Citation Nr: 1648523	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  06-32 004A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from April 1943 to January 1946. He died in April 1984. The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied service connection for the cause of the Veteran's death.

In June 2014, the appellant had a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record.

In July 2014, the Board reopened the issue of service connection for the cause of the Veteran's death, and remanded that issue to the RO to develop additional evidence. In June 2015, the Board again remanded the issue to the RO to develop additional evidence.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDING OF FACT

Explosion of oxygen equipment during flight during the Veteran's service did not produce heart injury or disease during service, and was not a cause of the heart disease found after his service or the myocardial infarction that caused his death.


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.

The United States Court of Appeals for Veterans Claims (Court) has indicated that, in the context of a claim for service connection for the cause of a veteran's death, proper notice must include a statement of the conditions for which the veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition, and an explanation of the evidence an information required to substantiate a claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).

Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

In a September 2013 supplemental statement of the case, and in the June 2015 Board remand, VA notified the appellant what was needed to substantiate a claim for service connection for the cause of the Veteran's death.

In the June 2014 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.303(c)(2) or identified any prejudice in the conduct of the hearing. The Board therefore finds that, consistent with Bryant, supra, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.303(c)(2), and that any error in providing notice during the appellant's hearing constitutes harmless error.

The claims file contains service medical records and some post-service medical records. The Board's instructions in the 2014 remand included seeking records of private medical treatment of the Veteran. In the 2015 Board remand, the Board instructions included telling the RO to correct and resend records requests to replace requests that contained a misspelling. The RO sent correctly spelled requests. Some additional records were received. In a September 2015 letter, the appellant wrote that she had learned that further records were not available. The Board finds that the Board remand instructions have been substantially fulfilled.

The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The appellant actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process, and she has done so.

Cause of Death

The appellant reports that the Veteran told her that during his service, while he was in an airplane, his oxygen tank or mask blew up. She states that he told her that the incident caused the onset of his heart problems. She reports that heart problems that began during service continued after service. She contends that events during service, particularly the oxygen incident, thus caused or contributed to causing his 1984 death from myocardial infarction.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including cardiovascular disease, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Service connection for the cause of a veteran's death is warranted when a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially and 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). When it is determined that a veteran's death was service-connected, his surviving spouse and children are generally entitled to dependency and indemnity compensation (DIC). See 38 U.S.C.A. § 1310 (West 2014).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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 v. Derwinski, 1 Vet. App. 49, 54 (1990).

On medical examinations of the Veteran in June 1942 and March 1943, prior to his entrance to service, the examiners found that his heart and cardiovascular system were normal. On examinations during service in July 1943, October 1943, June 1944, and October 1944, the examiners found that his heart was normal. His service medical records do not contain any mention of injury, symptoms, or complaints following an incident involving oxygen or oxygen equipment. On examination in November 1945, for separation from service, the examiner stated that his heart was normal. The Veteran denied any pertinent medical history related to his service period other than a tonsillectomy in 1945.

The claims file does not contain records of treatment of the Veteran during the year following his separation from service. The earliest post-service treatment records in the file are from 1984.

In April 1984, the Veteran was seen at a hospital emergency room. He reported severe chest pain and shortness of breath. He related a history of a myocardial infarction in 1973. On testing there were signs of cardiac failure. During hospital treatment he sustained an abrupt cardiac arrest and could not be resuscitated. On his death certificate, the cause of death was listed as acute myocardial infarction.

In 1991, the appellant recalled that the Veteran told her of an incident during service when he was flying and his oxygen mask blew up. She stated that he expressed that with that incident he had onset of heart disease.

In a March 2006 statement, the appellant wrote that the Veteran repeatedly stated that when his oxygen blew up while he was a pilot in service his heart problems started. In June 2006, she related that while he was flying in service his oxygen tank blew up, and that started his heart problem. In October 2006, she wrote that he said that there were records of his oxygen tank blowing up while he was flying during service. She asserted that the incident weakened his heart. She related that in the 1960s he was taking nitroglycerin for heart problems, and that he had his first severe heart attack in 1973.

In March 2011, the appellant wrote that the Veteran always felt that the explosion of his oxygen tank during service contributed to his bad heart. She noted that he died from his bad heart.

In the June 2014 Board hearing, the appellant stated that the Veteran told her that his heart problems began long before she knew him. She reported that he told her that during his service an oxygen tank blew up, and that this started his heart problems. She indicated that he had treatment for heart problems, and that over time he had three heart attacks, and died from the third.

In September 2014, the appellant reported that the Veteran's family physician started him on nitroglycerin in the 1950s.

In January 2015, a VA physician reviewed the Veteran's claims file. The physician found that it was at least as likely as not that an oxygen tank or mask explosion during flight would result in a thinning of the air at flight altitude. The physician noted, however, that the Veteran's service medical records do not indicate that he was ever found to be unfit for continued flight service. She reflected that there was no evidence that he had lasting cardiovascular changes or injury as a result of the oxygen incident. She expressed the opinions that it is less likely than not that the hypoxia incident during service caused cardiovascular injury, and less likely than not that his death from myocardial infarction was related to service.

In May 2016, a different VA physician reviewed the claims file. The physician considered the appellant's report that the Veteran had treatment for heart problems as early as the 1950s. The physician stated that there is no known medical cause and effect relationship between an oxygen mask blowing up while flying a plane and the future development of coronary artery disease leading to myocardial infarction. The physician provided the opinion that it is less likely than not that the myocardial infarction that caused the Veteran's death was incurred in service or caused by the oxygen mask blowing up during flight in service.

The appellant has consistently recalled the Veteran's accounts of the in-flight oxygen equipment explosion in service, and the Veteran's belief that his long term heart problems began with that incident. Physicians who examined the Veteran during service, including shortly before separation from service, found that his heart was in normal condition. The separation examination report does not reflect that the Veteran described any possibly heart-related symptoms at that time. The evidence from his service period tends to indicate normal condition of his heart at separation from service. Regarding the condition of the Veteran's heart during and at separation from service, clinicians' findings during service are more persuasive than the belief of the Veteran, who did not have medical training.

As there is no information about the condition of his heart during the year following his separation from service, there is no basis to presume service connection for heart disease.

The appellant is in a position to recall that the Veteran took nitroglycerin for heart problems as early as the 1950s or 1960s. Even considering that history, however, physicians who have reviewed the evidence have found it less likely than not the heart disease found after his service began during service or was caused by the oxygen incident in service. The physicians have training regarding medical etiology, and their opinions are persuasive. The greater persuasive weight of the evidence is against service connection for the heart disease and myocardial infarction that caused the Veteran's death.


ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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