Citation Nr: 9921866 Decision Date: 08/04/99 Archive Date: 08/12/99 DOCKET NO. 95 - 22 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from February 1943 to March 1946, and from June 1946 to service retirement in June 1967. A decision of the Board of Veterans' Appeals (Board), dated in May 1997, denied service connection for the cause of the veteran's death. That decision was appealed to the United States Court of Appeals for Veterans Claims (Court) by the appellant, widow of the veteran. On November 23, 1998, the Court vacated the Board's decision and remanded the case to the Board for another decision, taking into consideration matters raised in its order. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. At the time of the veteran's death, service connection was in effect for chronic brain syndrome associated with brain trauma, evaluated as 100 percent disabling; prostatitis, evaluated as 60 percent disabling; skull defect, evaluated as 50 percent disabling; residuals of duodenal ulcer, evaluated as 20 percent disabling; paralysis of radicular groups, evaluated as 20 percent disabling; incomplete left sciatic nerve paralysis, evaluated as 20 percent disabling; right sciatic nerve paralysis, evaluated as 20 percent disabling; incomplete paralysis of the internal femoral crural nerve, evaluated as 10 percent disabling; bilateral varicose veins, evaluated as 10 percent disabling; and hemorrhoids, evaluated as noncompensably disabling. His combined service-connected disability rating was 100 percent from April 18, 1986, and he was entitled to special monthly compensation under 38 U.S.C.A. § 1114(s) (West 1991 & Supp. 1998) and 38 C.F.R. § 3.350(i) (1998). 3. The death certificate shows that the veteran's death occurred on June 16, 1994, at age 69; that the immediate cause of the veteran's death was a myocardial infarction; that the approximate interval between onset and death was one hour; that another condition which contributed to death but not resulting in the immediate cause of death was hypertension; that the manner of death was natural; and that no autopsy was performed. 4. Myocardial infarction or hypertension were not shown during active service, at the time of service separation, or during the initial postservice year; hypertension was first diagnosed in January 1987, more than 20 years after final service separation, coronary artery disease was initially manifest in June 1993, while the veteran's coronary artery disease with inferolateral infarction and ischemia became the primary focus of his treatment from June 1993 until the myocardial infarction which caused his death. 5. The medical evidence of record, including medical opinions and citations of medical authority from physicians who reviewed the veteran's entire medical record, is considered probative and persuasively links and relates the veteran's coronary artery disease, ischemia, and fatal heart attack with his service-connected disabilities. CONCLUSIONS OF LAW 1. Myocardial infarction, arteriosclerosis, or hypertension were not incurred in or aggravated by active service, and the service incurrence of arteriosclerosis or hypertension may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). 2. Disabilities incurred in or aggravated by active service caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. § 3.312 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that the RO erred in failing to grant entitlement to service connection for the cause of the veteran's death because it did not take into account or properly weigh the medical and other evidence of record. It is contended that service-connected disabilities caused, contributed to, or materially hastened the veteran's death. It is contended that medical opinions from private physicians who reviewed the veteran's entire medical record support the appellant's contentions. The Board finds that the appellant's claim is plausible and is thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). We further find that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of VA to assist the appellant in the development of her claim has been satisfied. 38 U.S.C.A. § 5107(a)(West 1991 & Supp. 1998). In that connection, we note that the RO has obtained and reviewed the veteran's complete service medical records; the complete records of postservice treatment of the veteran including VA examinations, evaluations, hospital summaries, and outpatient clinic records; letters from private physicians submitted by the appellant; the medical records and nurse's notes of the veteran's final illness and death; and the testimony of the appellant at her personal hearing on appeal. On appellate review, the Board sees no areas in which further development might be of assistance to the claimant. In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303 (1998). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arteriosclerosis and hypertension, when manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991 & Supp. 1998), 38 C.F.R. §§ 3.307, 3.309(a) (1998). The veteran's service medical records reflect no complaint, treatment, or findings of a cardiac disability, arteriosclerosis or hypertension during his periods of active service or on service retirement examination. His post service medical records show that hypertension was first diagnosed in January 1987, more than 20 years after final service separation, while coronary artery disease with an inferolateral infarct and underlying ischemia was initially manifest in June 1993. A VA hospital summary, dated in December 1992, disclosed that the veteran was evaluated for the possibility of self- catheterization but was found to be unsuitable for this kind of training. Another VA hospital summary, dated in June 