Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0516638

Decision Date: 06/17/05 | Archive Date: 06/27/05

DOCKET NO. 99-02 925

On appeal from the Department of Veterans Affairs (VA) Regional Office in San Diego, California

THE ISSUE

Whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for the cause of the veteran's death.

REPRESENTATION

Appellant represented by: Jerome H. Gress, Attorney

ATTORNEY FOR THE BOARD

Alice A. Booher, Counsel

INTRODUCTION

The veteran had active military service from December 1945 to October 1947.

This matter was brought to the Board of Veterans' Appeals (the Board) on appeal from an October 1997 rating decision from the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO).

The Board issued a decision in October 2001. [Further actions by the Board will be historically reviewed below.]

On February 26, 2003, the United States Court of Appeals for Veterans Claims (the Court) remanded the case for readjudication and the issuance of a new decision.

The case was remanded by the Board in October 2003 for the requested development, most of which was procedural in nature.

The development required by the Court remand has now been accomplished and the case is before the Board for final appellate review. The appellant has also forwarded additional evidence which is in the file and will be considered in the current appellate review.

FINDINGS OF FACT

1. All assistance necessary for an equitable disposition of this appeal has been completed.

2. The Board denied entitlement to service connection for the cause of the veteran's death when it issued a decision in March 1995.

3. Evidence submitted since the Board's March 1995 decision bears directly and substantially upon the issue at hand, and because it is neither duplicative or cumulative, and is significant, it must be considered in order to fairly decide the merits of the claim.

4. The probative evidence of record including a myriad of medical expert opinions, is relatively evenly weighted and raises a doubt that cardiac disability related to active service was a contributory cause of death.

CONCLUSION OF LAW

1. The Board decision which held that service connection was not warranted for the cause of the veteran's death was final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (2004).

2. The evidence received since the Board decision is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 2003); 38 C.F.R. § 3.156(a) (2004).

3. The cause of the veteran's death is reasonably related to an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1310, (West 1991 & Supp. 2003); 38 U.S.C.A. § 5107 (West Supp. 2003); 38 C.F.R. §§ 3.303, 3.309, 3.310, 3.312 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background

Service medical records reveal no abnormalities on enlistment examination. In January 1946, the veteran was diagnosed with rheumatic fever. Complaints included chest pain, sore throat, stiff fingers, and a stiff right wrist. An electrocardiogram (ECG) was found to be suggestive of myocardial damage, rheumatic origin.

The ECG was repeated later in February 1946. A history of an indication of myocardial damage was noted. The current ECG did not document myocardial damage; however, it did reveal sinus tachycardia, sinus arrhythmia, slurred QRS, as well as other findings. The impression was myocarditis, rheumatic.

On follow-up in February 1946 a diffuse apex beat was noted. The heart was slightly enlarged to the left by percussion. No definite murmur was heard. A subsequent cardiac examination revealed a low pre-systolic rumble at the apex. On follow-up in February 1946, an ECG revealed sinus tachycardia, but was otherwise normal. Sinus arrhythmia was noted about five days later.

In March 1946 a diffuse beat was noted in "4 L.S. to right of MCL." It was later noted that the "[p]oint maximum of cardiac impulse is in the six and seven diffuse, but this can be explained by the fact that this man has a very thin chest wall."

A soft systolic murmur was noted later in March 1946. It was concluded that this was of no clinical significance. An ECG in April 1946 revealed a normal tracing.

On separation examination in October 1947 a chest X-ray was described as negative, the heart was described as normal, and pulses were described as good.

There are no medical records documenting treatment of heart problems after 1947 until September 1973 when the veteran was hospitalized for a myocardial infarction at Huntington Hospital.

The September 1973 hospitalization report noted that the veteran had been in good health prior to the acute onset of substernal chest pain. Examination on admission revealed a hyperkinetic "PMI" at the fifth intercostal space, and an S3 and S4 gallop. There was some question of a systolic murmur being present. An ECG was consistent with an acute anterior lateral myocardial infarction. A complete blood count (CBC) showed a leukocytosis of 22,000 with a shift to the left. The hospital course was complicated by mild congestive heart failure. Chest x-rays during admission revealed an enlarged heart. The final diagnosis was an acute myocardial infarction and coronary artery disease.

In January 1975, the veteran was hospitalized for, in pertinent part, a transient ischemic grade and a left carotid plaque embolus. An aortic arch study revealed moderate, left ventricular enlargement; mild plaqueing with possible ulceration of the right internal carotid at its origin; and 50 percent stenosis at the origin of the left internal artery.

The veteran was readmitted in February 1975 for left carotid arteriosclerotic occlusive disease. A history of myocardial infarction in 1974 and rheumatic fever in 1945 was noted. Examination revealed a grade I-II systolic murmur at the right sternal border. Cardiac rhythm was normal. A chest X- ray was normal, and an ECG revealed an extensive old anterior infarction and an incomplete right bundle branch block. Surgery was performed in February 1975 and revealed atherosclerotic material from the left carotid artery.

An examination report from 1981 noted a 35-year history of smoking. A family history of heart disease was noted. The pertinent diagnosis was a myocardial infarction (old, inactive).

Records from Eisenhower Medical Center show that the veteran was hospitalized in November 1981 for coronary bypass surgery for coronary artery disease. An ECG revealed an old anteroseptal myocardial infarction with possible aneurysm. A chest x-ray revealed a normal cardiac silhouette. It was also noted that the veteran's cardiovascular risk factors included his 30-year history of smoking six cigarettes per day, a family history of heart disease, and labile hypertension (but none since his recent myocardial infarction). The discharge diagnosis was coronary artery disease after CABG.

In August 1986, the veteran was hospitalized for left carotid stenosis. Pathology findings included complex atherosclerotic plaque with luminal narrowing. It was noted that he had recently developed a cerebrovascular accident (CVA) and that recurrent stenosis of the carotid artery was identified.

In November 1986, Dr. RN noted that the veteran had suffered a CVA resulting in significant disability.

In March 1991, the veteran was hospitalized and diagnosed with a right CVA, hypertension, and chronic premature ventricular contractions. A CAT scan showed an old left cerebral artery infarct with left temporal/left parietal infarctions.

A chest X-ray showed cardiomegaly. A carotid ultrasound showed calcified plaques in both carotids, and complete occlusion of a high grade obstruction of the left internal carotid artery at its origin. An echocardiogram did not show any evidence of thrombus; there was no reference to the cardiac valves.

In May 1991, Dr. RN indicated that the veteran had suffered a massive right-sided CVA in January 1990. Dr. RN found him to be totally disabled as a result of findings made during an evaluation in January 1991. An August 1991 letter indicates that the veteran was undergoing rehabilitation at Corona Community Hospital.

In October 1991, the veteran submitted a claim for service connection of rheumatic fever with myocardial damage. He reported being treated at Huntington Hospital in 1974 and 1976, and at Eisenhower Memorial in 1984.

Also received around this time is a letter from the Social Security Administration (SSA) noting that the veteran was receiving monthly retirement benefits beginning May 1991. There is also a copy of a December 1986 letter from SSA finding that the veteran became disabled in March 1986.

A hospitalization report from December 1991 revealed sinus tachycardia. An ECG revealed sinus tachycardia with a left axis deviation and anterolateral myocardial infarction, unchanged from the previous study. A history of multiple strokes was also noted. He was discharged in January 1972.

The certificate of death reveals that the veteran died in August 1992. The immediate cause of death was a CVA due to cerebrovascular atherosclerosis. A urinary tract infection was listed as another significant condition contributing to death.

The certificate also indicates that the place of death was at Care West Convalescent Hospital and that he had been attended there since February 1992. It was indicated that no operation had been performed for any of the causes of death.

In September 1992 the appellant submitted an application for dependency and indemnity compensation (DIC).

In October 1992, the RO denied, in pertinent part, service connection for the cause of death. This denial was appealed. In her substantive appeal, the appellant noted that she had been unable to obtain the medical records dated from 1950 to 1960 because the records were not retained that far back.

In March 1995 the Board denied service connection for the cause of the veteran's death and entitlement to accrued benefits.

In June 1996, the United States Court of Appeals for Veterans Claims (Court) affirmed the Board's denial of the cause of death, but remanded the issue of entitlement to death pension, as the Board had not addressed this issue.

In March 1998 the Board dismissed the death pension claim, noting that it had been withdrawn.

In September 1997, a claim to reopen the claim of service connection for the cause of death was submitted. Submitted with this claim was a private medical opinion from Dr. RMP, also dated from September 1997.

Dr. RMP noted that a 1946 EKG indicated myocardial damage of rheumatic origin and a low pre-systolic rumble at the apex. He noted that "this is the finding of mitral stenosis, but there is no subsequent confirmation of mitral stenosis." Dr. RMP went on to conclude that the most likely cause of death was widespread arteriosclerosis with narrowing of coronary and carotid arteries resulting in myocardial infarctions, left ventricular aneurysm formation, congestive heart failure, "due to coronary artery disease."

He alternatively theorized that atrial fibrillation may have contributed to death. He noted that atrial fibrillation is often a common complication of rheumatic heart disease that could have been the cause of one or more of the veteran's fatal strokes; however, he noted that there was no documentation of rheumatic heart disease findings after 1946. He noted that a minor fraction of rheumatic fever patients go on to late scarring of the lining of the heart. He noted that such findings were not documented in the deceased veteran.

He also found that there was no documentation of atrial fibrillation (he previously noted that there was no evidence of a "totally irregular heart beat"), noting also that atrial fibrillation in United States senior citizens is frequent and more commonly non-rheumatic, and that it may occur with or without rheumatic fever or rheumatic heart disease.

In October 1997, the RO declined to reopen the appellant's claim for the cause of death. This decision was appealed.

In November 1997 the RO sent a notice to the appellant, supplying her VA Forms 21-4142 for the authorization of release of additional medical records. In a subsequent notice, the RO notified the appellant of what was generally required to prevail on a claim for DIC.

In November 1999 the appellant's current representative submitted a brief in favor of the claim. It was argued, in pertinent part, that new and material evidence had been presented to reopen the claim, including an opinion from Dr. CNB, discussed below.

In the November 1999 medical opinion submitted by the representative, Dr. CNB concluded that it was likely that the veteran's severe rheumatic fever in the 1940s contributed significantly to the veteran's death from cerebral stroke by way of an embolic process. He indicated that post-service medical findings were indicative of manifestations of rheumatic heart disease. In particular, he appeared to conclude that the veteran's history of persistent murmurs established evidence of persistent rheumatic heart disease. (emphasis added)

Dr. CNB summarized his position by finding that the veteran's severe rheumatic heart disease in the mid-1940s significantly increased his risk for embolic cerebral disease which significantly contributed to his demise.

He noted that

the likely mechanism of demise was multiple cerebral strokes which "likely could have been either from arteriosclerotic or his embolic heart disease. The heart emboli could have had their origin in one of three places:

1. From vegetative abnormal valves occurring secondary to his rheumatic fever;

2. From the aortic aneurysm (which also could have been partially secondary to his rheumatic heart disease); or

3. From atrial fibrillation, (which could have been secondary to his abnormal mitral valve)."

In August 2000, Dr. SM provided a VA advisory opinion. Dr. SM concluded that Dr. CNB was "fundamentally wrong" in his conclusion. Dr. SM noted that although there was documentation of rheumatic fever and possible carditis in 1946, there was no documentation of atrial fibrillation at anytime nor any evidence of complicated rheumatic valvular disease afterwards, particularly during the veteran's hospitalizations in 1973 and 1981.

Dr. SM concluded that the cause of death did not result from rheumatic heart disease, but rather from the consequences of hypertensive and ischemic cardiovascular and cerebrovascular disease. He noted that the murmur, gallops, heart failure, and pericarditis documented in September 1973 could be explained by the newly developing acute antero-lateral myocardial infarction causing mitral regurgitation, pericarditis, and congestive heart failure.

Dr. SM noted that there was no documentation in the record of either mitral stenosis or atrial fibrillation.

In October 2000, Dr. CNB provided a rebuttal to Dr. SM's opinion. Dr. CNB contended that his position as a neuro- radiologist made him more competent to provide an opinion as to the cause of death in this instance. As a neuro- radiologist, he claimed that he was better able to evaluate both the cardiac as well as other potential causes of a stroke. On the other hand, he noted that a cardiologist's perspective is limited to the heart and is therefore unable to understand the subtleties of other causes of stroke.

Dr. CNB first found that it was more likely than not that the veteran's stroke was caused by a cardiac source. He then contended that Dr. SM's conclusion that there was no suggestion of mitral stenosis was wrong because the veteran had a longstanding history of cardiac murmurs, dating back to his diagnosis of rheumatic fever, that were consistent with mitral disease. In making this conclusion, Dr. CNB cited for support to Dr. RMP as having written that the pre-systolic rumble noted in 1946 was the finding of mitral stenosis, and that atrial fibrillation is a common complication of rheumatic heart disease that could have lead to one or more of the veteran's fatal strokes.

While appearing to acknowledge that there was no documentation of atrial fibrillation, Dr. CNB found that, it was as likely as not that, given the veteran's history of rheumatic fever, his irregular heartbeats were intermittently episodes of atrial fibrillation.

Dr. CNB then reasserted his opinion that the veteran as likely as not died from a cardiac derived stroke secondary to his 1946 rheumatic heart disease because it was more likely that the source of the stroke was cardiogenic and because of the history of murmurs dating back to 1946.

Dr. CNB also noted the possibility of an infectious embolic source of stroke derived from the veteran's likely abnormal mitral valve and elevated white blood cell counts. He further noted that the veteran had a ventricular aneurysm which could have also been the source of his stroke, noting that the source of the aneurysm is likely the result of his rheumatic heart disease, as he had an enlarged heart by percussion in February 1946 and an ECG showing myocardial damage in February 1946.

Dr. CNB finally concluded that it was as likely as not that the veteran's death was due to a stroke that originated from his heart, secondary to his in-service rheumatic fever.

Also submitted at this time was a brief from the appellant's representative, in which it was again contended that new and material evidence had been submitted to reopen the claim.

In May 2001 an independent medical opinion was obtained. Dr. TNS certified that he had examined all service and post- service evidence, including the various medical opinions and facts as presented in their documents. He also noted that he had extensive experience in the practice of cardiovascular medicine, including coronary, cerebrovascular, and peripheral artery disease, as well as rheumatic heart disease and its consequences.

Dr. TNS noted that an inservice ECG suggested rheumatic myocarditis, and that a low-pitched pre-systolic rumble was subsequently reported, suggesting rheumatic valvulitis; however, he noted that subsequent examinations did not show findings that implied a chronic rheumatic process. He concluded that there was no evidence of rheumatic valvular heart disease in service and no evidence of residuals or sequelae from the rheumatic fever on separation examination.

Dr. TNS noted that myocarditis and valvulitis were manifestations of rheumatic fever and that such symptoms would subside as the illness subsided. A small percentage of patients would go on to develop a low grade, smoldering valvulitis that may produce thickening, fibrosis, and malfunction of cardiac valves (most often the mitral valve) many years later. He noted that such findings of rheumatic mitral valve disease are usually observed on physical examination and confirmed by echocardiography. He opined that the record did not contain such findings.

Dr. TNS noted that the veteran had a myocardial infarction due to coronary atherosclerosis, 27 years after the rheumatic fever. He concluded that the veteran's history of cigarette smoking and attained age were adequate risk factors to explain the development of atherosclerosis. It was noted that the sequelae of the infarction included transient congestive heart failure, pericardial friction rub, and reduced left ventricular function, which suggested a relatively large amount of heart damage.

Dr. TNS opined that the veteran "died of complications of atherosclerosis of the cerebral and coronary vessels." He indicated that if the inservice rheumatic fever were invoked as a cause or significant contributing factor to death, it would have to be through the development of chronic rheumatic heart disease with the development of valvular dysfunction and the complication of intracardiac thrombus or vegetation embolizing to the brain causing stroke, with or without the presence of atrial fibrillation. However, the examiner found that there was nothing in the record that would support such a contention, noting that there was no evidence of chronic rheumatic disease, no evidence of rheumatic valvular dysfunction, and no evidence of atrial fibrillation.

With respect to atrial fibrillation, Dr. TNS noted that the veteran would have been at significant risk for this impairment due to his age. He further found that atrial fibrillation as a consequence of the rheumatic process would occur only in the presence of clinically detectable valvular dysfunction "for which there was no documented evidence. In other words if atrial fibrillation had occurred, it would be overwhelmingly likely that consequences of coronary artery disease and myocardial infarctions was the cause, not rheumatic heart disease."

Dr. TNS opined that all of the major events in the veteran's medical history following his separation from service "are clearly complications of carotid and coronary atherosclerosis."

Dr. TNS then addressed Dr. CMB's conclusions and found that "his logic supporting rheumatic disease as a significant contributing factor to the patient's death is based on undocumented possibilities, rather than documented certainties.

Even if some of the clinical events had been cardioembolic in origin, as he hypothesizes, the underlying cause would be coronary atherosclerosis, not rheumatic heart disease." He stated that he agreed in entirety with the opinions of Dr. RMP and Dr. SM.

The appellant has recently submitted additional clinical records relating to the veteran's care prior to his death.

Criteria
New and Material Evidence

Pursuant to 38 U.S.C.A. § 7104(b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. Additionally, pursuant to 38 U.S.C.A. § 7105(c), a decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to these rules is described under 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once a Board decision has been issued and once a rating decision becomes final, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104(b); 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

"New and material evidence" means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2003); see Fossie v. West, 12 Vet. App. 1, 4 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. See Hodge, 155 F.3d at 1363.

When determining whether the veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the Court indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284.

The reopening standard calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. See Fossie v. West, 12 Vet. App. 1 (1998). Some evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability and is, therefore, new and material. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). If no new and material evidence is presented to reopen the claim, the prior denial remains final. See 38 U.S.C.A. § 7105.

Service Connection

Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2003). If a chronic disorder such as heart disease is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 2003); 38 C.F.R. §§ 3.307, 3.309 (2004).

Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to disease so diagnosed when the evidence warrants direct service connection. See 38 C.F.R. § 3.303(d).

In any event, in adjudicating a claim for service connection, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304; see Hayes v. Brown, 5 Vet. App. 60, 66 (1993).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004).

Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 C.F.R. § 3.303(a).

Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a) (2004). This regulation has been interpreted by the Court to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995).

A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1132, 1137; 38 C.F.R. § 3.304 (2004).

Under the provisions of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 (2004), a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. The regulation further provides that aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b).

Clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). However, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).

A pre-existing injury or disease will be considered to be aggravated by service when there is an increase in disability during service, unless there is a specific finding that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2004). If a disability is found to have preexisted service, then service connection may be predicated only upon a finding of aggravation during service. Paulson v. Brown, 7 Vet. App. 466, 468 (1995).

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (2004); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

A veteran who served during a period of war, or a veteran who had peacetime service after December 31, 1946, is presumed to have been in sound condition except for defects, infirmities or disorders noted when examined and accepted for service. The presumption of sound condition attaches only where there has been an induction examination in which the later complained-of disability was not detected. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Verdon v. Brown, 8 Vet. App. 529 (1996). Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b).

In the most recent Court opinion and associated final rule relating to 38 C.F.R. § 3.304, effective May 5, 2005, [and applying to all claims which were pending on or filed after May 4, 2005], the regulation governing the presumption of soundness and aggravation is revised and amended to conform to the Federal Circuit Court in Wagner v. Principi, No. 02- 7347 (Fed. Cir. June 1, 2004), to require that VA, rather than the veteran bears the burden or proving that the disability at issue preexisted entrance into service and that the disability was not aggravated by service before the presumption of soundness on entrance onto active duty may be rebutted.

With respect to medical opinions, in general, an opinion based on an inaccurate history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994). The Board is not bound to accept medical opinions which are based on a history supplied by the veteran, where that history is unsupported or based on inaccurate factual premises. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guimond v. Brown, 6 Vet. App. 69 (1993).

A speculative relationship is not enough to support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). See also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting the veteran's death was not sufficient); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (holding that a general and inconclusive statement about the possibility of a link was not sufficient); and Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). Although the foregoing cases involved assessing the matter of whether medical opinions rendered claims "well-grounded" (a legal principle which was eliminated by the VCAA) the principles discussed in such cases are nevertheless applicable when weighing evidence and deciding a claim on the merits.

The Board has the responsibility to assess the credibility and weight to be given to the competent medical evidence of record. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

The veteran may provide lay evidence, including his own lay statements and those of other acquaintances. However, these lay individuals do not possess the requisite medical expertise, credentials, or training to render a medical diagnosis or a competent opinion as to causation. See Routen v. Brown, 10 Vet. App. 183, 186 (1998), aff'd, Routen v. West, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

The Board has an obligation to seek additional medical evidence. See 38 U.S.C.A. § 7109(a) (West 1991); 38 C.F.R. § 20.901(a) (2004); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) ("If the medical evidence of record is insufficient, or, in the opinion of the [Board], of doubtful weight or credibility, the [Board] is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or [quoting] recognized treatises").

The Court has recognized that the Board is not compelled to accept medical opinions; rather, if the Board reaches a contrary conclusion, it must state its reasons and bases and be able to point to a medical opinion other than the Board's own, unsubstantiated opinion. Colvin, 1 Vet. App. at 175.

It is incumbent upon the Board to weigh doctors' opinions so as to determine their relative weight, and the Board may favor the opinion of one competent medical expert over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Cause of Death

In cases of service connection for the cause of death of the veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service-connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997).

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. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(a) (2004).

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. 38 C.F.R. § 3.312(b) (2004).

Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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) (2004).

If the service-connected disability affected a vital organ, careful 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.

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)(3), (4) (2004); Lathan v. Brown, 7 Vet. App. 359 (1995).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, op. cit.

Analysis Preliminary Matter: Duty to Assist

The Board initially notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).

Suffice it to state that given the convoluted procedural history in this case, including actions by both Board and the Court, the appellant and her representatives have been fully apprised of all the requirements relating to both law and evidence, and have so acknowledged and contributed thereto.

In the case at hand, the Board is satisfied that the duty to notify and the duty assist have been met under the new law. In this case, the Board finds that the appellant is not prejudiced by its consideration of her claim pursuant to this new law. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

New and Material Evidence

The appellant seeks to reopen her claim of service connection for the cause of the veteran's death which the Board denied in March 1995. When a claim is finally denied by the Board, the claim may not thereafter be reopened and allowed, unless new and material evidence has been presented. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100.

When an appellant seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994).

In the case at hand, the Board finds that new and material evidence has been submitted since the issuance of the Board's March 1995 decision. In particular, there are four additional medical opinions dealing specifically with the etiology of the cause of the veteran's death.

This evidence is material because its bears directly and substantially upon the specific issue being considered in this case. Such evidence is thus significant and must be considered in order to fairly decide the merits of the claim, and is therefore material. 38 C.F.R. § 3.156(a).

As new and material evidence has been submitted to reopen the appellant's claim of entitlement to service connection for the cause of the veteran's death, the Board's analysis will proceed to an evaluation of the claim on the merits.

Service Connection for the Cause of the Veteran's Death

As has been discussed at great length by everyone involved in this case, by the RO, the representatives, the many medical experts, and the appellant, there are no hard and fast conclusions available based on the evidence of record.

The veteran is unfortunately no longer alive and while there are undoubtedly numerous other possible opinions available somewhere, the objective evidence is not going to get better than it is at present.

In general, the primary focus of the issue is whether whatever the veteran had in service was of a primary cardiac nature and thus, in the decades after his death, served as an underlying precipitant and, ultimately, a contributory cause for his death.

In this regard, the practical answers are clearly neither finite nor explicit. In fact, there are a variety of medical expert opinions on every side of the question. However, it is entirely unnecessary to further prolong this discussion, since in order to grant a benefit, it is not required that the evidence be incontrovertible, but merely that doubt is raised by credible evidence.

In this regard, the physician who was the most intimately associable with the veteran himself, and who has credentials which sustain his inherent credibility, has opined that there was a relationship between the inservice symptoms and disability and the cause of the veteran's death.

Indeed, there are impassioned, articulate discussions and arguments against this deduction, not to mention collateral commentaries as to his standing and qualifications, etc. But, in the end, in this regard, the Board is charged to be both the finder of fact and to evaluate the evidence in the most equitable manner possible. On review of the aggregate file, the Board finds that his conclusion is credible and worthy of consideration; moreover, the Board finds it persuasive.

Accordingly, the Board finds that the evidence raised a doubt which must be resolved in the appellant's favor, and service connection is granted for the cause of the veteran's death.

ORDER

The appellant, having submitted new and material evidence to reopen the claim of entitlement to service connection for the cause of the veteran's death.

Entitlement to service connection for the cause of the veteran's death is granted.




JEFF MARTIN

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
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