BVA9503554 DOCKET NO. 93-02 930 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from June 1944 to October 1945. This matter comes before the Board of Veterans Appeals (Board) on appeal of a July 1992 rating action of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the appellant entitlement to service connection for the cause of the veterans death. CONTENTIONS OF APPELLANT ON APPEAL It is contended in substance that the veteran's service-connected rheumatic heart disease contributed to his death. 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 evidence supports the claim for service connection for cause of death. FINDINGS OF FACT 1. The veteran died in October 1991 and was 71 years old at the time of his death. 2. The underlying cause of death was shown by the death certificate to be arteriosclerotic cardiovascular disease with a myocardial infarction. 3. During the veteran's lifetime and at the time of his death, service connection was in effect for disorders which included rheumatic heart disease, evaluated as 30 percent disabling since May 1986. 4. The veteran's service-connected rheumatic heart disease materially aided and lent assistance to the production of death. CONCLUSION OF LAW The veteran's service-connected rheumatic heart disease contributed substantially and materially to the cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially the Board finds that the appellants claim for service connection for cause of death is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find she presented a claim which is plausible. We further find that the duty to assist the appellant in the development of the claim as mandated by 38 U.S.C.A. § 5107(a) has been complied with. Some of the evidence of record is not in dispute. The death certificate listed lung cancer as a contributing cause of death. The veteran did not have service connection for lung cancer. The death certificate further reveals that an autopsy was not performed. The service medical records and early post service medical records revealed no clinical documentation of arteriosclerotic heart disease. That was first clinically documented in 1977. The terminal hospital clinical records show an admission diagnosis of lung cancer with metastases to bone. The veteran was transferred to a hospice with that diagnosis on October 25, 1991 and died at that facility several days later. In August 1992, a report was received for D. R. Nagel, M.D., stated that the veteran had a history of rheumatic heart disease with mitral and aortic involvement and that his heart muscle was weakened by this. He expressed the opinion that the rheumatic heart disease weakened his heart, made the other conditions less tolerable for him and would make it less likely that he could sustain a heart attack. In September 1993, the Board obtained an opinion from one of its medical adviser's concerning the issue on appeal. The opinion was reviewed by the appellant's representative in October 1993. The Board has not relied on this opinion due to a decision of the United States Court of Veteran's Appeals in August 1994. See Austin v. Brown 6 Vet.App. 547 (1994). In October 1994, the Board sought a medical opinion from a VA physician through the Veterans Health Administration. In January 1995, such opinion was received from a VA cardiologist. It was reviewed by the appellant's representative in February 1995. The question posed was as follows: Did the veteran's rheumatic heart disease aid or lend assistance to the production of death; specifically did rheumatic heart disease weaken his heart to such a degree as to make him materially less capable of sustaining the effects of the fatal myocardial infarction. The VA cardiologist responded with a comprehensive opinion based on a review of the record. In summary she concluded that the veteran's ventricular function was significantly depressed, and that the rheumatic heart disease could have been the etiology of the damage to the cardiac muscle. There was no alternate explanation which can be supported to any greater extent by the medical history and clinical findings. The resulting impaired function of his heart would have put the veteran at increased risk of a fatal outcome from a myocardial infarction. We now have an opinion from a private physician and a VA cardiologist to the effect that it is reasonably possible that rheumatic heart disease materially contributed to death. A proper basis is afforded for allowance of the appeal. 38 U.S.C.A. § 5107(b) (West 191). ORDER Service connection for cause of death is granted. BRUCE E. HYMAN 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.