BVA9505616 DOCKET NO. 93-01 330 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky 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 Michael Martin, Counsel INTRODUCTION The veteran had active service from May 1956 to June 1964. He died on September [redacted] 1991. The appellant is the veteran's surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 1991 by the Department of Veterans Affairs (VA) Louisville, Kentucky, Regional Office (RO). The decision denied service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO made a mistake by denying service-connection for the cause of the veteran's death. She asserts that he developed hypertension during service, and that the hypertension led to the myocardial infarction which caused the veteran's death. The appellant also asserts that the veteran's myocardial infarction was attributable to stress which was caused by his service connected back disorder. It has been requested that the case be remanded to the RO for the purpose of having the RO issue a supplemental statement of the case with respect to the opinion of an independent medical expert obtained by the Board in connection with the claim. 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 appellant has not met her burden of presenting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well-grounded. FINDINGS OF FACT 1. The veteran died on September [redacted] 1991, at the age of 52 years. 2. The veteran's death certificate lists the cause of his death as cardiac arrest due to (or as a consequence of) a myocardial infarction. 3. The only competent medical evidence of record expressing an opinion as to the relationship between the veteran's death and service indicates that cardiovascular disease, to include hypertension and a myocardial infarction, was not present until many years after the veteran's separation from service. 4. There is no competent evidence that a service-connected disorder caused or contributed substantially or materially to cause the veteran's death. CONCLUSION OF LAW The appellant has not presented evidence sufficient to justify a belief by a fair and impartial individual that her claim for service connection for the cause of the veteran's death is well- grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Discussion With regard to the contention that the case should be remanded to the RO for issuance of a supplemental statement of the case, which the Board construes as an effort to have the RO consider a report of an independent medical expert, the Board finds that such a remand is not warranted. Although the appellant's representative has cited 38 C.F.R. § 19.31 (1994) in support of the contention that the case must be remanded, that regulation is not applicable in this case. The regulation sets forth requirements regarding the procedural steps which must be taken when additional evidence is received by the RO. The regulation is not applicable to circumstances in which additional evidence is received by the Board. The regulation which is applicable when additional evidence is received by the Board is 38 C.F.R. § 20.1304 (1994), which states that additional evidence received and accepted by, or referred to, the Board must be referred to the RO. See 38 C.F.R. § 20.1304(c). That regulation does not, however, require that the Board remand the case to the RO to consider additional evidence which was obtained by the Board from an independent medical expert. Therefore, the regulation does not require a remand under the circumstances of the present case. This conclusion is confirmed by the provisions of 38 C.F.R. § 20.903 (1994), which set forth the procedures which must be followed by the Board when the Board obtains an opinion from an independent medical expert. The regulation reads as follows: When an opinion is requested by the Board pursuant to Rule 901 (§ 20.901 of this part), the Board will notify the appellant and his or her representative, if any. When an opinion is received by the Board, a copy of the opinion will be furnished to the appellant's representative or, subject to the limitations provided in 38 U.S.C.A. § 5701(b)(1), to the appellant if there is no representative. A period of 60 days from the date of mailing of a copy of the opinion will be allowed for response. The date of mailing will be presumed to be the same as the date of the letter or memorandum which accompanies the copy of the opinion for purposes of determining whether a response was timely filed. The provisions of the regulation, which do not contain any requirement that the case be remanded after an opinion has been obtained from independent medical expert, have been complied with in the instant case. The Board thus concludes that a remand is not required. Aside from the fact that there is no regulatory requirement to remand the instant case for RO review and issuance of a supplemental statement of the case, the Board finds that a remand in this case is unwarranted and would only serve to unnecessarily delay the decision in this case, for reasons herein provided. II. Discussion Regarding the merits of the appellant's claim for service connection for the cause of the veteran's death, the Board notes that the initial question which must be addressed is whether the appellant has met her burden of presenting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well-grounded. If she has not, there is no duty to assist her with the development and her appeal must be dismissed. See 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 1991). See also Boeck v. Brown, 6 Vet.App. 14, 17 (1993); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). After considering all of the evidence of record, the Board finds that the appellant has not met this burden and her appeal must be dismissed. The provisions of 38 U.S.C.A. § 1310 (West 1991) and 38 C.F.R. § 3.312 (1994) require that, to establish service connection for the cause of the veteran's death, the evidence must show that a service-connected disorder either caused or contributed substantially or materially to cause the veteran's death. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). A chronic cardiovascular disorder, such as hypertension, which is manifest to a compensable degree within one year after separation from service, may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (1994). Many of the basic facts of this case are not in dispute. The veteran died on September [redacted] 1991, at the age of 52 years. The veteran's death certificate shows that the cause of his death was cardiac arrest due to (or as a consequence of) a myocardial infarction. As was noted above, the appellant contends that the veteran developed hypertension during service, and that this, in turn, caused his fatal myocardial infarction. The appellant also asserts that the veteran's myocardial infarction was attributable to stress which was caused by his service-connected back disorder. The veteran's service medical records do not contain a diagnosis of any cardiovascular disorder, including hypertension. A service medical record dated in August 1958 shows that the veteran's blood pressure reading was 132/84. A report of a medical examination conducted in June 1960 for the purpose of re- enlistment shows that his blood pressure reading was 122/74. A report of a medical history given by the veteran at that time shows that he denied having high blood pressure. A report of a medical examination conducted in April 1963 for the purpose of determining whether the veteran was medically qualified for remote or isolated duty shows that his blood pressure reading was 124/88. A report of a medical history given by the veteran at that time shows that he again denied having a history of high blood pressure. Similarly, a report of a medical examination conducted in May 1964 for the purpose of the veteran's separation from service shows that his blood pressure reading was 138/88, and he again denied having a history of high blood pressure. Upon his separation from service, the veteran filed a claim for disability compensation for a back injury and a broken finger. He was afforded a disability evaluation examination by the VA in August 1964. The report of that examination reveals a blood pressure reading of 150/100. During the examination, it was noted that the veteran was extremely nervous as a result of back pain. The only diagnosis noted were (1) chronic low back strain; and (2) anxiety neurosis. In a rating decision of September 1964, the RO granted service connection for a chronic back strain, rated as 10 percent disabling, and an old fracture of the right 5th finger, rated as noncompensably disabling. The Board notes that, by the date of the veteran's death in September 1991, the disability rating for the back disorder had been increased to 40 percent. The veteran was afforded another disability evaluation examination in August 1969. The report of that examination contains blood pressure reading of 140/90. The only diagnoses were (1) chronic low back strain; and (2) fracture, right fifth finger, old, asymptomatic. VA medical treatment records dated in 1974 contain several elevated blood pressure readings. A private hospital discharge summary dated in July 1975 shows that the veteran was admitted in June 1975 with complaints of headaches and dizziness. He said that he had been having the symptoms intermittently for one year. He also stated that six months earlier he saw his family physician and was found to be hypertensive. He had been placed on antihypertensive drugs which relieved but did not entirely eradicate his symptoms. On examination, his blood pressure was 160/100. During his hospital stay he was given 250 mgs. of Aldomet twice daily and his blood pressure dropped well into the normal range and he felt better. Subsequent medical records, including VA medical records, indicate that the veteran continued to take medications for treatment of hypertension. A private hospital discharge summary dated in June 1988 shows that the veteran was hospitalized for treatment of unstable angina pectoris, ischemic heart disease, and hypertension. He gave a history of having long-standing hypertension, and of having exertional chest pain on and off for the past year. He also stated that he had been given nitroglycerin for chest pain four or five years earlier. A report of a special cardiovascular examination conducted by the VA in November 1990 indicates that the veteran gave a history of having hypertension since 1976. He also gave a history of having coronary artery bypass surgery in June 1988. Examination revealed that the veteran weighed 320 pounds. His blood pressure readings were 140/90 sitting, 140/100 recumbent, and 130/108 standing. The diagnoses were (1) hypertension; coronary artery disease; arteriosclerotic disease, Class III; (2) status post coronary artery bypass graft in 1988 (quadruple bypass); (3) morbid obesity; and (4) hypercholesterolemia (237) noted on lab. A report of a VA disability evaluation examination conducted in January 1991 contains essentially the same diagnoses. A VA death summary dated in September 1991 reports that the veteran was admitted to a VA hospital as a transfer from a private hospital. He had originally been hospitalized in August 1991 with intermittent chest discomfort radiating to his back and arms. During the hospitalization at the VA, the veteran developed chest pain and a blood pressure of 170/70. He subsequently experienced sustained ventricular tachycardia and became pulseless. He was pronounced dead at 11:00 p.m. on September [redacted] 1991. Notwithstanding the fact that the appellant submitted no medical opinion in support of her assertion that the veteran's death was related to service, the Board sought the advice of an independent medical expert, in an effort to assist the appellant with the development of the evidence in this case,. The independent medical expert reviewed the facts of this case and made the following report in February 1995: I have been asked to render an opinion concerning the issue of entitlement to service connection for the cause of the veteran's death, J.M. on 9/3/91. I will address two questions asked of me. (1) What is the degree of probability, if any, that the disease process resulting in the veteran's death had it's onset during service? The disease process resulting in the veteran's death is Atherosclerotic Heart disease. Atherosclerotic Heart disease is a multifactorial disease process with many host and environmental conditions accelerating [sic] it's rate of development. Risk factors directly associated with atherosclerotic heart disease include: a family history, smoking, glucose intolerance, hypercholesterolemia, hypertension, and male gender. This particular patient had multiple risk factors associated with the development of accelerated coronary artery disease that can be identified in his record. He was identified as being hypertensive in 1975, he had a strong family history for "ischemic heart disease" (noted in the dictation of hospital course 1988, 1991), and he was diabetic (as per dictation 1991, however onset of that disease is unclear). These risk factors are identified at different stages of the patient's life[;] however none were identified during the patient's service time. With regards to the risk factor of hypertension, this was identified as a disease process somewhere in 1975 (there are no records of the family doctor who apparently made the diagnosis 6 months prior to his hospitalization at Williamson Memorial Hospital). It is important to clarify that a single risk factor is not an effective means of detecting persons at high risk of developing atherosclerotic heart disease. It would be clearly impossible to determine the probability that hypertension is directly responsible for the development of this patient's heart disease, more so than any other risk factor identified in this patient. (2) If the disease process resulting in the veteran's death did not have its onset during the service, what is the earliest date that such disease process can be identified? It is difficult to ascertain when this patient's coronary artery disease began[;] however, his 1988 hospital admission for "unstable angina" was the fist time it was identified in this patient. With respect to the earliest date hypertension was identified as a disease process, it was stated in a 1975 Discharge Summary that the patient was told 6 months prior by a family physician that he had hypertension, and was started on an antihypertensive regimen. There are no formal record[s of] how the diagnosis was reached[;] however[,] it is clear from the hospital records dating 6/75-7/75 from Williamson Memorial Hospital, that this patient had hypertension as a diagnosis. The veteran's blood pressure readings while in service were all high normal, and 2 months post discharge from the service his reading at his compensation physical was clearly elevated. However[,] a one time abnormal recording of blood pressure does not constitute a diagnosis of hypertension. Our guidelines to make a diagnosis of hypertension in 1994 are much clearer, and state that the diagnosis of hypertension should not be made on a single measurement. The recommended guidelines for a diagnosis to be confirmed are at least 2 or more readings taken following the initial screening. The problems in this case are confounded by the fact that there was no identification that this veteran had an abnormal reading, therefore no recommendations for follow-up recordings were made. We must also be cautioned about the interpretation of a one time abnormal reading in a physician's office without taking into account the size of the blood pressure cuff used in a very obese patient, the position of the patient, and the stress level of the patient at the time of the visit[,] all of which can directly influence the blood pressure recording at that time. I believe strongly that the disease process from which this patient died[,] atherosclerotic heart disease[,] was not identifiable while in service, and the risk factor of hypertension as a contributing risk factor for coronary heart disease was identifiable in the year 1975. Thus, the only medical opinion which is of record is against the appellant's claim. The opinion shows that cardiovascular disease, to include hypertension and a myocardial infarction, were not present until many years after the veteran's separation from service. The appellant's own conclusion that the veteran's hypertension began during service is not competent evidence as she is not qualified to offer a medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). There also is no competent evidence that a service-connected disorder, such as the veteran's back disorder, caused or contributed substantially or materially to cause the veteran's death. The records pertaining to the veteran's fatal heart disease do not contain any indication that it was proximately due to or the result of his service-connected back disorder, nor is such fact even suggested by competent medical evidence or opinion elsewhere in the record. For the foregoing reasons, the Board concludes that the appellant has not presented evidence sufficient to justify a belief by a fair and impartial individual that her claim for service connection for the cause of the veteran's death is well-grounded. Accordingly, the appeal must be dismissed. ORDER The claim for service connection for the cause of the veteran's death is dismissed. JACQUELINE E. MONROE 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.