BVA9507587 DOCKET NO. 92- 09 977 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Dewey L. Crepeau, Attorney ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The veteran had active military service from February 1943 to January 1946. This appeal initially came before the Board of Veterans' Appeals (Board) from a August 1991 rating decision by the Department of Veterans Affairs (VA) St. Louis, Missouri Regional Office (RO), which denied entitlement to service connection for the cause of the veteran's death. In a January 1993 appellate decision, the Board upheld the denial of service connection for the cause of the veteran's death. The case was appealed to the United States Court of Veterans Appeals (Court), which vacated the Board's January 1993 decision in a July 1994 decision and remanded the case for additional development. Thereafter, the Board requested a medical opinion by an independent medical expert, which was completed in January 1995. The appellant's attorney argues against the Board's having obtained a medical opinion from an independent medical expert for use in reaching a decision in this case. The attorney contends that the obtaining of such evidence after the RO has rendered a decision is an attempt by the Board to relitigate after the opportunity has passed, which denied the claimant the right to an impartial and fair tribunal. The attorney also asserts that it would be improper to use as evidence a medical report from an author that the claimant had not been allowed to cross-examine. As to the attorney's first objection, the Board's Rules of Practice specifically permit the obtaining of a medical opinion from an independent medical expert when, in the Board's judgment, additional medical opinion is warranted by the complexity or controversy involved in the appeal. Rule 901, 38 C.F.R. § 20.901(d) (1994). The Board would also point out that the Court has held that, under the provisions of 38 U.S.C.A. § 7109 (West 1991) and 38 C.F.R. § 20.901(d) (1994), the Board is free to supplement the record by obtaining additional medical opinion from an independent medical expert if the case requires such additional evidence to permit proper adjudication of the claim. Bielby V. Brown, No. 92-653, (U. S. Vet. App. Dec. 20, 1994), Crowe v. Brown, No. 93-550, (U. S. Vet. App. Dec. 20, 1994), [citation redacted], Thurber v. Brown, 5 Vet.App. 119 (1993), Hatlestad v. Derwinski, 3 Vet.App. 213 (1992), Colvin v. Derwinski, 1 Vet.App. 171 (1991). Concerning the attorney's second objection, the Board would point out that the VA's decision-making process is nonadversarial; consequently, there are no provisions for cross-examination. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's death as a result of acute respiratory failure due to pulmonary emphysema was etiologically related to the chest injury he sustained in service, which left him with residuals of fractures of the eighth, ninth, and tenth left ribs that included trauma and hemothorax and thickening of the pleura, and moderate pain and discomfort on rapid breathing. 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 appellant's claim of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veterans death, at the age of 67, was caused by acute respiratory failure that was due to pulmonary emphysema. 2. Respiratory disease, to include pulmonary emphysema, is not shown to have been present in service or for many years thereafter, and was not otherwise related to service. 3. At the time of death, the veteran was service-connected for residuals of fractures of the left radius and ulna, rated 20 percent disabling, and for residuals of fractures of the eighth, ninth, and tenth left ribs with trauma and hemothorax and thickening of the pleura, causing moderate pain and discomfort on rapid breathing, rated 10 percent disabling. 4. Respiratory disease, to include pulmonary emphysema is not shown to have been etiologically related to or caused by any of the veteran's service-connected disabilities. 5. The veteran's service-connected disabilities are not shown to have caused his death, or to have rendered him materially less capable of resisting the effects of the pulmonary emphysema that caused his death. CONCLUSIONS OF LAW 1. Respiratory disease, to include pulmonary emphysema, was not incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 2. Respiratory disease, to include pulmonary emphysema, was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). 3. The veteran's service-connected disabilities did not cause or substantially contribute to the cause of his death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. The veteran's death, at the age of 67, occurred on June 10, 1991. A copy of the death certificate shows that the cause of death was acute respiratory failure due to pulmonary emphysema. At the time of death, the veteran was service-connected for residuals of fractures of the left radius and ulna, rated 20 percent disabling, and for residuals of fractures of the eighth, ninth, and tenth left ribs with trauma and hemothorax and thickening of the pleura, causing moderate pain and discomfort on rapid breathing, rated 10 percent disabling. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110 (West 1991). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). 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, a causal connection must be shown . 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). Review of the veteran's service medical records reveals that he had no respiratory disability at the time of his enlistment medical examination in December 1942. Service medical records show that he sustained a crush-type injury in October 1944 when he was caught between two freight cars. His injuries were diagnosed as compound, severe fractures of the left radius and ulna, fractures of the left eighth, ninth, and tenth ribs, and a moderately severe left chest hemothorax. Chest X-rays in December 1945 were essentially negative for any heart or lung abnormality, although there was tenting of the lateral third of the left diaphragm due to thickening of the diaphragmatic pleura, and the costal angle on the left was partially obliterated. The veteran was subsequently discharged from military service as a result of the residuals from the left radius and ulna fractures. At a VA medical examination conducted in November 1948, the veteran's only respiratory complaint was that he would experience a feeling of tightness in his left lower chest about once a month. Physical examination did not reveal any cough, dyspnea, clubbing, hemoptysis, or appreciable chest pain. The chest was considered to be of normal configuration, with good and equal expansion and no rales, rhonchi, or wheezes. The evidence of record shows that the initial documentation of respiratory disability was in a report of a private medical examination conducted by J. E. Quaranto, D.O. in September 1983. The physician noted that X-ray examination of the lungs in March 1982 had shown hyperexpansion that was compatible with emphysema. The diagnoses from the September 1983 examination were chronic obstructive pulmonary emphysema and pulmonary fibrosis, with a poor prognosis for both. At an October 1983 VA medical examination, the veteran gave a history of breathing difficulties. However, his breathing did not appear labored at the examination, and he gave no history of wheezing or hemoptysis. A chest X-ray revealed fibrosis at the left base and left lower chest, a calcified aorta, a normal cardiac size, and no active lung disease. Findings from pulmonary function tests showed a forced expiratory volume (FEV)1 of 0.75 liters (26 percent of predicted), a vital capacity (FVC) of 1.55 liters (38 percent of predicted), a total lung capacity (TLC)of 6.2 liters (100 percent of predicted) measured by body box plethysmography, residual volume (RV) of 4.4 liters (208 percent of predicted), and a diffusing lung capacity (DLCO) of 10.50 liters (51 percent of predicted). These results were considered to be most consistent with severe obstruction to airflow, with evidence of hyperventilation and probably clinically significant emphysematous change. Private and VA medical records dated from 1983 to 1991 show that the appellant was hospitalized on several occasions for treatment of exacerbated episodes of his chronic obstructive pulmonary emphysema. A VA hospitalization report for the period from February 18 to March 28, 1986, revealed that the veteran had a three-quarters pack per day smoking habit, and pulmonary function tests revealed that FEV1 was 0.64 liters (23 percent of predicted), that FVC was 1.98 liters (50 percent of predicted), that TLC was 7.8 liters (138 percent of predicted), and that RV was 5.36 liters (250 percent of predicted). DLCO was not done. Pulmonary function testing in June 1990 showed FEV1 to be 0.51 liters (16 percent of predicted), FVC to be 1.3 liters (33 percent of predicted), TLC to be 5.0 liters (81 percent of predicted), RV to be 3.4 liters (156 percent of predicted), and DLCO to be 1.41 liters (5 percent of predicted). In a January 1992 statement, J. E. Quaranto, D.O., reported that the veteran's pulmonary emphysema had been complicated by the fact that he had had pleural adhesions and tenting of the left diaphragm as a result of an inservice injury. The physician indicated that at the time of the injury, the veteran had extensive scarring of the lung and pleural hematoma that had left him with a permanent scar and poor diaphragmatic function, with tenting of the left diaphragm, which he, the physician, felt had combined years later with the emphysema-causing obstructive defect to cause death. The physician stated that he was certain that the poor diaphragmatic function had helped to contribute to the veteran's death, and, therefore, in some ways, the veteran's problems were related to the chest injury sustained in service. In November 1994, the Board requested a medical opinion from an independent pulmonary specialist as to whether the pulmonary emphysema that had caused the veteran's respiratory failure had been etiologically related to his service-connected residuals of fractures of the eighth, ninth, and tenth ribs on the left, and whether there had been any scarring related to the inservice chest injury that had caused impairment of diaphragmatic function. The pulmonary specialist indicated in his January 1995 opinion that he had reviewed the claims file in detail. He stated that he agreed with the interpretation of the results from the October 1983 pulmonary function tests; that the studies were most consistent with severe obstructive pulmonary disease. The specialist indicated that the normal total lung capacity at that time made a restrictive process unlikely. He reported that the deterioration of the veteran's pulmonary function over the years was consistent with advanced chronic obstructive pulmonary disease. In summarizing the medical evidence in the claims file, the pulmonary specialist stated that the X-ray evidence of the blunting of the costophrenic angle on the side of the trauma following the traumatic hemothorax in October 1944 was an expected change for such an injury. He indicated that the veteran developed symptoms of dyspnea more than 30 years after service, that his long history of tobacco use and the findings from the pulmonary function studies were compatible with severe obstructive pulmonary disease, and that the clinical course that ensued was consistent with that diagnosis. In rendering his opinion that there was little if any evidence to suggest that the veteran's service-related injury was at all linked with his progressive respiratory disease, the pulmonologist gave the following bases for his opinion: (1) there was a very long latency period between the injury the veteran sustained and the development of his symptoms (more than 30 years), when one would have expected that had the injury caused significant pulmonary impairment it would have been clinically present much earlier, probably within 5 years; (2) pulmonary function studies performed early on failed to show a restrictive ventilatory defect, but, instead demonstrated a pattern typical of emphysema secondary to tobacco use, which is an important point since significant chest wall or diaphragmatic impairment as a result of chest trauma would be expected to cause a restrictive picture, not an obstructive one; and (3) no medical literature had been found that demonstrated an association of this degree of obstructive pulmonary disease and respiratory failure with prior thoracic trauma. After careful and longitudinal review of the evidence submitted in this case, the Board finds that the January 1992 medical statement from the veteran's private physician, a doctor of osteopathy, and not a pulmonary specialist, is greatly outweighed by the findings from the independent medical expert, a pulmonary specialist, which are based on a thorough review of the medical evidence from the time of the veteran's inservice chest injury up to the time of his death. The analysis of the evidence, coupled with his expertise as a pulmonary specialist, are the factors that make the pulmonologist's opinion, as to what contributed to the veteran's death and what did not, the more reliable evidence. Therefore, because the weight of the evidence presented in this case does not establish that a causal connection existed between a service-connected disability and the cause of the veteran's death, or that his several service-connected disabilities significantly or materially contributed to cause death, the Board is unable to identify a basis to grant service connection for the cause of the veteran's death. (CONTINUED ON NEXT PAGE) ORDER Service connection is denied for the cause of the veteran's death. JACK W. BLASINGAME 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.