Citation Nr: 0001375 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-20 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance under the provisions of Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from September 1942 to October 1945, and died on March [redacted], 1997. The appellant is the veteran's widow. This appeal arises from an April 1997 decision by the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the veteran's death. This case was previously remanded by the Board in April 1998 in order to obtain additional clarifying medical data. That development has been completed to the extent possible, and the case is once more before the Board for appellate consideration. FINDINGS OF FACT 1. The veteran's certificate of death shows that he died in March 1997. The cause of death is listed as pulmonary edema and heart failure; due to or as a consequence of hypertensive cardiovascular disease; due to or as a consequence of essential hypertension. The certificate notes that other significant conditions contributing to the veteran's death but not resulting in the underlying cause of death were a right leg gunshot wound leading to right leg weakness and ultimately to hypertension, a hip fracture and a stroke. 2. At the time of the veteran's death service connection was in effect for residuals of a severance of the right common peroneal nerve group, with foot drop and atrophy of muscles of the lower right leg, and anesthesia over the dorsum of the right foot, evaluated as 40 percent disabling; and for gunshot wound scars of the right leg, evaluated as 10 percent disabling. 3. Neither pulmonary edema, heart failure, hypertensive cardiovascular disease or essential hypertension was present during service or for many years thereafter, and none of these disorders is causally related to service or a service- connected disability. 4. A service-connected disability is not shown to have hastened, produced or been causally or etiologically related to the veteran's death. 5. There is no evidence to show that the veteran had a permanent and total service-connected disability, or that the veteran had a permanent and total disability at the time of his death, or that the veteran died as a result of a service- connected disability. CONCLUSIONS OF LAW 1. A service-connected disability did not cause or contribute substantially or materially to cause death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312 (1999). 2. The requirements for eligibility for Dependents' Educational Benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3501, 3510 (West 1991); 38 C.F.R. §§ 3.807, 21.3021 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the appellant's claim is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the appellant is required in order to comply with the duty to assist. Id. The appellant contends that service connection for the cause of the veteran's death is warranted. Essentially, she maintains that the veteran's service-connected residuals of a gunshot wound contributed substantially to the cause of his death. The law provides that service connection may be granted for disabilities resulting from a disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Further, there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). The veteran's certificate of death shows that he died in March 1997. The certificate of death lists as the cause of death, pulmonary edema and heart failure; due to or as a consequence of hypertensive cardiovascular disease; due to or as a consequence of essential hypertension. The certificate notes that other significant conditions contributing to the veteran's death but not resulting in the underlying cause of death were a right leg gunshot wound leading to right leg weakness and ultimately to hypertension, a hip fracture and a stroke. At the time of the veteran's death, service connection was in effect for residuals of a severance of the right common peroneal nerve group, with foot drop and atrophy of muscles of the lower right leg, and anesthesia over the dorsum of the right foot, evaluated as 40 percent disabling; and for gunshot wound scars of the posterior upper right thigh, evaluated as 10 percent disabling. The veteran's service medical records are negative for any evidence of pulmonary edema, heart failure, hypertensive cardiovascular disease or essential hypertension, nor is there any evidence of heart disease within the first year of service separation. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307; 3.309. In fact, following separation from service, the record is devoid of any medical evidence referable to these disorders until approximately 1972, when private progress notes show a diagnostic impression of probably essential hypertension. The Board has reviewed the medical evidence of record reflecting treatment during the years prior to the veteran's death, but there is simply no evidence that any cardiovascular or heart disease was clinically manifested during the veteran's active service, or to a compensable degree during the first post-service year. Because the appellant has neither asserted nor submitted evidence that a cardiovascular or heart disorder developed during service or within the presumptive period, there is no need to further address this matter. Rather the appellant contends that the veteran's service- connected residuals of a gunshot wound caused stress that stressed the heart, causing heart disease and subsequent heart attack that caused his death. Although a basis for establishing service connection for the cause of the veteran's death on a direct basis has not been demonstrated, applicable law also contemplates service connection on a secondary basis. Disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a) (1999). The claims file contains private medical records showing treatment for various disorders, from August 1972 to March 1995. There are also VA and private medical reports documenting hospitalization and treatment from April to July 1995, after the veteran had a myocardial infarction in early April 1995. At the time of that event, the veteran was resuscitated and was in a coma for three days and had hypoxic encephalopathy. During the period from April to July 1995, the clinical records show that he was treated for cardiac arrest and hypoxic encephalopathy; and that he fell in April 1995 during VA hospitalization and sustained a fracture of the right hip, for which he underwent surgical treatment in May 1995. The records also document that the veteran had a stroke in May 1995. The report of VA hospitalization in July 1995 contains a principal diagnosis of treated unresponsiveness, resolved. At that time other pertinent treated diagnoses included hypoxic encephalopathy following myocardial infarction, April 1995; chronic atrial fibrillation; hypertension; and chronic obstructive pulmonary disease. The report contains a notation of pertinent clinical diagnoses noted but not treated, which included right hip fracture with repair and prosthesis; and claudication of lower extremities. The veteran was examined by VA in August 1995 VA for diseases of arteries and veins, and for joints. The report of the arteries and veins examination recorded the veteran's medical history, including for his service-connected gunshot wound disability, and other disorders. After examination, the report contains diagnoses of history of claudication, with recent history of deep vein thrombosis in the left calf; history of hypertension; history of myocardial infarction, April 1995; history of cerebrovascular accident, with organic brain syndrome, speech and peripheral vision complications, and mental confusion; history of right hip fracture with ball replacement; and residual gunshot wound, right buttocks, with peroneal nerve involvement, with consequential right foot drop. The veteran was examined by VA in August 1995 VA for joints, and in September 1995 for peripheral nerves. In support of the appellant's claim, she has provided several private medical statements. A December 1995 letter from Dr. Bauer states that the veteran had a cardiac arrest in April 1995, which left him with a hypoxemic encephalopathy from which he never recovered. Dr. Bauer opined that the veteran's service-connected gunshot wound disability left him with claudication in the right lower extremity. This, in turn led to stresses that contributed to a heart disease, which ultimately led to the cardiac arrest in April 1995. A February 1997 letter from Norman C. Bos, M.D., stated that the veteran's service-connected injury contributed significantly to degenerative changes in the left knee, and that associated weakness and instability in both lower extremities contributed to the fall in which the veteran sustained a fracture of the right hip. A March 1997 letter from Joseph E. McMullen, M.D., stated that it was safe to say that the veteran's severance of the common peroneal nerve with foot drop atrophy of muscles in the right lower extremity lead to his fall, which resulted in a fracture of the right hip. Dr. McMullen stated that he thought it possible that this additional stress lead to, or aggravated the veteran's heart problems as well as his left lower extremity condition. A March 1997 statement from Dr. Bauer contains an opinion that the veteran's high blood pressure was in some degree related to his service-connected disability, in that the veteran's service-connected gunshot wound disability caused stresses that made ordinary ambulatory activity more difficult. Dr. Bauer also opined that the veteran sustained a major cerebral thrombosis, which left the veteran with a left hemiparesis, and this was also related to the high blood pressure. Dr. Bauer further opined that the hip fracture was related to the preexisting weakness in the right lower extremity, which resulted from the gunshot wound during service. Dr. Bauer opined that while he could not offer his opinion with certainty, that it was reasonable to assume that there was some degree of cause and effect that the veteran's present disability was to an extent, service related. A March 1997 private clinical note by Dr. Bauer dated on the day of the veteran's death, indicated that the veteran was dying from his stroke and carcinoma of the kidney. The note stated that the stroke was triggered, at least in part, by the veteran's high blood pressure and war injury gunshot wound of the right lower extremity. The Board notes that the claims file contains an April 1997 medical opinion from a VA medical advisor to the RO rating board. The Board has placed no reliance on this opinion, however, as the United States Court of Appeals for Veterans Claims (the United States Court of Veterans Appeals prior to March 1, 1999) has held that such opinion raises the question as to whether there was a fair process to insure an impartial opinion, and may create the impression that the rating board was not securing evidence to determine the correct outcome but rather to support a predetermined outcome. See Austin v. Brown, 6 Vet. App. 547 (1994). During a July 1997 hearing, the appellant testified that the veteran's service-connected disability caused the veteran to favor his right side, and put pressure on the left leg. The added pressures over the years contributed to some of the conditions that caused his death. The pain in the right calf and resulting increased reliance on the left leg created a stressful condition that progressed and affected the heart. This eventually lead to a heart condition and heart attack in April 1995. Pursuant to its April 1998 remand, the Board requested that a VA orthopedist and cardiologist review the claims file and provide an opinion as to whether it was at least as likely as not that the veteran's service-connected right peroneal nerve injury due to a right lower extremity gunshot, and/or his right lower extremity gunshot wound scars caused his death, or contributed substantially and materially to the cause of his death. In a June 1999 VA cardiology opinion, the examiner stated that he had reviewed the chart on the veteran; medical statements from Drs. Norman, Bos, McMullen and Bauer; and the record of VA hospitalization from June to December 1995. The examiner recounted the veteran's medical history associated with his inservice gunshot wounds to the right buttock and peroneal nerve damage, which resulted in a right foot drop. The examiner also noted a history of systemic hypertension for several years of unclear duration. The examiner also discussed the recent medical history beginning with the veteran's April 1995 myocardial infarction, and subsequent symptomatology and treatment until the veteran's death in March 1997. The examiner noted that the record appeared to show a claim that the service-connected gunshot wound disability resulted in development of claudication of the right lower extremity; and that this in turn lead to stresses that contributed to heart disease and ultimately to cardiac arrest in April 1995, as well as to high blood pressure. In addressing this claim, the examiner noted that the veteran had atherosclerotic cardiovascular and cerebrovascular disease, as well as arteriosclerotic peripheral vascular disease. The examiner noted that the major risk factors for these conditions were family predisposition, smoking, hypercholestero-lemia, diabetes and systemic hypertension. The examiner opined that the possibility that stress resulting from the veteran's gunshot wound disability played a factor in causing hypertension atherosclerosis and peripheral vascular disease, could not be excluded. He opined that the connection, however, was speculative and could not be directly proven. His opinion was that any such stress would not be directly responsible for development of the circulatory and cardiovascular diseases, and would only be a marginal contributory factor. The examiner's concluding opinion was that the service connected right peroneal nerve injury and gunshot wound scars did not contribute substantially and materially to the cause of the veteran's death by way of a relationship with the cardiovascular conditions. In an August 1999 VA general medical opinion, the examiner recorded that he had reviewed the veteran's chart. The opinion noted that the veteran had sustained a gunshot injury in the right buttock, which resulted in a right perineal palsy. The examiner recounted the subsequent medical history related to the development of bilateral intermittent claudication from a vascular nature; and bilateral bow leg, which was noted to be unrelated to the inservice injury sustained to the right buttock. The examiner opined that the vascular occlusion had no bearing and no relation to injury sustained to the right buttock in service. The examiner noted that the veteran later developed a vascular problem from a cerebral nature and from a cardiac nature. On review of the chart, the examiner opined that there was no evidence of any connection between the gunshot wound disability, and the deterioration of the veteran's health, by which he indicated he was referring to the arterial occlusion and the heart and cerebral problems. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death. The Board has carefully considered the opinions contained in statements from Dr. Bauer, Dr. Bos, Dr. McMullen, and Dr. Norman. The essential opinion in favor of the claimant is that the veteran's high blood pressure was to some degree related to his service-connected gunshot wound disabilities, in that service-connected disability caused stresses that made ordinary ambulatory activity more difficult, resulting in high blood pressure and heart disease, and ultimately the veteran's death. However, the Board finds this opinion to be speculative, especially when considered together with the clinical record as a whole, including reports of past private and VA treatment, and reports of VA examinations in 1995 and subsequent medical opinions in June and August 1999. These records show no such relationship between the gunshot wound disability and the veteran's cardiovascular disorders. The Board particularly notes private treatment records from 1972 to 1995, which pertain to treatment for various disorders including the cardiovascular disorders. These records do not contain any evidence relating in any way the service- connected gunshot wound disabilities to the veteran's atherosclerotic cardiovascular and cerebrovascular disease, or to his arteriosclerotic peripheral vascular disease. In Dr. McMullen's March 1997 statement, he stated that he thought it possible that additional stress, caused by the veteran's service connected disability, lead to or aggravated the heart problems. In Dr. Bauer's March 1997 statement he stated that he could not offer his opinion with certainty as to a relationship, but that it was reasonable to assume some degree of cause and effect. Service connection, however, may not be predicated on a resort to speculation or remote possibility as with these opinions. 38 C.F.R. § 3.102 (1996); see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (service connection claim not well grounded where only evidence supporting the claim was a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran; such evidence held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). The Board finds these statements to be speculative and thus, they may not fulfill the requirement of competent medical evidence to establish a causal nexus between the veteran's service connected disability and the cause of his death. The Board notes further that these opinions conflict with the preponderance of the evidence, including treatment records over many years, which show alternative etiologies and no such nexus with the disorders causing the veteran's death. Dr. Bauer has also opined that the veteran's service- connected gunshot wound disabilities caused claudication in the right lower extremity, which in turn caused stress that contributed to the veteran's heart disease and cardiac arrest in April 1995. Again, however, this opinion conflicts with the preponderance of the clinical evidence. On review of the clinical records proximately associated with treatment of cardiovascular and hypertension disorders, there are no opinions or findings to indicate an etiological nexus between those disorders and the veteran's service-connected gunshot wound disabilities. In contrast, the two VA medical opinions provided in June and August 1999 indicate that the respective examiners reviewed the clinical record in the claims file, including the favorable opinions discussed above; and provided opinions consistent with the clinical history of the veteran's various disorders. The June 1999 cardiovascular opinion determined that the veteran had atherosclerotic cardiovascular and cerebrovascular disease, as well as arteriosclerotic peripheral vascular disease; for which the major risk factors were family predisposition, smoking, hypercholesterolemia, diabetes and systemic hypertension. The examiner opined that the notion of a nexus between the gunshot wound disability and the cardiovascular disorders could not be excluded, but was speculative and could not be directly proven. Moreover in his opinion, any such stress would not be directly responsible for development of the circulatory and cardiovascular diseases, and would only be a marginal contributory factor. On this basis, he opined that the service connected right peroneal nerve injury and/or gunshot wound scars did not contribute substantially and materially to the cause of the veteran's death with respect to the pertinent cardiovascular conditions. The August 1999 VA medical opinion also reviewed the clinical record and found no relationship between the vascular occlusion and the inservice injury. Rather this opinion was that the veteran developed a vascular problem of a cerebral and cardiac etiology, unrelated to service-connected disability. On review, the Board finds these two opinions unequivocal and consistent with the clinical treatment record as a whole, particularly the record of treatment for the cardiovascular conditions during the veteran's life. The Board finds these opinions more probative than the favorable opinions, which were provided only proximate to the terminus events associated with the veteran's death, and inconsistent with the treatment and other records as a whole. With respect to the appellant's assertion as to the cause of the veteran's death, the question of whether a disability is present is one which requires skill in diagnosis, and questions involving diagnostic skills must be made by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay persons are not competent to offer medical opinions, and do not provide a sound basis for establishing service connection. In conclusion, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Dependents' Educational Assistance Dependents' educational assistance benefits are payable to the surviving spouse of a veteran, if the veteran was discharged from service under conditions other than dishonorable and a permanent total service-connected disability was in existence at the date of the veteran's death, or the veteran died as a result of a service-connected disability. 38 U.S.C.A. § 3501 (West 1991); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (1998). In the present case, the evidence of record does not reveal that the veteran died of a service-connected disability, or had a permanent and total service-connected disability that was in existence at the date of his death. Thus, the basic requirements for survivors' and dependents' educational assistance benefits have not been met, and the appellant's claim must be denied. See 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. Where, as in this case, the law and not the evidence is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the veteran's death is denied. There is no legal basis for entitlement to dependents' educational assistance, pursuant to Chapter 35, Title 38, United States Code, and that claim is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals