BVA9507898 DOCKET NO. 90-24 238 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California 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 The appellant ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The appellant is the widow of the veteran. The veteran had active service from February 1948 to July 1952, from October 1952 to May 1962, and from July 1962 to April 1963, and he died in December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1989 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In February 1983, the RO denied a claim by the appellant for service connection for the cause of the veteran's death. The appellant was notified of the decision in February 1983, and she did not file a timely appeal. The appellant is now attempting to reopen her claim for service connection for the cause of the veteran's death. The Board finds that the evidence submitted subsequent to the February 1983 RO decision is new and material, and therefore, sufficient to reopen the appellant's claim. Accordingly, the Board will conduct a de novo review of the record. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection for the cause of the veteran's death should be granted because the veteran's cardiovascular disorder, which caused his death, was first manifested during his active service or was, in the alternative, secondary to a service-connected disability. 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 files. 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 granting service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been requested by the RO. 2. The cause of the veteran's death in December 1982 at the age of 50 was ventricular fibrillation, which was due to an acute myocardial infarction and hypertensive atherosclerotic heart disease. 3. At the time of death, service-connection was in effect for a herniated nucleus pulposus, an anxiety reaction, and pruritus ani. The herniated nucleus pulposus was rated as 60 percent disabling, the anxiety reaction was rated as 30 percent disabling, and the pruritus ani was rated as noncompensable. A total rating based upon individual unemployability was also in effect since August 1975. 4. A cardiovascular disability including hypertension did not manifest during service, or within the applicable postservice presumptive period. 5. No etiological relationship between the cause of death and the service-connected disabilities has been presented by the evidence. 6. The service-connected disabilities were not shown to have been a contributory factor in the veteran's death, and they did not aggravate the disease process which led to his death. CONCLUSIONS OF LAW 1. A cardiovascular disorder was not incurred in service, may not be presumed to have been incurred in service, and was not proximately due to or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1994). 2. A disability incurred or aggravated as a result of service was not a contributory factor in the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for the cause of the veteran's death. She has presented a well-grounded claim, which is a claim that is plausible, as required by 38 U.S.C.A. § 5107(a) (West 1991). The VA, in turn, has assisted the appellant in fully developing the facts relevant to her claim as required by 38 U.S.C.A. § 5107(a). The appellant contends that a service-connected disability was a factor in the cause of the veteran's death. She proffers two theories in support of her contention. According to her first theory, she asserts that the veteran developed hypertension during service. In support of her theory, she asserts that he had blood pressure readings of 130/90 in April 1960 and 136/96 in August 1960, which were indicative of hypertension. Pursuant to her second theory, she asserts that the veteran developed hypertension secondary to various service related factors. In support of her theory, she avers that the veteran sustained a back disability during service, that the pain, stress, and medication related to his back disability subsequently caused hypertension. She also avers that the veteran was treated for a viral infection during service, that the infection affected the veteran's medulla, that the medulla regulates blood pressure, and that he subsequently developed hypertension because of the effect of the infection on the medulla. According to the veteran's service medical records, he received periodic examinations and treatment during service for disabilities other than a cardiovascular disability. He was hospitalized for treatment of low back complaints and acute pharyngitis from August 4 to 16, 1960. The treatment reports reflect blood pressure readings of 130/80 in February 1948, 130/90 in April 1960, 120/80 in July 1960, 120/80 on August 2, 1960, 136/96 on August 4, 1960, 120/80 on August 6, 1960, and 124/74 in March 1963. An x-ray report, dated in August 1960, relates that the veteran had no active pulmonary or cardiac disease. In April 1964, a VA general medical examination was conducted. Clinical findings included a blood pressure reading of 132/86. No cardiovascular disability was diagnosed. In June 1964, the RO granted service connection for a psychiatric disability, a back disability, and pruritus ani, and assigned a 30 percent rating and two noncompensable ratings, respectively. In January 1965, the veteran was hospitalized at a VA medical facility for treatment of his back disability. The discharge summary relates no findings or diagnosis relative to a cardiovascular disability. In April 1965, the RO granted an increased rating of 40 percent for the veteran's back disability. In May and June 1965, the veteran was hospitalized at a VA medical facility for back surgery. According to the discharge summary, the clinical findings included a grade II systolic murmur, but no diagnosis of a cardiovascular disability. In July 1965, the RO granted a temporary total rating, effective from May 1965, for the veteran's back disability, and a 40 percent rating, effective from October 1965. From March through May 1966, the veteran was hospitalized at a VA medical facility for back surgery. The discharge summary relates no findings or diagnosis relative to a cardiovascular disability. In May 1966, the RO granted a temporary total rating, effective from March 1966, for the veteran's back disability, and a 40 percent rating, effective from August 1966. In June and July 1968, the veteran was hospitalized at Northridge Hospital (Northridge) after complaining of a twenty-four hour history of left occipital severe headaches and right hemiparesis. According to the treatment reports, the veteran related that he had a subarachnoid hemorrhage in 1961. Diagnostic testing failed to identify any site of bleeding. The impressions of the treating physician, David Chernof, M.D., were cerebrovascular accident, and mild hypertension. In January and February 1973, the veteran was hospitalized at Northridge for treatment of his hypertension. As reported by the treating physician, Dr. Chernof, the veteran's hypertension was first noted in 1968 following a cerebrovascular accident. Thereafter, the veteran received several medications for hypertension and had intolerance problems. His medication was discontinued and his blood pressures remained in a normal range until early 1972. Since then he had had diastolic readings in the 110-120 range despite increased medication. Diagnostic examination and testing failed to reveal evidence of a cerebrovascular accident. The diagnosis was accelerated, moderately severe, essential hypertension. In September 1974, the veteran was hospitalized at Northridge for treatment of his hypertension. In the discharge summary, the treating physician, Dr. Chernof, reported that a cerebrovascular accident had been ruled out based upon a spinal tap conducted by Alan Rosenberg, M.D. The diagnoses were hypertensive cardiovascular disease, and severe headache, subarachnoid hemorrhage ruled out by appropriate studies. In January and February 1975, the veteran was hospitalized at a VA medical facility for treatment of his back disability. The discharge summary does not relate any cardiovascular treatment or findings other than normal heart tones. In June and July 1975, the veteran was hospitalized at a VA medical facility for treatment of his back disability. Poorly controlled hypertension was also evaluated. The discharge summary noted that the veteran had orthostatic changes and had been unable to tolerate most hypertension medications. His psychiatric disorder was not noted. Between August 1975 and December 1977, the veteran received outpatient treatment from Dr. Chernof for various disabilities, including hypertension. The treatment reports reflect only the information pertinent to his treatment at the respective dates of treatment. In September 1975, the veteran received VA outpatient treatment. He reported that he had received acupuncture without results, and was informed to schedule appointments as necessary. In September 1975, the RO granted an increased rating of 60 percent for the veteran's back disability, effective from January 1975, a temporary total rating, effective from June 1975, and a 60 percent rating, effective from August 1975. In December 1975, special VA psychiatric and orthopedic examinations were conducted. It was noted that the pain from his back disability contributed to his nervousness and anxiety. In February 1976, the RO granted a total rating based upon individual unemployability, effective from August 1975. In June 1976, the veteran was examined by a private physician, Norman H. Kramer, M.D. The examination related to the veteran's back disability. No findings with respect to the etiology of the veteran's cardiovascular disability were reported. In November 1976, the veteran was hospitalized for treatment of his cardiovascular disability. The treatment reports contain only the findings relevant to treatment at that time. In June 1977, the veteran was hospitalized at Northridge for treatment of acute cerebrovascular insufficiency manifested by right hemiparesthesias and slight right-sided weakness. The treatment reports do not reflect any findings with respect to the etiology of his disability. In November 1977, the veteran was hospitalized at Northridge. He received treatment for a renal calculus and hypertension. In December 1977, special VA orthopedic and psychiatric examinations were conducted. The examinations reports do not indicate any etiological relationship between the veteran's cardiovascular disability and his psychiatric or back disability. In September and November 1978, the veteran received VA outpatient treatment for his cardiovascular and back disabilities. The treatment reports reflect only findings evident at the time of treatment. In November 1978, the veteran was hospitalized at a VA medical facility. He received treatment for his hypertension, psychiatric disability, and back disability. The treatment reports indicate only findings evident at the time of treatment. In January 1981, special VA orthopedic and psychiatric examinations were conducted. The respective diagnosis were postoperative lumbar laminectomy, and anxiety reaction. In November 1981, the veteran was hospitalized at a VA medical facility. He received treatment for his back and cardiovascular disabilities. In December 1982, the veteran was hospitalized at a VA medical facility after complaining of angina. He died several hours later due to ventricular fibrillation, which was due to acute myocardial infarction and hypertensive arteriosclerotic heart disease. A certificate of death, dated in December 1982, also lists the foregoing causes as the causes of death, and relates that an autopsy was performed. According to the autopsy report, which is dated in December 1982, the cause of death was coronary arteriosclerosis with a myocardial infarct. In June 1983, Dr. Chernof reported that he first saw the veteran in 1968 following the veteran's cerebrovascular accident. He related that it was extremely likely that the veteran had experienced an episode of subarachnoid and possibly intracerebral bleeding during service as the veteran had an inservice experience of severe headaches, low grade fever and abnormal sensation in the right upper extremity and right neck for which no diagnosis was established. He stated that this would certainly suggest that the veteran's subsequent neurological problems, subarachnoid hemorrhage, and multiple emotional problems were service connected and could be seen as a contributing factor to his fatal coronary occlusion. In July 1989, the appellant submitted a copy of a letter from Raymon T. Kaplan, M.D. In the letter, Dr. Kaplan related that he had provided care to the veteran from December 1962 until one month prior to the veteran's discharge in March 1963. He indicated that the veteran suffered severe symptoms of depression and anxiety at that time. He reported that he understood that the veteran was treated for hypertension following a cerebrovascular accident in 1968. He stated that it was certainly possible that the stress of military service, which produced his emotional symptoms could have also contributed to the veteran's hypertension. He recommended review of the military records to determine if this was the case. In December 1989, Dr. Chernof reported that he had copies of some of the veteran's service medical records. He indicated that the hospital reports, dated in April and August 1960, reflected blood pressure elevations of 130/90 and 136/96, respectively, and that the readings met the criteria for hypertension. He related that based upon the foregoing, the veteran developed hypertension during his active service, and this subsequently contributed to his demise. In January 1991, the appellant testified at a hearing that was held at the RO. Her contentions are set forth above. In January 1995, the Board secured an opinion from an independent medical expert, David W. Morse, M.D. With respect to whether the veteran incurred hypertension during service, Dr. Morse indicated that the veteran's medical records did not show that he incurred hypertension during service. He related that the August 4, 1960, blood pressure readings of 136/96 was the only blood pressure reading during service that met the definition of elevated blood pressure. He stated that the generally accepted definition of hypertension was a sustained diastolic pressure over 90, and that it is generally accepted that a diagnosis of hypertension can be made only based upon at least two clearly elevated blood pressure reading taken on separate visits. With respect to whether the veteran developed hypertension due to stress or an anxiety reaction, Dr. Morse indicated that most individuals working in the field of hypertension feel that stress does not cause hypertension. He related that it is generally accepted that the cause of hypertension is unknown. He explained that stress could contribute to transient elevations in blood pressure in certain individuals, but that this did not occur in everyone. A veteran's surviving spouse is entitled to dependency and indemnity compensation if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to have been service-connected, a disability must have been incurred in service, or proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. A cardiovascular disability will be presumed to have been incurred in service if it manifested to a 10 percent degree of disability within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307, 3.309. The veteran died in December 1982 due to ventricular fibrillation, which was due to an acute myocardial infarction and hypertensive atherosclerotic heart disease. At the time of his death, service connection was not in effect for a cardiovascular disability. His service medical records are devoid of any diagnosis or treatment of a cardiovascular disability. Hypertension was first diagnosed in June 1968, which was more than five years after his separation from service. The appellant contends that even though hypertension was not diagnosed during service, certain blood pressure readings taken during service reflect that he had such disability. Dr. Chernof reported that the veteran's April 1960 blood pressure reading of 130/90 and August 1960 blood pressure reading of 136/96 met the criteria for hypertension. The Board finds that the preponderance of the evidence indicates otherwise. According to the opinion of an independent medical expert, the veteran did not develop hypertension or a cardiovascular disability during service. The expert indicated that the generally accepted definition of hypertension requires a sustained diastolic pressure over 90, and that the generally accepted diagnosis of hypertension requires at least two clearly elevated blood pressure readings taken on separate visits. He related that only the August 4, 1960, blood pressure reading of 136/96 met the definition of elevated blood pressure. In addition, the Board finds that Dr. Chernof's opinion was based upon an incomplete, and therefore, inaccurate factual basis. He was supplied with only the veteran's April and August 1960 hospital records. During the period between the April 1960 blood pressure reading of 130/90 and the August 4, 1960 blood pressure reading of 136/96, the veteran had several normal blood pressure readings. He also had normal blood pressure readings after the August 4, 1960, reading. He did not, therefore, have a sustained elevated diastolic pressure, whether defined as 90 or over 90. In addition, he did not have a sustained elevated diastolic pressure between his separation from service and 1968, which is when his hypertension was first noted according to Dr. Chernof, who treated the veteran at Northridge The appellant also contends that the veteran developed hypertension secondary to service related factors, including stress, his service-connected back disability, and a viral illness. Dr. Kaplan, who treated the veteran's psychiatric disability during service, reported that it was possible that any stress the veteran experienced during service contributed to his hypertension. Dr. Morse, who is a cardiologist, reported that it is generally accepted that stress does not cause hypertension. He explained that stress did cause transient elevations in blood pressure in some people, but this is clearly not the same as hypertension, which is a persistent elevation. The Board finds, therefore, that the veteran's cardiovascular disability was not proximately due to any stress caused by his service-connected anxiety reaction or back disability. The appellant contends that the veteran was treated for a viral illness during service, and that he developed hypertension because the illness affected his medulla, which controls blood pressure. Dr. Chernof initially reported that the veteran had likely experienced an episode of subarachnoid or possible intracerebral bleeding during service based upon a December 1962 treatment report, which would suggest that his postservice problems were service-connected. The service treatment reports were negative as to a cerebrovascular disability. In addition, postservice treatment reports failed to confirm that the veteran had a cerebrovascular accident even in 1968 when one was suspected. The appellant contention that the veteran developed hypertension due to the pain and medications associated with his back disability is not well-grounded. She has not submitted any medical documentation to support her contention, and she has not submitted any evidence to show that she is medically competent to render a medical opinion about an etiological relationship between the veteran's back disability and his cardiovascular disability. The evidence does not show that a cardiovascular disorder was incurred in service, that such a disability could be presumed to have been incurred in service, that such a disability was proximately due to any service-connected disability, or that it was aggravated by any service connected disability. Allen v. Brown, No. 93-245 (U.S. Vet.App. March 17, 1995). A disability incurred as a result of service was not, therefore, a causal factor in the veteran's death. There is also no evidence that his service connected disabilities contributed to his death and it has not been so contended. Based upon the foregoing, the Board finds that the preponderance of the evidence is against granting service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312. The evidence is not so evenly balanced as to raise doubt with respect to any material issue. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for the cause of the veteran's death is denied. ROBERT D. PHILIPP 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.