Citation Nr: 0733925 Decision Date: 10/26/07 Archive Date: 11/07/07 DOCKET NO. 91-56 009 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Christopher A. Somers, Esq. WITNESSES AT HEARING ON APPEAL The appellant and a friend ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from July 1943 to October 1945. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the RO. The appellant testified before the Board in December 1987. The Board issued a decision in February 1989 denying service connection for the cause of the veteran's death. Thereafter, the Board issued a decision in February 2006 that reopened the claim and remanded the issue back to the RO for further development. The appellant requested a hearing at the Board's offices in Washington, D.C., but a scheduled hearing in January 2004 was postponed at her request, and in April 2004 she submitted a writing withdrawing her request for hearing. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The veteran died on April [redacted], 1986, due to cardiomyopathy due to or as a consequence of rheumatic heart disease; silicosis is listed on the death certificate as a significant contributing condition. 3. The veteran had no disabilities adjudicated as service connected at the time of his death. 4. The veteran is shown to have had rheumatic fever prior to military service and symptoms of related rheumatic heart disease after discharge from service until his death. 5. The preexisting rheumatic fever is shown as likely as not to have undergone an increase in severity beyond natural progress during the veteran's period of service. CONCLUSION OF LAW By extending the benefit of doubt to the appellant, the veteran's preexisting rheumatic heart disease was aggravated by active service and contributed substantially or materially in producing his death. 38 U.S.C.A. §§ 1110, 1310, 5103, 5105A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e), 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, and in view of the fully favorable action taken hereinbelow, the Board finds that all notification and development action needed to render a fair decision on the issue of service connection for a depressive disorder has been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2006). Service connection may also be granted for disability (or death) that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.3 10(a). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.3 12(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Considering the evidence of record in light of the above- noted legal authority, the Board finds for the reasons below that a disability of service origin caused or contributed substantially or materially to cause the veteran's death. The veteran died on April [redacted], 1986. The death certificate shows the immediate cause of death as cardiomyopathy, due to or as a consequence of rheumatic heart disease. The death certificate notes silicosis as a significant condition contributing to the death but not related to the immediate cause of death. At the time of his death the veteran had no service-connected disabilities. The veteran applied for service connection for a heart condition and a lung condition in October 1985, but that claim had not been adjudicated at the time of his death. As a matter of law, veterans' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-4 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 47 (1994), Smith v. Brown, 10 Vet. App. 330, 333-34 (1997). The appellant contends that the veteran's death was caused by inhalation of smoke and/or asbestos during military service. Alternatively, she asserts that the veteran had rheumatic fever prior to service that was aggravated by military service. The veteran's service medical records (SMR) are not of record. Correspondence from the National Personnel Records Center (NPRC) asserts that those records were presumably destroyed in a fire at that facility. The appellant has produced a military form letter (IM Form No. 1473 SC-M) showing that the veteran applied for disability benefits on October 5, 1945, one day prior to discharge from service, at the Indiantown Gap Military Reservation. The nature of the disability or disabilities claimed at that time is not shown. In regard to the issue of rheumatic heart condition prior to service, the file contains lay statements from the veteran's brother had his two sisters, all filed in 1987 and all attesting that the veteran had rheumatic fever in the late 1920's, when he was 8 to 10 years old, and that the veteran's parents had a "tough time" raising him thereafter. The appellant testified before the Board in December 1987 that she met the veteran in 1948 at which time he was already ill with a rheumatic heart, and that the veteran was continually ill with such condition until his death. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, the Board notes that the lay evidence cited above was offered to demonstrate chronicity of symptoms. Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Espiritu v. Derwinski, 2 Vet. App. 494-495 (1992) (lay person may provide eyewitness account of medical symptoms). The Board accordingly finds that the lay evidence cited above is competent evidence of symptoms before and after military service. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The decision of the Board promulgated in February 1989 noted that it was unfortunate that the veteran's service medical records are not available for review in regard to the progress of the pre-service rheumatic fever, but as there is no post-service documentation of heart disease until the early 1970's (heart and lung disease attributable to silicosis) the claim could not be granted. However, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Further, although the Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board accordingly finds that the lay statements cited above are both competent and credible regarding chronicity of the veteran's symptoms. The Board referred the file to a Veterans Health Administration (VHA) physician for review in 2005 requesting an opinion in regard to the likely etiology of the veteran's disease. The reviewer stated that he did not believe military service directly caused the veteran's cardiac disease, but that "it [was] certainly possible that the physical effort involved in military service aggravated his underlying cardiac condition." Aggravation of a pre-existing injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In this case, the absence of service medical records or post- service medical records prior to 1970 makes it impossible to determine whether there was a permanent aggravation of the preexisting rheumatic heart disease during military service. The medical opinion of the VHA reviewer is accordingly accepted as evidence that such aggravation was likely to have occurred. In summary, there is competent lay evidence that the veteran had a rheumatic condition prior to service and competent medical evidence that the preexisting condition was aggravated by military service. There is competent lay evidence that the veteran had continued rheumatic symptoms until his death, and the death certificate lists rheumatic heart disease as the underlying cause of death. Based on the evidence, the Board finds that aggravation of the veteran's preexisting rheumatic heart disorder during military service likely caused or materially contributed to his death. In adjudicating this claim, the Board has favorably applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the veteran's death is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs