Citation Nr: 0006297 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 94-43 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The veteran served on active duty from September 1942 to January 1945, and from December 1947 to July 1968. This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Atlanta, Georgia, Department of Veterans Affairs Regional Office (VARO). FINDING OF FACT Competent medical evidence has not been presented showing that a disability incurred in service caused the veteran's death, or that cecal adenocarcinoma with widespread metastases was caused by exposure to herbicidal agents in service. CONCLUSION OF LAW A well grounded claim for service connection for the cause of the veteran's death has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1310, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks service connection for the cause of the veteran's death. She contends that exposure to herbicidal agents, Agent Orange, in service caused the appellant to develop cancer which caused his death. Service connection for the cause of a veteran's death may be granted if the evidence of record demonstrates that a disability incurred in service caused the veteran's death. 38 U.S.C.A. § 1310 (West 1991 & Supp. 1999); 38 C.F.R. § 3.312 (1999). Additionally, 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 a principal or contributory cause of death. The issue involved must be determined by the exercise of sound judgment, without recourse to speculation, after careful analysis of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a) (1999). A findings that the service-connected disability was a contributory cause of death requires objective evidence that it substantially or materially contributed to the cause of death, by either combining to cause death, or aiding or lending assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (1996). With respect to claims for service connection based on Agent Orange exposure, there are also specific regulatory provisions which must be satisfied. The VA has determined that service connection based on exposure to herbicides used in Vietnam may only be presumed for those conditions which it has found a positive association between the condition and such exposure. 59 Fed. Reg. 341 (1995). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acne form disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (1999). However, the threshold question to be answered in all cases is whether the appellant's claim is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Epps v. Gober, 126 F. 3d 1464 (1997), adopting the definition in Epps v. Brown, 9 Vet. App. 341, 344 (1996). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A § 5107(a) (West 1991 & Supp. 1999). Furthermore, a claim which is not well grounded precludes the Board from reaching the merits of a claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. 38 U.S.C.A. 5107(a) (West 1991 & Supp. 1999). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19 (1993). A review of the evidence of record reflects that the veteran served on active duty in the Republic of Vietnam during the Vietnam War. In January 1989, the appellant filed a claim for service connection for the cause of the veteran's death. She argued that the veteran developed different kinds of cancer due to Agent Orange exposure in service. In support of the appellant's claim, the VA received a certified death certificate, which shows that the veteran died in January 1989 due to respiratory failure, due to "disseminated cancer of unknown primary site." In 1994, a copy of the "Assessment" portion of the veteran's autopsy report was received, which indicated that the veteran had a primary mucinous adenocarcinoma in the cecum, showing both extracellular mucin and signet-ring cells. The duodenum showed complete encasement by the metastatic tumor. The tumor had massive metastasis to the pancreas. There was also widespread metastasis of the adenocarcinoma in the mediastinal, peri-aortic, and mesenteric lymph nodes. All lobes of both lungs also showed diffuse involvement by the malignant process. The report reflected that the veteran's death was "attributed to a primary cecal adenocarcinoma with massive widespread metastases. The carcinoma shows both prominent extracellular mucin and signet-ring cell formation; the signet-ring cell type of mucinous colonic adenocarcinoma is associated with a particularly poor prognosis. The immediate cause of death in this patient can be attributed to the carcinomatosis of the lungs, resulting in respiratory insufficiency." At the time of his death, the veteran was service connected for bilateral defective hearing, rated 10 percent disabling; psoriasis, rated 10 percent disabling; and hypertension and tendinitis of the right shoulder, both rated as noncompensable (0 percent). After reviewing the evidence of record, the Board finds that a well grounded claim has not been submitted for service connection for the cause of the veteran's death. Competent medical evidence has not been presented showing that a disability incurred in service caused the veteran's death, or that carcinomatosis of the lungs from the primary cecal adenocarcinoma was caused by exposure to herbicidal agents in service. Also, we note that the type of cancer suffered by the veteran is not among the diseases listed in 38 C.F.R. § 3.309(e). The Board acknowledges the appellant's belief that a causal relationship exists between the development of the metastatic cecal adenocarcinoma and the veteran's exposure to Agent Orange in service. However, as a layman, the appellant is not competent to offer opinions on medical causation, and the Board simply may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Moreover, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Therefore, regrettably, in view of the above, the Board concludes that a well grounded claim has not been presented. We note that under 38 U.S.C.A. § 5103(a) the VA is obligated to advise claimants of the evidence necessary to complete their application. Robinette v. Brown, 8 Vet. App. 69 (1995). VARO successfully completed this obligation in its statement of the case and supplemental statement of the case. Likewise, the Board's discussion above informs the appellant of the requirements for the completion of her application for the claim for service connection. ORDER Service connection for the cause of the veteran's death is denied. C. P. RUSSELL Member, Board of Veterans' Appeals