BVA9507197 DOCKET NO. 93-10 593 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from May 1942 to October 1945. He was a prisoner of war (POW) of the German government from June 1944 to May 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision from the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. A RO hearing was held in June 1992. The appellant also contends that misdiagnoses and improper treatment by the VA contributed to the veteran's death. The issue of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 (1991) has not been decided by the RO and is being referred to them for appropriate adjudicatory action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the RO committed error in denying her claim of entitlement to service connection for the cause of the veteran's death. She essentially argues that the veteran's service-connected polyneuritis was a substantial and material factor contributing to the veteran's death. She also avers that the veteran's death was related to his long term captivity as a POW. Consequently, the appellant asserts that she is entitled to benefits based on service connection for the cause of the veteran's death. 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 it is the decision of the Board that the appellant's claim for service connection for the cause of the veteran's death is not well-grounded and the claim is dismissed. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appeal. 2. According to the death certificate, the immediate cause of the veteran's death in March 1991 was respiratory failure due to chronic obstructive pulmonary (COPD) disease. No other significant conditions contributing to the veteran's death were reported. 3. COPD had its onset many years after the veteran's separation from service. 4. At the time of the veteran's death, he was service-connected for anxiety state, rated as 30 percent disabling, polyneuropathy of the right and left upper and lower extremities, each rated 10 percent disabling, shell fragment wound of the left lower jaw, rated noncompensable; however, these disorders were not indicated on the death certificate to have any relationship to the veteran's death. 5. The appellant has not met the initial burden of submitting evidence to justify a belief by a fair and impartial individual that her claim for service connection for the cause of the veteran's death is well grounded. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause death or contribute substantially or materially to the veteran's cause of death. 38 U.S.C.A. §§ 1101, 5107 (West 1991); 38 C.F.R. §§ 3.312 (1994). 2. The appellant has not submitted evidence of a well grounded claim. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The thrust of the appellant's contentions is that the veteran's prisoner-of-war experiences during WWII somehow adversely affected his respiratory system resulting in the chronic disability which caused his death in March 1991. The appellant also contends that the veteran's service-connected disabilities contributed to his cause of death. No medical evidence has been submitted in support of these contentions. The threshold question to be answered in this case is whether the appellant has presented evidence of a well-grounded claim; that is, one which is plausible. If she has not presented a well- grounded claim, her appeal must fail and there is no duty to assist her further in the development of her claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). As will be explained below, we find that her claim is not well-grounded and that there is no statutory duty to assist her further in the development of the claim. The death certificate shows that the veteran died in March 1991. The immediate cause of death was listed as respiratory failure due to or as a consequence of chronic obstructive pulmonary disease. The autopsy report noted that the veteran had chronic obstructive lung disease, restrictive lung disease, and emphysema. Service connection for the cause of the veteran's death may be granted if the evidence shows that 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 (1994). The veteran's service medical records were reportedly burned at the National Personnel Records Center (NPRC) during the 1973 fire. Accordingly, the Board recognizes its heightened duty to explain its findings and conclusions in cases where records have been destroyed by the fire. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). Although the service medical records are absent from the claims file, the Board notes that the first indication of any lung disease and/or COPD was noted on a June 1989 Humana Hospital- Sebastian discharge summary report when an examiner included in the final diagnosis COPD. At that time the veteran was admitted to the hospital for progressive shortness of breath for the prior five days. His condition improved over the course of two days or so and he was discharged to be followed on an outpatient basis. VA hospital records immediately preceding the veteran's death indicate that he underwent back surgery for cervical stenosis in January 1991. While in rehabilitation from the back surgery, the veteran's overall condition gradually took a turn for the worse and he eventually died of respiratory failure on March 24, 1991. As demonstrated by the evidence of record, there is no indication of COPD until more than four decades after separation from service. The appellant has argued that service connection had been granted for polyneuropathy of all four extremities and that the veteran was paralyzed at the time of his last surgery and hospitalization. A review of the claims folder discloses some important distinctions as to the grant of service connection for polyneuropathy. On VA examination in October 1988 the veteran complained of a pins and needle sensation in both feet and hands for 20 years. There were also complaints of back pain and the right leg collapsing about 1986. An impression was made of diffuse osteoarthritis of the spine with some suggestion of hyperreflexia of the upper and lower limbs possible due to early cervical cord compression and polyneuropathy of the upper and lower limbs in a patient with an alcoholic history. In the November 1988 rating determination, the RO granted service connection for polyneuropathy on the basis of reasonable doubt. The RO took the position that it was not established that the polyneuropathy was due to alcohol usage rather than prisoner of war confinement. With respect to osteoarthritis of the spine, service connection had been previously denied and that denial was affirmed by the Board in February 1986. The RO reviewed the issue of service connection for arthritis, only with respect to a traumatic basis, in August 1987 and did not find that the arthritis of the spine was traumatic. When the veteran was admitted to VA facilities in December 1990 it was for gait dysfunction and weakness of all four limbs. Spinal stenosis was diagnosed and he was evaluated for surgery due to progressive paresis of upper and lower extremities due to a herniated disc of C3-C4. The significant fact is that not only does the record not establish that the motor involvement of the upper and lower extremities did not cause or hasten the veteran's death but that the actual cervical myelopathy which occasioned the veteran's hospitalization was never service connected. The only disability for which service connection had been established was for a sensory involvement (pins and needle sensation) in all four extremities which was not the result of the degenerative changes in the spine. Service connection for the cause of the veteran's death may be granted if a service connected disability either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1992). As noted previously, it is contended that the veteran's service-connected disabilities, particularly polyneuropathy of the upper and lower extremities contributed to his death. At the time of his death, the veteran was service connected for the following disabilities: anxiety state (also claimed as post traumatic stress disorder), 30 percent; polyneuropathy of the right upper extremity, 10 percent; polyneuropathy of the left upper extremity, 10 percent; polyneuropathy of the right lower extremity, 10 percent; polyneuropathy of the left lower extremity, 10 percent; and shell fragment wound of the left lower jaw, noncompensable for a total combined rating of 60 percent. The polyneuropathy which was service connected was not the paresis due to cervical myelopathy and the herniated cervical disc. The United States Court of Veterans Appeals (Court) has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, No. 92-20 (U.S. Vet. App. May 5, 1993). Therefore, lay evidence, such as the appellant's opinion that the veteran's service-connected disabilities caused his COPD or that the service-connected polyneuropathy was the cause of his final hospitalization is not competent to support a finding on a medical question requiring special experience or special knowledge. There is no credible evidence of record suggesting that the service connected disabilities were in any way responsible for the veteran's fatal respiratory failure or cervical myelopathy. Apart from the appellant's statements as to medical causality, the evidence of record does not implicate any service-connected disability either as a causal or accelerating factor in the veteran's death. Consequently, the Board has concluded that the appellant's claim for service connection for the cause of the veteran's death is not warranted. ORDER Entitlement to service connection for the cause of the veteran's death has not been established. The issue is dismissed. JAN DONSBACH 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.