BVA9502867 DOCKET NO. 93-06 891 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Widow and daughter ATTORNEY FOR THE BOARD Wayne A. Tonkins, Associate Counsel INTRODUCTION The veteran had active military service from January 1943 to October 1945. This matter came before the Board of Veterans' Appeals (hereinafter "The Board") on appeal from a January 1992 rating decision of the New York, New York, Regional Office (hereinafter "The RO") which denied service connection for the cause of the veteran's death. The appellant has been represented throughout this appeal by The American Legion. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts on appeal that the RO erred in denying service connection for the cause of the veteran's death. She contends that the veteran's immediate cause of death was due to acute bowel obstruction due to inguinal scrotal hernia from scrotal contusion in service. Further, it is maintained that heart disease developed as a result of the "surgical shock" to his body occasioned by the bowel obstruction. She advances that the veteran was not service connected for any disabilities because he never applied for anything from the VA. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the appellant has submitted a well-grounded claim for service connection for the cause of the veteran's death. Nevertheless, the evidence is not in equipoise with regard to the appellants claim to establish service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran died in July 1991. The immediate cause of death was certified as ventricular fibrillation due to arteriosclerotic cardiovascular disease. A sigmoid volvulus, gangrenous post colon resection, was listed as a condition materially contributing to the veteran's death. 2. At the time of the veteran's death, service connection was not in effect for any disabilities. 3. Heart disease is not shown during service or for many years thereafter. 4. Neither a hernia, or other pathology leading to the development of an obstructive bowel, are shown to have had origins during service. CONCLUSION OF LAW A disability of inservice origins did not cause or materially contribute to the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the appellant has submitted a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (hereinafter "The Court") has held that: An appellant claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). See Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The Court has certified that: Because a well-grounded claim is neither defined by the statute nor by the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of Section 3007(a) [presently enacted as 38 U.S.C.A. § 5107(a) (1993)]. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active military service either caused or contributed substantially or materially to the veteran's demise. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, 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. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1993). At the time of the veteran's death, service connection was not in effect for any disability. The veteran's July 1991 certificate of death indicates that the immediate cause of death was ventricular fibrillation of approximately one-hour duration between onset and death due to arteriosclerotic cardiovascular disease. The certificate reports that other significant conditions contributing to death but not related to the immediate cause of death were sigmoid volvulus, gangrenous post colon resection. An autopsy was not performed. As service connection was not in effect for either ventricular fibrillation, arteriosclerotic cardiovascular disease, or any other cardiovascular disorder at the time of the veteran's death, it is necessary to determine if such a condition was incurred in or aggravated by active military service. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Where a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and a cardiovascular disorder becomes manifest to a degree of 10 percent within one year 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. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The veteran's service medical records are devoid of any report of a diagnosis, or of reports of treatment for, or findings pertaining to, a cardiovascular disorder. A blood pressure reading of 126/78 was obtained on induction into service. Service medical records showed that in February 1945, he was diagnosed as suffering from contusion, scrotum, mild, and from varicocele, left, moderately severe, cause undetermined. History was furnished that the veteran had sustained the injury accidentally while lifting rails in Florence Italy in February 1945. When initially seen, it was being considered whether he had a "ruptured" left inguinal hernia, with the diagnosis changed to "hydrocele, left" after a genitourinary evaluation. The veteran's separation from service examination reported the veteran had sustained a varicocele, left, disorder, but there was no report of a contusion involving the scrotum and it was indicated that no hernia was found. The examination also indicated a "normal" cardiovascular system. A blood pressure reading of 140/78 was elicited. Chest x-ray was normal. In March 1953, the veteran filed a claim for service connection for left testicle injury and right thumb injury. A VA compensation and pension examination report dated in May 1953 showed the veteran complained of residuals of a contusion to his scrotum and a right thumb condition. He also complained of sterility due to the contusion in the scrotum. He indicated that he had been hurt while lifting rails in service. Upon examination, the examiner specifically stated in the text of the examination report "no hernia." Varicocele, left, was noted. The examining physician requested the veteran to submit to hospitalization to determine his degree of sterility. The veteran indicated he would present himself at the hospital in June 1953 for the VA examination. However, he failed to show up for the scheduled examination. In July 1953, his claim was denied based upon his failure to show up for the June 1953 examination. When examined by the VA in May 1953, cardiovascular findings were indicated to be normal. Three blood pressure readings were obtained; 134/80, 136/82, and 130/82. In treatment records developed through the Hercules Powder Company in June 1978, there was noted to be some atrophy of the testes and a left varicocele. There were no abdominal masses or tenderness, and the right and left external abdominal rings were normal. Private medical records developed in 1991 document treatment for a bowel obstruction, diagnosed post operatively as a necrotic sigmoid volvulus. Surgery for an inguinal hernia was also performed. History was furnished to the effect that the veteran had a "known left inguinal hernia since World War II." In rendering an impression of bowel obstruction, there was reference to "etiology uncertain - probably not hernia ". The appellant argues that the contusion to the veteran's scrotum in service resulted in an inguinal hernia that led to the development of the bowel obstruction which materially contributed to his death. In her July 1992 substantive appeal, the appellant states: "My husband's immediate cause of death was due to acute bowel obstruction due to inguinal scrotal hernia from scrotal contusion in service." At her hearing, she also testified that the heart disease resulted form the "surgical shock" stemming from his bowel problems. Also of record is a statement from D. Lusignan, M.D., dated in August 1991, in which the veteran was noted to have been hospitalized with a left inguinal hernia with bowel obstruction in July 1991, and expired several days after admission, with the opinion being advanced that the left inguinal hernia was a contributing factor to his death. A statement from T. Connors, RPAC, dated in September 1992, reports that the veteran was seen in July 1991 for an acute bowel obstruction. It was opined that "this condition was directly related to a large inguinal scrotal hernia which had been present, to the best of my knowledge, since the mid 1940's." The veteran was noted to have subsequently died from the complications of the bowel obstruction. Of record is a notarized statement from Vivian Manell, dated in September 1992, in which it was reported that she had known the veteran since 1945. She recalled that in 1946 the veteran had shown her a harness about his waist which he described as offering him some relief from a rupture he had sustained in service as a result of lifting railroad ties. It is clear from the record that cardiovascular disease is not shown during service or for many years thereafter. In evaluating the evidence supportive of the claim that a bowel obstruction contributing to, or causing, death had origins in service, it is noted that medical opinion has been advanced which links the bowel obstruction to a large left scrotal hernia. The etiological relationship between these disorders is not questioned. The central question which is for resolution in this case is that of whether the hernia causing the bowel obstruction is reasonably shown to have had origins in service. In this regard, following the initial injury in service, the veteran was evaluated for a questionable hernia, although examinations by specialists ultimately culminated in determining that the veteran had a hydrocele and, later, the diagnosis was left varicocele. No hernia was noted for the duration of service, or in 1953, or in 1978, when examined specifically for such a condition. The statement from the physician's assistant, dated in September 1992, advances that the hernia in question was present since the mid - 1940's, although this information was apparently advanced solely as history as it is not apparent otherwise than that this individual had no awareness of the veteran's medical circumstances prior to July 1991. Treatment records developed in 1991 referring to a "known left inguinal hernia since World War II" have also been considered, as has the lay statement setting forth observations of a harness having been worn by the veteran, and recollections to the effect that she had been informed by the veteran that he had been "ruptured" during service in a lifting incident. When weighing, however, clinical findings specifically noting the absence of a hernia at separation from service, in 1953, and in 1978, with a medical history reported many years following service, to include the lay observations, it is clear that much greater probative value is to be afforded the former, and the evidence is not in equipoise in this case. It should also be added that the lay observations, as well as the hearing testimony, are found to be well meaning and informative, but the information provided is of minimal probative value in terms of establishing either a medical diagnosis during the essential time frames, or in demonstrating medical causation. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Finally, although mild contusion of the scrotum is documented during service, there is no medical evidence supporting the assertion that a hernia developed secondary to this contusion, and the assertion by the appellant that there is such a relationship is not sufficient to place the evidence in equipoise. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). ORDER The appellant's claim of entitlement to service connection for the cause of the veteran's death is denied. JEFF MARTIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.