On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the veteran's death.
REPRESENTATION
Michael E. Wildhaber, Attorney at Law
ATTORNEY FOR THE BOARD
David A. Brenningmeyer, Counsel
INTRODUCTION
The veteran served on active duty from July 1948 to July
1968. He died in October 1993, and the appellant is his
widow.
By a decision entered in May 1994, the RO denied service
connection for the cause of the veteran's death. The
appellant appealed that decision to the Board of Veterans'
Appeals (Board), and the Board remanded the matter to the RO
for further development in May 1996. The case was returned
to the Board in December 1996, and the Board thereafter
denied the appeal by a decision entered in March 1997.
The appellant appealed the Board's decision to the United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (Court). By an order dated in May 1999, the Court
vacated the Board's decision and remanded the matter for
further development and re-adjudication. In so doing, the
Court directed that action be taken to ensure compliance with
the Board's May 1996 remand order requesting a medical
opinion discussing the relationship between an August 1968
in-service diagnosis of hypertension and the cause of the
veteran's death. See Stegall v. West, 11 Vet. App. 268
(1998). The Court also directed the Board to discuss whether
the claim of service connection for the cause of the
veteran's death was well grounded, taking into consideration
the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a), and the
Court's decisions in Brannon v. Derwinski, 1 Vet. App. 314
(1991), and Savage v. Gober, 10 Vet. App. 488 (1997).
In August 1999, the Board contacted the appellant's attorney
and advised him of the appellant's right to submit additional
argument and evidence in support of the present appeal.
Thereafter, in November 1999, additional argument and
evidence was received at the Board, along with a waiver of RO
review. See 38 C.F.R. § 20.1304(c) (1999).
FINDINGS OF FACT
1. The veteran died in October 1993. His death certificate
shows that the cause of his death was cardiac arrest, due to
myocardial infarction, due to morbid obesity.
2. Competent medical evidence has been received which
indicates that it is very likely that the veteran's
cardiovascular disease was precipitated by chronic
hypertension.
3. Competent medical evidence has been received which
indicates that chronic hypertension had its onset in service.
CONCLUSION OF LAW
The veteran's death can be attributed to service.
38 U.S.C.A. §§ 1110, 1112, 1131, 1310, 5107 (West 1991 &
Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312,
20.1106 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant maintains that service connection should be
granted for the cause of the veteran's death. She contends
that the veteran's death from cardiac arrest and myocardial
infarction can be attributed to hypertension that began in
service.
Generally speaking, service connection is warranted where the
evidence of record establishes that a particular injury or
disease resulting in disability was incurred in the line of
duty in the active military service or, if pre-existing such
service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131
(West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection
is also warranted where the evidence shows that a chronic
disability or disorder has been caused or aggravated by an
already service-connected disability. 38 C.F.R. § 3.310
(1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease
is shown as chronic in service, or within a presumptive
period so as to permit a finding of service connection,
subsequent manifestations of the same chronic disease at any
later date are service connected unless clearly attributable
to intercurrent causes. 38 U.S.C.A. § 1112 (West Supp.
1999); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (1999).
The death of a veteran is considered as having been due to
service when the evidence establishes that a service-
connected disability was either the principal or contributory
cause of death. 38 C.F.R. § 3.312(a) (1999). A disability
is considered the "principal" cause of death when that
disability, "singly or jointly with some other condition,
was the immediate or underlying cause of death or was
etiologically related thereto." Id. § 3.312(b). A
"contributory" cause of death must have "contributed
substantially or materially" to death, must have "combined
to cause death," or must have "aided or lent assistance to
the production of death." Id. § 3.312(c). Where a cause of
death claim is premised on 38 U.S.C.A. § 1310 (West 1991),
issues pertaining to whether a particular disease or injury
was the principal or contributory cause of death are decided
without regard to any disposition of those issues during the
veteran's lifetime. 38 C.F.R. § 20.1106 (1999).
In the present case, the Board finds that the claim of
service connection for the cause of the veteran's death is
well grounded. 38 C.F.R. § 5107 (West 1991). This is so
because competent medical evidence has been submitted which
tends to link the veteran's death to disability incurred in
service. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).
The Board finds, moreover, that the evidence supports an
allowance of the claim. The veteran's death certificate
shows that he died in October 1993, and that the cause of his
death was cardiac arrest, due to myocardial infarction, due
to morbid obesity. The record contains a June 1999 letter
from a physician, Craig Bash, M.D., a Neuro-radiologist and
Assistant Professor of Radiology and Nuclear Medicine at the
Uniformed Services University of the Health Sciences, which
indicates that it is very likely that the veteran's
cardiovascular disease was precipitated by chronic
hypertension. In the letter, Dr. Bash further opined that
chronic hypertension had its onset in service. Inasmuch as
Dr. Bash's opinion is clearly based on a review of the
available medical evidence, and contains a discussion of that
evidence, along with a complete statement of the reasons for
his conclusions, the Board finds the opinion persuasive.
Consequently, service connection is granted for the cause of
the veteran's death.
In light of the Board's decision granting the benefit sought
on appeal, further action on the directives contained in the
Court's May 1999 order is unnecessary.
ORDER
Service connection for the cause of the veteran's death is
granted.
MARK F. HALSEY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
