Citation Nr: 0006405 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-17 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the veteran's death. WITNESSES AT HEARING ON APPEAL Appellant, [redacted], [redacted], and [redacted] ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from May 1950 to May 1953. He died in August 1998, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of October 1998. At the time of his death, the veteran was in receipt of a total rating based on individual unemployability due to service-connected disability, which had been effective from April 1997. In April 1999, the RO determined that the appellant was not entitled to dependency and income compensation (DIC) under 38 U.S.C.A. § 1318, and she has not appealed that decision; accordingly, that issue is not before us. FINDINGS OF FACT 1. According to the death certificate, the veteran died in August 1998, at the age of 67 years, of atherosclerotic coronary artery disease, due to or as a consequence of hypertensive heart disease, with panacinar emphysema noted as a condition contributing to death, but not resulting in the underlying cause. 2. At the time of his death, the veteran was in receipt of a total rating based on individual unemployability due to service-connected disability, effective in April 1997, with service-connected disabilities consisting of residuals of frozen feet, status post amputation of both great toes, with small arterial occlusive disease, assigned a 70 percent evaluation, and infectious hepatitis, evaluated noncompensably disabling. 3. There is no competent evidence of a nexus between a service-connected disability, and a disability that caused, or contributed to cause, the veteran's death. 4. There is no competent evidence that a disability that caused, or contributed to cause, the veteran's death, was of service onset. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for 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 Service medical records disclosed mild frostbite both great toes feet in November 1950. In August 1951, atrophic changes on the tips of the toes were noted. In January 1953, the veteran was treated for infectious hepatitis with jaundice. The separation examination in May 1953 was normal, and a chest X-ray was also reportedly normal. On a VA examination in June 1954, the veteran complained of pain in the feet. The feet were normal on examination, but a chest X-ray disclosed a small, poorly defined area of increased density, which was suspicious of a minimal tuberculosis infection. By rating action dated in July 1954, the veteran was granted service connection for frostbite of the great toes, no residuals found, and hepatitis, infectious, no sequelae, evaluated noncompensably disabling. In July 1954, a VA pulmonary consultation resulted in a normal physical examination, and it was concluded that pulmonary tuberculosis was not found. On a VA examination in August 1954, a chest X-ray was normal. The veteran had hyperhidrosis of the feet, and discoloration of the left foot, although pulses were normal. In September 1954, the veteran was granted a 10 percent rating for residuals of frozen feet, and a decision on the lungs was deferred pending further development. In September 1954, a VA physician reviewed chest X-rays taken in May 1950, July 1950, May 1953, June 1954, July 1954, and August 1954, and concluded that there was no evidence of tuberculosis infection on any of the films. Accordingly, in October 1954, the veteran was informed that his claim based on his chest condition had been reviewed, and there was no evidence of tuberculosis infection. The file contains a letter dated in December 1955 from L. Brown, M.D., who wrote that he had treated the veteran since January 1954, and that the veteran had asthma and residuals of frozen feet. The veteran was hospitalized in a VA facility from August to September, 1956, to evaluate his symptoms of shortness of breath, which he stated he had had off and on for five or six years. The first episode had occurred about seven months prior to his induction to service, and had been manifested by symptoms of a bad cold followed by wheezing and copious sputum. He was treated with medications including penicillin and antihistamine. His respiratory symptoms had cleared by the time he entered service. During this three years of service, he stated that he had been treated on an outpatient basis for respiratory symptoms on many occasions, and had been told he had asthma. Following his discharge in 1953, he did not have much chest trouble until the previous fall, when he began to be troubled by shortness of breath, coughing and wheezing. The symptoms gradually subsided, and he did fairly well until about ten days prior to the current admission, when they began again. On examination there were rhonchi, coarse rales, and wheezes heard. It was noted that although there was definite wheezing, the veteran did not appear to be in any particular asthmatic distress. Chest X-ray was normal. He improved with treatment, and the final diagnoses were asthma and acute bronchitis, both treated and improved. A VA examination in November 1959 disclosed minimal symptoms of frostbite and no impaired circulation in the feet. A chest X-ray was normal. Records of the veteran's treatment and evaluation at a military facility from 1957 to 1965, while he was employed as a civilian at the military base, show his evaluation for a number