1993, included diagnoses of coronary artery disease with an inferolateral infarct and underlying ischemia; organic delusional disorder; peripheral neuropathy; chronic arachnoiditis; and hypertension. The veteran was found to require nursing home placement due to service-connected disabilities. At the time of the veteran's death, service connection was in effect for chronic brain syndrome associated with brain trauma, evaluated as 100 percent disabling; prostatitis, evaluated as 60 percent disabling; skull defect, evaluated as 50 percent disabling; residuals of duodenal ulcer, evaluated as 20 percent disabling; paralysis of radicular groups, evaluated as 20 percent disabling; incomplete left sciatic nerve paralysis, evaluated as 20 percent disabling; right sciatic nerve paralysis, evaluated as 20 percent disabling; incomplete paralysis of the internal femoral crural nerve, evaluated as 10 percent disabling; bilateral varicose veins, evaluated as 10 percent disabling; and hemorrhoids, evaluated as noncompensably disabling. His combined service-connected disability rating was 100 percent from April 18, 1986, and he was entitled to special monthly compensation under 38 U.S.C.A. § 1114(s) (West 1991 & Supp. 1998) and 38 C.F.R. § 3.350(i) (1998). The veteran had been rated incompetent by VA since April 1988. The death certificate shows that the veteran's death occurred on June 16, 1994, at age 69; that the immediate cause of the veteran's death was a myocardial infarction; that the approximate interval between onset and death was one hour; that another condition which contributed to death but not resulting in the immediate cause of death was hypertension; that the manner of death was natural; and that no autopsy was performed. In June 1994, the appellant, widow of the veteran, claimed entitlement to service connection for the cause of the veteran's death. In support of her claim, she submitted a letter from James F. Johnson, MD, dated in June 1995, which stated, in pertinent part, that he had reviewed the veteran's medical records. In response to an inquiry from the appellant as to whether the veteran's heart attack was the direct result of his military duty, Dr. Johnson responded that he found no history of previous heart problems, hypertension, or anything that could have been directly service connected to his heart attack. In response to an inquiry as to whether there were other factors may have hastened the veteran's demise, Dr. Johnson stated that the answer was probably "yes," based on the fact that the veteran had a cerebral aneurysm surgery, right, in the early 1950's and that later other aneurysms were found for which he did not undergo surgery. Dr. Jacobson cited his review of extensive and well-documented treatment records from Severt Jacobson, MD, who noted the veteran's complaints of some back and leg pain and who expressed the opinion that a lot of the veteran's problems were directly related to his cerebral aneurysm problem and arachnoiditis problem that undoubtedly occurred with his CNS [central nervous system] surgery. Further, Dr. Johnson expressed the belief that the veteran's aneurysms affected the quality of the his life and undoubtedly placed undue stress on him; and that the aneurysms caused extrapyramidal manifestations, including personality changes and tremors. At a personal hearing held at the RO in October 1995, testimony was offered addressing the veteran's periods of active service, his medical retirement from service, the history of his multiple aneurysms and surgeries, the initial grant of service connection for his disabilities, and the assignment of a schedular 100 percent evaluation for his chronic brain syndrome associated with brain trauma, effective in April 1986. The appellant testified that at the time of the veteran's death, he was a patient at Rosewood on Broadway, a private nursing home, under VA contract. She stated that Dr. Huhn, who signed the veteran's death certificate, was the veteran's primary physician while he was at the Rosewood on Broadway facility from March 1993 until his death in June 1994. The letter from Dr. Johnson was introduced into the record. The appellant further testified that the treating physician at the time of the veteran's death and who signed the death certificate was Dr. Paul Huhn; that the veteran received his medical treatment at the VAMC, Fargo, North Dakota; that Dr. Huhn saw the veteran for a period of a little more than a year while he was at Rosewood on Broadway [a VA contract nursing home]; that she was not given the option of requesting an autopsy, and that when she attempted to speak with Dr. Huhn to see if he would change or amend the veteran's death certificate, he refused to discuss it with her. She further testified that Dr. Johnson treated the veteran when he was hit by a car and when he had bilateral hip surgery; that he had extensively reviewed the veteran's service medical records and postservice medical records; and that a booklet had been prepared containing pertinent portions of the veteran's service medical records and postservice medical records. The appellant offered into evidence Dr. Johnson's letter and a notebook containing copies of pertinent portions of the veteran's service medical records, postservice medical records, records and nursing notes from the veteran's final illness, and other documents. That evidence and a transcript of the testimony are of record and have been reviewed. The records and nursing notes from the veteran's final illness show that from June 2 through June 7, 1994, he spent his time watching news and sports on television, speaking by telephone with his spouse, and visiting with the staff. It was indicated that he was usually invited on all outings, such as dining out, and that his wife usually accompanied him. The records show that Dr. Huhn made rounds, observed the veteran, and issued new orders, including increased Lasix. The veteran was well oriented and able to verbalize his needs, was able to ambulate about 60 feet with limited assistance and to use a wheelchair, a walker was within reach, and he had a good appetite. Records dated June 15, 1994, show that the veteran was assisted in getting into his bad, and it was noted that his skin was clammy and his breathing irregular. He complained of chest pain and was given sublingual nitrogen. His death occurred a few minutes subsequently. The veteran's spouse and pastor arrived at the medical facility shortly thereafter, and support was provided. Following the Court's remand of this appeal to the Board, additional evidence and argument was submitted by the appellant. A letter from Craig Bash, MD, dated in May 1999, stated that he had reviewed the veteran's medical record at the request of the appellant; that he agreed with the conclusions contained in the June 1995 letter from James F. Johnson, MD; and that it was likely that the veteran's death was secondary to complications of his service-connected subarachnoid hemorrhage. Citing specific medical evidence contained in the veteran's records, he called attention to the fact that the veteran was delusional due to deep encephalomalacic changes and had been determined to be incompetent; that he was unable to care for his physical needs secondary to decreased intellectual, motor and sensory functions due to his brain syndrome; and that he had been placed in a nursing home since March 1993. He expressed the opinion that the veteran's medical records established that he was severely intellectually compromised by his decreased intellectual functioning secondary to brain trauma, and that he was unable to exercise due to his physical disabilities, which were the result of his intracranial injuries. Dr. Bash concluded, on that basis, that the veteran needed extensive to total assistance in carrying out the activities of daily living; that he had true mobility only with the use of his wheelchair; and that the veteran was at much increased risk for coronary artery disease, which was an acknowledged medical problem prior to the veteran's death. He attributed the veteran's development of coronary artery disease with his ill-conditioned state, noting that an association between a less active life-style and increased risk of coronary artery disease was well-established in the medical literature. He stated that it was his opinion that the veteran's decreased ability to ambulate or exercise secondary to his service- connected subarachnoid hemorrhage increased his risk of developing coronary artery disease that ultimately caused his death. In support of that opinion, he cited studies showing a two-fold increase in ischemic heart disease present in a sedentary group of patients as compared to the normal ambulatory population. He concluded, on that basis, that the veteran's decreased ability to ambulate or exercise, all of which was secondary to his service-connected subarachnoid hemorrhage, were significant contributing factors leading to the veteran's death. Analysis The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312(a) (1998). The service-connected disability will be considered as 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 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312(b) (1998). 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 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312 (c)(1) (1998). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312 (c)(2) (1998). 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. 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. 38 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312 (c)(3) (1998). 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 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312 (c)(4) (1998). As previously noted, at the time of the veteran's death, service connection was in effect for chronic brain syndrome associated with brain trauma, evaluated as 100 percent disabling; prostatitis, evaluated as 60 percent disabling; skull defect, evaluated as 50 percent disabling; residuals of duodenal ulcer, evaluated as 20 percent disabling; paralysis of radicular groups, evaluated as 20 percent disabling; incomplete left sciatic nerve paralysis, evaluated as 20 percent disabling; right sciatic nerve paralysis, evaluated as 20 percent disabling; incomplete paralysis of the internal femoral crural nerve, evaluated as 10 percent disabling; bilateral varicose veins, evaluated as 10 percent disabling; and hemorrhoids, evaluated as noncompensably disabling. His combined service-connected disability rating was 100 percent from April 18, 1986, and he was entitled to special monthly compensation under 38 U.S.C.A. § 1114(s) (West 1991 & Supp. 1998) and 38 C.F.R. § 3.350(i) (1998). The appellant has placed considerable reliance upon the letter from Dr. James F. Johnson, MD, dated in June 1995. In response to an inquiry as to whether there were factors [other than his myocardial infarction] that may have hastened the veteran's demise, Dr. Johnson stated that the answer was probably "yes," based on the fact that the veteran had a cerebral aneurysm surgery, right, in the early 1950's and that later other aneurysms were found for which he did not undergo surgery. Dr. Johnson cited his review of extensive and well-documented treatment records from Severt Jacobson, MD, who noted the veteran's complaints of some back and leg pain and who expressed the opinion that a lot of the veteran's problems were directly related to his cerebral aneurysm problem