Dr. Bash is a veteran of

Citation Nr: 0723823

Decision Date: 08/01/07 | Archive Date: 08/15/07

On appeal from the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana

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

Veteran represented by: Sean Kendall, Esq.

Appellant and her daughter

E.B. Joyner, Associate Counsel

The veteran served on active duty from October 1954 to September 1957, from June 1958 to May 1962, and from June 1962 to August 1975. The veteran died in May 1998; the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. When the case was last before the Board in March 2005, the Board remanded the appeal for entitlement to service connection for the cause of the veteran's death pursuant to a November 2004 order from the United States Court of Appeals for Veteran's Claims (Court) that granted a joint motion of the parties.

The Board notes that in June 2007 the appellant submitted additional medical evidence along with a waiver of first consideration of such evidence by the RO. Therefore, the Board will proceed with the appeal.

1. The veteran's death in May 1998 was due to acute myocardial ischemia, which was due to or a consequence of arteriosclerotic cardiovascular disease.

2. At the time of the veteran's death, service connection was in effect for duodenal ulcer with a hiatal hernia, chondromalacia with arthritis of the right knee, and hemorrhoids; the combined evaluation for the service- connected disabilities was 30 percent.

3. The veteran's arteriosclerotic cardiovascular disease originated in service.

Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2006).

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")."

The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the case at hand, the Board has found the evidence currently of record to be sufficient to establish the appellant's claim of entitlement to service connection for the cause of the veteran's death. Therefore, no further development of the record is required with respect to the matter decided herein.

Although the record reflects that the RO has not provided VCAA notice with respect to the effective-date element of the claim, that matter is not currently before the Board and the RO will have the opportunity to provide the required notice before deciding that matter.

Service medical records reflect that the veteran's heart was evaluated as normal in December 1954; a chest X-ray taken at that time was negative. A March 1955 service record notes the veteran's complaint of chest pains that existed prior to service. In October 1956 the veteran complained that his chest bothered him when he moved around. The veteran was involved in an automobile accident in February 1960; physical examination coincident thereto revealed no cardiac problems. In May 1963, the veteran was involved in another motor vehicle accident and presented with complaints of back and abdominal pain. Examination revealed sinus tachycardia, without murmurs or cardiomegaly. After evaluation no cardiac disorder was diagnosed. In June 1965, the veteran presented with complaints of having blacked out. He denied chest pain and the results of an electrocardiogram (ECG) were normal. The veteran's service medical records also show treatment and evaluation for multiple other physical complaints, but are negative for a diagnosis of any cardiovascular disorder. The veteran's cardiovascular system was found to be normal on the examination at discharge.

The report of a VA examination conducted in October 1975 notes that the veteran's cardiovascular system was found to be normal. The veteran offered no cardiovascular complaints at that time.

Reynolds Army Hospital medical records from August 1976 note that the veteran was admitted for complaints of chest pain. ECG was within normal limits. The impression was costochondritis. Chest X-ray was negative. A heating pad was applied to the veteran's chest wall. He was discharged with instructions to return if necessary, and with a prescription for Valium.

An October 1989 record notes the veteran's complaints of chest pains with a history of cardiac problems. In June 1990, he complained of episodes of left arm tingling, cold feet and a wave-like a chill over his body, followed by weakness and nausea. Clinical reports also note the veteran's complaints of chest tightness and prior hospitalizations, but that prior testing had been within normal limits. The impressions were hyperventilation syndrome; peptic ulcer disease; atypical chest pain; anxiety syndrome; and costochondritis. In October 1990 the veteran again complained of chest pain and was seen in the emergency room. Evaluation was normal. The impression was atypical chest pain. The veteran was noted to be concerned about coronary artery closing. In February 1991, the veteran again presented with complaints of chest pain.

A VA ECG in April 1993 showed sinus bradycardia in an otherwise normal test. ECG testing in July 1993 was unchanged; there was no complaint of chest pain at that time. An ECG in October 1993 again showed sinus bradycardia. Outpatient records dated in April and May 1993 reflect evaluation for complaints of atypical chest pain and treatment of the veteran for epigastric difficulties. The veteran's chest pains were thought to be noncardiac in nature. The report of VA examination dated in December 1993 is negative for findings or diagnoses pertinent to cardiovascular disease.

In connection with evaluations in July 1996 and January 1997, the veteran was noted to have a regular rate and rhythm of the heart, without murmurs, rubs or gallops. An ECG in January 1997 showed a normal sinus rhythm, but a nonspecific T wave abnormality. It was interpreted as abnormal. In July 1997, the veteran complained of right-sided radiating chest pain; the impression was arthritis of the right shoulder. Chest X-ray in July 1997 showed an abnormality related to the lungs. The heart size was within normal limits. The aorta was minimally ectatic. An August 1997 report of computerized tomography notes pulmonary artery hypertension. A record dated in January 1998 notes a normal heart rate and rhythm.

During his lifetime the veteran applied for VA compensation benefits based on hearing loss, psychiatric disability, a hiatal hernia, stomach disability and a right knee disability. He was service-connected for a duodenal ulcer with hiatal hernia; chondromalacia with arthritis of the right knee; and hemorrhoids. The combined rating for the service connected disabilities was 30 percent.

The veteran died in May 1998. The death certificate shows the cause of death as acute myocardial ischemia of less than six hours' duration due to or as a consequence of severe coronary arteriosclerosis and arteriosclerotic cardiovascular disease. No other condition was identified as causing or contributing to the veteran's death.

The autopsy report notes that the veteran had severe generalized and moderate-to-severe coronary arteriosclerosis, with evidence of an old myocardial ischemia. Also noted was acute myocardial ischemia suggestive of a recent myocardial infraction.

A report of contact dated in July 1998 reflects that the RO discovered that erroneous computer data relevant to the veteran's service-connected disabilities had been of record. Specifically, a computer printout shows the veteran as having been in receipt of benefits based on arteriosclerotic heart disease in addition to his duodenal ulcer and hemorrhoids. The appellant was advised of the mistake. The record also reflects that the appellant's congressman was advised of the error and the correct information relevant to the veteran's service-connected status.

Both the appellant and her daughter have submitted statements arguing that the veteran had heart problems, to include chest pains, for many years, and that such was service-connected. Both reference the erroneous computer print-out as evidence in support of the claim. They have also cited to possible discrimination against the veteran and/or questioned the propriety of benefits assigned to other veterans, to include this veteran's brother.

In October 2000, the appellant and her daughter testified before the undersigned. The appellant indicated that she married the veteran during his second period of service. She reported that during that service period the veteran began complaining of chest pains, stomach problems, weakness and nervousness, and was admitted for treatment. She also indicated that he received treatment for his heart during the remainder of his service and after discharge from service, to include in 1976 when he had a heart attack. The appellant reported that attempts to obtain VA records dated in 1976 and in the 1980s had been unsuccessful, but that she had submitted copies of records in her possession. The appellant also argued that the veteran had filed a claim for compensation benefits based on heart disease during his lifetime. She gave no specifics regarding such claim. This alleged claim is not of record.

In August 2002, a VA physician opined that there was no indication of arteriosclerotic heart disease prior to the veteran's discharge from service based on a review of the claims file.

In January 2003, a VA physician opined that there were no indications of arteriosclerotic heart disease prior to the veteran's discharge from military service based on a review of the claims file.

In March 2003, a VA physician reviewed the claims file and correctly noted that the veteran had not been service- connected for arteriosclerotic heart disease or other cardiovascular disability during his lifetime. That examiner opined that the veteran's fatal heart disease was not at least as likely as not related to military service, and stated that no cardiovascular disorder was manifested in service or within the initial post-service year. The examiner noted that a review of medical records showed that although the veteran had had atypical chest pain during service, he had not had any known coronary artery disease at that time. The examiner specifically cited to an October 1956 medical finding of no pathology, a negative chest X-ray in 1974, and a normal ECG in 1975. The examiner stated that the first evidence of atherosclerotic heart disease was shown coincident with the veteran's acute myocardial infarction in May 1998.

An April 2006 letter from a private neuroradiologist, C. N. Bash, M.D., notes that the veteran's service medical records, post-service medical records, imaging reports, other medical opinions, lay statements, and medical literature were reviewed. Dr. Bash opined that the veteran had cardiac disease as early as 1974 and 1976, while he was in service, and shortly thereafter, and that this cardiac disease significantly contributed to his death. Dr. Bash pointed out that the veteran's service medical records document complaints of chest pains. Although service and post-service chest X-rays were normal, X-rays are not very sensitive to cardiac disease. The veteran had non-specific S-T wave changes in his ECG, which is indicative of early cardiac disease. Dr. Bash noted that ECGs are falsely negative at a high rate in early, subtle cardiac disease. Furthermore, the veteran had high risk blood pressure, the autopsy report supports old cardiovascular disease, and the fact that the veteran survived with cardiac disease for 24 years is not unusual. Dr. Bash stated that the January 2003 VA medical opinion is very brief, it makes no note of having reviewed the entire record, it makes no note of having reviewed the ECG results, and it does not address the veteran's risky blood pressure levels. Dr. Bash also discounts the March 2003 VA medical opinion in that it does not address the veteran's risky blood pressure, it does not provide any literature to support the opinion, it does not address the false negatives with respect with ECGs and chest X-rays, it does not suggest an alternative medical theory or diagnosis to explain the veteran's 1974 and 1976 medical symptoms, and the medical opinion is unsupported with text references or an adequate rationale.

In October 2006, another VA medical opinion was obtained. The VA physician noted that he extensively reviewed the claims file, VA medical records, Army Hospital files, service medical records, ECGs, as well as lab test results, chest X- ray results, and office visit notes. The VA physician opined that after reviewing all the materials, there is no clinical, laboratory, chest X-ray, or ECG evidence of coronary artery disease during military service or within one year of discharge. There was evidence of gastritis, esophagitis, colonic tubular adenoma, osteochondritis, osteoarthritis, and right inguinal hernia. The VA physician opined that the evidence of blood pressure readings in the pre-hypertension range is by no means evidence of coronary artery disease. None of the ECGs showed S-T elevation, S-T depression, or pathologic Q waves. In sum, the physician concluded that the veteran's death is not at least as likely as not related to his military service or to a cardiovascular disorder within the first year of discharge from service.

The same VA physician who authored the October 2006 opinion, wrote another medical opinion in February 2007. In that report, he stated that the ECG findings (from August 1976 and January 1997) range from normal to non-specific S-T wave changes. These non-specific S-T changes are not considered to be indicative of any coronary or atherosclerotic pathology. In other words, a non-cardiac source caused these non-specific changes. According to medical literature, and in the VA physician's experience as a cardiologist, non- specific S-T wave changes are very common and may indicate any of the following: electrolyte abnormalities, post cardiac surgical state, anemia, fever, acidosis or alkalosis, catecholamines, drugs, acute abdominal process, endocrine abnormalities, metabolic changes, cerebrovascular accident, diseases such as myocarditis, pericarditis, cardiomyopathy, pulmonary emboli, infections, amyloidosis, systemic disease, and lung diseases. In the veteran's case, the S-T changes seen on the ECGs were benign and non-cardiac in origin. The veteran's June 1975 endoscopy noted several diagnoses which were more likely responsible for his chest pain and non- specific ECG changes found in the 1980s. The non-specific S- T changes seen on the veteran's 1976 and 1997 ECGs are benign and non-cardiac in origin. The veteran had a normal ECG in 1975 and in August 1976 a stay at an Army Hospital showed that blood and enzyme tests did not reveal any evidence of cardiac disease. The veteran was treated with a heating pad, Mylanta, and Demerol for pain. His discharge diagnosis was costochondritis, a non-cardiac condition. The prescription Valium suggests that anxiety was in the differential diagnosis.

In conclusion, the VA cardiologist opined that none of the evidence reviewed supports the contention that the non- specific S-T wave changes represented premature or early cardiovascular disease, and thus the VA cardiologist disagrees with Dr. Bash's opinion. Additionally, none of the chest X-rays from the military showed evidence of arteriosclerotic disease (in the form of calcification of blood vessels). The diagnosis of costochondritis is usually derived by clinicians as a diagnosis of exclusion after history, physical exams, and tests are done to rule out cardiac disease. The VA physician opined that selecting a cardiac cause for non-specific S-T changes that occurred on remote ECGs is resorting to speculation because the records document sufficient evaluation done to exclude cardiac disease.

A June 2007 private medical opinion from cardiologist K. P. Desser, M.D., concludes that there is greater than 50 percent probability that the veteran had a history of coronary artery disease dating back to his military service; Dr. Desser stated that the veteran did not receive the appropriate medical tests to diagnose this condition which eventually resulted in his death. Dr. Desser cited to medical records from 1974 and 1976 in which the veteran was told that he had had a heart attack and was placed on beta blockers. Dr. Desser noted that the veteran had coronary risk factors, including family history of heart disease, cigarette smoking, borderline hypertension, and PTSD. Although other physicians have characterized the veteran's ECGs as containing non- specific findings, Dr. Desser stated that there was S-T segment elevation in leads II and III, and aVF with T wave inversion in lead aVL, and any seasoned clinician with a vast experience in cardiovascular disease would consider this to be very suspicious in a male subject who has coronary risk factors and a history of chest pain. Furthermore, the autopsy report indicates that there was evidence of old myocardial damage. Dr. Desser noted that it is a scientific fact that most patients with ischemic heart disease survive for decades with the abnormality prior to their death.

Dr. Desser stated that the VA medical opinions from 2002 and 2003, which conclude that there was no evidence of arteriosclerotic heart disease prior to the veteran's discharge from service, are totally incompatible with the natural history of coronary artery disease and the veteran's individual history. Although the February 2007 VA medical opinion contains a list of all medical conditions that can cause non-specific S-T wave changes, the autopsy report indicates that none of those conditions was present. Dr. Desser cited studies which indicate that the classic findings of myocardial infarction are found in only a minority of subjects with biomarker documented acute myocardial infarction. In fact, data indicate that 10 percent of ECGs in this setting are entirely normal, and another 30 to 45 percent demonstrate the non-specific S-T changes emphasized by the VA physician. Dr. Desser also noted that the VA physician cited the lack of chest X-ray evidence of atherosclerosis. In this regard, Dr. Desser pointed out that a majority of subjects with coronary atherosclerosis do not have abnormal findings on their X-rays. Dr. Desser further stated that the VA physician's statement that the veteran underwent sufficient medical evaluation to exclude cardiac disease, and instead was diagnosed with costochondritis, is in error because the two conditions are not mutually exclusive, and because the care rendered to the veteran fell far beneath the minimum standard. Under the circumstances, and given the veteran's history, risk factors, and symptoms, he should have at least undergone an exercise stress test and a nuclear perfusion exam.

Dr. Desser opined that the veteran's death was more likely than not a consequence of the development of cardiac disease during military service. Dr. Desser noted that he reviewed the veteran's service medical records, post-service medical records, imaging reports, ECGs, statements from the veteran's family, medical opinions, and medical literature.

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 the cause of 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 thereto. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

With two private medical opinions and supporting rationales which bolster the appellant's claim that the veteran's death, due to arteriosclerotic heart disease, is related to his military service, and three VA physicians' opinions which do not support this contention, the Board must find that the evidence is in equipoise. The Board recognizes that the VA physicians thoroughly reviewed all of the evidence and have determined that based upon the ECG reports and other medical records, it is less likely than not that the veteran's heart disease was present in service or during the first post- service year. However, the Board has also found the two private medical opinions supporting the claim, particularly the opinion of Dr. Desser, to be very probative. Therefore, with resolution of reasonable doubt in the appellant's favor, the Board concludes that the veteran's fatal heart disease originated during service. Accordingly, the claim for service connection for the cause of the veteran's death will be granted.

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

Shane A. Durkin

Veterans Law Judge, Board of Veterans' Appeals

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
Fax 301-951-9106