of complaints, including asthma in March 1957, June 1957, July 1962, and subsequently. A chest X-ray in March 1957, taken because the veteran was off work due to bronchitis and asthma, disclosed no significant abnormalities. A chest X-ray in December 1957 similarly disclosed no significant abnormalities. Examinations conducted in connection with his employment in May 1964 and June 1965 reported that he had a 10 percent service-connected disability of frozen feet, and a history of bronchitis with asthma. A chest X-ray in June 1965 revealed emphysema. The veteran was hospitalized in a VA facility from September to October, 1973, with complaints of a recent history of claudication, although he had leg pains for about the last three years. Past history revealed that in 1954 he had suffered frostbite in his feet, and every winter he seemed to have trouble with his toes becoming discolored. He had an ulcerated left great toe. Neurology consult, including nerve conduction studies, disclosed decreased nerve function in the lower extremities, although pulses were adequate. A chest X- ray was normal. The final diagnoses were peripheral arterial occlusive disease, rule out frostbite, and chronic obstructive lung disease. The military facility employment treatment records also included several X-ray reports, which revealed early obstructive pulmonary disease in November 1979, and mild fibrosis and emphysema in January 1980. VA hospital records show that in September 1980, following the failure of conservative treatment to resolve the ulceration of his left great toe, and at the request of the veteran due to the pain he suffered at work, the veteran underwent an amputation of the left great toe. On a VA examination in June 1981, a chest X-ray disclosed no cardiomegaly, but there were findings compatible with pulmonary emphysema. In February 1981, his rating for frostbite residuals, amended to include status post amputation of the left great toe, was increased to 30 percent. The file contains numerous records of the veteran's frequent hospitalizations and outpatient treatment for multiple medical complaints from 1993 to 1997, in private and VA facilities. In November 1993, his right great toe was amputated due to severe, chronic pain. Later that month, he was hospitalized in a private facility for treatment of severe chronic obstructive pulmonary disease. Final diagnoses resulting from a March 1994 hospitalization were severe chronic obstructive pulmonary disease, acute anxiety, and complication of frostbite (ischemia of both feet with loss of both great toes). Severe hospitalizations were due to severe respiratory distress, and severe chronic obstructive pulmonary disease was diagnosed. In addition, in April 1996, he was admitted for evaluation of chest pain. Discharge diagnoses were unstable angina, chronic obstructive pulmonary disease, status post right carotid endarterectomy, old cerebrovascular accident, and amputation of toes. In addition, several items of correspondence from doctors who have treated the veteran have been submitted. These include a letter from G. Pugh, M.D., who wrote, in December 1993, that the veteran had had symptoms of frostbite since he had first seen him in 1981, and he continued to experience pain, burning and cold feet. He had now lost his right great toe due to ischemia associated with his frostbite. In March 1995, Dr. L. Busch wrote that he had treated the veteran for some time, and that the veteran had severe chronic obstructive pulmonary disease with a reactive airways component which had required intubation on several occasions. He also had significant peripheral vascular disease, had recently suffered an occipital stroke, which required bilateral endartectomies, and had lost several toes in the Korean War. In September 1996, the veteran was hospitalized in a private facility with severe lower extremity pain. The discharge diagnoses included (1) cellulitis of the lower extremity secondary to small vessel disease plus or minus a contribution from peripheral neuropathy; and (2) arteriosclerotic vascular disease, history of cerebrovascular accident and endarterectomy. In November 1996, D. Sumrall, M.D., wrote, regarding that admission, that he believed that the veteran had small vessel arterial disease of the distal feet, and that since no other obvious source or cause for the disease had been found, it was suspected that it was due to sequelae of the frostbite he had suffered in service. Records of the veteran's hospitalization from July to August, 1998, disclosed he was brought to the hospital by ambulance, after having collapsed in his home. The impression on admission was cardiorespiratory arrest and chronic obstructive pulmonary disease. It was noted that the cause of the arrest was unknown, with an acute myocardial infarction or bronchospasm to be considered. He had a several day history of shortness of breath, and had been seen in the emergency room several days earlier. He was noted to be a steroid dependent chronic obstructive pulmonary disease patient, with a significant bronchospastic component, but had been fairly stable over the past two years. Under "cardiac history," it was noted that he had some left ventricular hypertrophy, significant peripheral vascular disease, and a past history of an endarterectomy in the past with a small stroke. He also had had significant frost bite of his feet during the Korean War and some anxiety problems. The veteran's neurological status did not improve, and, eventually, it was decided to remove the veteran from the ventilator; subsequent to that, he passed away. The discharge diagnoses were cardiopulmonary arrest, acute myocardial infarction, chronic obstructive pulmonary disease, peripheral vascular disease, and status post endarterectomy, status post prostatic carcinoma, and status post colon resection. An autopsy was conducted to determine the cause of death. Findings included a microscopic analysis of the respiratory system, which revealed pulmonary vascular congestion and edema with focal atelectasis, as well as changes consistent with panacinar emphysema of moderate intensity. Pigmented macrophages were identified in the alveolar spaces and moderate anthracotic pigment deposition was present. Microscopic analysis of the cardiovascular system did not disclose any evidence of acute or remote infarction. A section of the aorta revealed moderate atherosclerotic plaquing that was calcified and ulcerated. Microscopic analysis of the liver disclosed acute congestion, but no evidence of acute or chronic hepatitis. Following a complete autopsy, the immediate causes of death were identified as hypertensive heart disease, and atherosclerotic coronary artery disease, multiple vessel. Panacinar emphysema, bilateral and moderate, was noted to be a contributory cause of death. The death certificate reflected these findings, noting atherosclerotic coronary artery disease as the immediate cause of death, due to or as a consequence of hypertensive heart disease, with panacinar emphysema noted as a condition contributing to death, but not resulting in the underlying cause. The veteran was 67 years old when he died. B. Analysis To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause 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; rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). For certain chronic diseases, including arteriosclerosis, cardiovascular disease, and hypertension, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991& Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, 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) (1999). However, in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In general, in order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). For service connection for the cause of the veteran's death, the first element is always met; the current disability is the condition that caused the veteran to die. Carbino v. Gober, 10 Vet.App. 507 (1997). For the remaining elements, there must be competent evidence that disability that caused or contributed to death was incurred or aggravated in service, and of a nexus between the two, or competent evidence of a nexus between the veteran's cause of death and a service- connected disability. Ruiz v. Gober, 10 Vet.App. 352 (1997). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. In general, where the determinative issue involves medical etiology, such as to establish a nexus between inservice symptoms and current disability, or medical diagnosis, such as for a current disability, only medical evidence is considered "competent." Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Grottveit v. Brown, 5 Vet.App. 91 (1993). Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). Regarding whether there is competent evidence of a nexus between the veteran's cause of death and a service-connected disability, at the time of his death, the veteran was service-connected for residuals of frozen feet, status post amputation of both great toes, with small arterial occlusive disease, assigned a 70 percent evaluation from September 1996, and infectious hepatitis, evaluated noncompensably disabling. An individual unemployability rating had been assigned effective in April 1997. There is no medical evidence of a nexus between his service- connected frozen feet residuals, with small arterial occlusive disease, and any of the disabilities that caused or contributed to cause his death. In this regard, the onset of the small arterial occlusive disease has been attributed to the frozen feet, and not cardiac problems. Additionally, there is no medical evidence implicating the veteran's frozen feet residuals, with small arterial occlusive disease, in the onset of the atherosclerosis or hypertensive heart disease that caused the veteran's death. The autopsy also failed to disclose any evidence of acute or chronic hepatitis. Concerning whether there is competent evidence that a disability that caused or contributed to death was incurred or aggravated in service, and of a nexus between the two, the service medical records do not contain any evidence of cardiovascular disease, including atherosclerosis or hypertension, and the medical evidence first demonstrates cardiac disease many years after service. Moreover, there is no medical evidence linking the onset of cardiac disease to service. Also listed on the death certificate, as a condition contributing to death, but not resulting in the underlying cause, was panacinar emphysema. The appellant contends, in written correspondence and in testimony presented at a hearing in February 1999, that this emphysema was due to or a manifestation of moderate anthracotic pigment deposition noted on the microscopic analysis of the autopsy report. She asserts that this was due to coal dust exposure while the veteran was in service. In support of her assertion