BVA9504678 DOCKET NO. 92-13 614 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from August to December 1918 and also from December 1942 to June 1944 as a member of the United States Coast Guard Temporary Reserve. During his Coast Guard service, he was assigned to performance of police duty with his employer, The [redacted] Company. This appeal arises from a rating decision of March 1992, whereby the Regional Office (RO) denied the appellant's claim for service connection for the cause of the veteran's death. The Board of Veterans' Appeals remanded the case in March 1993 for additional development of the evidence. In April 1994, the Board referred this case to a medical adviser for an advisory opinion, which was received in June 1994. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant's representative in a November 1994 letter of the additional evidence developed, and provided an opportunity to respond. The representative responded in January 1995, to the effect that they had no additional evidence or arguments to present. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that the RO erred in denying her claim for service connection for the cause of the veteran's death. She asserts that pulmonary tuberculosis (TB), a service- connected disability, contributed to the veteran's death. She claims that his lungs were weakened from this disorder, such that he was susceptible to the contraction of pneumonia. 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 is against the claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. According to the death certificate, the immediate cause of the veteran's death, at age 93 on January [redacted] 1992, was aspiration pneumonia; other significant conditions contributing to death but not resulting in the underlying cause were acute congestive heart failure, chronic renal failure, diverticulosis of colon and arteriosclerotic heart disease. 3. At the time of the veteran's death, service connection was in effect for chronic pulmonary tuberculosis, moderately advanced, that was determined to be arrested as of September 1932, and was evaluated as noncompensably disabling since that time. 4. Acute congestive heart failure, chronic renal failure, diverticulosis of colon and arteriosclerotic heart disease were first objectively demonstrated many years following separation from service, and were not etiologically related to the veteran's service-connected pulmonary tuberculosis. 5. Chronic obstructive lung disease is not etiologically related to pulmonary tuberculosis. 6. The veteran's service-connected pulmonary tuberculosis did not accelerate his death, nor did it render him materially less capable of resisting the effects of the pneumonia, cardiovascular, digestive and genitourinary system disease processes which caused his death. CONCLUSIONS OF LAW 1. Acute congestive heart failure, chronic renal failure, diverticulosis of colon and arteriosclerotic heart disease were not incurred in or aggravated by service, cardiovascular-renal disease may not be presumed to have been so incurred; and no listed disorder or chronic obstructive lung disease was proximately due to or the result of the service-connected disability. 38 U.S.C.A.. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1993). 2. Service-connected pulmonary tuberculosis did not cause or contribute substantially or materially to the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant satisfied the threshold requirement of presenting a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, the appellant set forth a claim which was plausible. We are also satisfied that all relevant evidence has been properly developed, and that no further assistance is required to comply with the Department of Veterans Affairs' (VA) duty to assist as mandated by 38 U.S.C.A. § 5107(a). In that regard, the Board remanded the case in March 1993 for additional development prior to appellate disposition. The RO was requested to procure service medical records pertaining to the veteran. The RO attempted to acquire service medical records dated in 1918 from the National Personnel Records Center (NPRC) by communication of June 1993. Unfortunately, the veteran's service medical records are unavailable, presumably having been destroyed in a fire during the early 1970's at the NPRC. In cases where the veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, 1 Vet.App. 365 (1991). Following the Board's remand, the appellant indicated that the veteran received treatment at the VA Medical Center in Asheville, North Carolina from 1942 to 1944. Requests were directed to that facility in June 1993; however, no records pertaining to treatment of the veteran at that facility were found. As such, appellate disposition will proceed based on the evidence of record. The veteran's actual service medical records from his first period of service are unavailable as noted above. However, in 1925, information was received from the service department to the effect that during the veteran's World War I service, he was treated from October 2, 1918 to October 5, 1918 for influenza. At discharge examination, no defects were shown. The medical evidence of record shows that the veteran's pulmonary tuberculosis was arrested in 1932. Prior to that time, C. Cocke, M.D. and R. Query, M.D., had diagnosed the disease. Their February 1925 affidavits indicated that the veteran's symptoms included coughing and rales in the base of the right lung. Dr. Cocke indicated that he first treated the veteran for tuberculosis in October 1923. Upon VA examination of February 1925, the diagnosis was chronic tuberculosis, right upper lobe, moderately advanced, active. A blood pressure reading was not taken at this time. Pulse rate was 114, regular and of fair volume and tension. The apex beat was palpable in the fifth space midclavicular line. Sounds were short and snapping and no murmers were heard. The abdomen was flat without masses, pain or tenderness. The genitourinary system was negative for history of urethal discharge, nocturia or hematuria. Pursuant to rating determination of March 1925, service connection was awarded for pulmonary tuberculosis. VA examination report of May 1925 indicated that the veteran was receiving treatment for tuberculosis as an inpatient at that time. Blood pressure was 115\60. Heart and blood vessels were reported negative on clinical evaluation. A chest X-ray revealed a small drop heart. The radiological diagnosis was tuberculosis on the right all lobes. A urinalysis was negative for albumin. The final diagnosis provided was pulmonary tuberculosis, minimal, activity undetermined. Upon VA examination in March 1932, the diagnosis was chronic pulmonary TB, advanced, non-active. Blood pressure was 120/84. A chest X-ray report indicated that several fibrous strands passed above the clavicle in the right lung. Some faint flocculent infiltration was also seen high in the apex. A few scattered old calcified tubercles showed in the upper lobe. The hilus was thickened and the bronchial trunks throughout were a bit heavy. Findings relevant to the left lung were that the apex and outer lung field were free of any spots of infiltration. The hilus was a little dense and the bronchial trunks throughout were not overly prominent. The position of the heart shadow was good. The diagnosis contained in the X-ray report was chronic TB, right upper lobe, moderately advanced, probably not active. A few medium rales were heard at the base and occasionally above the scapular angle. A few rales were heard at the base of the left lung. No abnormalities of the heart or abdomen were reported. The final diagnoses were chronic pulmonary tuberculosis, advanced, non-active and catarrhal otitis media. VA medical board report of that same month indicated that a stage of arrest would be reached in September 1932. In October 1986, the veteran underwent a VA aid and attendance examination. The diagnoses were stroke with left hemiparesis, atrial fibrillation, ventricular ectopy, sick sinus syndrome, acute pulmonary edema with comatose state and urinary retention. In October 1987, the veteran filed a claim seeking an increased evaluation for pulmonary TB based on a recent period of hospitalization from January to February of that year. An abbreviated medical record pertaining to VA inpatient treatment during May 1987 contained diagnoses of posterior capsular opacity, right eye, history of cerebrovascular accident and congestive heart failure. Notation was made that the veteran was 100 percent disabled due to the cerebrovascular accident. VA medical record report was received that indicated the veteran was an inpatient from May to September of 1987. Diagnoses provided were arteriosclerotic cardiovascular disease with congestive heart failure, recurrent urinary tract infection, chronic obstructive pulmonary disease, permanent pacemaker for sick sinus syndrome, malnutrition to a mild degree and old cerebrovascular accident with secondary mild organic brain syndrome. Pertinent clinical diagnoses which were noted in the report but were not treated during that period of hospitalization included history of myocardial infarction, history of pneumonia, benign prostatic hypertrophy and neurogenic bladder component, right inguinal hernia, old pulmonary TB, status post capsulotomy, right eye and atrophy of the mandibular ridge. X-ray findings of the chest indicated that there was a blunting of the left costophrenic sulcus which was not present to that degree earlier which could presumably represent a pleural effusion. There was also note of some possible infiltrate or atelectasis at the left lung base which was not present earlier. VA outpatient treatment records dated from September to October of 1987 indicated no treatment for pulmonary TB. An increased evaluation for pulmonary TB was denied by rating decision of November 1987. The veteran died in January 1992 while he was a patient in a VA facility. The death certificate listed the immediate cause of death as aspiration pneumonia. Other significant conditions contributing to death but not resulting in the underlying cause were acute congestive heart failure, chronic renal failure, diverticulosis of colon and arteriosclerotic heart disease. An autopsy was not performed. In March 1992, the veteran's widow filed a claim for dependency and indemnity compensation. The VA terminal hospitalization report indicated that the veteran was an inpatient hospitalized from December 1987 until his death in January 1992. The diagnoses listed were the following: (1) Arteriosclerotic heart disease, with congestive heart failure, with cardiomegaly; (2) chronic obstructive pulmonary disease, mild; (3) advanced generalized diverticulosis, with a history of diverticulitis, with bleeding of the sigmoid colon in February 1989 and also recurrent diverticulitis in November and December of 1991; (4) enlarged hiatal hernia with reflux, with chronic peptic esophagitis controlled with Losec 20 mgs. every other day; (5) recurrent pulmonary infections and urinary tract infections; (6) history of atrial fibrillation, converted to normal sinus rhythm with Digitalis; (7) mild organic brain syndrome, secondary to remote cerebrovascular accident; (8) malnutrition, secondary to poor oral intake; (9) urinary retention, secondary to neurogenic bladder and hypertrophy of the prostate; (10) anorexia and inability to take in adequate by mouth fluids; (11) recurrent urinary tract infections, secondary to indwelling Foley catheter; (12) status post right inguinal herniorrhaphy in June 1988; (13) bacterial endocarditis of the mitral valve in March 1989; and (14) aspiration pneumonia, immediate cause of death. Chest X- ray results from the month of death revealed considerable infiltrate in the right lung field with associated pleural effusion and a possibility of underlying cardiac failure. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service was either the principal or a contributory cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in the production of death, but rather it must be shown that there was a causal connection. Service-connected diseases or injuries involving active processes affecting vital organs should 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 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. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312. In April 1994, the Board referred this case to a Board Medical Adviser for an opinion with respect to whether pulmonary tuberculosis had any effect on the events leading to death and whether or not pulmonary tuberculosis caused chronic obstructive pulmonary disease in the veteran. In June 1994, Jack J. Rheingold, M.D., furnished his opinion which reads as follows: The veteran was in the service from August 1918 until December 1918. The appellant seeks service connection for the cause of death. The immediate cause of death was listed as aspiration pneumonia. The widow contends, "If my husband's lung had not been weakened by his service-connected tuberculosis he would not have been subjected to pneumonia." It must be noted that the veteran's tuberculosis was arrested in September 1932. There was no further evidence of tuberculous involvement of the lung in all those years and the veteran died in 1992, some 60 years since his tuberculosis had arrested. The counsel has requested a medical opinion on the following issues: (1) What effect, if any, did pulmonary tuberculosis have on the events leading to his death, and (2) what is the likelihood, if any, that pulmonary tuberculosis caused chronic obstructive pulmonary disease in this veteran. 1. What effect, if any, did pulmonary tuberculosis have on the events leading to his death? RESPONSE: As indicated above, the veteran's pulmonary tuberculosis had been arrested for 60 years. It was healed, not active, and in no way was it related to the veteran's cause of death. The aspiration pneumonia was listed as the cause of death. Actually, it was the final blow of a series of severe illnesses listed as other significant conditions in the Certificate of Death, contributing to death, which were acute congestive failure, chronic renal failure, diverticulosis of the colon and arteriosclerotic heart disease. The physician caring for the patient at the hospital stated: "His overall condition continued to deteriorate with increased lethargy, anorexia, and outright refusal to eat or drink. He eventually developed terminal pneumonia on January 15, 1992, and he died on January [redacted] 1992. Aspiration pneumonia is most often seen in patients with loss of appetite, malaise, difficulty swallowing, and shortness of breath. Cecil Textbook of Medicine, Johanson, Jr., W. G., 19th ed., 1621. Thus, it is clear that tuberculosis arrested 60 years before had no effect on the cause of death which was due to a variety of cardiovascular, renal, cerebral and arteriosclerotic conditions. 2. What is the likelihood, if any, that pulmonary tuberculosis caused chronic obstructive pulmonary disease? RESPONSE: Chronic obstructive pulmonary disease, listed as mild, was not mentioned until 1987. In view of the fact that his tuberculosis was arrested in 1932, there is no relationship between tuberculosis and chronic obstructive pulmonary disease. Chronic obstructive pulmonary disease was not caused by tuberculosis. However, the literature was reviewed in Cecil Textbook of Medicine, Drazen, J. M., 19th ed., 389- 393, no evidence of a cause of chronic obstructive pulmonary disease by tuberculosis is listed. Cherniack, Neil S., likewise, in his Textbook of Chronic Obstructive Pulmonary Disease, listed no cause of chronic pulmonary disease due to tuberculosis. Although the veteran was service connected for pulmonary tuberculosis, there is no evidence that this disorder was related to his cause of death or related to chronic obstructive pulmonary disease. The Board will not rely on the opinions set forth in the Board Medical Adviser opinion, because to do so would prejudice the appellant. The Court of Veterans Appeals (Court) recently issued a decision in the case of Austin v. Brown, No. 93-130, slip op. (U.S. Vet. App. July 7, 1994), which impacts upon appeals involving Board Medical Adviser opinions. In that case, the Court vacated a Board decision and remanded for action consistent with the Court's opinion. Deficiencies noted by the Court included the Board's violation of the principles of fair process set forth in the case of Thurber v. Brown, 5 Vet.App. 119, 126 (1993). The Board had also violated the express holding of Thurber. The Board violated the fair process principle enunciated in Thurber by relying upon a Board Medical Adviser's opinion that was obtained through a process which did not ensure impartiality. The issue involved in that case was service connection for the cause of the veteran's death. Death had resulted from pulmonary emphysema. The Board employee who referred the case to a Board Medical Adviser for an opinion stated the following in the request: Clearly, his inservice chest injury was not related to his fatal pulmonary emphysema. However, his treating physician opines otherwise... I think that an opinion from a Board Medical Adviser knowledgeable about pulmonary problems, who could provide us with a learned opinion as to whether there is or is not an etiological[] relationship between the vet[eran]'s service-connected chest injury and his fatal emphysema (notwithstanding the private physician's statement) would be most helpful. The Court held that such a statement evidenced that there was no fair process at work to ensure impartiality and created the impression that the Board was not securing evidence to determine the correct outcome, but rather to support a predetermined outcome. Austin at 8. In the case at hand, however, the request for a Board medical advisory opinion sought an impartial opinion addressing the following issues: (1) What effect, if any, did pulmonary tuberculosis have on the events leading to death and (2) what is the likelihood, if any, that pulmonary tuberculosis caused chronic obstructive pulmonary disease in this veteran. The principles of fair process were thus complied with in the instant case. In Thurber, the Court expressly held that before the Board relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent Statement of the Case or the Supplemental Statement of the Case with respect to such claim, the Board must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it. Thurber at 126. The claimant was thus entitled to present not only argument or comment, but also additional evidence. The Board in the Austin case forwarded a letter to the veteran's accredited representative indicating that a copy of the medical opinion was sent to the veteran and that he was provided with a 60-day period to submit additional argument or comment with respect to the opinion. Austin at 4. The veteran was not informed in the Austin case that he might submit evidence to rebut or amplify the medical opinion. Since the Board will not rely on the Board Medical Adviser opinion, in this case, the holding in Thurber is not applicable. The Court also indicated in Thurber that 38 C.F.R. § 20.903 applied to VA opinions, as well as independent medical opinions. That section provides, in pertinent part, that when an opinion is requested by the Board pursuant to Rule 901 (§ 20.901 of this part), the Board will notify the appellant and his or her representative, if any. When the opinion is received by the Board, a copy of the opinion will be furnished to the appellant's representative or, to the appellant if there is no representative. A period of 60 days from the date of mailing of a copy of the opinion will be allowed for response. 38 C.F.R. § 20.903. 38 C.F.R. § 20.901 refers to requests for opinions of the Chief Medical Director, the Armed Forces Institute of Pathology, Opinions of the General Counsel and Independent Medical Expert Opinions. Board Medical Adviser opinions were not expressly mentioned in the regulation. The Board, in the instant case, did not apply this regulation. The Board thus violated the provisions of 38 C.F.R. § 20.903 by not notifying the appellant and her accredited representative that a request for a Board Medical Adviser Opinion was to be made. The appellant would be prejudiced if the Board were to rely upon the Medical Adviser opinion in this case, since the opinion tends to support a denial of her claim. As a result, the Board would commit prejudicial error if it relied upon the Medical Adviser opinion to reach a decision. Thus, such decision will not be relied upon. Full review of the record indicates that there is insufficient evidence to support a finding that service connection should be established for the veteran's cause of death. At the time of the veteran's death, service connection was in effect for chronic pulmonary TB, moderately advanced, that was determined to be arrested as of September 1932. However, pulmonary TB was not a principal cause of death. Service-connected pulmonary TB was inactive at the time of the veteran's death and was not the immediate or underlying cause of death, according to both the death certificate and terminal hospitalization report. Medical evidence dating from the five years immediately preceding the veteran's death, does not show any treatment for pulmonary TB or any evidence that the disease process was active. There also is no evidence showing an etiological relationship between pulmonary TB and the events leading to the veteran's death. The medical records dated proximately to the veteran's death indicated no such relationship. Since pulmonary TB affects a vital organ, it must be carefully considered whether or not it was a contributory cause of the veteran's death. Review of the evidence of record indicates that it was not. The medical evidence of record establishes that aspiration pneumonia, acute congestive heart failure, chronic renal failure, diverticulosis of colon and arteriosclerotic heart disease caused the veteran's death, and no evidence has been presented to show that the inactive pulmonary TB was related to these illnesses or the veteran's death. There is also no evidence to indicate that arrested pulmonary TB debilitated the veteran or generally impaired his health to the extent that he was incapable of resisting aspiration pneumonia more than 60 years following declaration of a state of arrest. The Board reiterates at this juncture that pulmonary TB was not evaluated to be active in the medical records dated 5 years prior to death and was not mentioned in connection with any of the events leading to death. The appellant's contentions, to the effect that the veteran's lungs were weakened by pulmonary TB, have been considered. However, the medical evidence of record does not support that contention. In that regard, the Board has reviewed the Cecil Textbook of Medicine to determine whether or not there was an etiological relationship between tuberculosis and the events leading to death. It was noted in Cecil that chronic renal failure "is caused by a large number of diagnoses...Diabetes and hypertension are now recognized as the leading causes of chronic renal failure in the United States." DAVID G. WARNOCK, CECIL TEXTBOOK OF MEDICINE 533 (James B. Wyngaarden, M.D., et al. eds., 19th ed. 1992). Figure 77-1 showed a histogram of primary renal diseases leading to end-stage renal disease. The listed causes were: Diabetes, hypertension, glomerulonephritis, cystic renal disease, other urologic disease as well as other and unknown diseases. Id. Inactive pulmonary tuberculosis was not listed as a cause or contributory factor. Inactive pulmonary tuberculosis does not share an etiological relationship with diverticulitis of the colon. "Diverticulitis of the colon is a focal inflammation in the wall of the apex of a diverticulum, most commonly of the sigmoid, caused by inspissated feces. MICHAEL H. SLEISENGER, CECIL TEXTBOOK OF MEDICINE 749 (James B. Wyngaarden, M.D., et al. eds., 19th ed. 1992). Table 40-2 in Cecil set forth the following precipitating or exacerbating factors in congestive heart failure: Increased demand (caused by anemia, fever, infection, fluid overload, increased dietary salt intake, high environmental temperature, renal failure, hepatic failure, thyrotoxicosis, arteriovenous shunt, respiratory insufficiency, emotional stress, pregnancy and obesity), arrhythmias, pulmonary embolism, ethanol ingestion, thiamine deficiency, uncontrolled hypertension, poor compliance with therapeutic regimen and drugs (such as beta-adrenergic blockers, antiarrhythmic drugs and salt-retaining drugs). THOMAS W. SMITH, CECIL TEXTBOOK OF MEDICINE 188 (James B. Wyngaarden, M.D., et al. eds., 19th ed. 1992). Pulmonary tuberculosis is not listed. Accordingly, it was not a precipitating or exacerbating cause of acute congestive heart failure in this case. Pulmonary tuberculosis is not a risk factor associated with the development of arteriosclerotic heart disease. It was observed during prospective studies that there "was an increased incidence of the disease in relation to cigarette smoking, hypertension, clinical diabetes, age, male sex, obesity, stress and particular personality characteristics (denoted as Type A) and genetic factors". RUSSELL ROSS, CECIL TEXTBOOK OF MEDICINE 295 (James B. Wyngaarden, M.D., et al. eds., 19th ed. 1992). The studies also "demonstrated an association between an increase in the concentration of plasma lipoproteins, principally low density lipoprotein and thus plasma cholesterol, and the rate of occurrence of new events of coronary artery disease." Id. Again, pulmonary tuberculosis was not listed among the risk factors associated with the development of arteriosclerosis. As such, an etiological relationship between the two diseases is not shown by the evidence of record. It remains to be considered whether or not pulmonary tuberculosis was etiologically related to chronic obstructive pulmonary disease. It is stated in Cecil that patients with chronic obstructive pulmonary disease (COPD) "have some combination of chronic obstructive bronchitis and pulmonary emphysema, both of which are closely associated with cigarette smoking." RICHARD A. MATTHAY, CECIL TEXTBOOK OF MEDICINE 390 (James B. Wyngaarden, M.D. et al eds., 19th ed. 1992). Other contributory factors are air pollution, infection, familial and genetic factors, and engaging "in occupations exposing them to either inorganic or organic dusts or noxious gases." ROLAND H. INGRAM, JR., HARRISON'S PRINCIPLES OF INTERNAL MEDICINE 1075 (Jean D. Wilson, M.D. et al eds., 1991). Since the evidence of record does not show that there is any type of etiological relationship between pulmonary tuberculosis and chronic obstructive pulmonary disease, the Board concludes that no such relationship exists. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Where a veteran served 90 days or more during a period of war and cardiovascular-renal disease becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection for acute congestive heart failure, chronic renal failure, diverticulosis of the colon and arteriosclerotic heart disease is not warranted. The evidence of record fails to reveal the existence of these conditions in service or the presence of cardiovascular-renal disease until the 1980's. The medical evidence of record dating from 1925 to 1933 did not indicate that the veteran had any of these conditions. The first indication of record that the veteran had arteriosclerotic heart disease with acute congestive heart failure dates back to 1987, while the first evidence of chronic renal failure and diverticulosis of the colon dates back to 1992. Furthermore, the evidence of record does not show any etiological relationship between any one of these conditions and pulmonary TB. In view of the evidence indicating no underlying causal or etiological relationship between the veteran's service-connected pulmonary tuberculosis and his death due to aspiration pneumonia, acute congestive heart failure, chronic renal failure, diverticulosis of the colon and arteriosclerotic heart disease, the Board concludes that service connection is not warranted for the cause of the veteran's death. ORDER Entitlement to service connection for the cause of the veteran's death is denied. I. S. SHERMAN Member, Board of Veteran's Appeals The Board of Veterans' Appeals Administrative Procedures Act of 1994, 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. (Continued Next Page) 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.