BVA9503615 DOCKET NO. 91-40 706 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from February 1942 to August 1946. The Board of Veterans' Appeals (Board) initially received this matter on appeal from an August 1990 RO rating decision. The Board remanded this case in January 1992 and October 1993. In part, the latter disposition was designed to inform the RO and the appellant of the ramifications and applicability of a decision of the United States Court of Veterans Appeals (Court). The appellant did not avail herself of the opportunity to enlarge the appellate issues, as outlined in the Board's disposition in October 1993. While she did not specifically designate a representative, the Board still will proceed to consider the matter with the representation as stated, given that it best serves the interest of the appellant. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran's daughter, contends that the veteran's death is related to his period of active duty. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 preponderance of the evidence is against the claim of service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran died in June 1990, with the immediate cause of death cited as acute myocardial infarction, due to or as a consequence of acute occlusion of the aorta, congestive heart failure and peripheral vascular disease. 2. At the time of death, service connection was in effect for tuberculosis of the right knee with ankylosis and the postoperative residuals of drainage of the knee and rheumatic heart disease. 3. The veteran's fatal arteriosclerotic cardiovascular disease was not demonstrated in service or until many years after his separation from active duty; nor is it shown to be causally or etiologically related to his service-connected disabilities. 4. The service-connected disabilities are not shown to have directly caused his death. 5. Debilitation due to service-connected disabilities is not shown to have rendered the veteran less capable of resisting the effects of his fatal cardiovascular disease or otherwise to have hastened his demise. CONCLUSIONS OF LAW 1. The veteran's arteriosclerotic cardiovascular disease was not incurred in or aggravated by service; nor may it be presumed to have been incurred in service; nor was it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (1993). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause death. 38 U.S.C.A. §§ 1310, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds the appellant's claim to be well grounded within the meaning of 38 U.S.C.A. § 5107 because it is plausible. See Murphy v. Derwinski, 1 Vet.App. 78 (1991). The Board is also satisfied that all relevant facts have been properly developed and there is no further assistance required in order to comply with § 5107. See Littke v. Derwinski, 1 Vet.App. 90 (1990). "When any veteran dies...from a service-connected or compensable disability, the Secretary shall pay...compensation to such veteran's surviving...children ...." 38 U.S.C.A. § 1310. In the instant case, the veteran was service connected for a right knee disability and rheumatic heart disease. There is no indication in the medical record, which includes the terminal hospital report of June 1990, that he had rheumatic heart disease at the time of death or that there were residuals of that disability which were implicated in his death. The death certificate shows that he died due to acute myocardial infarction due to or as a consequence of acute aorta occlusion, congestive heart failure and peripheral vascular disease. There is no medical opinion that his service-connected rheumatic heart disease or his right knee disability played any role in the onset of any of the diseases listed on the death certificate. Thus, service connection for the cause of death on the basis that he died due to a service connected disability is not warranted. While there is no medical opinion linking the cause of death to service and the veteran's service-connected disorder, the claim is well grounded because a VA doctor opined in March 1992 that rheumatic heart disease was not the "major contributor in [the veteran's] death." This statement implicitly raised the question concerning the degree to which the service-connected rheumatic heart disease was a contributory factor in the veteran's demise and prompted additional development. A VA doctor responded to this question in February 1994 that the veteran's rheumatic heart disease did not cause the veteran's death or result in impairment of health or render him less capable of resisting the effects of the disease that primarily caused his death; and that rheumatic heart disease did not play any role in the development of arteriosclerotic heart disease, did not cause any valvular damage and did not play a role in congestive heart failure. (The March 1992 statement had indicated that the veteran's death was due to atherosclerotic coronary artery disease and occlusion of the aorta.) The February 1994 statement is dispositive as to not only the issues of direct and presumptive service incurrence of the veteran's fatal heart disease but also as to the issue of the service-connected rheumatic heart disease being a contributory cause to his death. A review of the medical record shows that this opinion is in accord with the facts. Considering the February 1994 opinion, the Board finds that the preponderance of the evidence is against the appellant's claim. Thus, the Board concludes that service connection for the cause of the veteran's death is not warranted. ORDER Service connection for the cause of the veteran's death is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.