BVA9505922 DOCKET NO. 92-54 528 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Associate Counsel INTRODUCTION The veteran served on active duty from May 1942 to July 1945. The Regional Office (RO) denied service connection for the cause of the veteran's death in October 1990. A claim for an increased rate of pension was pending at the time of the veteran's death. The claim subsequently filed by the appellant included a claim for accrued benefits. Pursuant to Lathan v. Brown, No. 93-62, slip op. at 15-16 (U.S. Vet. App. Jan. 26, 1995), the RO should clarify whether the appellant wishes to pursue an accrued benefits increased rate of pension claim. In November 1993, an opinion was obtained from a Board of Veterans' Appeals (Board) Medical Advisor which is prejudicial to the appellant's claim. That opinion has not been relied upon by the Board in its decision. See Austin v. Brown, 6 Vet. App. 337 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's service-connected ulcer disease caused his death, as shown by medical records, medical opinion, a note to see his doctor for blood in stools, and the appellant's statements. Moreover, a Sippy diet with cream, high fat, and high cholesterol prescribed for the veteran's service-connected hypertrophic gastritis with ulcer disease was responsible for the veteran's development of atherosclerotic cardiovascular disease. Consideration of the benefit of the doubt doctrine is requested. Additionally, an opinion from an independent medical examination is felt to create a reasonable probability that the ulcer disease contributed to 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 folders. 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 service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All evidence necessary for an equitable decision has been added to the record. 2. The veteran's death was due to atherosclerotic cardiovascular disease with cardiopulmonary arrest. 3. Atherosclerotic cardiovascular disease first had its onset many years after service discharge and was not caused by or related to the veteran's service-connected ulcer disease or treatment therefor. 4. Service-connected disabilities, including hypertrophic gastritis with ulcer disease, did not play any substantial or material role in causing or hastening the veteran's death. CONCLUSIONS OF LAW 1. Atherosclerotic cardiovascular disease was not incurred or aggravated in service, may not be presumed to have been, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a), 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (1994). 2. A service-connected disability did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§1310(a), 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before we may discuss the merits of a claim, we must first determine whether it is well grounded; that is, whether it is plausible. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1991). The veteran died while in the emergency room of a private hospital in May 1990 at age 68 years. An autopsy was not done. The death certificate states that the cause of death was cardiopulmonary arrest due to or as a consequence of atherosclerotic cardiovascular disease which was due to or a consequence of duodenal ulcer. At the time of his death, he was service-connected for chronic hypertrophic gastritis with duodenal ulcer, status post gastrectomy, rated as ten percent disabling from September 1989; and for hemorrhoids, rated as noncompensable. We conclude that the appellant's claim is well grounded. Therefore, we must determine whether VA has fulfilled its duty to assist her pursuant to 38 U.S.C.A. § 5107. We conclude that it has. An opinion has been obtained from an independent medical expert. Accordingly, we may discuss the claim on the merits. Gilbert, 1 Vet.App. at 55. The question to be addressed which must be resolved in the appellant's favor in order for the claim to be granted is: Does the evidence show that the veteran developed atherosclerotic cardiovascular disease in service, or was atherosclerotic cardiovascular disease manifested to a degree of 10 percent within one year of service, or was it proximately due to or the result of a service-connected disability? Alternatively, did the veteran's service-connected disabilities cause or contribute substantially or materially to cause the veteran's death? Service connection may be granted for disability resulting from disease or injury which was incurred or aggravated in wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303 and 3.304. A showing of incurrence may be established by affirmatively showing inception during service, and each disability must be considered on the basis of the places, types, and circumstances of service as shown by service records. Service connection may be established for disease diagnosed after discharge when all of the evidence including that pertinent to service establishes that it was incurred in service. 38 C.F.R. § 3.303(a)(d). Additionally, service connection may be granted for disability which was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). It is considered the principal cause of death when it, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). For it to be a contributory cause of death, it must be shown that it contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c). The above laws and regulations apply in determining whether the cause of death is service-connected. 38 U.S.C.A. § 1310(a). Here, the evidence shows that the veteran's blood pressure, heart, and cardiovascular system were normal during service, and no cardiovascular disease was shown. Additionally, hypertension and cardiovascular disease were first documented in January 1975, almost 30 years after service discharge. See the January 1975 VA medical record. No evidence of record relates hypertension or cardiovascular disease to service. Accordingly, the provisions of 38 U.S.C.A. § 1101(3), 1110, 1112(a), and 1113 and 38 C.F.R. §§ 3.303, 3.307 and 3.309 do not assist the appellant. As to the issue of whether a Sippy diet with high fat and cholesterol prescribed for the service-connected ulcer disability caused the veteran's cardiovascular disease, service medical records show that such a diet was prescribed in service for a short period of time from December 1944 to January 1945, after which it was discontinued. A September 1989 note on a prescription form from Jerrold A. Munro, M.D., a general practitioner, states that the veteran's gastritis and ulcers caused him to be on a Sippy diet including cream, high fat, and high cholesterol, and caused premature arteriosclerotic heart disease, which caused a heart attack, which caused a stroke. Reports of VA examinations from 1945 to 1975 make no mention of a Sippy diet, or of treatment by Dr. Munro at those times. To summarize the post-service clinical record prior to the onset of cardiovascular disease, there was no specific reference to a Sippy diet. In February 1995, the Board obtained an independent medical opinion in this case, from a gastroenterologist, Dominic J. Nompleggi, M.D., Ph.D., an assistant professor of medicine and surgery and director of adult nutrition support service at the University of Massachusetts Medical Center. Dr. Nompleggi noted that the appellant had contended that the veteran's service-connected duodenal ulcer disease either caused his death directly or that a Sippy diet for duodenal ulcer disease caused atherosclerotic cardiovascular disease which caused his death. Dr. Nompleggi considered the questions of whether a diet prescribed for gastrointestinal disease in World War II service caused the veteran's atherosclerotic cardiovascular disease, and whether duodenal ulcer disease caused or had a material influence in causing or hastening the veteran's death. Dr. Nompleggi noted that the veteran served on active duty from May 1942 to July 1945 and had numerous episodes of abdominal pain in service. Following service, VA granted service connection for chronic gastritis, and in 1975, VA changed the service-connected disability to gastritis hypertrophic chronic duodenal ulcer. The evaluation was changed from zero to 30 percent. This was based on an upper gastrointestinal X-ray showing hypertrophic gastritis with an inflamed and ulcerated duodenal bulb. No gastric ulcers were noted. Dr. Nompleggi noted that in a June 1975 medical examination report, the appellant complained of stomach disorder and a sour stomach and gas, and said that he definitely had experienced changes from gas and constipation to much more gas, stomach cramps, and loose bowel movements part of the time, even in the middle of the night, with great amounts of gas. His condition "changes now from constipation, part of the time, to loose bowel movements part of the time". Dr. Nompleggi stated that these symptoms could have been from duodenal or peptic ulcer disease. Dr. Nompleggi noted that the veteran continued to report gastrointestinal symptoms. In December 1985, the veteran complained of black tarry stools, and multiple gastric ulcers were found on endoscopy and gastrotomy. No definite duodenal ulcer but hypertrophic gastritis was found in March 1986. The veteran had had other admissions for a cerebrovascular accident and congestive heart failure. His stools were guaiac negative. Dr. Nompleggi noted that on May 28, 1990, an ambulance was called to the veteran's home, and he was found seated in a chair, pulseless and without respiration. CPR was initiated and an electrocardiogram revealed asystole. He was transported to a hospital, where he was pronounced dead. Dr. Nompleggi reviewed the death certificate. Dr. Nompleggi stated that risk factors for atherosclerotic cardiovascular disease included hypercholesterolemia, smoking, obesity, diabetes mellitus, and a positive family history. He reported that no specific diet per se had been shown to be directly related to an increased risk for atherosclerotic cardiovascular disease. He stated that if a diet were to increase serum cholesterol, then it could be said that it was responsible for hypercholesterolemia, which is a definite risk factor. He could find no evidence in the records that the veteran had hypercholesterolemia in or after service. Dr. Nompleggi stated that there was no indication from the medical records that the veteran ever followed a Sippy diet. He noted that the veteran only referred to being able to eat certain food, and that there was no concrete evidence that those certain foods were the prescribed Sippy diet. He could not from the available evidence draw "any link between diet prescribed and the eventual atherosclerotic disease that the patient subsequently developed." The Board finds that the evidence in support of the claim for secondary service connection for atherosclerotic cardiovascular disease is outweighed by that which works against it. The independent medical expert in the field of gastroenterology found no link between the veteran's diet for peptic ulcer disease and the development of cardiovascular disease. The only credible evidence to the contrary is the opinion of Dr. Munro. However, we find that opinion to be far less probative than that of the independent medical specialist. First, there is no indication as to the basis for Dr. Munro's opinion, and particularly, no indication that the opinion was based either on Dr. Munro's treatment of the veteran or on his review of the veteran's medical record. Second, the medical record does not show that prior to the onset of cardiovascular disease, the veteran was prescribed a Sippy diet for treatment of peptic ulcer disease except for a brief period in the service. Third, even if we were to concede the Sippy diet, merely for the sake of argument, the medical record does not show that the veteran then developed hypercholesterolemia, one of the risk factors for cardiovascular disease. Finally, Dr. Munro is not identified as a gastroenterological specialist. The appellant's assertions have been considered, but, as a layperson, she is not considered competent on questions of medical causation or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The claim fails on the basis of secondary service connection. The remaining question, then, is whether or not the service-connected chronic hypertrophic gastritis with ulcer disease was the principal or contributory cause of the veteran's death, as has been alleged. As was noted, the death certificate states that the ultimate cause of the veteran's death was peptic ulcer disease. That certificate was signed by Jeff Carls, M.D., and H. Snell, M.D., and reflects these physicians' opinion. It is this Board's judgment, however, that these opinions are less probative than other evidence of record. That record includes a VA hospital discharge summary dated in November 1988 which indicates that the veteran had an abdominal aortic aneurysm (AAA), coronary artery disease, and congestive heart failure. A VA upper gastrointestinal series in May 1989 was negative for active ulcer pathology. A VA hospital discharge summary dated in July 1989 indicates that the veteran was hospitalized for cholelithiasis (gallstones). A history of peptic ulcer disease was reported. Bowel sounds were active. The veteran was admitted to the Havasu Samaritan Regional Hospital (HSRH) via the emergency room on April 6, 1990. The hospital records state that the veteran had a history of chronic obstructive pulmonary disease, congestive heart failure, hypertension, and arteriosclerotic vascular disease. He presented to the emergency room stating that he had been getting increasingly short of breath for the last several months. The emergency room diagnosis was congestive heart failure with pulmonary edema and hypoxia. During the hospitalization in April 1990, clinically, the veteran's abdomen was soft, nondistended, and with present and active bowel sounds. There was no suprapubic tenderness and no masses. The impressions included congestive heart failure, coronary artery disease status post myocardial infarction times two by electrocardiogram, chronic obstructive pulmonary disease with continued heavy smoking, hypertensive arteriosclerotic vascular disease, an AAA, and cholelithiasis. The admission summary sheet, signed by Dr. Carls, states that the principal diagnosis was congestive heart failure. A pre-hospital call form dated May 28, 1990, the date of the veteran's death, indicates that he had had extensive heart and respiratory problems at that time. When he was examined, he was not breathing, and had no pulse. No mention was made of any blood per rectum or abdominal complaints. Oxygen, cardiopulmonary resuscitation, and medicine were given. No pulse returned. A HSRH emergency room medical record shortly thereafter reflects a medical history of cardiopulmonary distress, on several medications. After examination, the veteran was pronounced dead. No mention was made of any abdominal findings or gastrointestinal bleeding or bloody or black tarry stools preceding the death. The diagnosis was cardiopulmonary arrest. The emergency record was signed by a physician and a registered nurse. It was noted that Dr. Carls would sign the death certificate. The official death certificate, signed on May 29, 1990, states that the cause of the veteran's death was cardiopulmonary arrest due to or as a consequence of atherosclerotic cardiovascular disease due to or as a consequence of ulcer disease. No autopsy was performed. The signatures of Dr. Carls and Dr. Snell were on the death certificate. In a July 1990 letter, the appellant stated that the veteran's complaints on the morning of his death had been of severe stomach pains and discomfort, to the point that she tried to contact his doctor in Lake Havasu, but that he had been unavailable. Dr. Carls, in a June 1, 1991 letter, stated that since the veteran's death, the question had been presented of what could duodenal ulcer have had to do with the veteran's death. He stated that the reason it was listed on the veteran's death certificate was that the veteran, a few days prior to death, had been reportedly noted by his wife, the appellant, to have had black tarry stools. He stated that black tarry stools were never examined for in the office, but that certainly the veteran could have had a bleeding ulcer. Unfortunately, an autopsy was not performed to uncover this, he stated. He stated that it was very possible that the veteran had had a bleeding duodenal ulcer which led to hypotension, shock, and then cardiac arrest. He stated that one could not prove or disprove the above scenario. A June 10, 1991 letter from Dr. Snell states that he had reviewed the emergency room record of the veteran, talked with the appellant, and reviewed the death certificate and the RO's summary of evidence in the adjudicative actions taken. He stated that historically, the veteran had begun suffering from tarry stools on Saturday before Memorial Day 1990. This continued throughout the weekend and on Memorial Day, at which time the veteran was found dead by his wife. Dr. Snell stated that while it is true that the veteran suffered from arteriosclerotic vascular disease and a stroke and heart attack, he was also being treated for chronic hypertrophic gastritis with duodenal ulcer that was service-connected, and that according to the appellant, there had been numerous admissions for this. The attending physician, Dr. Carls, was not available during the weekend that the veteran was having black tarry stools, and consequently did not see the veteran clinically prior to his death. In completing the death certificate, Dr. Carls had followed the guidelines for producing a sequential event so very much loved by the personnel at the Bureau of Vital Records. Unfortunately, this methodology at this time did not entirely fit the clinical situation. He stated that a more accurate descriptive construction of the death certificate might be: "Massive upper gastrointestinal hemorrhage with associated hypovolemia, hypoxemia and terminal cardiac arrest". He stated that he was taught many years ago by a now deceased medical examiner that you cannot pick your victims, and that by this, he meant that if one were to shoot an individual in the process of taking his last breath, it would still be murder. The fact that the veteran had a marginal supply of blood to his myocardium due to arteriosclerotic cardiovascular disease only made him more susceptible to any reduction in blood flow through the coronaries from any cause including bleeding from a peptic ulcer. He stated that the most simple concept that could be stated in this particular case is that the veteran had a service-connected peptic ulcer which bled and killed him. The appellant testified at a hearing at the RO in September 1991. The transcript (T.) thereof indicates that she stated that the veteran had no appetite the day of his death. T.3. He was complaining more and more about stomach distress, and was taking more and more medication. T. 3-4. She said that she had never seen him regurgitate blood, that he would not have told her if he was having blood in his bowels, and that he kept that information away from her. T.6. She stated that he might have wanted to make a telephone call to his doctor the day of his death, and that might have been why he was up early. T. 7. She noticed a change in his breath similar to when he had really bad ulcers back in about 1984 a few days before the veteran died in 1990. T. 9. The appellant wrote a letter in September 1991 to her representative. In it, she states that she checked with the Dr. Carls' secretary, and that the secretary indicated that over the holiday weekend, the appellant's call from her residence, on Monday, Memorial Day, reporting the veteran's death, was the only one that originated from her residence, according to the answering service. Therefore, she and the secretary believed that the veteran called the office the Thursday or Friday prior to Memorial Day, and made an appointment for the following Tuesday, but that the appointment was automatically canceled by the computer after the appellant called in on Monday announcing that the veteran died. Received with this letter was the original of Dr. Snell's June 10, 1991 letter, described above. To it, the appellant stapled one of Dr. Carls' business cards. On the back of it, it states, in handwriting: "Make appt with Dr. Carl for Tues. or Wed May 29 or 30 - Blood in my stools". Dr. Nompleggi's February 1995 opinion also discusses the question of whether duodenal ulcer disease caused or had a material influence in causing or hastening the veteran's death. Dr. Nompleggi noted that peptic ulcer disease is a spectrum of diseases that includes gastritis, gastric ulcer, and duodenal ulcer. He noted that at various times during the veteran's life, he had evidence of all three, so he felt that diagnosis was correct. He noted that the veteran had complained of a loss of appetite and inability to eat hard food just prior to death. Dr. Nompleggi stated that these symptoms could have been caused by an upper gastrointestinal tumor, but that there was no evidence of a tumor on upper gastrointestinal X-ray in 1989, when the veteran had complaints suggesting dysphagia. Dr. Nompleggi stated that it "certainly is possible that the patient could have had an ulcer that was bleeding. A bleeding ulcer could lead to hypotension and cardiac ischemia and subsequently death." He stated that the problem with rendering an opinion regarding this is that there is no objective evidence to suggest that the veteran did have that course of events. There was no evidence of an active ulcer by X-ray or autopsy since they were not performed. He noted that there was a description of tarry stools, but noted that there are a number of foods and medicines that could turn the stool black. He felt that since the veteran had a history of black tarry stools in the past, and was familiar with the symptoms of bleeding, he would have been more likely to seek medical help if he thought he was truly having another episode of bleeding. The difficulty with making the argument for peptic ulcer disease as a cause of the veteran's ultimate death was complicated by the fact that there was no clear cut evidence of an active ulcer at the time of his death. This would have to be present in order to be able to say with any certainty that peptic ulcer disease was contributory in the veteran's final demise. Therefore, although Dr. Nompleggi felt it was possible that peptic ulcer disease or a bleeding ulcer from it could have contributed to the veteran's death, there was no direct objective evidence to support that. Therefore, he could not conclude with all certainty that active peptic ulceration was contributory to the veteran's death. After weighing the evidence, the Board concludes that it preponderates against the claim that the service-connected gastritis with ulcer disease caused or played a substantial or material role in the veteran's death. The appellant's statements and testimony as to the veteran's status shortly before his death have been noted. However, even if we presume, for the sake of argument, that her assertions are credible, they are not probative with respect to the cause of death. She is not considered competent to opine whether any of the signs or symptoms prior to death were actually manifestations of a bleeding ulcer or, for that matter, of peptic ulcer disease. Espiritu, 2 Vet. App. 495. With respect to the medical treatment records, as was noted by the independent medical expert, these do not reflect findings of active peptic ulcer disease shortly before the veteran's death. That is, there are no clinical findings of active ulcer disease in the record of hospitalization one month before death or in the emergency room record on the day of death. In fact, the medical personnel who signed the emergency room record attributed death only to cardio-pulmonary disease. As to Dr. Carls' opinion, this evidently was based, in part, on the history of black tarry stools a few days prior to death which was provided by the appellant. Dr. Snell similarly predicated his opinion, in part, on that history. The appellant has not only related that tarry stools were present, but has submitted evidence purporting to show that the veteran had actually sought treatment for same. Even if we were to accept the credibility of this evidence, for the sake of argument, the fact remains that neither Dr. Snell nor Dr. Carls has dealt with the fact, as has the independent gastroenterologist, that there are a number of causes for tarry stools. Further, neither Dr. Snell nor Dr. Carls has dealt with the fact, as has the independent gastroenterologist, that the clinical treatment record does not show confirmatory signs or symptoms of bleeding ulcer of active ulcer disease prior to death. Only the independent gastroenterologist has apparently taken into account the treatment record in reaching his conclusion. Dr. Snell, like Dr. Carls, appears to have had no personal knowledge of the events leading to the veteran's death. Nor does he appear to have reviewed the veteran's extensive medical record. Instead, the records upon which his opinion was based consisted of the death certificate, the emergency room record and the very brief summary of the evidence found in the statement of the case. All of the physicians who have provided opinions as to the cause of the veteran's death have agreed that it is possible that peptic ulcer disease was significant factor in the events leading to death. However, neither of the physicians who signed the death certificate has pointed to, or can point to, clinical findings to support their assessment that there was a bleeding ulcer which was manifested by tarry stools. In fact, the independent gastroenterologist stated that no such findings could be identified. He could conclude that peptic ulcer disease was the principal or contributory cause of death only by resorting to speculation. It is the Board's judgment that the independent medical expert's opinion as to the cause of death is the most probative of the medical opinions on file. First, he is a specialist in gastroenterology. Second, he has reviewed the veteran's extensive medical record. Third, in setting forth the rationale for his opinion he has made specific reference to the medical history and to the medical findings which support or do not support his conclusions. He has concluded, and we agree, that it is only by resorting to pure speculation or remote possibility that it can be stated that peptic ulcer disease caused or contributed substantially or materially to death. In summary, the clinical treatment records do not confirm the cause of death listed on the death certificate. Moreover, the more probative medical opinion, that of the independent medical expert, also does not confirm that the principal cause of death was peptic ulcer disease. Finally, for the reasons set forth previously, the more probative evidence does not show that peptic ulcer disease was a contributory cause of death. After weighing the evidence, we do not find a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. We conclude that the evidence preponderates against the claim that service-connected disability caused or contributed substantially or materially to the veteran's death. 38 C.F.R. § 3.312. ORDER Service connection for the cause of the veteran's death is denied. NANCY I. PHILLIPS 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. The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6 (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.