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 CONCLUSIONFactual 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.
AnalysisPreliminary 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.
