BVA9501273 DOCKET NO. 93-01 514 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania 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 Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from February 1951 to December 1952. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's service-connected disability caused the veteran's death. She maintains that headaches the veteran experienced as a result of head trauma during service were of such severity as to substantially or materially contribute to cause his death. She asserts that prior to his death, the veteran complained of persistent headaches and constant neck pain, the result of traumatic encephalopathy and head trauma, that were taxing on the veteran's heart, which thereby contributed substantially and materially to his death. She also maintains that memory loss and inability to concentrate associated with the service-connected head injury, suggestive of organic brain syndrome, resulted in the veteran failing to take required medication, thereby contributing substantially and materially to his death. DECISION OF THE BOARD The Board of Veterans' Appeals (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 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 of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office (RO). 2. The veteran died on February [redacted] 1991, at the age of 60. 3. The cause of the veteran's death was acute anterolateral infarction due to or as a consequence of coronary artery disease. 4. Heart disease was not shown during active service, or within one year after service separation. 5. At the time of his death, the veteran was service-connected for: loss of part of his skull, evaluated as 50 percent disabling; traumatic encephalitis manifested by headaches and dizziness, evaluated as 30 percent disabling; and a disfiguring scar, evaluated as 10 percent disabling. The combined rating was 70 percent. 6. The veteran's service-connected disabilities were not causally related to his death. CONCLUSIONS OF LAW 1. The cause of the veteran's death, heart disease, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 2. The veteran's service-connected disabilities neither caused nor contributed substantially or materially to cause his death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The Board finds, initially, that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, it is not inherently implausible. The Department of Veterans Affairs (VA) has a statutory obligation to assist the appellant in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991). With respect to the duty to assist, the appellant asserted that the veteran was treated by Robert B. Mooney, D.O., at the Philadelphia Naval Hospital, for non-insulin dependent diabetes mellitus and coronary artery disease. The RO requested evidence from Dr. Mooney in a letter dated in December 1991. Dr. Mooney responded that he separated from the Navy in April 1991 and did not have access to the veteran's medical records. Dr. Mooney did suggest that information would be available from the Philadelphia VA Hospital. Although Dr. Mooney recommended that the VA contact the Philadelphia VA Hospital for more specific information, the appellant stated that the veteran sought treatment at the Philadelphia Naval Hospital and Dr. Mooney stated that he treated the veteran at the Philadelphia Naval Hospital. The RO requested records from the Philadelphia Naval Medical Center in a letter dated in December 1991. The hospital provided treatment records dated from July 1977 to December 1990. In a remand dated in June 1994, the Board directed that the RO contact the Philadelphia VA Hospital and obtain copies of all treatment records pertaining to the veteran. The RO twice attempted to secure such records, but was informed that no records were found. We are satisfied that the facts relevant to the claim have been properly developed and that the VA satisfied its duty to assist. On appellate review, we see no areas in which further development might be fruitful. II. Service Connection for the Cause of Death The appellant is seeking to establish service connection for the cause of the veteran's death. The certificate of death shows that the veteran died on February [redacted] 1991, at the age of 60. An autopsy was not performed. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (1993). 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. 38 C.F.R. § 3.312(b) (1993). 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. 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 C.F.R. § 3.312(c)(1) (1993). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (1993). 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. 38 C.F.R. § 3.312(c)(3) (1993). 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(c)(4) (1993). The death certificate reported the immediate cause of death to be acute anterolateral infarction due to or as a consequence of an underlying cause of coronary artery disease. The death certificate further revealed that the approximate interval between onset of acute anterolateral infarction and death was one hour, and that the approximate interval between coronary artery disease and death was two years. Records prepared at the Nazareth Hospital at the time of the veteran's death also reported acute anterolateral infarction, as well as hypertension, as a clinical impression. The veteran was not service connected for heart disease at the time of his death. In order for heart disease to be considered a service-connected disability, the evidence would have to show that it was incurred in or aggravated by active service, or that it became manifest to a degree of 10 percent within one year from his separation from active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). A review of the service medical records shows no complaints, findings, or treatment related to heart disease. Moreover, the death certificate dated February [redacted] 1991, reported the onset of coronary artery disease two years prior to death. In a letter dated in December 1991, Frederic J. Weber, M.D., stated that he had seen the veteran the month prior to his death, that this visit was the total extent of his care of the veteran, that the veteran provided a history of previous coronary artery disease, and that the veteran's symptoms suggested significant progression. Dr. Weber did not, however, relate the veteran's heart disease to active service, and the appellant makes no allegations that the veteran's heart disease was present during active service or within one year after service separation. In light of these reasons, the preponderance of the evidence is against service connection for the veteran's heart disease. At the time of his death, the veteran was service-connected for loss of part of the skull, evaluated as 50 percent disabling, traumatic encephalitis manifested by headaches and dizziness, evaluated as 30 percent disabling, and a disfiguring scar, evaluated as 10 percent disabling. The combined rating was 70 percent. As noted above, the appellant argues that the veteran's persistent headaches and constant neck pain, resulting from traumatic encephalopathy and head trauma, taxed his heart and that the veteran's memory loss and inability to concentrate associated with the service-connected head injury, suggestive of organic brain syndrome, resulted in the veteran failing to take required medication, thereby contributing substantially and materially to his death. In support of these contentions, the appellant points to two statements of Dr. Mooney, dated in August 1991 and January 1992, reporting that he followed the veteran for a two year period for non-insulin dependent diabetes mellitus and coronary artery disease. He stated that the veteran was also followed by various orthopedists for severe degenerative joint disease of the cervical spine which he characterized as a service-related condition causing the veteran considerable pain and that severely restricted his activities, as fairly routine tasks would result in exacerbations of his condition. In Dr. Mooney's opinion, it was likely that the pain resulting from the veteran's neck condition aggravated his ischemic heart disease and contributed to his death. A review of the evidence of record, however, does not support Dr. Mooney's opinion of a relationship between residuals of the head injury in-service and the cause of death for purposes of service connection. Clinical records prepared at the Philadelphia Naval Hospital dated from July 1977 to December 1990 show that the veteran was treated by Dr. Mooney during this period on about three occasions. In August 1985, Dr. Mooney treated the veteran in the emergency room where the veteran presented a 10 day history of left shoulder pain, non-radiating in nature. Examination revealed minimal palpatory tenderness and severe pain in the area on movement of the arm past approximately 45 to 50 degrees of abduction and extension. An x-ray revealed a double cortical density located mid-shaft of the humerus. The heart had a regular rate and rhythm. An electrocardiogram showed no ischemic changes or dysrhythmia. Dr. Mooney referred the veteran to the orthopedic clinic. In May 1989, Dr. Mooney saw the veteran in the emergency room for treatment of a burn the veteran sustained to his thumb and left wrist. In December 1990, Dr. Mooney saw the veteran in connection with diabetes. Examination revealed the heart to have a regular rate and rhythm. The clinical evidence shows that Dr. Mooney treated the veteran briefly for left shoulder pain, a burn, and diabetes, but does not show treatment by Dr. Mooney for the service-connected head injury or coronary artery disease that might shed light on the cause of death. Dr. Mooney did not discuss the veteran's coronary artery disease in these clinical records to which he referred in his August 1991 and January 1992 letters. Nor does the remaining evidence of record demonstrate that residuals of the veteran's head injury during service contributed to his death. The treatment records prepared at Nazareth Hospital on the day of the veteran's death do not refer to such residuals contributing to death, although the records do show that the veteran complained of back pain for three days prior to his death. The clinical records associated with the Philadelphia Naval Hospital also do not show complaints, findings, or treatment pertaining to headache pain. These clinical records do show notations of symptomatology associated with his neck, but do not discuss their etiology or relation to heart disease. In his December 1991 letter discussing his one visit with the veteran, described above, Dr. Weber did not discuss the etiology of the chest discomfort noted or note any complaints, findings, or treatment regarding headache or neck pain that might relate such a disorder to the cause of death. Dr. Mooney's opinion is not supported by the medical evidence of record, and in addition, relates to a condition for which he did not treat the veteran. The medical evidence of record for several years preceding the veteran's death does not contain any significant findings concerning the veteran's service-connected disabilities. The appellant's hearing testimony in December 1991 and November 1993, although alleging that headache pain was related to the cause of death and stating that the veteran did not complain about the headaches, does not include evidence supporting service connection for the cause of death. The appellant stated that she did not have a medical basis for her conclusion and that she did not know why Dr. Mooney believed that the head injury contributed to the cause of death. The U.S. Court of Veterans Appeals (hereinafter the Court) has held that a lay person can provide an eyewitness account of a veteran's visible symptoms. However, the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge, such as a diagnosis as to the cause of the veteran's death. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Here, the appellant's allegation that the headache pain was related to the cause of death requires such medical knowledge and the record does not indicate that the appellant possesses the requisite special knowledge. Finally, the appellant's representative argued in the November 1993 hearing that the veteran had organic personality changes that were not well documented but that were suggestive of chronic organic brain syndrome, exhibited by loss of memory and inability to concentrate. The appellant stated in the same hearing that she had to remind the veteran to take his medication and that the veteran had an aversion to taking medication. The clinical records of the Philadelphia Naval Hospital show that the veteran was prescribed, among other medications, Cardizem, an angina medication. It is not clear whether the need to remind the veteran to take his medication was due to the loss of memory alluded to resulting from the head injury or because the veteran did not want to take medication. The record, however, does not include evidence, beyond the hearing testimony and representative's argument, that supports the contention. As noted above, a lay person can provide an eyewitness account of a veteran's visible symptoms, but the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge such as a diagnosis as to the cause of the veteran's death. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Here, the appellant's allegation that a loss of memory associated with the head injury resulted in the veteran's failure to take heart medication, which in turn contributed to his death, requires such medical knowledge. The evidence of record does not support the establishment of service connection for the veteran's cause of death. The clinical evidence does not show that the cause of death was related to active service or that residuals of the veteran's head injury contributed substantially or materially to the cause of death. It is the determination of the Board that the preponderance of the evidence is against a claim of entitlement to service connection for the cause of the veteran's death. ORDER Entitlement to service connection for the cause of the veteran's death is denied. WILLIAM J. REDDY 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.