readings of 152/80 and 154/82 in the right arm, and 160/82 in the left arm.  The diagnosis was hypertension, which the Veteran maintained with medication, and heart trouble that was suggestive of angina pectoris.  The examiner noted that, given the Veteran's history, he could have an underlying coronary disease.  

A January 1984 exercise stress test indicated a normal resting study, no evidence of previous infarction, and no evidence of dynamic ischemia.  The general conclusion was that the results of the combined exercise EKG and multigated (radionuclide) angiogram (MUGA) indicated a very low probability of ischemic heart disease.   

In an August 2006 aid and attendance examination, the Veteran reported congestive heart failure as one of his complaints.  
VA medical records show a history of coronary artery disease, heart failure, congestive heart failure, and chronic ischemic heart disease.  In November 2002, the Veteran underwent a coronary artery bypass surgery.  

In a May 2009 statement, the appellant reported that the Veteran had a hypertension disorder at the time of his induction physical.  

Buddy statements reported that the Veteran had problems with high blood pressure prior to entering service.  A statement indicated that the Veteran was often sick with his blood pressure in the two years of vocational school following his separation from service.  Another buddy statement indicated that the Veteran had problems with nose bleeds after he had been running or climbing over hills.  

Analysis - hypertension

Hypertension is defined as high arterial blood pressure.  Dorland's Illustrated Medical Dictionary 799 (27th ed. 1988).  Hypertension may have no known cause (essential or idiopathic hypertension) or be associated with other primary diseases (secondary hypertension).  Id.  Various criteria for its threshold have been suggested, ranging from 140 mm. Hg systolic and 90 mm. Hg diastolic to as high as 200 mm. Hg systolic and 110 mm. Hg diastolic.  Id.  As indicated earlier, VA addresses hypertension under Diagnostic Code (DC) 7101, which states that the term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012).  

The preponderance of the evidence is against a finding that the Veteran's hypertension was related to, was incurred in, or manifested to a degree of 10 percent within one year following, the Veteran's service.  The Veteran's blood pressure at the time of separation was 120/82, which does not fit within the definition of hypertension, as described above.  While the Veteran claimed, and the appellant alleges currently, that his hypertension dated back prior to his military service and has continued since his discharge from service, the Board finds that these statements are not entitled to a finding of credibility in light of the separation examination.  The Veteran's post-service medical records do not show any complaint, diagnosis, treatment or mention of hypertension until he filed the August 1983 claim for nonservice-connected pension benefits.  A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  The Veteran indicated that he had been on medication for hypertension for the 15 years prior, which would have been 13 years after separation from service.  Moreover, there is no competent evidence of record linking the claimed condition to service.  Accordingly, the Board finds that service connection for hypertension on a direct basis, and under the presumptive provisions of 38 C.F.R. § 3.309(a), must be denied.  

The STRs other than the separation examination are not contained in the claims file.  The Board is cognizant of its heightened duties when medical records are missing.  VA has obtained all available service treatment records and VA medical records, and had informed the appellant of the unavailability of additional records.  Therefore, the Board finds the AOJ met the requirements pursuant to 38 C.F.R. § 3.159(e).

Even in the absence of chronicity or continuity of symptomatology, service connection may be granted for a disease, first diagnosed after service, when all the evidence, including that during and after service establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d).  Additionally, the Board recognizes that lay evidence may serve to support a claim for service connection.  VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability.  38 U.S.C. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  Moreover, the VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence.  

Buddy statements indicated that the Veteran had problems with high blood pressure prior to entering service and that he was often sick due to his blood pressure in the two years following service.  To the extent that statements have indicated the Veteran had hypertension before service, the Board finds that the evidence is not clear and unmistakable that such pre-existed service.  The enlistment examination is not of record, therefore, the presumption of soundness pursuant to 38 U.S.C.A. § 1111 is applicable.  There is no medical evidence showing that he had hypertension before service.  While the Veteran has asserted that he had hypertension when he was inducted and at discharge, the separation examination findings were normal.  Accordingly, the Board finds that the evidence indicating the Veteran had pre-existing hypertension is not clear and unmistakable.   

Moreover, the lay statements cannot be construed as evidence of diagnosis, or of a continuity of symptomatology of hypertension after discharge.  As noted above, hypertension was shown years after service with no competent evidence showing that it was or may be related to service.  Moreover, there are no specific blood pressure measurements showing that the criteria for a compensable rating under Diagnostic Code 7101 were met within a year of the Veteran's discharge.  Moreover, in light of the normal separation examination findings in service, the Board finds that there is no continuity of symptomatology.  The Board has also found not credible the assertions that the Veteran had hypertension in service and the years immediately following service as the separation examination revealed a normal blood pressure reading and did not note that the Veteran had hypertension.  

Although the Veteran was, and the appellant is, competent to describe symptoms experienced or observed, hypertension is not a condition that is capable of lay observation, and the determination as to the presence or diagnosis of such a condition is therefore medical in nature, that is, not capable of lay observation.  Specific blood pressure readings are required to diagnose the disorder.  Accordingly, competent medical evidence is needed to substantiate a claim to service connection for hypertension.  See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observations is competent); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  However, there is no indication that the Veteran had medical training that would permit him to provide a competent opinion concerning the onset or etiology of the condition.  Nor has the appellant claimed that she has medical training that would permit her to provide a competent opinion concerning the onset or etiology of the condition.  The determination in this case as to the cause of hypertension is beyond the observations that a lay person is capable of, and therefore, the Veteran's and the appellant's statements regarding etiology are not competent.  The Board, therefore, finds that the Veteran's and the appellant's statements associating his hypertension with service do not constitute competent evidence concerning etiology.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000).  

As for the Veteran or appellant describing a contemporaneous medical diagnosis and describing symptoms that later support a diagnosis by a medical professional, there is no evidence in the file at the time of the Veteran's death that a health-care professional diagnosed hypertension before 1968, 13 years after service.  And there is no competent medical evidence that relates the post-service hypertension to an injury, disease, or event in service.  In this regard, the Board has closely examined the October 1983 VA examiner's statements that the Veteran "has long-standing hypertension dating back to approximately 1952[.]"  The Board does not find the report and its statements to be evidence of medical nexus between service and the diagnosed hypertension, or evidence of a continuity of symptomatology of hypertension since service.  Rather, the comments amount merely to the Veteran's own report of his history of hypertension.  

An examiner's opinion based on accurate lay history may be considered competent medical evidence in support of the claim.  Harris v. West, 203 F.3d 1347, 1350-51   (Fed. Cir. 2000).  However, lay histories are not transformed into competent evidence merely because the transcriber happens to be a medical professional.  LeShore v. Brown, 8 Vet App 406 (1995).  Further, for a medical statement to have probative value, it should be corroborated by clinical data or other rationale explaining how a disorder would relate to service.  Bloom v. West, 12 Vet. App. 185, 187 (1999).  In this matter, the October 1983 statement is not based on accurate lay history.  Rather, it is based on the Veteran's history regarding the onset of his hypertension, which is directly disputed by objective evidence of record.  Further, the October 1983 statement is not accompanied by clinical data or other rationale explaining how the Veteran's hypertension in 1983 related to service that ended 28 years earlier.  For these reasons, the VA examiner's October 1983 report of the Veteran's history has no probative value on the issue before the Board.  

To the extent the Veteran and appellant implied that the hypertension should be service connected, their opinions as lay persons are limited to inferences that are rationally based on their perception and do not require specialized education, training, or experience.  

Analysis - heart disorder

The preponderance of the evidence is also against a finding that the Veteran's heart disorders, to include diagnoses of coronary artery disease, heart failure, congestive heart failure, and chronic ischemic heart disease, were related to, were incurred in, manifested to a degree of 10 percent within one year following the Veteran's service, or are related to a service-connected disorder.  38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.  The Veteran's hypertension is not service connected, so a favorable finding of secondary service connection for a heart disorder would be unwarranted under 38 C.F.R. § 3.310.  The Veteran's heart was evaluated as normal upon separation from service, so a finding of direct service connection would be unwarranted under 38 C.F.R. § 3.303.  Moreover, in light of the normal separation examination, continuity of symptomatology of heart disease following service is not shown nor is there evidence of heart disease within one year of discharge, so a finding of presumptive service connection would be unwarranted under 38 C.F.R. § 3.307 and § 3.309.  

The evidence does not show that the Veteran complained about a heart disorder until at least 28 years after separation.  Additionally, the January 1984 exercise stress test indicated a normal resting study, no evidence of previous infarction, and no evidence of dynamic ischemia, and the examiner determined that the results indicated a very low probability of ischemic heart disease.  The Board finds this evidence competent and credible.  See Savage, supra.  Moreover, it is probative because it indicates that the Veteran had a very low probability of ischemic heart disease 28 years after separation of service.  Additionally, there is no competent evidence of record linking the claimed heart disorder to service.  Accordingly, the Board finds that service connection for a heart disorder on a direct, presumptive, or secondary basis must be denied.  

STRs are not contained in the claims file.  The Board is cognizant of its heightened duties when medical records are missing.  

Even in the absence of chronicity or continuity of symptomatology, service connection may be granted for a disease, first diagnosed after service, when all the evidence, including that during and after service establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d).  Additionally, the Board recognizes that lay evidence may serve to support a claim for service connection.  VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability.  38 U.S.C. § 1154(a) (West 2002); Davidson, supra; Buchanan, supra.  Moreover, the VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence.  

Although the Veteran was and the appellant is competent to describe symptoms experienced or observed, a heart disorder is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of such a condition is therefore medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim.  See Savage, supra; see also Barr, supra.  However, the Veteran never reported that he had medical training that would permit him to provide a competent opinion concerning the onset or etiology of the condition.  Nor has the appellant claimed that she has medical training that would permit her to provide a competent opinion concerning the onset or etiology of the condition.  The determination in this case as to the cause of Veteran's heart disorders is beyond the observations that a lay person is capable of, and therefore, the Veteran's and the appellant's statements regarding etiology are not competent.  The Board, therefore, finds that the Veteran's and the appellant's statements associating his hypertension and heart disease with service do not constitute competent evidence concerning the issue of etiology.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000).  

As for the Veteran or appellant describing a contemporaneous medical diagnosis and describing symptoms that later support a diagnosis by a medical professional, there is no evidence in the file at the time of the Veteran's death that a health-care professional diagnosed a heart disorder before 1983, 28 years after service and the medical evidence at that time showed a very low probability of ischemic heart disease.  There is no competent medical evidence that relates the post-service heart disorder to an injury, disease, or event in service. 

To the extent the Veteran and appellant implied that the Veteran's heart disorder should be service connected, their opinions as lay persons are limited to inferences that are rationally based on their perception and do not require specialized education, training, or experience.    

In sum, as the weight of the probative evidence is against the appellant's claims, service connection for hypertension and service connection for a heart disorder for accrued benefits purposes are denied.  38 C.F.R. §§ 3.102, 3.303, 3.304.  The Board has considered the doctrine of reasonable doubt but, for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits.  38 C.F.R. § 3.102.  


Cause of death

The appellant also seeks compensation as the Veteran's surviving spouse on the grounds that the Veteran's death was due to his hypertension and resulting heart disorder.  At the time of his death the Veteran was not service-connected for hypertension or a heart disorder.  As previously stated, the Board does not find that the Veteran should have been awarded service connection for hypertension or a heart disorder.  

The death certificate confirms that the Veteran died in April 2008.  The immediate cause of death was listed as cardiopulmonary arrest.  

In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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.  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.  

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.  38 C.F.R. § 3.312(b).  

A contributory cause of death is inherently one not related to the principal cause.  In determining whether the service-connected disability contributed to 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. 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 C.F.R. § 3.312(c)(1).  Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  38 C.F.R. § 3.312(c)(3).  Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.  Id.

There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).

Therefore, in order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it.  38 U.S.C.A. § 1310.

The Veteran was not service-connected for a heart disorder/cardiopulmonary arrest at the time of his death.  Based on the evidence of record, the Board finds that a service-connected disability was not the principal cause of death.  38 C.F.R. § 3.312(b).  Even so, cause of death can be established if a service-connected disability was a contributory cause of death.  See 38 C.F.R. § 3.312(c).  In this case, the Veteran's Certificate of death does not list underlying causes of death.  

Contributory cause of death is inherently one not related to the principal cause.  In determining whether the service-connected disability contributed to 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.  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 C.F.R. § 3.312(c). 

An appellant may also satisfy the requirements of § 3.312 if the evidence shows that the Veteran was entitled to service connection for the disorder that caused or was the contributory cause of death.  Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury or disease incurred in the line of duty while in active military service.  38 C.F.R. §§ 3.303, 3.304.  Some chronic diseases, to include cardiovascular renal disease, may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service.  38 U.S.C.A. §§ 1101(3), 1112(a), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. §§ 3.303(d).  A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service.  See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

At the time of his death, the Veteran was not service connected for any disabilities.  Additionally, having determined that he was not entitled to service connection for hypertension or a heart disorder, it remains that the Board finds that the Veteran had no service-connected disabilities at the time of his death, much less one that was the principal or contributory cause of his death.  

In deciding a claim for service connection for the cause of the Veteran's death, the Board must also consider whether the disability that caused the Veteran's death, cardiopulmonary arrest, may be service connected.  The appellant has asserted that the Veteran's death was a result of his hypertension and resulting heart disease incurred during active service.  As explained in the accrued benefits portion of this decision, the Board finds against this claim.  

As stated above, the Veteran did not exhibit high blood pressure upon separation from service and the evidence of record does not indicate a reported onset of hypertension until approximately 13 years after separation.  Moreover, while the October 1983 VA examination indicated heart trouble suggestive of angina pectoris, the December 1983 stress test revealed no evidence of dynamic ischemia.  Additionally, beyond the appellant's assertions, the evidence does not show that the Veteran had hypertension or a heart disability that was incurred in service or could be presumed to have been incurred in service.  

The Board has considered the doctrine of reasonable doubt, but for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits.  38 C.F.R. § 3.102.  

While the adjudication of an accrued claim is limited to the evidence physically or constructively of record at the time of the Veteran's death, decisions regarding cause of death are not so limited in scope.  38 C.F.R. § 3.1000(a); see also Ralston v. West, 13 Vet. App. 108, 113 (1999); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993).  However, a VA opinion was not obtained in conjunction with the appellant's claim, and the Board finds that the evidence of record does not warrant one.  In this regard, the United States Court of Appeals for the Federal Circuit held in DelaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) and Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), that 38 U.S.C.A. § 5103A(a) does not require VA to assist a claimant in obtaining a medical opinion in a DIC claim when no reasonable possibility exists that such assistance would aid in substantiating the claim.  In this regard, the Veteran's available STR - the separation report of medical examination - is negative for hypertension and a heart disorder, which the appellant alleges caused the Veteran's death.  Additionally, there is no evidence or lay allegations in the claims folder of hypertension until approximately 13 years after service discharge or a heart disorder until approximately 28 years after service discharge.  The Board has also found the assertions that the Veteran had hypertension in service as lacking in credibility because the separation examination revealed a normal blood pressure reading.  Consequently, the Board concludes there is no reasonable possibility of substantiating the cause of death claim on any basis, and a VA medical opinion is not warranted. 38 U.S.C.A. § 5103A(a).

Finally the Board has considered whether 38 U.S.C.A. § 1318 is applicable to this case.  Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty, and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999.  38 U.S.C.A. § 1318; 38 C.F.R. § 3.22.  As previously stated, the Veteran had no service-connected disabilities at the time of his death, and was not entitled to receive compensation for any disability.  Accordingly, there are no service-connected disabilities that were rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding the Veteran's death, and there were no service-connected disabilities that were continuously rated totally disabling for a period of not less than five years from the date of his June 1955 service separation.  Additionally, the Veteran was not a former prisoner of war.  Therefore application of 38 U.S.C.A. § 1318 is not warranted.

In denying these claims, the Board does not wish in any way to diminish the Veteran's service.  Although it is sympathetic to the appellant's claims, the Board is without authority to grant the claims on an equitable basis and instead is constrained to follow the specific provisions of law.  See 38 U.S.C.A. § 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  

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ORDER

Entitlement to service connection for hypertension for accrued benefits purposes is denied.  

Entitlement to service connection for a heart disorder, not including hypertension, for accrued benefits purposes is denied.

Entitlement to service connection for the cause of the Veteran's death is denied.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs