Citation Nr: 0000963 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-14 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Chapter 35 Dependents' Educational Assistance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from July 1942 to July 1945. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appeal was docketed at the Board in 1998. FINDINGS OF FACT 1. The claim for service connection for the cause of the veteran's death is not plausible. 2. The claim for Chapter 35 Dependents' Educational Assistance is not legally cognizable. CONCLUSIONS OF LAW 1. The claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an award of Chapter 35 Dependents' Educational Assistance have not been met. 38 U.S.C.A. 3500, 3501 (West 1991); 38 C.F.R. §§ 21.3020, 21.3021 (1999); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Cause of Death The threshold question to be answered concerning the appellant's claim for service connection for the cause of the veteran's death is whether she has presented evidence of a well grounded claim, that is, one which is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); see Tirpak v. Derwinski, 2 Vet. App. 609 (1992). If a claimant does not submit evidence of a well grounded claim, VA is under no duty to assist him or her in developing facts pertinent to such claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990). For the reasons set forth below, the Board finds that the appellant has not met her burden of submitting evidence to support a belief by a reasonable individual that her claim for service connection for the cause of the veteran's death is well grounded. The official death certificate reflects that the immediate cause of the veteran's death, in October 1997, was an acute myocardial infarction, due to or as a consequence of hypertension, due to or as a consequence of congested heart failure, due to or as a consequence of chronic obstructive pulmonary disease (COPD); alcohol abuse was listed as another significant condition contributing to death but not resulting in the underlying cause thereof. At the time of the veteran's death, service connection was in effect for chronic arthritis involving the spine with ankylosis. Under the law, service connection may be granted for any disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). In addition, to establish service connection for the cause of the veteran's death, the evidence 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 (West 1991); 38 C.F.R. § 3.312 (1999). The appellant asserts that "medications" prescribed the veteran in response to his service-connected arthritis played a role in bringing about the COPD and myocardial infarction implicated in his death. In this regard, service medical records are negative for any reference to any of the conditions, to specifically include hypertension and COPD, implicated in the veteran's death. With respect to hypertension, the initial evidence of the same is in the 1990's, many years after the veteran's separation from service, which consideration precludes any notion of according service connection for hypertension on a presumptive basis. See 38 U.S.C.A. §§ 1110, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). There is, in addition, no evidence relating, either etiologically or on an aggravation basis, the veteran's fatal myocardial infarction, or any cited condition of which it was (based on the above- cited death certificate) a consequence, i.e., hypertension, congested heart failure, or COPD, to the veteran's service- connected arthritis or any medication taken in treatment thereof. As to the alcohol abuse which was listed as another significant condition contributing to the veteran's death but not resulting in the underlying cause thereof, the Board would respectfully point out that, to any extent the same may have occurred in service, it is not legally cognizable as a potential factor in the veteran's death, being deemed by regulation to be of willful misconduct origin. See 38 C.F.R. § 3.301 (1999). In view of the foregoing observations, then, a plausible claim for service connection for the cause of the veteran's death is not presented. Therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). In reaching the foregoing determination, the Board is cognizant that the appellant feels strongly that medication taken by the veteran in response to his service-connected arthritis may have been a factor in some of the conditions implicated in his death. However, while the Board is sensitive to the appellant's view in this regard, it would respectfully point out that she is, as a lay person, not competent to provide an opinion which requires medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board is also cognizant that, in a January 1999 Informal Hearing Presentation, the appellant's representative suggests that the RO may not have undertaken "all indicated development" to assist the appellant in establishing her claim for service connection for the cause of the veteran's death. However, the Board would respectfully point out that, inasmuch as (owing to the reasoning advanced above) the claim for service connection for the cause of the veteran's death is not well grounded, the Board is precluded from assisting the appellant in the development of this aspect of her appeal. See Morton v. West, 12 Vet. App. 477 (1999). In addition, although the Board has considered and disposed of the appellant's claim on a ground different from that of the RO, the appellant has not been prejudiced by the Board's decision. This is because, in assuming that such claim was well grounded, the RO accorded the appellant greater consideration than her claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether this claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747 (1992). Finally, as pertinent to the appellant's claim for service connection for the cause of the veteran's death, the Board is of the opinion that its discussion above bearing on such issue is sufficient to inform the appellant of the elements necessary to complete her application for a claim for service connection relative to such benefit. See Robinette v. Brown, 8 Vet. App. 69 (1995). II. Dependents' Educational Assistance In accordance with 38 U.S.C.A. §§ 3500, 3501 and 38 C.F.R. §§ 21.3020, 21.3021, educational assistance is available to a child or surviving spouse of a veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while a total disability permanent in nature resulting from a service-connected disability was in effect. The appellant contends, in essence, that entitlement to Chapter 35 dependents' educational assistance is warranted. However, as is clear from the disposition reached by the Board in the preceding section, the veteran neither died of a service-connected disability nor died while a total disability permanent in nature resulting from a service- connected disability was in effect, the same being prerequisite to an award of the appealed for Chapter 35 benefit. Given such consideration, and since the law rather than the evidence is dispositive of this aspect of the appeal, the claim for Chapter 35 dependents' educational assistance is without legal merit and is, accordingly, denied. See Sabonis, supra. ORDER Evidence of a well grounded claim not having been submitted, the appeal for service connection for the cause of the veteran's death is denied. Entitlement to Chapter 35 Dependents' Educational Assistance is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals