Citation Nr: 9827442 Decision Date: 09/14/98 Archive Date: 09/17/98 DOCKET NO. 95-10 134 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is the widow of the veteran who served on active duty from September 1948 to June 1952; he died on May [redacted], 1994. The appellant has been represented since July 1996 by The American Legion. This matter came before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a rating decision of June 1994, by the Winston-Salem, North Carolina Regional Office (RO), which denied the appellant’s claim of entitlement to service connection for the cause of the veteran’s death. A notice of disagreement with this determination was received in July 1994. Additional medical records were received in October 1994. Thereafter, by a rating action in November 1994, the RO confirmed its previous denial of the appellant’s claim. A statement of the case was issued in December 1994. The appellant’s substantive appeal was received in January 1995, wherein she requested a hearing before both a local hearing officer and a member of the Board. By letter dated in July 1995, the appellant waived her request for a hearing before a member of the Board; she indicated that she only wished to attend a hearing before a local hearing officer. The appellant appeared and offered testimony at a hearing before a hearing officer at the RO in October 1995. A transcript of the hearing is of record. A hearing officer’s decision was entered in October 1995, confirming the previous denial of the appellant’s claim. A supplemental statement of the case was issued in October 1995. In March 1997, the Board remanded the case to the RO for further development. A medical statement was received in August 1997. A supplemental statement of the case was issued in August 1997. The appeal was received back at the Board in December 1997. In March 1998, the Board again remanded the case to the RO for still further development. A report of contact (VA Form 119) was completed on April 29, 1998. A supplemental statement of the case was issued in April 1998. Another VA Form 9 was received in May 1998. The appeal was received back at the Board in June 1998. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that service connection is warranted for the cause of the veteran’s death. The appellant maintains that the veteran developed a heart disease as a result of his service-connected rheumatic fever; she asserts that the recurring episodes of rheumatic fever in service resulted in damage to the veteran’s heart, which eventually lead to heart failure and his early demise. The appellant insists that a Dr. Patel of the VA Medical Center, Asheville, told her that the veteran’s rheumatic fever was the cause of or contributed to the veteran’s heart failure and his death. She argues, therefore, that service connection for the cause of the veteran’s death is warranted. It is requested that the appellant’s claim be considered under all applicable law and regulations, and the she be accorded the benefit of the doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for the cause of the veteran’s death is well-grounded. FINDINGS OF FACT 1. The veteran died on May [redacted], 1994, at the age of 64; the immediate cause of death was reported on the Certificate of Death as cardiac arrest due to or as a consequence of ischemic cardiomyopathy. 2. At the time of the veteran’s death, service connection was in effect for rheumatic fever, in remission, with swollen right knee, rated as 10 percent disabling. 3. There is no competent medical evidence linking the cause of the veteran’s death with his service-connected rheumatic fever, in remission, with swollen right knee. 4. No competent medical evidence has been submitted showing that the veteran’s death was caused, hastened or substantially and materially contributed to by a disability of service origin. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for the cause of the veteran’s death. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual background. The basic facts in this case may be briefly summarized. The veteran served on active duty from September 1948 to June 1952. The records reflect that the veteran died on May [redacted], 1994, at the age of 64. A Certificate of Death, dated in May 1994, shows that the veteran’s death was attributed to cardiac arrest due to, or as a consequence of ischemic cardiomyopathy. During the veteran’s lifetime, service connection had been established from rheumatic fever, in remission, with swollen right knee, rated as 10 percent disabling since April 1956. The records reflect that the veteran entered active duty in September 1948; an enlistment examination was negative for any complaints or findings referable to a cardiovascular disease. A treatment note dated in February 1949 reported a finding of inflammatory rheumatism; heart was not enlarged, there was normal sinus rhythm, sounds were of good quality, A2 was louder than P2, and there was no diastolic murmur. The veteran was seen in March 1949 for complaints of swollen and painful right knee; following an examination, the pertinent diagnosis was arthritis, right knee, acute, cause undetermined. The veteran continued to receive clinical attention for complaints of aches and pain in the right knee, left shoulder and left hip. During a clinical visit in June 1949, it was noted that the veteran had been asymptomatic for several weeks except for occasional pains in the calf of both legs upon arising in the morning. An electrocardiogram showed prolonged PR interval and was compatible with rheumatic heart disease; however, no abnormal cardiac findings were noted. The veteran’s diagnosis was changed to rheumatic fever, active, with cardiac involvement. In July 1949, the service medical records reported a diagnosis of rheumatic fever, degree of activity questionable, with heart involvement, manifested by EKG changes and systolic murmur. The veteran was next seen in August 1949 for complaints of pain in his heels and right shoulder; he was transferred to a hospital for observation for possible rheumatic fever. The diagnosis was possible rheumatic fever; another diagnosis reported was early rheumatic heart disease. When seen in November 1949, it was noted that the veteran had a previous case of rheumatic fever with prolonged hospitalization for several days, and he had pain in the left shoulder and back; examination was completely negative. The diagnosis was possible reactivation of rheumatic fever. The separation examination, conducted in May 1952, was negative for any complaints or findings of a cardiovascular disease; blood pressure reading was 130/75, and a chest x-ray was negative. On VA examination in December 1953 the history of rheumatic fever with carditis was noted. Electrocardiogram was normal and the diagnosis was rheumatic fever, in remission, prominent hilar regions, bilateral. The RO in a subsequent December 1953 rating action granted service connection for rheumatic fever, in remission, and a noncompensable evaluation was assigned. Medical evidence of record in the 1950’s and 1960’s, including VA as well as private treatment records, reflect that the veteran received clinical attention and evaluation for complaints of low back pain with pain and weakness in the lower extremities. A private medical statement, dated in March 1954, reflected rheumatic fever and sciatic nerve pain, cause undetermined. During a VA compensation examination, conducted in May 1954, the veteran complained of pain and discomfort in the left leg and hip that wakes him up at night. The pertinent diagnosis was residuals of rheumatic fever not found. The report of a VA compensation examination dated in April 1956 reported a diagnosis of residuals of rheumatic fever. In a May 1956 rating action a 10 percent evaluation for rheumatic fever, residuals of, with swollen right knee, was assigned effective April 1956. A subsequent VA examination report, dated in January 1961, reflected complaints of pain in the left leg at all times; blood pressure was 142/90, and x-ray study of the heart was negative. The pertinent diagnosis was residual of rheumatic fever, from history, with no objective finding today. VA treatment records dated from March 1991 to January 1993 reflect that the veteran received clinical attention and evaluation for hypertension, cardiovascular disease, peripheral vascular disease, renal failure and an abdominal aneurysm. The records indicate that the veteran was admitted to a private hospital with myocardial infarction on March 10, 1991; he was subsequently transferred to a VA hospital, at which time it was reported that he had a previous history of inferior myocardial infarction in 1984, followed by cardiac catheterization and four saphenous vein graft bypass in 1984. During hospitalization, the veteran underwent a two dimensional echocardiogram, left heart catheterization, left ventriculogram and selective coronary angiography and graft visualization. The pertinent diagnoses were coronary artery disease, status post myocardial infarction and 4 vessel bypass graft in 1984, now with new inferior myocardial infarction March 10, 1994; severe peripheral vascular disease and carotid occlusive disease. The above records also indicate that the veteran was seen in May 1991 for a follow up visit; he indicated that he had soreness at all times in the left upper anterior chest. The pertinent diagnoses were status post CABG, hypertension, and abdominal pain. Later in May 1991, the veteran was admitted to a hospital because of lower abdominal pain more prominent on the left side, with the onset following cardiac catheterization. Following a thorough evaluation, the final diagnoses were renal insufficiency induced by IV contrast media; hypertension; and CAD. During a period of hospitalization in April 1991, a CT scan of the abdomen showed an infrarenal posterior aortic abdominal aneurysm without evidence of dissection or leaking. The veteran was readmitted to the hospital in June 1991 because of poor controlled hypertension despite medications; it was noted that the hypertension was of recent onset following catheterization in March 1991. It was also noted that the veteran had been complaining of intermittent claudication of the left leg; he was admitted to undergo peripheral angiography. The assessment was hypertension, new onset; peripheral vascular disease, placed on fluids; and renal insufficiency, chronic. The records further indicate that the veteran was seen at a private hospital in January 1992 with chest pain and was found to be status post myocardial infarction. In November 1992, the veteran was admitted to a hospital for complaints of chest pain. The assessment was unstable angina, R/O myocardial infarction; blood pressure above normal; and history of abdominal aortic aneurysm that was stable as of November. A radiographic study of the heart, conducted in November 1992, showed that the heart was enlarged; the veteran was status post CABG surgery. The impression was cardiomegaly. In January 1993, the veteran was admitted to a hospital for cardiac catheterization due to his extensive past medical history; he reported no symptoms of angina, shortness of breath, exertional dyspnea, orthopnea, diaphoresis, cough or palpitations since November 1992. The diagnosis was severe coronary artery disease. Received in May 1994 was a private hospital report indicating that the veteran was admitted to a hospital in March 1994, with chest pain and acute anterior myocardial infarction. On March 19, 1994, the veteran was admitted to a hospital with increasing shortness of breath and acute congestive heart failure with pulmonary edema; it was noted that he had had a recent massive acute anterior myocardial infarction and decompensated at home despite medications after 3 to 4 days. An echocardiogram revealed severe ischemic cardiomyopathy with low cardiac output state and LVEF less than 20 percent; mild mitral regurgitation related to the above; and very small posterior pericardial effusion. The discharge diagnoses were acute pulmonary edema; CAD, status post recent massive acute myocardial infarction; severe ischemic cardiomyopathy; abdominal aortic aneurysm; and continued tobacco abuse. Also received in May 1994 were VA outpatient treatment reports dated in April 1994, indicating that the veteran was seen for follow up evaluations following hospitalization at a local hospital in March 1994 with myocardial infarction. Also received in May 1994 was a private medical statement dated May 3, 1994, indicating that the veteran had end stage ischemic cardiomyopathy with ejection fraction of less than 15 percent and severe activity restrictions due to shortness of breath. It was noted that he was dyspneic just walking around the house, and any attempts at overexertion could decompensate him with resultant pulmonary edema very quickly. It was also reported that the veteran had inoperable coronary disease and was high risk for sudden decompensation of his heart failure, recurrent myocardial infarction, or sudden death. Received in July 1994 was a VA hospital summary showing hospitalization from May 7, 1994, to May 20, 1994. He presented to the emergency room on May 7, 1994 and CK was normal. Arterial blood gasses were good; however, he continued to have significant orthopnea and dyspnea and was therefore admitted to control congestive heart failure. The veteran was begun on diuresis, and symptoms slowly resolved. He continued to be diuresed with addition of Metolazone, the veteran was asymptomatic and able to lie flat without problems; he was discharged in stable condition. The final diagnosis was cardiomyopathy, ischemic in nature with acute congestive heart failure; peripheral vascular disease; abdominal aortic aneurysm; and chronic renal failure. At her personal hearing in October 1995, the appellant testified that she had known the veteran for one year prior to being married in 1969; at that time, she was not aware of any major physical illnesses. The appellant indicated that the veteran was a type “A” personality who was very active, but he never complained much about things that may have been bothering him. The appellant recalled the veteran had hypertension and heart problems that became manifested in the 1970’s. The appellant indicated that it was noted that the veteran had had a history of rheumatic fever prior to service, and he had recurrence of rheumatic fever during service; she also reported a family history of murmurs. The appellant also reported that a treating physician, Dr. Patel, from the VA Medical Center in Asheville, North Carolina informed her that the veteran’s service-connected rheumatic fever could have contributed to the cause of the veteran’s heart problems. The Board in March 1997 remanded the case to obtain a statement from Dr. Patel, or if he was not available or no longer with the VA, to have a VA physician review the record and give an opinion whether the veteran’s death was due to or the result of the service connected rheumatic fever or whether the rheumatic fever contributed substantially or materially to death. (A VA Form 119 of April 1998 shows that Dr. Patel left the VA 3 years before and that there was no forwarding address available.) In view of the Board’s remand and non-availability of Dr. Patel a medical opinion was obtained from Vladimir Curkovic, M.D., at the VAMC in Asheville, dated in August 1997, who indicated that he had reviewed the veteran’s chart and, based on data obtained from the record, “echocardiogram without significant evidence of valvular disease that may link service connected disease (rheumatic heart disease) with [the veteran’s] death; I do not believe that the death of [the veteran] is related to his service connected disease.” Dr. Curkovic continued that he strongly believed that the veteran’s death was the result of coronary artery disease caused by multiple risk factors. B. Legal analysis. The appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his/her claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 80 (1990). The claim must be accompanied by supporting evidence; allegations are not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a claim to be well- grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Where an issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including the veteran’s, or appellant’s, solitary testimony, may constitute sufficient evidence to establish a well-grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well- grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, where the issue does not require medical expertise, lay testimony may be sufficient. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The regulations also state that service connection may 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 (1998). In addition, where a veteran served ninety (90) days or more, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there was no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). According to the applicable laws and regulations, service connection for the cause of a veteran’s death requires evidence that a service-connected disability was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(a) (1998). A service- connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (1998). A service-connected disability will be considered the contributory cause of death when such disability contributed substantially or combined to cause death--e.g., when a causal (not just a casual sharing) connection is shown. 38 C.F.R. § 3.312(c) (1998). Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), would not be held to have contributed to death primarily due to unrelated disability. Service- connected diseases or injuries 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 diseases or injury primarily causing death. 38 C.F.R. § 3.312(c)(2), (3) (1998). Although the appellant believes that the cardiac arrest and ischemic cardiomyopathy which led to the veteran's death are due to his service-connected rheumatic fever, the fact remains that there is no competent medical evidence of record to support that claim. In this regard, it is noted that the Court has indicated that a claimant would not meet his or her burden of presenting a plausible or possible claim merely by offering lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the appellant relates that a VA physician told her that the veteran’s service-connected rheumatic fever, caused or contributed to the veteran’s death, her statement, without supporting medical evidence from Dr. Patel or another medical expert is not enough to establish a nexus between the cause of the veteran’s death and his service connected disorder. In fact the only medical opinion of record is that of Dr. Curkovic that the death of the veteran was not related to the veteran’s service-connected disease; rather, he stated that he strongly believed that the veteran’s death was the result of coronary artery disease caused by multiple risk factors. In short, there is no competent medical evidence of record which tends to establish a link between the cause of the veteran’s death and his service-connected rheumatic fever. In the absence of competent medical evidence to establish a relationship between the cause of the veteran’s death and service, or between the veteran’s service-connected rheumatic fever and the cause of death, the claim is not well-grounded. See Caluza, 7 Vet. App. At 506. The appellant has requested that reasonable doubt be considered in the case; however, that is not for application when the claim is not well grounded. The Board notes that the RO denied the claim for service connection for the cause of the veteran’s death on the merits and finds no prejudice to the appellant in appellate denial of this claim as not well-grounded. Edenfield v. Brown, 8 Vet. App. 384 (1995). The appellant is advised that she may reopen the claim for service connection for the cause of the veteran’s death at any time by notifying the RO of such an intention and submitting supporting evidence. An example of supporting evidence is a medical report with an opinion linking the cause of the veteran’s death to an incident of service. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER The appeal is denied. E. M. KRENZER Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -