BVA9507755 DOCKET NO. 92-14 179 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from March 1943 to April 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision of the Department of Veterans Affairs (VA) Louisville, Kentucky, Regional Office (RO) which denied entitlement to the benefit sought on appeal. The instant appeal was remanded by Board decision of June 1994 for RO consideration of evidence received over 90 days after the appellant was notified that her appeal had been certified to the Board. As this review has been completed and the claims folder returned to the Board, the claim is now ripe for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the veteran's service- connected anxiety reaction caused or contributed to his death. A physician's statement has been submitted indicating that the veteran's anxiety reaction made treatment of his physical illnesses more difficult, and should be considered part of the disability which contributed to his death. It is requested that the appellant be granted every benefit of the doubt. 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 granting service connection for the veteran's cause of death. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. During the veteran's lifetime, service-connection had been established for anxiety reaction, evaluated as 50 percent disabling, and for otitis media catarrhalis, left, evaluated as noncompensably disabling, with a combined rating of 50 percent. 3. The veteran's certificate of death reflects that the immediate cause of his death in February 1991 was congestive heart failure, with both diabetes mellitus and chronic obstructive pulmonary disease noted as leading to the immediate cause of death, and renal insufficiency reported to be the disease that initiated the events resulting in the veteran's death. 4. Neither cardiovascular-renal disease, chronic obstructive pulmonary disease nor diabetes mellitus was clinically manifested during service or until more than a year after the veteran's separation from service. 5. The veteran's congestive heart failure, diabetes mellitus, chronic obstructive pulmonary disease and renal insufficiency were not causally or etiologically related to a service-connected disability. 6. The veteran's death was not produced or hastened by a disability of service origin. CONCLUSIONS OF LAW 1. Congestive heart failure, diabetes mellitus, chronic obstructive pulmonary disease and renal insufficiency were not incurred in or aggravated by service and neither cardiovascular- renal disease nor diabetes mellitus may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1994). 2. The veteran's death was not caused, or substantially or materially contributed to, by a service-connected disability. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). That is, the Board finds that she has presented a claim which is not implausible when her contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The appellant contends that the veteran's service-connected anxiety reaction contributed in some manner to his death. The appellant has submitted a medical statement wherein a treating physician indicated that the veteran's mental status should be considered part of the disability which contributed to his death. In addition, she has cited medical records evidencing examinations wherein the veteran's psychiatric conditions are noted alongside cardiac and cardiovascular conditions and symptoms. The veteran was granted an increased rating to 50 percent for anxiety reaction by rating decision of August 1982, which also noted that he was service-connected for otitis media, catarrhal, left, at a noncompensable rating. These evaluations continued in effect through the veteran's date of death. No allegations have been made that the veteran's otitis media in any manner contributed to his death and there is no evidence of any such relationship. A November 1990 VA discharge summary noted that the veteran had an extensive history of congestive heart failure, coronary artery disease and diabetes mellitus. While being examined, he went into respiratory arrest, and was later found to have decreased breath sounds bilaterally with pleural effusion present. After echocardiogram testing revealed an ejection fraction of between 5 and 10 percent, the veteran was informed that he had a very poor prognosis. He thereafter decided against any future life supporting measures, and was discharged to home to be with his family. The veteran's principal discharge diagnosis was end- stage congestive heart failure. Coronary artery disease, diabetes mellitus, Type II, and hypertension were noted as secondary conditions. The veteran died in February 1991 at his home. Congestive heart failure was listed on the veteran's certificate of death as the immediate cause of death, representing the final disease or condition resulting in death. Diabetes mellitus and chronic obstructive pulmonary disease were noted to have been conditions which led to the immediate cause of death, and renal insufficiency was cited as the underlying cause, the disease that initiated the events resulting in the veteran's death. In a January 1992 statement, the appellant stated that she had proof that anxiety and hypertension had contributed to the veteran's heart damage, and caused "heart failure" that resulted in his death, referencing a letter from Lloyd G. Miller, Jr., M.D. Dr. Miller submitted a letter dated in April 1992 to the RO, referencing the above-noted hospitalization and associated diagnoses, and noting that the veteran had suffered from severe anxiety and panic disorder. Dr. Miller stated that the latter two psychiatric conditions made treatment for the veteran's other illnesses more difficult. While he conceded that he was not a "disability determining physician," Dr. Miller stated, "I do feel his psychiatric disorder was always present during his illness" and "should be considered as a part of his disability which contributed to his death." In a July 1992 statement, the appellant's representative clarified that the appellant believed that the veteran's service- connected disabilities hastened his death, citing Dr. Miller's noted letter. In August 1992, a packet of documents was received from the appellant with various medical records including references to hypertension and psychiatric complaints. Apart from a duplicate copy of Dr. Miller's April 1992 letter, none of these documents, nor any of the other medical evidence of record, causally or etiologically relate the veteran's anxiety reaction to his cause of death. Joseph E. Sadtler, M.D., reported in March 1987, for example, that the veteran had recently experience worsening depression following a stroke. This was consistent with information reported on VA hospitalization in March and April 1987 that the most pressing issue was the significance of the veteran's stroke and how it had affected his personality and his view of life. The psychiatric diagnoses were multi-infarct dementia, adjustment disorder with mixed features, and obsessive compulsive personality disorder. As an initial matter, it is noted that the veteran's service medical records contain no evidence that he suffered from any form of cardiovascular, pulmonary, cardiac or renal condition during service, nor was cardiovascular or renal disease clinically demonstrated within one year of separation from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Although the appellant maintains that the veteran's hypertension was related to his cause of death, she has not contended or submitted evidence indicating that hypertension was in any manner related to the veteran's service. Therefore, the relationship of hypertension to the cause of the veteran's death is not relevant. See 38 C.F.R. § 3.312. However, the appellant's allegation that the veteran's service-connected anxiety reaction was a contributory cause of his death must be addressed. The surviving spouse of a veteran who had a service-connected disability that was the principal or contributory cause of his death, which occurred after December 31, 1956, may be eligible for Dependency and Indemnity Compensation (DIC). 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1); see Gabrielson v. Brown, 7 Vet.App. 36, 39 (1994). 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. See 38 C.F.R. § 3.312(c)(4). Therefore, the issue before the Board is whether a service-connected disability was a principal or contributory cause of the veteran's death. See Stoner v. Brown, 5 Vet.App. 488, 490 (1993). The appellant maintains, in essence, that the veteran's service- connected anxiety disorder was in some manner causally related to his cause of death. The United States Court of Veterans Appeals has recognized, however, that a lay witness may be incapable of offering evidence which requires specialized medical knowledge, especially when the relevant issue does not lie within the range of common experience or knowledge. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Clearly, the appellant is competent to testify as to observations of the veteran's visible symptoms. Gowen v. Derwinski, 3 Vet.App. 286, 288-289 (1992). Inasmuch as the evaluation of the relationship between anxiety reaction and the cause of the veteran's death is within the medical realm, and is not a matter of common knowledge, Id., the Board finds that the appellant is not competent to provide credible evidence as to the cause of the veteran's death. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Although conceding that he may not be qualified to do so, Dr. Miller has indicated that he "felt" that the veteran's psychiatric disorder had been always present during his illness prior to his death, and that the veteran's "mental status should be considered as part of his disability which contributed to his death." However, Dr. Miller also completed the veteran's death certificate, and certified that the veteran's death was due to the listed conditions of congestive heart failure, diabetes mellitus, chronic obstructive pulmonary disease and renal insufficiency. No reference to any psychiatric condition was made. Furthermore, the November 1990 VA hospital discharge summary shows that the veteran had been determined to have a "very poor prognosis" due to an extremely low ejection fraction, supporting Dr. Miller's conclusion that the veteran's immediate cause of death had been congestive heart failure. The report includes no reference to the veteran's service-connected psychiatric condition, and no relevant diagnosis was offered when the veteran was discharged. The evidence supports a conclusion that the veteran's cardiac condition was by its nature so overwhelming that death could have been anticipated irrespective of coexisting conditions, such as the service-connected anxiety reaction. There is no indication that the anxiety reaction had a material influence in accelerating death. Furthermore, although Dr. Miller stated that the veteran's "mental status" should be considered as part of the disability which contributed to his death, he did not specify what psychiatric condition(s) he was referencing, if any. The medical evidence of record indicates that the veteran had been diagnosed with other, nonservice-connected psychiatric conditions, including a personality disorder. Therefore, this statement does not establish a causal connection between the service-connected anxiety reaction and the veteran's death. In the absence of a causal connection between the service-connected anxiety reaction and the veteran's death, service connection for the cause of the veteran's death cannot be granted. See 38 C.F.R. § 3.312(c); Van Slack v. Brown, 5 Vet.App. 499, 512 (1993). As such, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. The evidence is not in equipoise, so there is no benefit of the doubt to accord the appellant. 38 C.F.R. § 3.102. Accordingly, the appeal must be denied. ORDER Service connection for the cause of the veteran's death is denied. CHARLES E. HOGEBOOM 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.