BVA9506227 DOCKET NO. 92-53 313 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Louis N. Hiken, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from June 1965 to June 1985. He died on May [redacted] 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 1989 determination by the St. Paul, Minnesota, Regional Office (RO). A notice of disagreement was received in April 1990, and a statement of the case was issued in July 1990. The appellant's notice of disagreement was timely received in October 1990 pursuant to an RO approved extension of the filing period. In December 1990, the appellant testified at a personal hearing at the RO. By decision dated in May 1993, the Board denied the appellant's appeal. The appellant subsequently appealed the Board's decision to the United States Court of Veterans Appeals (Court). In a September 1994 decision, the Court vacated the Board's May 1993 decision and remanded the case to the Board for compliance with instructions set forth in the Court's decision. [citation redacted]. The appellant is currently represented by Louis N. Hiken, Attorney. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the appellant that the veteran's death was due to liver disease which had its origin during the veteran's period of active military service. Specifically, it is maintained that the veteran had a long history of excessive use of alcohol during his military service. The Board's attention is directed to appellant's sworn testimony as well as her numerous statements which show that the veteran was consuming 16 to 24 ounces of alcohol per day for the 15 years prior to his death. The Board is next asked to consider the medical opinions of record which clearly show that liver disease is quite likely to develop when an individual consumes such a quantity of alcohol over a long period of time. The appellant contends that because the veteran's liver failed completely within three years after service, the liver disease must have begun before his active service ended. It is maintained that the evidence as a whole supports the opinion of the Department of Veterans Affairs (VA) medical doctor who suggested that the veteran's liver disease conceivably began during the veteran's service. Finally, it is strongly contended that the veteran concealed his heavy drinking habits while serving with the military since knowledge of his alcohol abuse would have been detrimental to his career. 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 supports the grant of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran died in May 1988. 2. The veteran's death was caused by bacterial sepsis due to, or as a consequence of liver failure, due to, or as a consequence of alcoholism of 15 years duration. 3. The veteran's liver disease had its onset during his period of active military service. CONCLUSIONS OF LAW 1. Liver disease was incurred in the veteran's active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The veteran's death was caused by a disability incurred in his active military service. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is claiming entitlement to service connection for the cause of the veteran's death. In order to establish entitlement to this benefit, there must be a finding that disability incurred in or aggravated by the veteran's service either caused or contributed substantially or materially to cause his death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). In the present case, the veteran's death certificate, as amended, reflects that his death was caused by bacterial sepsis due to, or as a consequence of liver failure, due to, or as a consequence of alcoholism of 15 years duration. Although no autopsy was performed, the records of the veteran's final hospitalization clearly support a finding that liver disease was the principal underlying cause of the veteran's death. The essence of the appellant's contentions is that the veteran's liver disease had its onset during his service although it was not medically reported at the time, and that service connection for the cause of his death is therefore warranted. At this point, the Board observes that under regulatory law in effect at the time the appellant's filed her claim in June 1989, service connection could be established for disability which is the secondary result of chronic use of alcohol. 38 C.F.R. § 3.301(c)(2) (1990). Service connection will be granted when the evidence establishes that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1994). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1994). Certain chronic disabilities, such as cirrhosis of the liver, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). A review of the veteran's service medical records does not reveal any references to excessive use of alcohol. While the June 1985 discharge examination report does contain a reference to a fine tremor of the hands, at that time the veteran reported that he only consumed 5 to 6 ounces of alcohol per day. He also denied any problems with driving while intoxicated or loss of work time. On the other hand, the appellant has testified that the veteran actually consumed one-half of a quart or more of distilled alcoholic spirits per day during approximately the last half of his military service and that this consumption increased to approximately three-quarters of a quart per day after he retired from the military. The Board believes it to be especially significant that the veteran admitted to such excessive use of alcohol during the course of his final hospitalization in May 1988. He was critically ill at the time, and it is unlikely that he would have misled the treating physicians whereas, as maintained by the appellant, he would have had reasons for concealing his heavy drinking during service. After carefully considering and reconsidering the evidence pertinent to the question of the veteran's use of alcohol, the Board finds that the preponderance of the evidence is in favor of a finding that the veteran did consume alcohol to an excessive degree at least during the final ten years of his service. Having reached such a conclusion, the question now focuses on the time of onset of the veteran's liver disease, which according to the death certificate and statements in the medical records, was related to excessive use of alcohol. Such a question involving the presence of disease involves diagnostic skills and is within the realm of medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In this regard, the Board first requested an opinion from a Board Medical Adviser. After reviewing the veteran's records, Jack J. Rheingold, M.D. offered an April 1992 opinion to the effect that while the amount of time for liver dysfunction to occur during continuing alcohol consumption could vary depending on such factors as the role of malnutrition, amount of alcohol, tolerance of the individual, etc., it was his impression that it was "quite conceivable" that the veteran's liver disease might have had its beginning during the veteran's latter service. Dr. Rheingold pointed out that in May 1988, the veteran had significant esophageal varices which bled and that it would have taken a significant time for such a development. The Board also requested an opinion from an independent medical expert. In an opinion letter dated in November 1992, Geoffrey D. Block, M.D. indicated that his review of the record did not reveal any direct physical or laboratory evidence of liver disease prior to the veteran's hospital admission in May 1933. Dr. Block found it significant that the veteran was only consuming 5 to 6 ounces of alcohol at the time of his discharge from service and that he did not have a history of events which would suggest alcohol abuse. His conclusion was that it was more likely that it was the veteran's excessive use of alcohol after service which ultimately led to the development of the liver disease which caused his death. The Board has also reviewed medical opinions in support of the appellant's claim from Steven R. Lavine, M.D. and Kevin W. Olden, M.D. These opinions focus on various medical findings such as elevated blood pressure readings, abnormal radiological findings, as well as the appellant's testimony regarding the veteran's drinking habits. The collective opinion of these private physicians is that it is highly unlikely that the veteran's liver disease had not developed by the time he was discharged from service. The record in the present case does not include any clear evidence of a link between the veteran's fatal liver disease and his period of military service. However, the appellant is not required to establish her claim by a preponderance of the evidence; rather, the preponderance of the evidence must be against the appellant's claim if the benefit sought is to be denied. Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990). With this standard of proof in mind, the most significant item of evidence against the appellant's claim is the independent medical opinion of Dr. Block. However, although Dr. Block's opinion contains a detailed summary of the evidence and cites various medical studies and criteria, it appears that his opinion failed to consider the veteran's own May 1988 admission that he had been consuming three-quarters of a quart of distilled alcohol a day for a number of years. Under the particular circumstances of this case where the quantity of alcohol consumed over a number of years appears to play a major role in reaching a medical determination as to the time of onset of the veteran's liver disease, the probative value of Dr. Block's opinion is therefore diminished. In favor of the appellant's claim are the opinion's of the two private physicians submitted by the appellant as well as Dr. Rheingold's medical opinion that it was "quite conceivable" that the veteran's liver disease had its onset during service. In view of the Board's finding that the factual premise (that the veteran was consuming only 5 to 6 ounces of alcohol in service) upon which Dr. Block's opinion was based is not supported by the evidence, the Board believes that more probative value should be assigned to the opinion of Dr. Rheingold. Dr. Rheingold's opinion is also enhanced by the fact that he noted that significant time would be required for the development of a physical manifestation of liver disease (bleeding esophageal varices), thus supporting his opinion that it was "quite conceivable" that the veteran's liver disease began in service. The Board therefore concludes that the totality of the evidence is for a finding that it is more likely than not that the veteran's liver disease had its onset during his period of military service. Entitlement to service connection for the cause of the veteran's death is therefore warranted. In closing, the Board is mindful of the notice and opportunity to be heard requirements associated with reliance on opinions obtained by VA Medical Advisers. Austin v. Brown, 6 Vet.App. 547 (1994). However, the record shows that the appellant and her representative have been fully apprised of the contents of Dr. Rheingold's opinion and have had ample opportunity to respond. Moreover, even if such were not the case, there would be no prejudice to the appellant in light of the Board's decision. ORDER The appeal is granted. G. H. SHUFELT Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.