BVA9504357 DOCKET NO. 93-12 076 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from July 1940 to August 1945. He died in March 1992. The appellant is the veteran’s surviving spouse. This appeal arises from a June 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. On appeal the appellant appears to raise issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 (West 1991). See generally, Appellant’s May 1992 letter to Senator Richard Shelby. This issue is not currently developed or certified for appellate review, and it is not shown to facially be inextricably intertwined with the current appeal. Accordingly, this matter is referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant and her representative contend that service connection for the cause of the veteran’s death is warranted. Essentially, it is maintained that the veteran’s service connected pulmonary tuberculosis contributed substantially and materially to the cause of his death. As support for this assertion the appellant refers the Board to the evidence of record, including specifically the terminal hospital reports, and an autopsy study. The resolution of reasonable doubt in the appellant’s favor is requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant’s claim of entitlement to service connection for the cause of the veteran’s death is not well grounded. FINDINGS OF FACT The claim of entitlement to service connection for the cause of the veteran’s death is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran’s death is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the initial threshold question to be answered is whether the appellant has presented evidence of a well grounded claim; that is, a claim which is plausible and meritorious on its own or capable of substantiation. If she has not, her appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds that the appellant's claim for service connection for the cause of the veteran's death is not well grounded, that there is no duty to assist the appellant in the development of her claim, and that the claim should be dismissed. Factual Background At the time of the veteran’s death service connection was in effect for inactive, moderately advanced, pulmonary tuberculosis, evaluated as zero percent disabling; residuals of malaria, evaluated as zero percent disabling; and for a left varicocele, also evaluated as zero percent disabling. The veteran was in receipt of special monthly compensation due to completely arrested pulmonary tuberculosis pursuant to the provisions of 38 U.S.C.A. § 1114 (formerly § 314), and 38 C.F.R. § 3.350(g). According to a death certificate signed on March 18, 1992, the cause of the veteran’s death was gram negative sepsis, due to pneumonia. Quadriplegia was noted to be a significant condition contributing to death but not resulting in the underlying cause of death. Following an autopsy the examining pathologist, Boris Datnow, M.D., reported that the cause of the veteran’s death was bilateral acute bronchopneumonia, due to chronic bilateral pyelonephritis, due to arteriosclerotic heart disease. Natural causes were noted to be a significant condition contributing to death, but not related to the cause of death. Dr. Datnow’s autopsy report reveals that the veteran’s prior medical history included diagnoses of hypertension, benign prostatic hypertrophy, vascular necrosis of the right hip, and a history of tuberculosis for 47 years with treatment. Dr. Datnow entered the following anatomical diagnoses: bilateral, extensive pulmonary fibrosis and emphysema; extensive pulmonary anthracosis with anthracosis involving hilar lymph nodes and with ancient hilar lymph node granulomas; ancient healed and scarred left ventricular myocardial infarction; chronic bilateral pyelonephritis (renal failure requiring hemodialysis); chronic passive venous congestion of the liver and spleen; grade IV atherosclerosis with calcification of the left and right coronary arteries, the thoracic aorta, and the abdominal aorta; quadriplegia; avascular necrosis of the right hip; hypertension; and status post upper cervical laminectomy (surgical wounds, partially healed). A review of the veteran’s service medical records reveals no complaints or findings pertaining to either a chronic pulmonary disorder, or arteriosclerotic heart disease. These records do disclose treatment on November 24 and 25, 1942, for what was diagnosed as a mild, acute, renal calculus. Clinical examination at that time was negative for hematuria, and urinalysis was otherwise negative. There is no evidence that the veteran actually passed a kidney stone in service. At his August 1945, discharge examination the veteran’s cardiovascular system and lungs were normal, his blood pressure was 112/76, and his genitourinary system notable for a mild left varicocele. In May 1948, the veteran was admitted to a VA hospital after a private physician diagnosed pulmonary tuberculosis following chest X-ray and sputum studies. Physical examination resulted in the diagnosis of active, far advanced, reinfection type pulmonary tuberculosis. In July 1948, a board of medical officers at the VA hospital reviewed the chest x-ray film taken at the veteran’s August 1945 separation examination. They opined that active, moderate pulmonary tuberculosis existed at that time. In January 1981, the veteran was seen by Charles B. Crow, M.D., for a chest x-ray and spirometric examination. These studies revealed spirometric values which were consistent with chronic obstructive or restrictive pulmonary disease, and a cardiac to thoracic ratio indicative of a cardiac silhouette which was within the upper limits of the normal range. The veteran was seen for a VA compensation examination in September 1981. He reported complaints of shortness of breath on exertion. A two year history of hypertension and a history of pulmonary tuberculosis since 1948 were noted. The veteran informed the treating physician that he had been diagnosed with chronic obstructive pulmonary disease (COPD) earlier in 1981, and the veteran claimed that his COPD was related to his pulmonary tuberculosis. Physical examination resulted in diagnoses of inactive, moderately advanced pulmonary tuberculosis, and mild COPD. In November 1981, the Department of Health for Jefferson County, Alabama informed the Birmingham, Alabama VA Medical Center that sputum culture studies taken in September 1981, at the Birmingham VA Medical Center were positive for acid-fast bacillus. In light of the veteran’s prior history of pulmonary tuberculosis medication was prescribed. Follow up treatment records show that the veteran’s pulmonary tuberculosis was restored to an inactive state by December 15, 1981. In October 1991, the veteran was admitted to a VA Medical Center. His prior medical history was notable for pulmonary tuberculosis, avascular necrosis of the right hip, benign prostatic hypertrophy, and hypertension. The purpose of the veteran’s admission was to undergo a cervical laminectomy. Intraoperatively he became hypotensive, and perioperatively the veteran suffered an anterior septal myocardial infarction, with secondary respiratory failure requiring intubation. Postoperatively the veteran developed bilateral lower lobe pneumonia, pansinusitis, Candidemia and Staphylococcus epidermidis with a positive blood culture, acute renal failure requiring dialysis, and quadriplegia of unknown etiology with associated malnutrition. The veteran’s hospital course was further complicated by episodes of sepsis requiring antibiotic coverage. The veteran expired on March 18, 1992 following a drop in blood pressure, and the onset of bradycardia. The terminal diagnoses were quadriplegia, myocardial infarction, chronic respiratory failure requiring mechanical ventilation, sepsis syndrome, avascular necrosis of the right hip, hypertension, benign prostatic hypertrophy, malnutrition, acute renal failure requiring hemodialysis, sinusitis, and bronchitis. In June 1994, Dr. Datnow reported that the veteran’s lungs were markedly destroyed by anthracotic and emphysematous processes, with a severe disruption of the oxygen exchange mechanism. These changes were opined to be a major contributing cause to the poor clinical condition and eventual demise of the veteran. In closing, Dr. Datnow observed that the veteran’s lungs also showed evidence of tuberculosis in the form of granulomas in the hilar lymph nodes. Analysis In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death, or substantially or materially contributed to it. A service-connected disorder is one which was incurred in or aggravated by active service, or in the case of arteriosclerotic heart disease and pyelonephritis, if such a disorder was demonstrated to a compensable degree within one year of the veteran’s separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The service medical records are devoid of any evidence showing either pyelonephritis or arteriosclerotic heart disease. However, while the death certificate following an autopsy of the veteran’s remains reported that the cause of his death was bilateral acute pneumonia, due to chronic bilateral pyelonephritis, due to arteriosclerotic heart disease, with natural causes being noted to be a significant condition contributing to death, but not related to the cause of death, the appellant argues that it was the veteran’s pulmonary tuberculosis which contributed substantially and materially to his ultimate demise. While it is true that service connection was in effect at the time of the veteran’s death for pulmonary tuberculosis, hence showing that he was service connected for a lung disorder, there is no competent medical evidence showing that this disorder caused, or contributed either substantially or materially to his death, and the appellant is not competent to offer such an etiological nexus. In this latter respect, the Board observes that there is no evidence that the appellant is trained in the field of medicine. As such, she is not qualified to offer an opinion which requires medical training and expertise. Grottveit v. Derwinski, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). A well grounded claim requires cognizable evidence supporting it, and without such evidence the appellant’s claim must be dismissed. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Therefore, because there is no evidence showing a reasonable possibility that a service connected disorder caused, or contributed substantially or materially to the veteran’s death, the appellant’s claim is not well grounded. In reaching this decision the Board considered the June 1994 note from Dr. Datnow that at autopsy there was evidence of tuberculosis in the form of granulomas in the hilar lymph nodes. Dr. Datnow’s statement, however, cannot serve as the predicate for establishing a well grounded claim because the mere presence of tuberculosis does not mean that there is a reasonable possibility that tuberculosis was the cause of the veteran’s death, or that tuberculosis contributed either substantially or materially to his demise. In dismissing the appellant’s claim it is recognized that the Board is acting in a manner different than the RO which denied service connection based on a merits based review. It must therefore be considered whether the claimant has been given adequate notice to respond, and if not, whether she has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claim and her failure to meet her initial burden in the adjudication process, however, the Board concludes that she has not been prejudiced by the decision to dismiss her claim. In this regard, the Board observes that by dismissing her claim, the appellant is not burdened with a prior final adjudication on the merits. Thus, if she is able to submit a well grounded claim in the future, she will not be faced with the higher hurdle of providing new and material evidence to reopen her claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). Indeed, in finding her claim well grounded the RO accorded her greater consideration than her claim in fact warranted under the circumstances. To remand this case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to her. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). Finally, in light of the appellant’s failure to present a well grounded claim, the doctrine of reasonable doubt is not for application. In this regard, the doctrine only applies when evaluating the weight of the "positive and negative" evidence. As the Board does not reach the merits of the appellant’s claim, no weighing of the evidence is permissible. See generally, Grivois v. Brown, 6 Vet.App. 136, 140 (1994); and Gilbert v. Derwinski, 1 Vet.App. 49, 59 (1991). ORDER The issue of entitlement to service connection for the cause of the veteran’s death is dismissed. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.