Citation Nr: 0002565 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 96-02 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for the veteran's death. 3. Entitlement to compensation, pursuant to the provisions of 38 U.S.C.A. § 1151, for non-A non-B hepatitis and renal insufficiency, for accrued benefits purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from August 1943 to February 1946, and died on August [redacted], 1992. The appellant has been recognized as the veteran's widow. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1995 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that in July 1995 the appellant's representative raised an issue of entitlement to service connection for accrued benefits purposes for non-A non-B hepatitis and renal insufficiency pursuant to the holding in the case of Allen v. Brown, 7 Vet.App. 439 (1995). However, the appellant has not initiated an appeal from the RO's December 1995 denial of that claim. Therefore, that matter is not before the Board for appellate review. 38 C.F.R. §§ 20.200, 20.201. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issues resolved in this appeal has been obtained by the RO. 2. According to his death certificate, the veteran died in August 1992 at the age of 68 as a result of ischemic bowel due to peritonitis due to end stage renal disease, on dialysis. Rheumatoid arthritis was listed as a significant condition contributing to his death. 3. At the time of his death, the veteran was not service- connected for any disability, however he had a pending claim under 38 U.S.C.A. § 351 (now § 1151) involving several disorders. Following his death, the portion of the veteran's pending claim for compensation concerning the residuals of a total right knee arthroplasty was granted, and those residuals were rated as 30 percent disabling, effective from November 25, 1991. 4. No medical evidence has been presented to show that chronic renal failure, ischemic bowel, peritonitis, and rheumatoid arthritis were related to the veteran's active service, or that the residuals of his total right knee arthroplasty caused or contributed to his death in any way. 5. At the time of the veteran's death, an appeal was pending on the veteran's claim for compensation for hepatitis and renal insufficiency under 38 U.S.C.A. § 351. 6. In February 1987, the veteran, who had pre-existing chronic renal failure, underwent a right total knee arthroplasty at a VA hospital; due to an infection which developed at the surgical site, in March 1987 he returned to have the prosthesis removed and the wound debrided. 7. The veteran developed an acute and transitory case of non-A non-B hepatitis from blood transfusions administered during the March 1987 procedure; he also developed acute renal failure, which resolved by the time of his hospital discharge. 8. No medical evidence has been presented to show that the acute renal failure and non-A non-B hepatitis the veteran experienced in March 1987 caused or contributed to his death in any way. 9. There is no medical evidence establishing that the veteran's death was caused or accelerated in any manner as a result of any VA hospitalization, medical or surgical treatment. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well- grounded claim for entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.307, 3.309, 3.312 (1999). 2. The appellant has not submitted evidence of a well- grounded claim for dependency and indemnity compensation benefits, under the provisions of 38 U.S.C.A. § 1151, for the veteran's death. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. §§ 3.358, 3.1000 (1999). 3. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151, for non-A non-B hepatitis, and renal insufficiency, has not been established for accrued benefits purposes. 38 U.S.C.A. §§ 1151, 5107, 5121 (West 1991); 38 C.F.R. §§ 3.358, 3.1000 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records contain no complaints or findings of arthritis, or kidney, bowel, or liver problems. The report of the veteran's VA hospitalization in November and December 1948 listed his urinalysis results as normal. The report of the veteran's VA hospitalization in February 1986 for arthrocentesis of the left knee noted that he had a history of a biopsy in 1985 of his right kidney for proteinuria. In July and August 1986, the veteran underwent a left total knee arthroplasty at a VA Medical Center from which he recovered satisfactorily. In February 1987, the veteran underwent a right total knee arthroplasty at a VA Medical Center. He developed a severe infection at the surgical site and was again admitted to a VA Medical Center in March 1987 for removal of the right knee prosthesis, debridement and, ultimately, closure of the wound. The report of his VA hospitalization from March through June 1987 noted that in 1985 a renal biopsy revealed that he had membranous glomerulonephritis. It further noted that he had a history of significant chronic renal failure. During the March 1987 removal of the right knee prosthesis, he was transfused with three units of blood. He developed acute non-A non-B hepatitis from the transfusions, as well as acute renal failure. In April 1987, a CT (computed tomography) scan was performed of his abdomen. It was noted that his liver was completely normal, with no evidence of abscess, and that there was a 2 x 3.5 centimeter simple renal cyst on the right kidney. During his follow-up hospitalization at a VA Medical Center in July and August 1987, it was noted that his acute renal failure had resolved, and his hepatic inflammation was improving. In September 1988, the veteran underwent a liver biopsy at a VA Medical Center, to determine if he had chronic active hepatitis. It does not appear that those biopsy findings are contained in the claims file and, as noted below, they apparently cannot be located at the federal archives. In April 1990, the veteran filed a claim for compensation under 38 U.S.C.A. § 351 (now § 1151) for residuals