Citation Nr: 0006435 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 90-53 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for the cause of the veteran's death on the basis of the contraction of the human immunodeficiency virus (HIV) as a result of VA treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from August 1943 to February 1946. He died on January [redacted], 1988, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1988 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board remanded this case to the RO for further development in March 1990 and April 1996; the requested development has been accomplished in accord with the Board's instructions, and the case has since been returned to the Board. FINDINGS OF FACT 1. The veteran died on January [redacted], 1988 at the age of 64, and his death certificate lists acute bilateral bronchopneumonia as the immediate cause of death, with chronic congestive heart failure and rheumatic heart disease listed as underlying causes of death. 2. There is no competent medical evidence showing that the veteran's HIV was contracted as a result of VA treatment or that his HIV was a causal factor in his death. CONCLUSION OF LAW The claim of entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for the cause of the veteran's death on the basis of the contraction of HIV as a result of VA treatment is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Entitlement to service connection for the cause of a veteran's death is warranted where a disability of service origin caused, hastened, or substantially and materially contributed to the veteran's death. 38 U.S.C.A. § 1310(b) (West 1991); 38 C.F.R. § 3.312 (1999). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (1999). The principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (1999). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (1999). Moreover, when a veteran suffers additional disability or death as the result of hospital care, medical or surgical treatment, or an examination furnished by the VA, benefits are payable in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999); 38 C.F.R. § 3.358 (1999). For claims filed prior to October 1, 1997, as here, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S.Ct. 552 (1994). But see 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) (indicating that a showing of negligence or fault is necessary for recovery for claims filed on or after October 1, 1997). However, the initial inquiry before the Board is whether the appellant has submitted a well-grounded claim, as is required under 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. See Murphy v. Derwinski, 1 Vet. App 78, 81 (1990). While such a claim need not be conclusive, it must be supported by evidence; a mere allegation is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In cases such as this, where the determinative issue is one involving medical causation, competent medical evidence in support of the claim is required for the claim to be well grounded. See Caluza v. Brown, 7 Vet. App. 498, 504 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In the absence of evidence of a well-grounded claim, there is no duty to assist the appellant in developing the facts pertinent to her claim, and the claim must be denied. Epps v. Gober, 126 F.3d 1464, 1468-69 (1997). In the case at hand, the Board observes that, in a September 1998 statement, the appellant asserted that her husband's death was hastened by the contracting of HIV, and she stated that a VA doctor had told her that the veteran contracted HIV as a result of blood transfusions in 1984. The veteran's death certificate indicates that he died at the West Los Angeles VA Medical Center (VAMC) on January [redacted], 1988 at the age of 64. This death certificate lists acute bilateral bronchopneumonia as the immediate cause of death, with chronic congestive heart failure and rheumatic heart disease listed as underlying causes of death. An autopsy was performed, and the results of that autopsy are described below. The Board has reviewed the claims file and observes that the earliest evidence of HIV is the report of a VA hospitalization in November and December of 1987. This report indicates that a positive HIV titer had been noted during an extensive workup prior to the veteran's admission to "Valley Hospital." Also, this hospital report indicates that the veteran had blood transfusions in April of 1984. The report of the veteran's January 1988 VA hospitalization, during which he died, lists HIV as an underlying and significant medical problem. The report of the veteran's autopsy, conducted in January 1988, indicates a clinical history of HIV-positive blood and reflects that the veteran's positive HIV test was "probably secondary to transfusions." However, the examining pathologist found no other evidence of an acquired immune deficiency syndrome during the autopsy and did not list HIV among the causes of death, which included severe biventricular congestive heart failure, with generalized anasarca; and cardiac arrhythmia, complicated terminally by respiratory and urinary tract infections. In reviewing the facts of this case, the Board observes that the veteran had a history of blood transfusions and that the pathologist who conducted the January 1988 autopsy suggested that the veteran's HIV was related to a transfusion. However, neither this pathologist nor any of the veteran's other doctors have linked his HIV to a blood transfusion specifically performed at a VA facility. In this regard, the Board observes that, prior to his death, the veteran was treated at "Valley Hospital," which is apparently a private facility (efforts by the RO to obtain records from that facility proved unsuccessful). Moreover, there is no evidence suggesting that the veteran's HIV status was a causal factor in his death; in fact, the examining pathologist stated that there was no evidence, other than the HIV test, of an acquired immune deficiency syndrome at the time of death and did not list HIV among the causes of death. In short, the record contains no competent medical evidence establishing any relationship between the cause of the veteran's death and the treatment he received from the VA in regard to his HIV, as there is nothing in any of the veteran's medical records to indicate that his HIV was contracted as a result of VA treatment or that his HIV was a causal factor in his death. Indeed, the statements of the appellant constitute the only evidence of record suggesting a nexus between the veteran's death and VA treatment. The Board does not doubt the sincerity of the beliefs articulated by the appellant regarding the quality of the treatment that the veteran received from the VA. However, the Board emphasizes that there simply is no medical evidence to support the contention that the veteran's death resulted, even in part, from VA treatment. As the appellant is a layperson not shown to possess the medical training and expertise necessary to render an opinion as to medical causation, her contentions, alone, are insufficient to render this claim well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Therefore, the Board must conclude that the appellant has not met her initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim of entitlement to VA dependency and indemnity compensation benefits for the cause of the veteran's death under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) is well grounded. Since this claim is not well grounded, the VA has no further duty to assist the appellant in developing the record to support her claim. See Epps v. Gober, 126 F.3d at 1467-68 ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). The Board observes that, while this claim was initially denied on its merits, the RO continued the denial in a September 1999 Supplemental Statement of the Case on the basis that the claim was not well grounded and set forth the elements a well-grounded claim for the benefit sought. Furthermore, as the Board is not aware of the existence of additional relevant evidence that could serve to make the appellant's claim well grounded, there is no further duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify her of the evidence required to complete her application. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). In this regard, the Board notes that the RO's efforts to procure further treatment records of the veteran following the April 1996 remand proved unsuccessful. ORDER A well-grounded claim not having been submitted, entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for the cause of the veteran's death on the basis of the contraction of HIV as a result of VA treatment is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals