BVA9500862 DOCKET NO. 92-22 058 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Washington, D.C. 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 Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from March 1972 to January 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1990 decision of the Department of Veterans Affairs (VA), Washington, D.C., Regional Office (RO), which denied service connection for the cause of the veteran's death. The appellant, who is the custodian for her and the veteran's child, testified at a hearing conducted at the Board in June 1993. In a February 1994 letter sent to the appellant's representative, in compliance with Thurber v. Brown, 5 Vet.App. 119 (1993), the Board noted that it proposed to rely on evidence developed or obtained by it subsequent to the issuance of the most recent statement of the case or supplemental statement of the case in this claim. A copy of the evidence together with a brief statement of the reliance proposed to be placed on this evidence by the Board was furnished to the representative. A period of 60 days from the date of the letter was allowed for the representative to submit any additional argument or comment. No further argument or comment was furnished. The Board contacted the appellant by letter in November 1994 for the purpose of notifying her that the Member who conducted the June 1993 Board hearing was no longer employed by the Board and, as a result, she had the right to another hearing by a Member of the Board. The appellant responded that she did not want an additional hearing. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection is warranted for the cause of the veteran's death. She asserts, in essence, that her husband's service-connected ankylosing spondylitis caused or substantially contributed to his death. She argues that the ankylosing spondylitis may have produced his fatal cardiovascular and pulmonary conditions. Her service representative cites medical literature in support of the argument that ankylosing spondylitis can result in cardiovascular and pulmonary conditions. Alternatively, it is contended that rheumatic fever which the veteran had prior to service was aggravated by the rigors of service and resulted in his developing heart and lung diseases which caused or contributed to his death. It is also contended that he was so debilitated from his ankylosing spondylitis that he was unable to survive the surgery for the ruptured cerebral aneurysm that immediately preceded his 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 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. The immediate cause of the veteran's death was acute respiratory distress syndrome and cardiac complications, which were due to the underlying cause of death, a subarachnoid hemorrhage from a ruptured cerebral aneurysm. 2. The veteran's fatal cerebrovascular disease, and ensuing complications, were not present during service or for many years thereafter, and were not caused by any incident of service or by his service-connected ankylosing spondylitis. 3. The veteran's service-connected ankylosing spondylitis did not substantially or materially contribute to his death. CONCLUSION OF LAW A service-connected disability did not cause or contribute to the veteran's death, and the criteria for service connection for the cause of his death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310 (West 1991); 38 C.F.R. 3.303, 3.307, 3.309, 3.310 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim, for service connection for the cause of the veteran's death, is well grounded, meaning not inherently implausible. The file shows that all relevant evidence has been developed, and there is no further VA duty to assist her in developing the facts pertinent to her claim. 38 U.S.C.A. § 5107(a). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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. For a service-connected disability to constitute a contributory cause, 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; 38 C.F.R. § 3.312. A service-connected disability is one due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service incurrence may be presumed for certain chronic diseases (including a brain hemorrhage) which become manifest to a compensable degree within the year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). The veteran served on active duty from March 1972 to January 1973. He was medically retired from service by reason of ankylosing spondylitis with arthralgia of peripheral joints from probable rheumatoid disease. The service department considered the condition to be 40 percent disabling. The VA established service connection, by way of aggravation, for ankylosing spondylitis, effective with the veteran's 1973 separation from active duty. The VA considered the overall condition to be 40 percent disabling, although a 20 percent subtraction was taken for the preservice level of disability (in 1965, before service, the veteran was hospitalized for over three months for treatment of rheumatic fever and rheumatoid arthritis of multiple joints), leaving a net VA compensation rating of 20 percent. This rating remained in effect until the veteran's death, and he had no other service-connected conditions. The veteran died in April 1990 during an admission to Fitzsimons Army Medical Center. The file contains extensive treatment records from this terminal hospitalization, an autopsy report, and a death certificate. These show that the veteran was admitted to the hospital in April 1990 for evaluation of a severe, acute onset, headache which started several days previously while at work. Diagnostic studies revealed a a cerebral aneurysm, and eight days after admission he underwent a craniotomy. The aneurysm was noted to rupture during surgery but it was successfully repaired. Subsequent to the operation the veteran developed complications including acute adult respiratory distress syndrome with pneumonia. His condition deteriorated over several days, he experienced electromechanical dissociation and cardiac arrest, and he died. The clinical records, autopsy report, and death certificate collectively show that the underlying cause of death was a subarachnoid hemorrhage from a ruptured cerebral aneurysm. The mechanism of death (immediate cause) was reported as acute adult respiratory distress syndrome, complicating the ruptured cerebral aneurysm and surgical therapy for the aneurysm, and electromechanical dissociation. The death certificate does not mention ankylosing spondylitis, either as a cause of death or other significant condition contributing to death. The terminal hospital records note a history of ankylosing spondylitis and some related low back tenderness, and the autopsy report notes the clinical history of ankylosing spondylitis and a finding of decreased flexibility of the intervertebral discs. None of these medical documents suggest that ankylosing spondylitis was a cause of death or etiologically related to the immediate or underlying causes of death. Medical records from the veteran's 1972-1973 active duty, and medical records (VA, service department, and private) for years thereafter show no cerebrovascular disease or cardiopulmonary disease. It is apparent that the veteran's cerebral aneurysm was not discovered until the hospitalization in April 1990, which was more than 17 years after his separation from active duty. The appellant contends that the veteran's service-connected ankylosing spondylitis substantially contributed to his fatal cardiovascular and pulmonary complications. Her representative has cited medical literature in support of the claim that ankylosing spondylitis can result in some types of cardiac and pulmonary complications. However, as indicated by the terminal hospital records and autopsy report, the final events of death, involving the lungs and heart, were complications of the ruptured cerebral aneurysm and surgery, and not the result of ankylosing spondylitis. There has been no medical evidence presented to show that the fatal cerebral aneurysm was a complication of ankylosing spondylitis. A cerebral aneurysm is not a recognized complication of ankylosing spondylitis. 2 Cecil Textbook of Medicine, § 259 at 1516, 1517 (19th ed. 1992). The evidence indicates that the cerebral aneurysm and ensuing cardiopulmonary complications were not incurred in or aggravated by service and were not proximately due to or a result of service-connected ankylosing spondylitis. The appellant also argues that preservice rheumatic fever was aggravated by service and should be service connected, and that this condition produced heart damage which caused or contributed to the veteran's death. The veteran's history of preservice rheumatic fever is noted in the service and post-service records, but there is no medical evidence suggesting aggravation of the condition during service. Rheumatic fever (and related rheumatic heart disease) is considered non-service-connected. But even if the condition were deemed service connected, this would not establish service connection for the cause of the veteran's death. Autopsy showed growths on the edges of the tricuspid and pulmonic heart valves, thought to be due to both preexisting valvular damage from rheumatic fever and the recent severe medical problems. However, the terminal hospital records, autopsy report, and death certificate do not implicate the valvular damage with the veteran's death. The appellant also maintains that the service-connected ankylosing spondylitis was a contributing cause of death as it so debilitated the veteran that it made him less able to resist the primary cause of death, and thereby hastened his death. She asserts that the ankylosing spondylitis made him unable to withstand the intracranial surgery necessitated by the ruptured cerebral aneurysm. In reviewing all of the relevant medical records on file, the Board finds no support for this contention. In fact, the terminal hospital records and autopsy report contain no suggestion that the veteran's ankylosing spondylitis played any contributory role in his demise. Rather, these medical records contain only minimal findings with regard to ankylosing spondylitis, and they show that the veteran died of an overwhelming unrelated non-service-connected illness. The evidence establishes that ankylosing spondylitis merely co- existed with the non-service-connected fatal illness; the service-connected condition did not play a substantial or material contributory role in the death process. The preponderance of the evidence establishes that a service- connected disability neither caused nor contributed to the veteran's death, and the legal criteria for service connection for the cause of his death have not been met. As the prepon- derance of the evidence is against the claim, the benefit-of-the- doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 1990. ORDER Service connection for the cause of the veteran's death is denied L. W. TOBIN Member, Board of Veterans' Appeals 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.