BVA9508108 DOCKET NO. 92-07 680 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from January to May 1943, and he died in May 1989. The appellant is his widow. This appeal arises from an October 1990 rating decision in which the RO denied service connection for the cause of the veteran's death. The Board remanded the case in November 1992 for additional development of the evidence. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet App. 119 (1993), informed the appellant's representative in a letter dated in February 1995 of the additional evidence developed, and provided an opportunity to respond. The representative responded in March l995. The appellant, through her representative, has raised the issue of restoration of service connection for a psychoneurosis on the grounds of clear and unmistakable error in the rating action of May 1947 which severed service connection for that disorder. As that issue has not been properly developed on appeal and is not inextricably intertwined with the issue before us, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that the cardiovascular disease with associated dementia which caused the veteran's death had its onset in service. She also asserts that the veteran contracted spinal meningitis and a bacterial infection of the brain during active service which contributed to his death. 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 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 claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. At the time of the veteran's death, service connection was not in effect for any disability. 3. Ventricular dysrhythmia, arteriosclerotic heart disease, multiple infarct dementia, aortic aneurysm and hypertension were not present until many years postservice and are not attributable to service. 4. A disability of service origin played no part in the veteran's death. CONCLUSIONS OF LAW 1. Cardiovascular disease, including hypertension, brain thrombosis and organic disease of the nervous system were not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. A disability of service origin did not cause or substantially or materially contribute to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). The veteran's representative has asserted, in his August 1994 statement, that the appellant should be afforded an opportunity to review and comment on the independent medical expert opinion obtained by the Board in August 1994. Pursuant to 38 C.F.R. § 20.903, when an medical expert opinion is received by the Board, a copy of the opinion will be furnished to the appellant's representative, or, subject to certain limitation, to the appellant if there is no representative. By letter dated in August 1994, the appellant's representative was furnished a copy of that opinion. The veteran's representative has asserted that the appellant must be afforded an opportunity to review and comment on the independent medical expert opinion obtained by the Board. In an advisory opinion, the General Counsel of the U.S. Department of Veterans Affairs (VA) addressed the issue of whether the Board must provide actual notice to both the claimant and his representative of evidence developed or obtained subsequent to the issuance of the most recent supplemental statement of the case. VA O.G.C. 42-93 (November 2, 1993). The general rule of law is that notice to, or knowledge of, an attorney is notice to, or knowledge of, the client. Link v. Wabash Railroad Company, 370 U.S. 626, 633-634 (1962) ("each party [to litigation] is deemed bound by the acts of his lawyer- agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'"). It was also noted that the U.S. Supreme Court has held that, "[i]f Congress intends to depart from the common and established practice of providing notification through counsel[,] it must do so expressly." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92 (1990) (citing Decker v. Anheuser-Busch, 632 F.2d 1221, 1224 (5th Cir. 1980)). Congress has not specifically expressed its intention to depart from this general rule of law under the authority of 38 U.S.C.A. §§ 5107 and 7109. Thus, the undersigned concludes that the due process requirements of 38 C.F.R. § 20.903 have been met and no further action with regard to the independent medical expert opinion is required. Service connection will be granted for the cause of the veteran's death if a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause the veteran's 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. Service connection may be established for disability 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. Where the veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and cardiovascular disease, to include hypertension, organic disease of the nervous system or brain thrombosis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is 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, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic". Continuity of symptomatology is required only when the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Regulations also 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). At the time of the veteran's death in May 1989, service connection was not in effect for any disability. The death certificate shows the cause of death was ventricular dysrhythmia; other significant conditions contributing to death were arteriosclerotic heart disease, multiple infarct dementia and aortic aneurysm. An autopsy was not performed. The service medical records include the entrance examination conducted in December 1942. The veteran reported a history of high blood pressure. On examination, the veteran's blood pressure was 150/90. The cardiovascular system and a chest x-ray were reported as normal. In January 1943, the veteran complained of diarrhea that had its onset one day after induction. He also complained of back pain secondary to an injury in 1936. The veteran was hospitalized in January 1943 and remained hospitalized until discharge in May 1943. On examination in January 1943, the veteran's blood pressure was reported as 135/92-90. The examiner indicated that the heart was not enlarged and was regular with no shocks, thrills or murmurs. A February 1943 notation indicates that the hospital ward was quarantined in January and that the veteran had complaints of severe backaches and weakness. Testing was negative for meningococci and spine x-rays were reported as normal. A March 1943 report of Proceeding of Disposition Board noted that the veteran was admitted to the hospital in January 1943 suffering from acute diarrhea from which he recovered spontaneously. It stated that five days later, he developed an acute upper respiratory infection from which he recovered. It was noted that due to the fact that the ward was quarantined because of a case of cerebrospinal meningitis, the veteran was not discharged. During hospitalization, he complained frequently of back pain and further examination revealed evidence of a herniated intervertebral disc, at L5-S-1. On examination the veteran's blood pressure was reported as 135/90. On examination in April 1943, the veteran complained of back pain, nervousness and shedding of the skin on the legs and feet He also reported having diarrhea beginning at the time of induction. Examination showed a blood pressure reading of 152/108. The examiner indicated that the heart was normal in force and rhythm with no murmur or apparent hypertrophy. The heart rate was reported as 88. It was noted that the vascular system had possible arteriosclerotic changes. The working diagnoses or impressions included arterial hypertension. A subsequent April 1943 progress note indicated that the veteran's blood pressure was 132/86. The final diagnoses from a period of hospitalization ending in May 1943 were psychoneurosis, conversion hysteria, severe, protruded intervertebral disc, fifth lumbar vertebra and spondylolisthesis, first degree. A May 1943 Certificate of Disability for Discharge indicates that the veteran was recommended for discharge due to psychoneurosis, conversion hysteria; spondylolisthesis of the 5th lumbar vertebra on the sacrum; and a herniated 5th lumbar intervertebral disc. There is also an indication that a chest x- ray taken in service revealed a broad aortic shadow. Postservice medical records include a VA examination conducted during hospitalization from May to June 1943. The veteran reported pain in the back with weakness and loss of feeling and use of both legs. On examination of the cardiovascular system, the examiner indicated that the apex beat was palpable in the 5th interspace within the mid-clavicular line. There were no rubs, thrills or murmurs and tones were of good quality and intensity. There was regular sinus rhythm. The veteran's blood pressure was reported as 140/90, the pulse was 80 and regular and there was no sclerosis of the palpable arteries. There was no diagnosis of cardiovascular disease. A special neuropsychiatric examination in June 1943 included a neurological evaluation. There was no diagnosis of any organic neurological disorder of the brain. At a January 1947 VA examination, the veteran complained of back and leg trouble and nervousness. Blood pressure was 125/80. The cardiovascular system was normal on clinical examination and chest x-ray. There was no diagnosis of cardiovascular disease or an organic brain disorder. Psychoneurosis was among the diagnoses. In May 1947, the veteran submitted a statement from Dr. H.P. Hopper, also dated in May 1947, in support of his claim for reinstatement of service connection for psychoneurosis and a back disability which had been severed by rating action of May 1947. Dr. Hopper stated that, in his opinion, the veteran was well prior to entry into active service and that the veteran contracted diarrhea and severe nerve trouble during service. Dr. Hopper's statement does not include any findings or diagnoses pertaining to hypertension or cardiovascular disease. In October 1953, the veteran was hospitalized for excision of a lipoma of the neck and keratosis of the lip. A chest x-ray revealed a normal heart. H. F. Campbell, M.D. submitted a statement dated in January 1964 which indicated that he examined the veteran in September 1963. He indicated that the positive findings included essential hypertension and obesity. On VA examination of March 1964, the veteran complained of generalized weakness and shortness of breath following moderate activities. He indicated that he did not restrict his activities but did things slowly. He reported that he was not taking any medications for any cardiovascular syndrome. He undressed and dressed slowly without fatigue, dizziness, dyspnea or cyanosis. The examiner noted that there was no swelling of the ankles and feet and no clubbing of the fingers. The walls of the peripheral blood vessels were soft, easily compressible of good pulse volume and regularity of pulsations. There were no murmurs, ectopias or arrhythmias. The point of maximal impulse was in the fifth left interspace at the midclavicular line. The examiner stated that the heart sounds were of good intensity. There was no apparent increase in the cardiac area of dullness on percussion to the left, right or downward. Blood pressure readings were 142/102, recumbent; 144/102, standing; 158/114, standing after exercise; and, 148/108, two minutes after exercise. A chest x-ray report noted moderate uncoiling of the thoracic aorta and fibrocalcific residuals of previous pulmonary disease with evidence of present activity and was otherwise within normal limits. The diagnoses included arterial hypertension. A December 1964 statement submitted by H.F. Campbell, M.D. stated that he examined the veteran that day for complaints related to an automobile accident and noted findings which included essential hypertension. On VA examination of January 1965, the veteran complained of fullness of the head, easy fatigability and frequent dizzy spells. He reported he was taking antihypertensive drugs daily. He undressed and dressed with dispatch and did not become fatigued, dizzy, dyspneic or cyanotic. The examiner noted that there was no swelling of the ankles and feet and no clubbing of the fingers. The walls of the peripheral blood vessels were soft, easily compressible and of good pulse volume and regularity of pulsations. There were no murmurs, ectopias or arrhythmias. The point of maximal impulse was in the fifth left interspace at the midclavicular line, and the examiner noted that the veteran's chest was quite obese. The examiner stated that the heart sounds were of good intensity. There was no apparent increase in the cardiac area of dullness on percussion to the left, right or downward, yet the chest wall was quite obese. Blood pressure readings were 146/94, recumbent; 150/96, standing; 166/104, standing after exercise; and, 154/96, two minutes after exercise. A chest x-ray report indicated that the heart and lungs appeared normal. The final diagnoses included arterial hypertension. A VA discharge summary dated in August 1986 indicates that the veteran was admitted for treatment of lower abdominal pain. His blood pressure was measured as 120/80. The final diagnosis was diverticulosis of the colon with diverticulitis. VA outpatient records developed between September 1986 to November 1987, include notations that in September 1986 the veteran's blood pressure was 158/88 and in March 1987 the veteran's blood pressure was reported as 122/72. A May 1987 VA hospital transfer summary shows that the veteran was admitted in April 1987 for complaints of sudden change in his mental status and the inability to walk or talk coherently. It was noted that the veteran had a history of arteriosclerotic heart disease and two myocardial infarctions and no history of hypertension. On examination, the veteran's blood pressure was 140/98. The cardiovascular system showed regular sinus rhythm with no carotid bruits. The diagnoses included brain stem infarction, probably lacunar, manifested by moderate aphasia and dysarthria and right sided body weakness. A VA hospital summary dated from July to August 1987, shows that the veteran was admitted for treatment of a urinary tract infection. It was noted that he was status post cerebrovascular accident approximately four months prior to that admission. On examination, his blood pressure was 110/76. The heart was reported as regular without an S-3 rub or gallop. The diagnoses were urinary tract infection with fever, outlet obstruction of the bladder and status post cerebrovascular accident. An October 1987 chest x-ray report noted that the veteran's heart was enlarged and that the vascularity was slightly increased, which the radiologist stated represented a significant charge compared to a July 1987 x-ray. The radiologic impression was cardiomegaly with early congestive heart failure. The VA terminal hospital summary dated from January to May 1989, shows that the veteran was admitted because of irregular heart action. It was noted that he had a history of multiple infarct dementia, arteriosclerotic heart disease, chronic renal failure and an asymptomatic aortic aneurysm. The veteran's condition was stabilized, and it was noted that all his nutrition and fluids were administered by nasogastric tube. During hospitalization, the veteran had several bouts of regurgitation emesis probably resulting in small bouts of aspiration pneumonia. The summary indicates that on May 15th, a nurse noted that the veteran was without pulse or respiration. The final diagnoses were acute ventricular arrhythmia, arteriosclerotic heart disease; multiple infarct dementia; chronic renal insufficiency; aortic aneurysm; and anemia. The appellant submitted a statement in July 1989 in which she asserted, in effect, the veteran's 1987 cerebrovascular accident was caused by damage to the brain caused by a high fever in service. She further asserted that the veteran suffered heart attacks in service as evidenced by a January 1943 chest x-ray which noted possible aortic shadow and by treatment records dated in January and February 1943 showing that the veteran complained of weakness and pain in the arms and legs. In January 1992, the appellant asserted that the veteran suffered a bacterial infection of the brain while in service which caused deterioration of the brain and ultimately caused his death. In July 1994, the Board requested an independent medical expert render a opinion in response to the following: 1. Was hypertension present at the time of entry into active service, and if not, was it initially manifested during service?; and, 2. If hypertension was present at entry into active service, did subsequent blood pressure readings reflect an increase in severity during service? In August 1994, David M. Leaman, M.D., Professor of Medicine, Chief, Division of Cardiology, College of Medicine of the Pennsylvania State University, rendered an opinion as follows: At your request I have reviewed the medical records of BP. The patient was born 4 July 1910 and died 15 May 1989. Prior to entering miliary service he manifested systemic hypertension in that he had a blood pressure of 150/90. This was the only blood pressure I could find which predated his entry into service on January 1943. On April, while in service he had a blood pressure recorded at 152/108. A chest x-ray done while in service was interpreted as showing a broad aortic shadow and it was suggested that he may be exhibiting arteriosclerotic changes. Subsequent chest x-ray done by the VA did not show any evidence of a broad aortic shadow. At discharge from service on May 1943 his blood pressure was 152/80. At that time his cardiovascular exam was otherwise normal. On June 1943 a physical exam showed a blood pressure of 140/90 and no evidence of arteriosclerosis was found. Over the ensuring years a number of blood pressures were recorded. I find no evidence that he was taking any antihypertensive therapy when these pressures were taken. These pressures were: 12-31-42=150/90 5-26-43= 140/90 3-9-64=142-158/102-114 3-2-87=122/72 4-11-87=124/80&120/80 5-4-87=140/90 7-6-87=150/90 7-27-87=124/76 8-13-87=110/76 9-9-87=148/76 10/19/87=148/92 4-4-88=140/84 It is clear that the patient had labile systemic hypertension. His pressures would vary considerably from time to time. The elevated reading of 152/108 was undoubtedly a transient elevation. A review of the above pressures show that years later he had both normal and elevated pressures even though he was not under therapy for hypertension. The diagnosis of possible arteriosclerotic changes made in April 1942(sic) clearly was inaccurate. Subsequent chest x-rays did not bear out the suspicion of an abnormal aortic shadow. In summary, it is evident that the patient had labile hypertension prior to entering service and there is no evidence that his time in service aggravated the condition or caused any permanent problem. A full review of the record indicates that there is insufficient evidence to support a finding that service connection should be granted for the veteran's cause of death. The evidence fails to reveal the existence of ventricular dysrhythmia; arteriosclerotic heart disease, multiple infarct dementia, aortic aneurysm, or hypertension in service or within one year following the veteran's discharge from active service. Dr. Leaman, an independent medical expert, reviewed the entire claims folder, and concluded that the diagnosis of possible arteriosclerotic changes made during service was inaccurate in that subsequent chest x-rays did not confirm the abnormal finding in service. Cardiomegaly and early congestive heart failure were first shown many years after service. The terminal hospital summary included the first diagnoses of arteriosclerotic heart disease, multiple infarct dementia and aortic aneurysm. With regard to the existence of hypertension, the evidence does show that the veteran had a blood pressure reading of 150/90 in December 1942, just prior to entry into active service. During service, blood pressure readings were all below 140/90 with the exception of a reading of 152/108 in April 1943. Although a single borderline diastolic blood pressure reading of 90 was recorded on examination for entrance into service in December 1942, and an isolated elevated diastolic blood pressure reading of 108 was recorded in April 1943, these do not constitute evidence of any chronic organic vascular disease, in particular, essential hypertension. According to medical texts, there is no specific dividing line between normal and high blood pressure; arbitrary levels have been established to identify individuals who have an increased risk of developing a morbid cardiovascular event and who will clearly benefit from medical therapy. The medical texts agree that a sustained diastolic pressure of 90 or more demonstrates essential hypertension; the borderline systolic pressure is listed variously as 140 or 150. R.S. Cotran et al., Robbins Pathologic Basis of Disease 1062-69 (4th ed. 1989); E. Braunwald et al., Harrison's Principles of Internal Medicine 1024-26 (11th ed. 1987); J.W. Hurst et al., The Heart 1041-44 (6th ed. 1986); L.D. Hillis et al., Manual of Clinical Problems in Cardiology 170-73 (3rd ed. 1988); Heart Disease, A Textbook of Cardiovascular Medicine 852-58 (E. Braunwald ed., 3rd ed. 1988). Hypertension which does not result from another disorder is known as primary, idiopathic or essential hypertension. Hillis, supra; Harrison, supra. Essential hypertension is idiopathic and apparently primary 90 to 95 percent of the time. Cotran, supra. Diastolic levels of 85 to 89 are classified as high-normal. The 1988 Report of the Joint National Committee on Detection, Evaluation, and Treatment of High Blood Pressure, in Archives of Internal Medicine 148(5): 1023-38 (May 1988). While a diagnosis of arterial hypertension is noted in April 1943, this diagnosis is not supported by the clinical findings of a single elevated blood pressure reading during the veteran's short five month period of service. Dr. Leaman opined that while the veteran had labile hypertension prior to service, there was no evidence showing that hypertension was aggravated during active service. As noted in Dr. Leaman's statement, the veteran's blood pressure readings varied considerably and he concluded that the elevated reading during active service was a transient elevation that did not cause any permanent condition. The Board finds that the independent medical expert's opinion is entitled to greater weight than the opinion of the doctor who rendered a diagnosis of arterial hypertension in service. The expert's opinion is based on a review of the entire claims file which shows that, in retrospect, the veteran's blood pressures fluctuated during his lifetime between normal and elevated. However, chronic essential hypertension has not been demonstrated postservice. The appellant's contentions have been considered, however, the Board finds that they are not supported by the record. The appellant has asserted, in effect, that cardiovascular disease had its onset in service and caused the veteran's death. The appellant has also asserted that veteran had meningitis or a bacterial infection of the brain in service and that he suffered two heart attacks while in service. She contends, in effect, that these illnesses contributed to the veteran's death. However, she has submitted no medical evidence showing that these alleged conditions occurred or, more importantly, that they contributed to the veteran's death. The Court has held that lay hypothesizing, particularly in the absence of any supporting authority, serves no constructive purpose and cannot be considered by the Court. Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991). Moreover, the Court has held that lay persons cannot provide testimony where an expert opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Based on these findings and following a full review of the record, it is clear that the preponderance of the evidence is against the appellant's claim and service connection for the veteran's cause of death is not warranted. ORDER Entitlement to service connection for the cause of the veteran's death is denied. I.S. SHERMAN 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.