and arachnoiditis problem that undoubtedly occurred with his CNS [central nervous system] surgery. Further, Dr. Johnson expressed the belief that the veteran's aneurysms affected the quality of the his life and undoubtedly placed undue stress on him; and that the aneurysms caused extrapyramidal manifestations, including personality changes and tremors. In his May 1999 letter, Dr. Bash found that the medical evidence showed that the veteran needed extensive to total assistance in carrying out the activities of daily living; that he had true mobility only with the use of his wheelchair; and that the veteran was at much increased risk for coronary artery disease, which was an acknowledged medical problem prior to the veteran's death. He attributed the veteran's development of coronary artery disease with his ill-conditioned state, noting that an association between a less active life-style and increased risk of coronary artery disease was well-established in the medical literature. He stated that it was his opinion that the veteran's decreased ability to ambulate or exercise secondary to his service- connected subarachnoid hemorrhage increased his risk of developing the coronary artery disease that ultimately caused his death. In support of that opinion, he cited clinical studies showing a two-fold increase in ischemic heart disease present in a sedentary group of patients as compared to the normal ambulatory population. He concluded, on that basis, that the veteran's decreased ability to ambulate or exercise, all of which was secondary to his service-connected subarachnoid hemorrhage, were significant contributing factors leading to the veteran's death. The record shows that the veteran's organic brain syndrome was secondary to intracranial surgery for an aneurysm, and was manifested by a organic delusional or mood disorder which rendered him incompetent and which, in conjunction with his service-connected physical disabilities, rendered him incapable of carrying out the activities of daily life. To that point, the Board notes that the veteran's organic brain syndrome associated with brain trauma had been evaluated as 100 percent disabling since April 1986, and that he had been declared incompetent from April 1998. In this particular case, the evidence shows that the veteran's service-connected organic brain syndrome stemming from intracranial surgery for an aneurysm affected a vital organ and was of itself of a progressive or debilitating nature. For that reason, it would be reasonable to hold that his service-connected organic brain syndrome secondary to intracranial surgery for an aneurysm accelerated the veteran's death. 38 U.S.C.A. § 1310 (West 1991 & Supp. 1998); 38 C.F.R. § 3.312 (c)(4) (1998). The Board further notes that the veteran's paralysis of radicular groups, evaluated as 20 percent disabling; incomplete left sciatic nerve paralysis, evaluated as 20 percent disabling; right sciatic nerve paralysis, evaluated as 20 percent disabling; and incomplete paralysis of the internal femoral crural nerve, evaluated as 10 percent disabling, were each granted service-connection as secondary to brain trauma resulting from intracranial surgery for an inservice aneurysm. The medical record shows that those service-connected physical disabilities materially affected the veteran's vital body functions, reducing his ability to exercise, to remain mobile or ambulate, and to engage in physical therapy, thereby causing debilitating effects and general impairment of health to an extent that would render him materially less capable of resisting the effects of other disease or injury primarily causing death, in this case his fatal myocardial infarction. Based upon the foregoing, the Board finds that the letters from Drs. Hunter and Bash are both credible and persuasive. The Board further finds that the evidence in this case supports a conclusion that the veteran's service-connected organic brain syndrome associated with brain trauma, evaluated as 100 percent disabling since April 1986, affected a vital organ and was of itself of a progressive or debilitating nature. For that reason, it would be reasonable to hold that his service-connected organic brain syndrome secondary to intracranial surgery for an aneurysm accelerated the veteran's death. The Board further notes that the veteran's service-connected paralysis of radicular groups, evaluated as 20 percent disabling; incomplete left sciatic nerve paralysis, evaluated as 20 percent disabling; right sciatic nerve paralysis, evaluated as 20 percent disabling; and incomplete paralysis of the internal femoral crural nerve, evaluated as 10 percent disabling, all secondary to brain trauma resulting from intracranial surgery for an inservice aneurysm, materially affected the veteran's vital body functions, reducing his ability to exercise, to remain mobile or ambulate, and to engage in physical therapy, thereby causing debilitating effects and general impairment of health, including the development of coronary artery disease, to an extent that would render him materially less capable of resisting the effects of other disease or injury primarily causing death. On the basis of the medical evidence and medical authority cited, and for the reasons stated, the Board finds that the veteran's service-connected disabilities, in the manner stated, caused or contributed substantially or materially to cause the veteran's death. Accordingly, the appeal for service connection for the cause of the veteran's death is granted. In reaching its decisions, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence favors the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the veteran's death is granted. F. JUDGE FLOWERS Member, Board of Veterans' Appeals