Citation Nr: 0006085 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 98-00 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation benefits. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from August 1944 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Houston, Texas, regional office (RO) of the Department of Veterans Affairs (VA). Additional evidence was received at the Board from the appellant in May 1999. She did not submit a waiver of review of this material by the RO. However, the additional evidence consists entirely of duplicate material that has been previously considered by the RO. In addition, the Board requested an expert medical opinion from a VA doctor in October 1999. This opinion was received in December 1999, and a copy was provided to the appellant's representative that same month. In February 2000, the representative stated that they had no further evidence or argument to present. Therefore, the Board will proceed with its review of this appeal. The Board notes that the issue of eligibility to Dependent's Educational Assistance under 38 U.S.C.A. Chapter 35 was denied in the same June 1997 rating decision which denied the appellant entitlement to service connection for the cause of the veteran's death, and which denied entitlement to dependency and indemnity compensation benefits. Following receipt of the November 1997 notice of disagreement, this issue was included in the December 1997 statement of the case, and in the September 1998 supplemental statement of the case. However, the Board notes that the appellant has not made a specific claim for educational assistance. She did not list this as an issue in the notice of disagreement, and did not include it as an issue for appeal in the January 1998 substantive appeal. The veteran's representative has not made any arguments pertaining to educational benefits. Therefore, as there is no substantive appeal for this issue, and no other indication that the appellant desires to pursue this issue, the Board will not consider the issue of entitlement to Dependent's Educational Assistance. 38 C.F.R. § 20.202 (1999). FINDINGS OF FACT 1. The veteran died in June 1997; the causes of his death were pneumonia, Alzheimer's, cardiomyopathy, and congestive heart failure. 2. Service connection for shell fragment wounds of the left foot and for malaria was in effect at the time of the veteran's death. 3. The service medical records are negative for evidence of pneumonia, Alzheimer's, or a heart disease, and the evidence indicates that these disabilities initially manifested many years after discharge from service. 4. The preponderance of the evidence indicates that the veteran's service connected disabilities were not etiologically related to the congestive heart failure or any other disability that caused or contributed to his death. 5. The veteran was not continuously rated totally disabled for any period preceding his death; and there is no evidence to establish that he was entitled to receive a total disability rating at any time prior to his death but for clear and unmistakable error in a previous rating action or that he could have hypothetically been entitled to receive a total disability rating at any time prior to his death. CONCLUSIONS OF LAW 1. The principal and contributory causes of the veteran's death were not related to active service, or to service connected disabilities. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1999). 2. The criteria for dependency and indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant, widow of the veteran, contends that his death was the result of service connected disabilities. She argues that the malaria for which the veteran was treated during service caused his congestive heart failure, which led to the development of the pneumonia that resulted in his death. Cause of Death 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 service was the principal or contributory cause of death. See 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(a) (1998). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. See 38 C.F.R. § 3.312(b) (1999). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1) (1999). If the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service- connected disability rendered the veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(2). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The claim does not need to be conclusive, but only possible in order to be well grounded. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The appellant has the burden of submitting evidence to show that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for there to be a well grounded claim for service connection, there must be evidence of incurrence or aggravation of a disease or injury during service, competent evidence that the veteran currently has the claimed disability, and evidence of a nexus between the inservice disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). When an issue involves either medical etiology or medical diagnosis, competent medical evidence is required to make the claim well grounded. Grottveit v. Brown, 5 Vet. App. 91,92 (1993), see also Rucker v. Brown, 10 Vet. App. 67 (1997). At the time of the veteran's death, service connection was in effect for the residuals of a shell fragment wound to the left foot, evaluated as 20 percent disabling, and malaria, evaluated as zero percent disabling. The veteran had a combined evaluation of 20 percent. These evaluations were effective from June 1947. The record includes a copy of the veteran's death certificate. This shows that the veteran died on June [redacted], 1997. The place of death was a hospital. The immediate cause of death was listed as pneumonia, and the underlying cause was Alzheimer's. A review of the service medical records is negative for evidence of a heart disability, pneumonia, or Alzheimer's disease. The veteran was afforded a VA examination in May 1949. The cardiovascular and the respiratory systems were normal. No residuals of malaria were found. There was a very thin scar on the lateral plantar surface of the left foot. There was no muscle, bone, tendon, or nerve injury seen. The diagnoses included residuals of a shrapnel wound on the left foot, a small scar with no disability. The veteran underwent an additional VA examination in August 1954. The cardiovascular and respiratory systems were normal. A chest X-ray study conducted at this time was also normal. The veteran complained of recurrent attacks of fever and weak spells which last over night, and said that these spells would occur every three to six weeks. The last spell was over a month ago. The veteran had not been to a doctor for a check-up. Following the examination, the diagnoses included history of malaria, no residual. The veteran was hospitalized at a VA facility from December 1981 to January 1982. The hospital report indicated that the cardiac examination was normal. The report was negative for a cardiovascular or respiratory disability, and for any residuals of malaria. The diagnoses included Alzheimer's disease. The veteran was afforded a private cardiology consultation by Dr. M. in February 1990. The history of malaria was not noted. The lungs were clear. Following the examination, Dr. M. stated that he could see no evidence of significant cardiovascular disease. A chest X-ray study was conducted in April 1993 by Dr. R. The heart shadows were normal. Bilateral infiltrate was noted, and there was scarring through both lung fields. The impression was bilateral pneumonia. Private medical records from Dr. R. dated April 1997 show that the veteran was examined for problems that included an inability to clear his chest when he coughed. The diagnoses included congestive heart failure. Hospital records from June 1997 show that the veteran was admitted because of problems with his Foley catheter. The diagnoses included Alzheimer's disease. Additional records show that the primary hospice diagnosis was end stage Alzheimer's, and that the secondary diagnosis was congestive heart failure. Other June 1997 hospital records indicate that the veteran died on June [redacted], 1997. The admitting diagnosis was Alzheimer's disease, and this was also the principal diagnosis. The secondary diagnoses were congestive heart failure and essential hypertension. An autopsy was conducted in June 1997. The summary stated that while multiple abnormalities were seen in the veteran's brain, none of the common causes of dementia were seen. The presence of Alzheimer's disease was not confirmed. The report was negative for comments regarding malaria, a cardiovascular disability, or a respiratory disability. The evidence also includes an October 1997 letter from C.R., M.D., who was the same doctor who signed the veteran's death certificate. He noted that he had treated the veteran for many years prior to his death for early onset dementia and congestive failure. Dr. R. said that it was error on his part that cardiomyopathy and congestive failure were not listed as a cause of death on the death certificate. He added that it was an intermediate cause of death resulting in the pneumonia. An additional October 1997 letter from M.M., M.D., states that the veteran's malaria undoubtedly contributed to his congestive heart failure, and to his demise. A medical opinion by a staff cardiologist from the Veterans Health Administration was obtained in December 1999. It was noted that he had reviewed the veteran's medical records and researched pertinent medical literature prior to rendering his opinion. He noted that rare cases of heart failure were reported that were related to acute, fulminant malaria. These cases were apparently caused by obstruction of the coronary circulation as a result of parasitemia. But this was not the veteran's clinical situation. The expert stated that it was extraordinarily unlikely that the veteran's service connected malaria was a contributory cause to the veteran's death. He could find nothing in the medical literature to support the contention that the veteran's malaria contributed substantially or materially to his death. In addition, there was no credible evidence to support the contention that the malaria combined with any other illness to cause his death. In the opinion of the expert, the veteran's malaria neither aided nor lent assistance to produce his death. The Board finds that the appellant has submitted evidence of a well grounded claim for entitlement to service connection for the cause of the veteran's death. The evidence indicates that the immediate cause of the veteran's death was pneumonia. The veteran was service connected for malaria and residuals of a shell fragment wound to the left foot at the time of his death. The October 1997 letters from the veteran's doctor opine that malaria contributed to the veteran's congestive heart failure, and that the veteran's congestive heart failure was cause of the pneumonia that led to his death. Therefore, as there is medical evidence of a nexus between a service connected disability and the disability which led to the death of the veteran, the claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91,92 (1993). As the need for further development is not indicated, the Board will proceed with a review of the appellant's claim on the merits. After careful review of the appellant's contentions and the evidence of record, the Board finds that service connection for the cause of the veteran's death is not warranted. The death certificate stated that the immediate cause of the veteran's death was pneumonia, and that the underlying cause was Alzheimer's. The doctor who signed the death certificate noted that it was an error on his part not to include cardiomyopathy and congestive failure as a cause of death. The service medical records are completely negative for evidence of pneumonia and a heart disability, and these disabilities first manifested approximately 50 years after the veteran's discharge from service. There is no medical opinion that would relate either Alzheimer's disease, pneumonia, or a heart disability to active service. The appellant has not made any contentions concerning the shell fragment wound, and there is no medical evidence to relate this disability to the death of the veteran. The only medical evidence that suggests a relationship between the veteran's death and his malaria is the October 1997 letter from Dr. M. However, the remaining medical records are completely negative for any evidence that malaria contributed to the congestive heart failure that resulted in the death of the veteran. Dr. M. did not explain why he thought the malaria contributed to the veteran's congestive heart failure or cite to any medical treatise to support his opinion. Furthermore, the December 1999 medical opinion by the VA staff cardiologist noted after a study of the veteran's medical records and a literature review that it was extraordinarily unlikely that the malaria contributed to the veteran's death. The Board finds that as the medical expert had the veteran's medical records from service to the time of this death, and conducted research on the relationship between malaria and heart failure, his December 1999 opinion is clearly more probative than the October 1997 opinion, and that the preponderance of the evidence is against the appellant's claim. Entitlement to Dependency and Indemnity Compensation Under the provisions of 38 U.S.C.A. § 1318, dependency and indemnity compensation benefits shall be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service connected when the following conditions are met: the veteran's death was not caused by his own willful misconduct; and the veteran was in receipt of or for any reason (including receipt of military retired or retirement pay or correction of a rating after the veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation at the time of death for a service-connected disability that either: was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death; or was continuously rated totally disabling by a schedular or unemployability rating from the date of the veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. Entitlement to dependency and indemnity compensation benefits may be established if the veteran was "entitled to receive" benefits based on a total disability rating, regardless of whether such benefits were actually received. Dependency and indemnity compensation benefits may be awarded if the evidence in the veteran's claims file at the time of his death, when evaluated in accordance with the law then in effect or made retroactively applicable, shows that the veteran would have been hypothetically entitled to a different decision on a compensation issue. Green v. Brown, 10 Vet. App. 111 (1997). A VA claimant may receive dependency and indemnity compensation benefits under any one of the three following theories: (1) If the veteran was in actual receipt of compensation at a total disability rating for 10 consecutive years preceding death, see 38 U.S.C. § 1318(b)(1); (2) if the veteran would have been entitled to receive such compensation but for clear and unmistakable error (CUE) in previous final RO decisions and certain previous final Board decisions; or (3) if, on consideration of the "evidence in the veteran's claims file or VA custody prior to the veteran's death and the law then or subsequently made retroactively applicable", the veteran hypothetically would have been entitled to receive a total disability rating for a period or periods of time, when added to any period during which the veteran actually held such a rating, that would provide such a rating for at least the 10 years immediately preceding the veteran's death. Cole v. West, No. 97-679 (U.S. Vet.App. Dec. 23, 1999). The evidence of record establishes that the veteran's immediate cause of death was pneumonia, and that underlying or contributing causes included Alzheimer's, congestive heart failure, and cardiomyopathy. There is no evidence that establishes that the veteran's cause of death was due to his own willful misconduct. As noted above, the veteran's only service connected disabilities included the residuals of a shell fragment wound of the left foot, which was evaluated as 20 percent disabling, and malaria, which was evaluated as zero percent disabling. The veteran had a combined 20 percent evaluation, effective from June 1947. The Board finds that the appellant is not entitled to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318. The medical evidence of record does not establish that the veteran would have been entitled to receive compensation at the time of death for a service- connected disability that either was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death or was continuously rated totally disabling by a schedular or unemployability rating from the date of the veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death. The Board points out that the law in effect in June 1947 and at the time of the veteran's death in June 1997 is essentially the same as the law currently in effect for the determination of a total rating. The pertinent regulations essentially provide that a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. See 38 C.F.R. § 2.1165 (1938 & Supp. 1947); 38 C.F.R. § 4.15 (1996). The record reveals a 20 percent evaluation was assigned to the veteran's service connected residuals of a shell fragment wound to the left foot from the time of service separation in 1946 to the time of the veteran's death in 1997. A 10 percent evaluation was assigned for the veteran's malaria effective from discharge, and this evaluation was reduced to zero percent in an April 1947 rating decision, effective from June 1947. At no time was a 100 percent evaluation assigned to the service-connected disability. The Board finds that the evidence in the claims folder at the time of the veteran's death does not establish that he was "entitled to receive" compensation for service- connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death; or was continuously rated totally disabling by a schedular or unemployability rating from the date of the veteran's discharge or release from active duty for a period of not less than five years immediately preceding death. The Board points out that there is no medical evidence, which was part of the record at the time of the veteran's death, that is dated within 10 years of the veteran's death in 1997. There is no medical evidence describing the severity of the veteran's service-connected disability during the years immediately preceding his death or which establishes that the service-connected disability prevented the veteran from securing or following a substantially gainful occupation. See 38 C.F.R. §§ 4.15, 4.16 (1996). Thus, the Board concludes that the record does not establish that the veteran's service-connected disability was totally disabling within ten years of the veteran's death. The Board also finds that the evidence of record does not establish that the service-connected residuals of a shell fragment wound of the left foot and malaria combined to be totally disabling from service separation and for a period of not less than five years immediately preceding death. March 1946 service medical records dated less than two weeks prior to the veteran's separation from service indicate that the symptoms resulting from the shell fragment wound consisted of pain and aching of the foot on prolonged exercise. He was noted to have had a recent exacerbation of malaria. On a May 1949 VA examination, the veteran stated that he experienced pain in his left foot at all times. This became worse when he walked too much, and had required him to build up his shoe. He also experienced slight attacks of malaria, with the last attack coming three to four months previously. The veteran treated himself for these attacks. On examination, there was a scar approximately one and a half inches long and about a half inch wide at its widest part in the lateral plantar service, proximal to the head of the first metatarsal. The scar was very thin, and apparently not adherent. There was no muscle, bone, tendon, or nerve injury. An X-ray study was normal. The diagnosis was left foot, residuals of a shrapnel wound, small scar, and a history of malaria, no residuals found. The Board finds that the evidence of record fails to establish that the veteran's service connected disabilities were totally disabling at the time of service separation. The evidence shows that the veteran had subjective reports of pain in his left foot, which became worse on prolonged exercise. He also had reports of fever every few months. However, the Board finds that the evidence of record does not establish that the veteran was precluded from all forms of employment or that the service-connected disabilities rendered it impossible for an "average man" to follow any occupation similar to that of the disabled veteran at the time of enlistment. See 38 C.F.R. § 2.1165 (1938). The Board finds that this medical evidence does not establish that the service-connected disabilities rendered it impossible for the veteran to follow his occupation prior to service, which was a transformer assembler. Furthermore, the Board points out that there is no medical evidence of record which establishes that the service-connected disabilities were totally disabling at any time prior to the veteran's death. There is no showing of error in previous rating actions assigning the evaluations for his service-connected disabilities from 1946 to 1982. There is no medical evidence of recurrence of malaria in the years following service. The veteran complained of fever and weak spells at the time of his 1954 examination, but the examiner at that time did not attribute the complaints to malaria. The residuals of shell fragment wounds to the left foot are not shown to have changed significantly over the years. Neither disability even approached the symptomatology to support a total schedular rating at any time after service. See 38 C.F.R. Part 4, §§ 4.73, 4.88, Diagnostic Codes 5310-5312 and 6304(1999). As noted above, there is no medical evidence of record which is pertinent to the service-connected disabilities and which is dated within ten years of the veteran's death in 1997 and at no time prior to that time did the service-connected disabilities warrant a total rating. In conclusion, the Board finds that the evidence does not establish that the veteran was in receipt of or was not in receipt of, but would have been entitled to receive, compensation at the time of death for a service-connected disability that either was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death; or was continuously rated totally disabling by a schedular or unemployability rating from the date of the veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death. Thus, the Board finds that the preponderance of the evidence is against the appellant's claim, and the claim is denied. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to dependency and indemnity compensation benefits is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals