Citation Nr: 0000393 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-13 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The veteran served on active duty from May 1967 to August 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the appellant's representative has included a claim for eligibility to Dependents' Education Assistance under Chapter 35 as being on appeal; however, the appellant did not appeal that part of the April 1998 decision. Thus, such claim is not before the Board. FINDINGS OF FACT 1. Service connection for the cause of the veteran's death was denied by the RO in a November 1983 rating decision. The appellant was notified of her appellate rights, and did not appeal the decision. 2. Evidence associated with the claims folder since the November 1983 rating decision is new and bears directly and substantially on the question of whether a disability incurred in or aggravated by service caused or contributed substantially or materially to the cause of the veteran's death. 3. The veteran died in September 1983, at the age of 34 years. 4. The veteran died of cardiopulmonary arrest, due to arrhythmia, as a consequence of atherosclerotic heart disease. 5. At the time of his death, the veteran was service-connected for gunshot wound, face with extensive destruction, mandible and floor of mouth, assigned a 50 percent disability rating; facial scars, residuals, gunshot wound, assigned a 30 percent rating; and gunshot wound, Muscle Group VII, left, rated as 10 percent disabling. 4. Atherosclerotic heart disease was not shown during active service or within one year of service separation, nor is it shown to be of service origin. 5. Atherosclerotic heart disease was not caused by or the result of the veteran's service-connected disorders. 6. It is not shown that a disease or injury of service origin played any role in causing or hastening the veteran's death. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for the cause of the veteran's death is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a) (1999). 2. Atherosclerotic heart disease was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). 2. A disability incurred in or aggravated by service neither caused nor contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. §§ 3.310, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant claims that service connection for the death of her husband should be granted because he died due to a service-connected disability. The veteran died in September 1983, at the age of 34 years. At the time of his death, the veteran was service-connected for gunshot wound, face with extensive destruction, mandible and floor of mouth, assigned a 50 percent disability rating; facial scars, residuals, gunshot wound, assigned a 30 percent rating; and gunshot wound, Muscle Group VII, left, rated as 10 percent disabling. In a November 1983 rating decision, the RO denied entitlement to service connection for cause of the veteran's death. The RO based its decision on the death certificate, which stated that the immediate cause of death was cardiopulmonary arrest being due to arrhythmia and atherosclerotic heart disease. The RO noted that review of the service medical records revealed no evidence cardiovascular disease and that cardiovascular disease was not shown to a compensable degree within one year following service. The appellant was notified of that decision and of her appellate rights, but did not appeal the decision. Therefore, the November 1983 rating decision is final. The appellant's claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Consideration of whether new and material evidence has been submitted is required before the merits of the claim can be considered. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether the claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the recent case of Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc), the United States Court of Appeals for Veterans Claims (the Court), citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc), held that the two-step process set forth in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991) for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under this holding, the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a). Id. Second, if new and material evidence has been presented, immediately upon reopening, the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. Third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the absence of such evidence, the regulations require a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.310(a), 3.312. With respect to the principal cause of death, VA regulations provide that a "service-connected disability will be considered as the principal 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." 38 C.F.R. § 3.312(b). A 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. 38 C.F.R. § 3.312. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. 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. Id. Since the final decision, the evidence submitted by the appellant consists of the terminal hospital reports, a death certificate, which was issued recently, showing a service- connected disability as the cause of death, and testimony at a March 1999 RO hearing. Accepting the death certificate as true in that the veteran died due to a service-connected disability, the Board finds that such is new and material evidence, as it provides a basis to reopen the appellant's claim for entitlement to service connection for cause of the veteran's death. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Additionally, the Board finds that the appellant's claim is well grounded as the newly submitted death certificate is presumed credible for purposes of determining whether the claim is well grounded. See 38 U.S.C.A. § 5107(a); Winters, 12 Vet. App. at 206. Additionally, the Board finds that the duty to assist has been fulfilled. However, after having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for cause of the veteran's death. Specifically, the Board finds that the newly-issued death certificate, which attributes the veteran's death to a service-connected disability, is not credible. First, the initial death certificate submitted in 1983, which revealed that the cause of death was cardiopulmonary arrest due to arrhythmia and atherosclerotic heart disease, was made at the time of the veteran's death. Most importantly, this death certificate is consistent with the terminal hospital reports and with the autopsy report. The autopsy report clearly establishes that the veteran had atherosclerotic coronary artery disease and died as a result of an acute myocardial infarction. Significant to the issue of credibility, the appellant admitted in her substantive appeal and at her March 1999 personal hearing before the RO that the examiner who prepared the newly-issued death certificate, specifically asked her what she wanted him to put down as the cause of death. This completely undermines the credibility of the newly-issued death certificate and further substantiates the Board's determination that the newly-issued death certificate is not credible. Thus, the evidence establishes that the proper cause of death is that of cardiopulmonary arrest due to arrhythmia and atherosclerotic heart disease. Additionally, there is no evidence that the veteran's service-connected disabilities contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. Moreover, the evidence of record establishes that heart disease was not incurred in or aggravated by service nor that such was shown to a compensable degree within one year following service. There is no evidence of record that atherosclerotic heart disease was caused by or the result of the veteran's service-connected disorders. Accordingly, entitlement to service connection for the cause of the veteran's death is not warranted. ORDER New and material evidence having been submitted, the claim for service connection for the cause of the veteran's death is reopened. Entitlement to service connection for cause of the veteran's death is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals