BVA9502262 DOCKET NO. 93-15 683 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from June 1942 to October 1945, and from December 1947 to March 1973. The veteran died on March [redacted] 1991. This appeal arises from a May 1991 decision by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the veteran's death. The appellant's claim for service connection for the cause of the veteran's death was denied by rating decision dated in May 1991. The appellant submitted a timely notice of disagreement and a statement of the case was issued in June 1991. The appellant submitted a Statement in Support of Claim dated in April 1992, in which she stated that she never received a Statement of the Case and requested an extension for filing her appeal. In a Statement in Support of Claim dated in April 1992, the appellant requested service medical records and a copy of the report of a VA rating examination as well as an extension of 60 days. A VA letter dated later in April 1992 states that the appellant had until May 10, 1992 to perfect her appeal and submit an Appeal to the Board of Veterans' Appeals (Board). The VA replied regarding the records by form letter dated in May 1992, but did not refer to the request for an extension. In June 1992 the appellant requested copies of the veteran's service retirement medical records. A rating decision dated in July 1992 referred to the claim as a reopened claim. The appellant submitted an Appeal to the Board of Veterans' Appeals in January 1993. Since the RO has not demonstrated that it addressed the appellant's April 1992 request for an additional 60 days to file an appeal, and the appellant's Statement in Support of Claim was received in June 1992, within the requested 60 days, the Board finds that the appeal from the May 1991 rating decision was timely filed. Accordingly, this decision of the Board will be based on a de novo review of the record. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the appellant that service connection for the cause of the veteran's death is in order as he developed heart disease while in service. It is asserted that the veteran's death from congestive heart failure was due to the heart disease that he developed in 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 a preponderance of the evidence is against a grant of 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. The veteran's death on March [redacted] 1991 at the age of 72 was due to congestive heart failure and idiopathic cardiomyopathy with cardiac stenosis. Emphysema was a contributory cause of death. 3. Neither heart disease nor emphysema was present in service or manifested for several years post service, and neither condition is shown to have been related to service. 4. The veteran's service-connected disabilities did not contribute substantially or materially to the cause of the veteran's death. CONCLUSIONS OF LAW 1. Congestive heart failure and idiopathic cardiomyopathy with cardiac stenosis, and emphysema, were not incurred in or aggravated by active service and the service incurrance of congestive heart failure and idiopathic cardiomyopathy with cardiac stenosis may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 2. A disability incurred in or aggravated by service did not cause or contribute 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 The appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, she has presented a claim which is plausible, and all relevant facts have been properly developed. No further assistance to the appellant is required to comply with the duty to assist the appellant mandated by 38 U.S.C.A. § 5107. At the time of the veteran's death in March 1991, service connection was in effect for arthritis of the lumbosacral spine, residuals of a chipped fracture of the left elbow, malaria and removal of sebaceous nevus from the right side of the nose, all evaluated as noncompensable. A 10 percent evaluation was assigned under 38 C.F.R. § 3.324. The veteran's service medical records include the report of the examination for entrance which is negative for complaints, symptoms or findings of a heart disability. The records are negative for testing regarding the veteran's heart until March 1959 when an electrocardiogram (EKG) was performed. The results of the EKG were normal. In October 1962, another EKG was performed and it was also normal. The report of an October 1968 periodic examination notes a mild holosystolic Grade I/VI murmur which was only heard when the veteran sat leaning forward and disappeared when he was lying flat. The report of the EKG notes notes that there had been no change in the veteran's EKG since 1959 and that the EKG was within normal limits. The report of a March 1971 EKG states that it was normal. The report of the veteran's examination for retirement dated in January 1973 indicates that the veteran complained of pain in his chest which was interpreted as tightness of the left anterior chest associated with tensions from the veteran's duties. He specifically denied shortness of breath and a chronic cough. Blood pressure was 120/68. An EKG was performed and its results are described as normal. The report of a chest X-ray was normal. The physical examination was normal; the heart had a regular sinus rhythm without murmur. The report states that no further work-up was needed, that there were no complications or sequelae. The report of a July 1984 VA rating examination notes that the veteran stated that when he took his retirement examination he was told that he had had several minor heart attacks. He stated that he had never had severe chest pain, just occasional discomfort which did not last long. The report states that his heart sounds were of good quality, there was sinus rhythm without murmurs and that there was good pulsation in the peripheral vessels. The report of the EKG indicates a left bundle branch block and regular sinus rhythm. The diagnosis was no evidence of heart disease except left bundle branch block, no compromise, prognosis guarded. The veteran died on March [redacted] 1991. No autopsy was performed. The death certificate lists the cause of death as congestive heart failure due to idiopathic cardiomyopathy with aortic stenosis as the cause of death. Emphysema was listed as a contributory cause. The death certificate states that the approximate interval between the onset of the heart disability and the veteran's death was two years. The record includes a letter dated in June 1992 from Carlos L. Fleming, M.D., a family practitioner and the physician who signed the veteran's death certificate. Dr. Fleming relates that the veteran's service medical records show one elevated blood pressure reading in April 1966, but that all of the other readings appeared to be normal. The record also includes a letter dated in July 1992, from George E. Andreae, M.D., a cardiologist, which states that Dr. Andreae had first seen the veteran in 1989. At that time, the veteran had a calcified aortic valve and was ultimately determined to have mild-to-moderate aortic stenosis with a valve area of 1.1 and an idiopathic dilated cardiomyopathy with normal coronary arteries. The letter states that the veteran had scarlet fever as a child but there were no complications or sequelae. The letter notes that there was one at least transiently elevated blood pressure reading in April 1966. The letter states that at the time of the veteran's retirement examination, it might have been very reasonable to perform at least an exercise tolerance test or a noninvasive nuclear evaluation. The letter further states that the veteran's chest pains noted in the report of the examination for retirement might have been early manifestations of a cardiomyopathic process. Dr. Andreae's letter states that there was a reasonable probability that his cardiomyopathic process started some time during the veteran's active service. The letter also notes that the murmur noted in October 1968 could have been an early manifestation of problems with the veteran's aortic valve. The veteran's medical records were reviewed by the Acting Director of VA Medical Services. The director's report dated in November 1994 states that the EKG of January 1973 was properly interpreted as demonstrating no evidence of left bundle branch block, pervious heart attack or left ventricular hypertrophy. The report states that the January 1973 interpretation of the Master's two step test was normal and that that was the correct interpretation. The report agrees with the March 1971 examination which interpreted the EKG performed then as normal. The report notes that the only abnormality found was one systolic murmur at the apex when sitting up and leaning forward. The report concludes that the veteran did not have left bundle branch block during service or within the presumptive period therefore; that he developed cardiomyopathy during the decade prior to the 1984 rating examination and that the left bundle branch block was suggestive of that. The report notes that even though the veteran was hospitalized a number of times while in active service, a murmur was noticed only once. The report notes that at the time of his death, the veteran had only mild to moderate aortic stenosis. The report concludes by stating that the veteran's cardiomyopathy clearly developed in later life, after the veteran's active service. Initially, the Board observes that it has not been contended nor does the evidence demonstrate that emphysema, the contributory cause of death, had its onset in or was otherwise related to the veteran's period of military service, or that service-connected disabilities played any material or significant role in his demise. The veteran's service medical records include several EKGs, all of which are described as within normal limits. During over twenty years of active service, the veteran sought treatment many times and underwent numerous physical examinations. However, a murmur was heard only once, five years before the veteran retired. Only once, approximately seven years prior to his retirement, did the veteran have an elevated blood pressure reading, but the examination showed that his heart had a normal sinus rhythm. Although the veteran mentioned chest pains at the time of his retirement examination, this symptom was attributed to a non-organic cause. The report itself noted a regular sinus rhythm without murmurs, a normal EKG and an X-ray and that there were no complications or sequelae, and that no further work-up was needed. Dr. Andreae states that there was a reasonable probability that the murmur found in 1968 could have been an early manifestation of an aortic valve problem and that the cardiomyopathic process started while the veteran was in active service. Dr. Andreae's opinion is contradicted by Dr. Carlos L. Fleming, who signed the veteran's death certificate. On the death certificate, Dr. Fleming listed the cause of death as congestive heart failure due to idiopathic cardiomyopathy with aortic stenosis, with an onset two years prior to the veteran's death. In a letter dated in June 1992, Dr. Fleming noted that the veteran had only one elevated blood pressure reading during his active service. Significantly, Dr. Fleming's letter contains no statement which indicates that the onset of congestive heart failure occurred earlier than two years prior to the veteran's death. Nor did Dr. Fleming speculate regarding a possible link between the veteran's active service and congestive heart failure. Finally, the November 1994 report by the Director of the VA Medical Service also contradicts Dr. Andreae when it states that the service interpretations of EKGs in 1971 and 1973 were correct, as was the interpretation of the Master's two step test in 1973. The report notes that the first evidence of left bundle branch block was demonstrated in 1984, eleven years post service, and that the left bundle branch block was highly suggestive that cardiomyopathy was developed in the ten years following active service. The Board has carefully considered the statement of Dr. Andreae, but finds that the preponderance of the evidence, as discussed above, is more probative to the conclusion that service connection for the cause of the veteran's death is not warranted. The evidence is not so evenly balanced that there is any doubt as to a material issue. 38 U.S.C.A. § 5107. ORDER Service connection for the cause of the veteran's death is denied. WAYNE M. BRAEUER 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.