Citation Nr: 0001100 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 97-33 729A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from December 1970 to October 1975. Thereafter, he was in the Reserves or National Guard until January 1994, with periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 1997. A hearing was held in June 1999 in Lincoln, Nebraska, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). FINDINGS OF FACT 1. At the time of his death, service connection was in effect for a scar of the left wrist and hemorrhoids, both evaluated noncompensably disabling. 2. According to the death certificate, the veteran died in February 1996, at the age of 43, of cardiorespiratory arrest due to acute myocardial infarction. 4. There is no competent evidence that the myocardial infarction, or coronary artery disease diagnosed in January 1992, was of service onset or aggravation. 5. The veteran was not in receipt of a permanent and total service-connected disability rating at the time of his death, nor did he die of a service-connected disability. CONCLUSIONS OF LAW 1. 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). 2. The appellant has not submitted a claim upon which relief may be granted for dependent's educational assistance under 38 U.S.C. Chapter 35. 38 C.F.R. § 3.807(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Service Connection-Cause of Death The threshold question to be answered in this case is whether the appellant has met the initial obligation of submitting evidence of a well-grounded claim; that is, one which is plausible and capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, a well-grounded claim for service connection requires competent evidence of (1) current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 136 (1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Where service connection for the cause of death is at issue, 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). A diagnosis of heart disease requires medical expertise; consequently, medical evidence is required to establish a nexus. See Heuer v. Brown, 7 Vet.App. 379 (1995). According to the death certificate, the veteran died in February 1996, at the age of 43, of cardiorespiratory arrest due to acute myocardial infarction. No other antecedent causes were listed, and the veteran had died by the time of his arrival to the hospital. An autopsy was not performed. At the time of his death, service connection was in effect for a scar of the left wrist and hemorrhoids, both evaluated noncompensably disabling. It is not contended or otherwise suggested by the evidence that either of these disabilities played any part in the cause of the veteran's death. Service medical records pertaining to the veteran's period of active duty from 1970 to 1975 do not reflect any heart complaints or abnormalities, and the appellant does not contend that heart disease had its onset during the veteran's active duty. Rather, she asserts that the veteran's heart disease had its inception during his subsequent National Guard and/or Reserve service. She states that heart disease was initially diagnosed during a training period, and that he was discharged from the Reserves for medical reasons. She feels that due to these factors, service connection for the cause of the veteran's death is warranted. VA treatment records show the veteran underwent cardiac evaluation in January 1992. According to the histories provided on the evaluations conducted at this time, the veteran, who was a nurse, had been conducting a demonstration electrocardiogram on himself for a class, when he had noticed a right bundle branch block. After confirming this with a friend of his who was a surgeon, he sought an evaluation at a VA facility. He reported previous episodes of chest pain with activity beginning approximately six months earlier. In addition, in November 1991, while shoveling gravel, he had experienced a more intense chest pain under his left breast and with pain in the left jaw, which had been relieved with rest. Work-up disclosed coronary artery disease, and evidence of an old inferior wall myocardial infarct. According to a medical evaluation board report dated in February 1993, the veteran had first noted symptoms in November 1991, with shortness of breath, left shoulder and left jaw aching, with chest pressure and pain while unloading some gravel. He did not notice it again until the January 1992 electrocardiogram in which he himself had noted a right bundle branch block. Currently, he had good control of his cardiac disease on medication. Also noted were diabetes mellitus and obesity. It was determined that he no longer met medical fitness standards in regard to coronary artery disease, diabetes mellitus and obesity, and that these were not expected to improve to the extent that the veteran would be fit for duty. Accordingly, separation was recommended. In August 1993, the veteran appealed the medical board determination, asserting that his coronary artery disease was asymptomatic with medical management. However, it was decided to discharge him, and he was released from the Reserves in January 1994. At her hearing before the undersigned in June 1999, the appellant testified that the veteran was involved in his Reserve duty when he discovered his abnormal electrocardiogram. The evidence does not reflect whether this was active duty for training or inactive duty for training, although the appellant's recollection that it was a week-end drill suggests that it was inactive duty for training. This distinction can be important because service connection, including service connection for the cause of the veteran's death, may be granted only for injuries attributable to inactive duty for training, and not for diseases. See 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6(a) (1999). In contrast, both diseases and injuries incurred during active duty for training may be service connected. Id. Moreover, a myocardial infarction has been explicitly found to be a disease, and not an injury. O.G.C. Prec. 86-90 (July 18, 1990); Brooks v. Brown, 5 Vet.App. 484 (1993). However, in this case, it is not essential to establish the character of the veteran's service in January 1992, when he reportedly found an electrocardiogram abnormality, because there is no medical evidence suggesting that the electrocardiogram abnormality represented the onset of his coronary artery disease, or that his symptoms increased in severity at that time. Additionally, the evidence does not show that his symptoms had their onset, or any increase in severity, during any period of active duty for training. In this regard, all of the medical records showing treatment or evaluation for the heart condition note a history of relevant symptoms for a period of several months prior to the diagnosis in January 1992. His evaluation at that time disclosed evidence of an "old" myocardial infarction. The symptoms he reported were associated with activity, but not attributed to any activity in connection with his reserve duty. Moreover, for the period from July 31, 1991, to December 28, 1991, during which he experienced the symptoms, the veteran did not accrue any active duty points. The appellant contends that the veteran was discharged, against his will, for medical reasons, and, therefore, his death should be considered service connected. However, although coronary artery disease was one of the medical reasons for his discharge from the reserves, the medical evaluation board did not determine the disease to be of service onset or aggravation. T. Smith, R.N., M.S.N., wrote, in June 1998, that he had known the veteran, and had at one point been his rater. He recommended that the veteran's records be given to a medical examination board. He noted that during the rating period he was aware of numerous medical waivers granted to the veteran not to perform physical fitness training due to his cardiac condition. He had received a cardiac catheterization at the Omaha VAMC while in the National Guard and was on cardiac medication when he was transferred to the Army Reserve. Service department records show that the veteran was transferred from the National Guard to the reserves in July 1991, and there is no other evidence indicating that he had been diagnosed with a cardiac disorder at that time. He underwent a cardiac catheterization at the Omaha VAMC, but this was in January 1992, and there is no evidence of an earlier procedure. The veteran himself, when initially providing his history in January 1992, and thereafter, did not intimate that cardiac disease had been previously diagnosed or that he was on any medication. Mr. Smith did not provide any dates for the time period that he was the veteran's rater, and the basis of his impression that the veteran was treated for cardiac disease prior to his transfer to the Reserves in July 1991 was not offered. However, even accepting his statement as true, the statement did not connect the onset or any increase in severity of the veteran's cardiac disease to any period of active duty for training; consequently, there is no nexus. A statement from [redacted], dated in June 1998, similarly lacks any assertion of a nexus 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). B. Eligibility for Educational Assistance under 38 U.S.C. Chapter 35 For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35 (see § 21.3020), the child, spouse or surviving spouse of a veteran will have basic eligibility if certain conditions are met, including, that a permanent total service-connected disability have been in existence at the date of the veteran's death, or that the veteran died as a result of a service-connected disability. 38 C.F.R. § 3.807(a) (1999). As discussed above, the veteran did not have any compensable service-connected disabilities at the time of his death. Moreover, we have determined that service connection for the cause of the veteran's death is not warranted. Consequently, the appellant's claim fails because of absence of legal merit or lack of entitlement under the law, and the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). ORDER Service connection for the cause of the veteran's death is denied. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35 is denied. JEFF MARTIN Member, Board of Veterans' Appeals