On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the veteran's death.
REPRESENTATION
Appellant represented by: Michael E. Wildhaber, Attorney
ATTORNEY FOR THE BOARD
David A. Brenningmeyer, Counsel
INTRODUCTION
The veteran served on a.ctive duty from July 1948 to July 1968. He died in October 1993, and the appellant is his widow.
By a decision entered in May 1994, the RO denied service connection for the cause of the veteran's death. The appellant appealed that decision to the Board of Veterans' Appeals {Board), and the Board remanded the matter to the RO for further development in May 1996. The case was returned to the Board in December 1996, and the Board thereafter denied the appeal by a decision entered in March 1997.
The appellant appealed the Board's decision to the United States Court of Appeal for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) {Court). By an order dated in May 1999, the Court vacated the Board's decision and remanded the matter for further development and re-adjudication. In so doing, the Court directed that action be taken to ensure compliance with the Board's May 1996 remand order requesting a medical opinion discussing the relationship between an August 1968 in-service diagnosis of hypertension and the cause of the veteran's death. See Stegall v. West, 11 Vet. App. 268 (1998). The Court also directed the Board to discuss whether the claim of service connection for the cause of the veteran's death was well grounded, taking into consideration the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a), and the Court's decisions in Brannon v. Derwinski, 1 Vet. App. 314 (1991), and Savage v. Gober, 10 Vet. App. 488 (1997).
In August 1999, the Boa.rd contacted the appellant's attorney and advised him of the appellant's right to submit additional argument and evidence in support of the present appeal. Thereafter, in November 1999, additional argument and evidence was received a.t the Board, along with a waiver of RO review. See 38 C.F.R. § 20.1304(c) (1999).
FINDINGS OF FACT
1. The veteran died in October 1993. His death certificate shows that the cause of his death was cardiac arrest, due to myocardial infarction, due to morbid obesity.
2. Competent medical evidence has been received which indicates that it is very likely that the veteran's cardiovascular disease was precipitated by chronic hypertension.
3. Competent medical evidence has been received which indicates that chronic hypertension had its onset in service.
CONCLUSION OF LAW
The veteran's death can be attributed to service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1310, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312, 20.1106 (1999).
Generally speaking, service connection is warranted where the evidence of record esti:iLblishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112 (West Supp. 1999); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (1999).
The death of a veteran is considered as having been due to service when the evidence establishes that a service-connected disability was either the principal or contributory cause of death. 38 C.P.R. § 3.312(a) (1999). A disability is considered 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." Id. § 3.312(b).
A "contributory" caus oJ: death must have "contributed substantially or mater:.ally" to death, must have "combined to cause death," or mm3t have "aided or lent assistance to the production of death." Id. § 3.312(c). Where a cause of death claim is premised on 38 U.S.C.A. § 1310 (West 1991), issues pertaining to whether a particular disease or injury was the principal or contributory cause of death are decided without regard to any disposition of those issues during the veteran's lifetime. 3!! C.F.R. § 20.1106 (1999).
In the present case, the Board finds that the claim of service connection for the cause of the veteran's death is well grounded. 38 C.F.R. § 5107 (West 1991). This is so because competent medical evidence has been submitted which tends to link the veteran's death to disability incurred in service. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The Board finds, moreover, that the evidence supports an allowance of the claim. The veteran's death certificate shows that he died in October 1993, and that the cause of his death was cardiac arrei;t, due to myocardial infarction, due to morbid obesity. The record contains a June 1999 letter from a physician, Crai!J Bash, M.D., a Neuro-radiologist and Assistant Professor of Radiology and Nuclear Medicine at the Uniformed Services University of the Health Sciences, which indicates that it is very likely that the veteran's cardiovascular disease was precipitated by chronic hypertension. In tlle letter, Dr. Bash further opined that chronic hypertension had its onset in service. Inasmuch as Dr. Bash's opinion is clearly based on a review of the available medical evidence, and contains a discussion of that evidence, along with a complete statement of the reasons for his conclusions, the Board finds the opinion persuasive. Consequently, service connection is granted for the cause of the veteran's death.
In light of the Board's decision granting the benefit sought on appeal, further action on the directives contained in the Court's May 1999 order is unnecessary.
ORDER
Service connection for the cause of the veteran's death is granted.
