BVA9501003 DOCKET NO. 93-07 632 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs in Manila, Philippines THE ISSUE Entitlement to service connection for cause of the veteran's death. ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from September 1941 to August 1942 and from June 1945 to June 1946. He was a prisoner of war of the Japanese Government from April to August 1942. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she is entitled to service connection for the cause of the veteran's death. She essentially asserts that the underlying cardiovascular disease process in combination with diabetes mellitus that caused his death began in service or clearly within the one-year presumptive period following separation from duty as indicated from information submitted by Dr. Vicente N. Sta. Maria, M.D. DECISION OF THE BOARD The Board of Veterans' Appeals (Board) in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991) has reviewed and considered all of the evidence 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 preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the Department of Veterans Affairs (VA) Regional Office (hereinafter RO). 2. The veteran died on June [redacted] 1991 at St. Luke's Medical Center at the age of 76. 3. According to the death certificate, his death was immediately caused by cardiopulmonary arrest with an antecedent cause of multisystem organ failure with underlying causes of diabetes mellitus, sepsis, and pneumonia. "Chronic debilitated state" was declared to have been significant condition contributing to death. 4. Numerous hospital and treatment records on file from St. Luke's Hospital dating from approximately late 1983 until the date of death, including those records surrounding terminal hospitalization, primarily reflect the presence of essential hypertension, arteriosclerotic heart disease, and cardiomegaly with mitral regurgitation and atrial fibrillation; diabetes mellitus; and pulmonary congestion with pneumonic infiltrates. 5. At the time of the veteran's death, service connection had not been established for any disorder. 6. The disorders implicated in the veteran's death had their onset long after service and were unrelated to service or any incident thereof. CONCLUSION OF LAW A disability incurred in or aggravated by service neither caused nor contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist Significantly, we have found that the appellant's claim is "well grounded" within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78. The VA, therefore, has a duty to assist the appellant in the development of facts pertinent to her claim. In this regard, we note that although the veteran's service medical records are unavailable, his processing affidavit along with numerous affidavits from fellow servicemen and military physicians, reports of VA examinations with former prisoner-of-war protocol evaluations dated in July 1983 and September 1987, a report of VA examination dated in May 1989 and numerous hospital and treatment records from St. Luke's Hospital dating between approximately late 1983 until the veteran's death on June [redacted] 1991, together with a statement dated in July 1992 from Vicente N. Sta. Maria, M.D., and certificate of death have been included in the veteran's claims folder. In view of the fact that there is no indication that there are additional available pertinent records which the VA has not attempted to obtain, no further assistance to the appellant is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a) (West 1991). II. Pertinent Laws and Regulations Service connection may be granted for disease resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations provide 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(d) (1993). Pertinent chronic diseases subject to presumptive service connection under 38 U.S.C.A. §§ 1101, 1112, 1113 1137(West 1991): 38 C.F.R. §§ 3.307, 3.309 (1993), consist of arteriosclerosis, organic heart disease, essential hypertension, and diabetes mellitus. In order to establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1993). When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). III. Service Connection for the Cause of the Veteran's Death In this case, the appellant contends that she is entitled to service connection for the cause of the veteran's death. She asserts that the cardiovascular disease process with diabetes mellitus that caused the veteran's death began in service or within the one-year presumptive period following separation from active duty, as the veteran was treated for cardiac symptoms shortly following separation from active duty in 1946 by Vicente Sta. Maria, M.D. As noted in the certificate of death, the veteran died on June [redacted] 1991, at St. Luke's Medical Center. The death certificate shows the immediate cause of death as cardiopulmonary arrest with antecedent cause of multisystem organ failure with underlying cause reported as diabetes mellitus; sepsis; and pneumonia. Other significant condition contributing to death was reported as chronic debilitated state. Apparently, no autopsy was performed. At the time of death, service connection had not been established for any disorder. Extensive hospital and treatment records on file from St. Luke's Medical Center dating from approximately late 1983 through June [redacted] 1991, including the terminal hospital records primarily refer to the presence of arteriosclerotic heart disease with atrial fibrillation, essential hypertension, and diabetes mellitus. At the time of terminal hospitalization between May 9, 1991, to June [redacted] 1991, diagnoses were arteriosclerotic heart disease, myocardial infarction and diabetes mellitus. The veteran's service medical records are unavailable. His processing affidavit dated in December 1945 indicated that he had been treated by a physician for avitaminosis from August to December 1942 after release from prisoner-of-war internment. The bulk of the numerous affidavits on file from fellow servicemen and military physicians including the veteran himself dating from November 1945 to November are silent for any pertinent mention of disorders contributing to the cause of the veteran's death as noted in the paragraphs above. In 1979, a military physician reported treating the veteran for complaints including palpitations, unrelated to any identified disorder and malnutrition but without supporting clinical data. The veteran' original application for VA service-connected compensation benefits filed in the mid-1970's was silent for specific mention of pertinent organ related pathology including cardiovascular system disease, pulmonary system disease nor diabetes mellitus. A VA former prisoner-of-war protocol examination report dated in July 1983 reflected that the veteran reported taking vitamin B complex and Diabinese. He mentioned consulting with a Dr. Calleja regularly since 1965 although no specific treatment was indicated. Diagnoses included no residuals of avitaminosis. Malnutrition was not found. Specifically, no medical evidence of current existence of any nutritional deficiency resulting from forced labor or inhumane treatment while a prisoner of war was noted. Although arteriosclerotic hypertension, cardiovascular disease, with cardiomegaly, marked was found there was no indication of a beriberi heart disease process noted at that time. No other pertinent findings were noted including confirmation or diagnosis of diabetes mellitus. On a report of a VA former prisoner-of-war protocol examination in September 1987, pertinent diagnoses consisted of arteriosclerotic hypertensive cardiovascular disease with cardiomegaly and old anterior wall myocardial infarction with atrial fibrillation uncompromised and guarded despite therapy. Also noted was uncontrolled diabetes mellitus. No residuals of beriberi, avitaminosis, or thyrotoxicosis was also noted. In a statement dated in March 1989, Antonio M. Palacios Jr., M.D., a specialist in eyes, ears, nose, and throat certified that he had been treating the veteran for duodenal ulcer with history of bleeding, avitaminosis, hypertension with ischemic heart disease, and diabetes mellitus. A report of a VA examination dated in May 1989 showed no avitaminosis. The record also contains a statement dated in November 1990 from the veteran who at that time reported that he was also a physician. He indicated that he had avitaminosis. There was no mention of any other pertinent disorders. No supporting clinical or laboratory findings were presented. In addition to the already cited private medical records on file from St. Luke's Hospital dating from between approximately late 1983 and the date of the veteran's death on June [redacted] 1991, a statement dated in July 1992 was received into the record from Vicente N. Sta. Maria, M.D., in which he certified that the veteran had been a patient since 1946 for diabetes mellitus. He was given the necessary medication and was treated routinely during such time. It was noted that his condition became worse due to cardiac complication which caused his death. He noted that the records of treatment, including the laboratory examinations, could not be furnished because they were all burned when his house was gutted by fire in May 1983. The disease processes which led to the veteran's death began long after service. The veteran, reportedly a physician, when he filed for VA benefits in the mid-1970's, failed to mention cardiovascular, pulmonary, or diabetic ailments. The weight of the evidence is against the presence of beriberi or beriberi heart disease attributable to service. Significantly, the veteran's chronic debilitated state at death was not due to malnutrition or avitaminosis or other nutritional deficiency associated with his prisoner-of-war status. Rather, his debilitated state was more probably the consequence of intervening post-service disease. This finding is based on the absence of clinical findings of avitaminosis throughout the record, but especially in the records from St. Luke's Medical Center during the last few years of his life. It is the Board's assessment that this lack of supportive documentation, along with the other reports specifically not finding avitaminosis, outweigh the isolated and declaratory references to this condition. The Board has considered the earlier dated affidavits of record from fellow servicemen and military physicians regarding any pertinent symptoms or disorders in service but finds such affidavits are either vague in nature or otherwise objectively unsupported when viewed in light of the total record. The Board attaches very little weight to the recent statement from Dr. Vicente N. Sta. Maria, regarding the onset of diabetes in 1946. For one reason, no clinical records for such treatment were submitted, even for the period after the "fire." More significant, however, is the absence of reports of diabetes mellitus until many years after 1946. When he initially filed for VA benefits in the mid-1970's, the veteran failed to mention diabetes mellitus which seems incongruous if the disorder, as Dr. Sta. Maria asserts, had actually been present for approximately 28 years. In addition, the mere absence of references relevant to diabetes anywhere in the record until roughly the July 1983 VA examination serves to discredit the evidentiary worth of that physician's sweeping declaration. On the 1983 VA examination the veteran did report taking Diabinese, and he did refer to consultation with "Dr. H. Calleja" regularly since 1965. He never mentioned treatment by Dr. Vincent N. Sta. Maria. ORDER A disability related to service did not cause or contribute to the veteran's death. JOHN E. ORMOND 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.