that he was exposed to coal dust in service, she has submitted a copy of a memorandum to "All officers and Enlisted Men of the 3d Armored Division," dated in January 1950, which, in addition to other military expenditures, notes "[t]he coal that heats your buildings." In addition, she submitted a copy of an encyclopedia entry noting that traditional rural houses in Korea were heated by a system of radiant heating which consisted of flues which carried hot smoke from a coal- burning stove under the floor and out the other side of the building. Finally, she submitted a copy of email correspondence from an individual who served with the veteran in Korea. He stated that while in the field in Korea, they had used charcoal to heat their food. In support of her claim that this exposure caused the veteran's lung disease, she submitted a copy of a report entitled "Occupational Safety and Health Guideline for Coal Dust" which defines coal dust as "an odorless dark brown to black dust crated by the crushing, grinding, or pulverizing coal." The report notes symptoms and toxicology associated with coal dust exposure, and, inter alia, identifies "mining and transportation of coal" and "use of coal during operations involving grinding, crushing, or pulverizing" and possible sources of occupational coal dust exposure. However, even assuming that the veteran's emphysema was due to the anthracotic pigment deposition noted on the autopsy, which is not explicitly stated in the autopsy report, there is no competent evidence of the veteran's exposure to coal dust while in service. In this regard, he was not involved in any of the occupations noted on the OSHA report as leading to coal dust exposure while he was in service. Neither the OSHA report or any other statement submitted by the appellant indicates that he would have been exposed to coal dust by residing in buildings heated by coal, including in Korea. Similarly, the statement from the fellow serviceman does not specifically allege coal dust exposure; the mere fact that charcoal was reportedly used to heat food while on field operations does not confirm coal dust exposure. Regarding whether there is other competent evidence linking the veteran's emphysema to service, although no pertinent complaints or abnormal findings were noted in service, a December 1955 letter from a private physician indicates he was treating the veteran for asthma. However, he did not begin treating the veteran until January 1954. Although a June 1954 X-ray was suspicious for tuberculosis, such a diagnosis was not borne out by further evaluations. When hospitalized in August 1956, for treatment of shortness of breath, the veteran reported that he had had episodes of shortness of breath for five or six years, beginning prior to service. However, his single preservice episode had cleared prior to service, and cannot, based on the symptoms described, be considered to be reflective of chronic disability, such as to overcome the presumption of soundness on entry. See 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). According to the veteran's history provided in August 1956, he had been treated for respiratory symptoms in service on many occasions, and had been told he had asthma. However, a layperson is not competent to relate what a doctor has said. Robinette v. Brown, 8 Vet.App. 69 (1995) ("the connection between the layman's account, filtered as it was through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). For purposes of establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) also can be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497; Voerth v. West, 13 Vet.App. 117 (1999). As noted above, "present disability" in this case is a disability that caused or contributed to cause the veteran's death. When hospitalized in August 1956, for treatment of shortness of breath, the veteran reported that he had had episodes of shortness of breath for five or six years, and that he had been treated for respiratory symptoms in service on many occasions, diagnosed as asthma. However, the diagnosis of asthma was not explicitly based on the history of symptoms, and a gap of over two years was noted between his discharge in May 1953 and his first post-service symptoms of shortness of breath, coughing and wheezing, in the fall of 1955. Consequently, the evidence is insufficient to establish a nexus between inservice symptoms "noted" by the veteran in 1956, and asthma diagnosed at that time, when the veteran was experiencing current symptomatology. Moreover, although he was treated for asthma on numerous occasions during the succeeding years, there is no medical evidence of a nexus between asthma and emphysema, which was first disclosed on X-ray in 1965. Consequently, there is no medical evidence linking the emphysema that contributed to cause the veteran's death to service. Accordingly, the appellant's claim for service connection for the cause of the veteran's death is not well grounded. There is no duty to assist; indeed, VA cannot assist the appellant in any further development of her claim. Morton v. West, 12 Vet.App. 477 (1999). Further, the Board finds that the appellant has previously been informed of the elements necessary to complete her application. Robinette v. Brown, 8 Vet.App. 69 (1995). ORDER The claim of entitlement to service connection for the cause of the veteran's death is denied. JEFF MARTIN Member, Board of Veterans' Appeals