BVA9502813 DOCKET NO. 92-19 745 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Wirt, Associate Counsel INTRODUCTION The veteran was born in February 1930 and served on active duty from July 1948 to October 1968. This appeal arises from an April 1992 rating decision of the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO), which denied the appellant entitlement to service connection for the cause of the veteran's death. The appellant was also denied entitlement to burial benefits. This case was remanded by the Board of Veterans' Appeals (Board) in August 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, essentially, that the veteran's death is attributable to his military service. 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 grant of entitlement to service connection for the cause of the veteran's death. The preponderance of the evidence is also against the grant of entitlement to burial benefits. FINDINGS OF FACT 1. The veteran died on January [redacted] 1992, of rostro-caudal herniation and medullary destruction due to bihemispheric cerebral infarctions and vasospasm from a ruptured anterior communicating artery aneurysm. 2. The veteran was treated for low back problems and complaints of headaches in the 1960s in service. No cardiovascular or endocrinopathic condition was shown, and no pertinent complaints, history or defects were noted on his 1968 retirement examination. 3. The veteran's ruptured anterior communicating artery aneurysm was not caused by his low back problems or headaches in service, nor were they significant factors in causing or contributing to his death. 4. The veteran's cerebral arterial aneurysm, cardiovascular disease (including hypertension) and diabetes mellitus were first shown many years after service and were unrelated to the active service period. 5. The veteran was not service-connected for any disability at the time of his death, nor was he receiving compensation or pension benefits at that time. There was no original or reopened claim for service connection or pension pending at the time of his death, and he did not die of a service-connected disability or while hospitalized by the VA. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or substantially or materially contribute to the veteran's death. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a)(1), 1113(a),1310 (West 1991); 38 C.F.R. §§ 3.303(a), 3.307(a)(3), 3.309(a), 3.312 (1993). 2. The criteria for the payment of burial expenses of a deceased veteran have not been met. 38 U.S.C.A. §§ 2302, 2303, 2306, 2307, 2308 (West 1991); 38 C.F.R. § 3.1600 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the statutory duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Service Connection for the Cause of the Veteran's Death The appellant has appealed a denial of entitlement to service connection for the cause of the veteran's death. The veteran died at age 61 years on January [redacted] 1992, and his death certificate lists his cause of death as rostro-caudal herniation and medullary destruction due to bihemispheric cerebral infarctions, both of one day's duration, and vasospasm of two days' duration from a ruptured anterior communicating artery aneurysm of seven days' duration. Other significant conditions were listed as hypertension and diet-controlled diabetes mellitus. An autopsy was not performed. Service connection may be established for disabilities resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1993). In addition, certain chronic diseases, including chronic cardiovascular disease (hypertension) and diabetes mellitus, will be presumed service-connected, absent affirmative evidence to the contrary, if manifested to a degree of 10 percent within one year from the veteran's separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113(a); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.312(a), a veteran's death will be considered service connected when a service-connected disability is established as either the principal or contributory cause of death. This determination is to be based on sound judgment after careful review of the facts, and not on speculation. Id. A service-connected disability will be considered as the principal cause of death when such disability was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be considered a contributory cause of death, "it must be shown that it contributed substantially or materially; that it combined to cause death; that it lent assistance to the production of death." 38 C.F.R. § 3.312(c). It is not sufficient that the service-connected disability "casually shared" in the production of death, but rather a "causal connection" must be shown. Id. The veteran's service medical records are negative for any findings, diagnosis or treatment of a cardiovascular (including hypertension) or endocrinopathic condition in service. On his entrance examination, dated in July 1948, his blood pressure is reported as 120 systolic/58 diastolic. Urinalysis was negative for sugar and albumin. Chest X-rays revealed a normal heart, aorta, lungs, diaphragm and bony thorax. The veteran was seen complaining of a headache (with a running nose) in November 1949 in service. He was diagnosed as having acute bilateral tonsillitis. In May 1953, the veteran was involved in a motorcycle accident and was hospitalized for five days. The final diagnoses included surgical observation for possible concussion, and abrasions of the right external ear and left knee. During the course of his hospitalization, his blood pressure was taken on four successive days and was recorded as 140 systolic/80 diastolic on May 17, 1953; 160 systolic/100 diastolic on May 18; 130 systolic/86 diastolic on May 19; and 125 systolic/75 diastolic on May 20. Chest X-rays showed no significant abnormalities, and urinalysis was negative for sugar and albumin. In May 1957, the veteran underwent a re-enlistment examination, and completed a medical history questionnaire. He reported a history of headaches, dizziness, ear/nose/throat trouble, running ears, chronic or frequent colds, sinusitis, shortness of breath, pain or pressure in his chest, recent gain or loss of weight, and nervous trouble. His 1953 motorcycle accident was also reported. On examination, his blood pressure was recorded as 118 systolic/68 diastolic, and urinalysis was negative for sugar and albumin. A chest X-ray was negative, and his heart and vascular system were reported as normal. No disorders were diagnosed. Beginning in May 1958, the veteran's service medical records show that he had several episodes of low back pain in service, and was diagnosed alternately as lumbar muscle spasm, chronic lumbosacral strain, herniated nucleus pulposus, and chronic low back pain with nerve root involvement. In January 1960, he was treated for a complaint of right-sided headache of sudden onset lasting two to three hours and followed by nausea. The provisional diagnosis was migraine headache. He was referred for a dental examination to rule out carious teeth as the source of the pain. Chest X- rays in February and October 1960 were negative for pathology. During a periodic physical examination, dated in September 1961, the veteran's blood pressure was recorded as 120 systolic/80 diastolic. Chest X-ray was negative. Urinalysis was negative for sugar and albumin. A partial high frequency hearing loss was noted, as were scars on his right cheek and over his left eye. No other defects were diagnosed. The veteran had another periodic examination in February 1966. He reported a history of frequent headaches, ear/nose/throat trouble, and leg cramps. He also reported that he had worn a brace or back support. His blood pressure at that time was 120 systolic/84 diastolic. Urinalysis was again negative for sugar and albumin. A chest X-ray was normal. The diagnoses included acute coryza, high frequency hearing loss accentuated by coryza, and left herniated nucleus pulposus. At his separation (retirement) examination, dated in June 1968, the veteran reported a history of frequent headaches, ear/nose/throat trouble, and leg cramps, and indicated that he had worn a brace or back support. His blood pressure was 122 systolic/80 diastolic, and urinalysis was negative for sugar and albumin. A chest X-ray and electrocardiogram were normal. The report contains a notation of "[p]ast [history] of back trouble[,] now apparently well." The appellant's representative also submitted a Reserve Retirement "Report of Medical History" form, dated in October 1968 and signed by the veteran. Among the conditions reported by the veteran in his medical history were frequent headaches, pain or pressure in his chest, and recurrent back pain. This form was not signed by a physician, so it is unclear whether the veteran was seen by a doctor at that time. However, no findings were recorded. Extensive post-service medical treatment records, dated from January 1970 to April 1991, were received from Whiteman Air Force Base, Missouri. These records indicate that he was apparently found to have diabetes mellitus, or at least pre-diabetes, beginning in approximately November 1976. The records also show that veteran had borderline elevated blood pressures beginning in about January 1984, and had chronic hypertension in about 1985, when medication was prescribed therefor. An abnormal electrocardiogram was reported in 1985. Post-service, his complaints of headaches continued, but the records attribute these primarily to degenerative joint disease of the cervical spine, although he was treated on various occasions for sinusitis and rhinitis. There is no indication in the post-service records that his headaches could be attributed to any hypertension in service. At her 1994 personal hearing, the appellant testified that the veteran began taking blood pressure medication about six years after his separation from service. Hr'g Tr. at 2-3 (February 24, 1994). She stated that the veteran had sought medical treatment for his headaches at that time, and was found to have high blood pressure. Id. at 3. She also testified that he had recurrent headaches since at least 1952, and indicated that she felt he had probably always had them. Id. She stated that he had complained of shortness of breath and chest pains, and recalled a specific incident in the early 1970s when the veteran got sick while mowing the lawn. Id. at 4. She stated that he later had an electrocardiogram, and was told that he had a "silent heart attack." Id. The appellant also recalled that the veteran was diagnosed as having diabetes in 1974 or 1975. Hr'g Tr. at 5. She testified that she first knew of the veteran's back problems in the 1950s, while he was stationed at Fort Carson, Colorado. Id. at 6. She also recalled that the veteran injured his back in an automobile accident while on night maneuvers in service in 1962. Id. Also at the February 1994 hearing, the appellant's representative argued that the veteran's blood pressure reading of 160 systolic/100 diastolic, taken on May 18, 1953, while he was hospitalized in service due to a motorcycle accident, represents hypertension. Hr'g Tr. at 2. However, hypertension was not diagnosed at that time or at any other time during service. There is no medical evidence in the file, either in his service medical records or post-service medical records, which suggests that the veteran's frequent headaches were indicative of high blood pressure. Neither the appellant nor her representative is competent to offer an opinion as to medical diagnosis or causation. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). In addition, the veteran's diabetes mellitus was not diagnosed or shown until the mid-1970s, several years after his discharge. There is also no evidence that the veteran's low back pain in service was in any way related to his death 25 years later. The ruptured anterior communicating artery aneurysm that triggered the veteran's eventual death in 1992 from rostro-caudal herniation and medullary destruction had its onset long after his 1968 discharge from active service, and there is no persuasive and competent data in the claims file to associate this condition with his active military service. Based on these findings and after a full review of the record, the Board is of the opinion that the cause of the veteran's death cannot lawfully be considered service connected. II. Entitlement to Burial Benefits The appellant has also appealed a denial of entitlement to burial benefits. Burial expenses of deceased veterans are payable if the veteran died of a service-connected disability. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600(a). If the veteran's death was not service-connected, burial benefits are payable if (1) at the time of death the veteran was in receipt of pension or compensation (or, but for the receipt of military retirement pay, would have been in receipt of compensation); or (2) the veteran had an original or reopened claim for either compensation or pension pending at the time of his death. 38 U.S.C.A. § 2302 (a)(1); 38 C.F.R. § 3.1600(b)(1)-(2). In the case of an original claim pending at the time of death, the evidence of record at that time must have been sufficient to support an award of compensation or pension effective prior to his death, and, in the case of a reopened claim, there must have been sufficient prima facie evidence of record at the time of his death to indicate that the veteran would have been entitled to compensation or pension prior to that date. 38 C.F.R. § 3.1600(b)(2)(i)-(ii). Burial benefits are also payable if the veteran died from a non service-connected condition while properly hospitalized by the VA. 38 C.F.R. § 3.1600(c). See also 38 U.S.C.A. § 2303(a). The veteran was not service-connected for any disability at the time of his death, and did not have an original or reopened claim pending at that time. He thus was not in receipt of compensation or pension when he died. As determined in the previous section of this decision, the veteran did not die of a service-connected disability. According to his death certificate, he died at Research Medical Center in Kansas City, Missouri, which is not a VA facility. In light of the foregoing, entitlement to burial benefits is denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to burial benefits is also denied. SAMUEL W. WARNER 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.