of the right knee arthroplasty, including hepatitis and renal failure. That claim was denied by the RO in February 1991. The veteran filed a notice of disagreement and appealed from that decision. The Board notes that the RO indicated in its February 1991 decision that it had reviewed the veteran's original hospital records in the course of making that decision. The Board further notes that it appears the RO returned the original records to the appropriate VA Medical Center and that they were subsequently retired to the federal archives. The RO has sent numerous requests to retrieve those records, but has been informed that the records cannot be located. The Board has reviewed the copies of those records, which are contained in the claims file. The report of the veteran's final hospitalization, at St. Joseph's Medical Center, in South Bend, Indiana, in August 1992, lists his discharge diagnosis as 1) ischemic bowel disease, status-post partial left colectomy, 2) end stage renal disease secondary to membranous nephropathy, 3) severe central nervous system obtundation, question recent cerebrovascular event, 4) severe chronic rheumatoid arthritis, status-post knee replacement, 5) history of old cerebrovascular event, 6) membranous glomerulonephropathy, 7) history of hypertension, 8) history of cataracts, and 9) history of ulcer. The veteran was discharged to his home for hospice care as his condition was considered terminal. The veteran died at his residence on August [redacted], 1992 at the age of 68. No autopsy was performed. The death certificate listed his cause of death as ischemic bowel due to peritonitis, due to end stage renal disease, on dialysis. Rheumatoid arthritis was listed as a significant condition contributing to his death. In September 1992, the appellant, the veteran's widow, filed a claim for service connection for the cause of the veteran's death. The RO denied that claim in October 1992. In June 1993, the appellant contacted the RO. She notified the VA that she wished to continue the veteran's claim for accrued benefits pursuant to 38 U.S.C.A. § 1151, and that she wished to claim dependency and indemnity compensation benefits pursuant to 38 U.S.C.A. § 1151 for the veteran's death. By rating decision in June 1995, the RO granted accrued benefits to the appellant based on the 38 U.S.C.A. § 1151 claim pending at the time of the veteran's death for the residuals of the right knee arthroplasty, and rated that disability as 30 percent disabling effective from November 25, 1991. However, the RO continued its denial of § 1151 benefits for non-A non-B hepatitis and acute renal failure. The appellant filed a notice of disagreement and appealed from that denial. II. Service Connection for Cause of Death Under 38 U.S.C.A. § 5107(a), a claimant has an initial burden to produce evidence that a claim is well-grounded or plausible. See Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992). A well- grounded, plausible claim is one which is meritorious on its own or is capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service, or for disability found to be proximately due to or the result of service-connected disease or disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.310 (1999). Where a veteran served continuously for 90 days or more during a period of war and certain chronic diseases, such as arthritis and nephritis, become manifest to a compensable degree within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there was no evidence of such diseases during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (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. The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death, or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. Service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Where an issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1992). However, 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony, because lay persons are not considered legally competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The United States Court of Veterans Appeals has held that where the determinative issue involves medical causation or a medical diagnosis, only competent medical evidence will serve to make a claim plausible or possible. Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Lay evidence from the appellant or her representative is not competent to establish a medical diagnosis or causation. Although the appellant may indeed believe that the veteran's death was casually related to his active service, upon consideration of all the evidence presented, the Board finds that the appellant has not submitted competent medical evidence sufficient to justify a belief by a fair and impartial individual that the veteran's ischemic bowel disease, peritonitis, end stage renal disease, and rheumatoid arthritis were incurred in or otherwise related to his active service. In making this determination, the Board particularly notes that the veteran's service medical records showed no complaints or findings of those diseases, and the first medical evidence contained in the claims file of those diseases dates from many years after his separation from service. Further, no competent medical evidence has been presented to show that the veteran's death was causally related to his active service. Given the evidence that is of record, the Board finds that the appellant's claim is not well-grounded and the appeal on this issue is denied. See Edenfield v. Brown, 8 Vet.App. 384 (1995). To submit a well-grounded claim, on this issue the appellant would need to offer competent evidence, such as a medical opinion, that there is a relationship between the causes of the veteran's death and his military service. Robinette v. Brown, 8 Vet.App. 69 (1995). III. Entitlement to Dependency and Indemnity Compensation Benefits Pursuant to 38 U.S.C.A. § 1151 The threshold question to be answered with regard to the appellant's claim for dependency and indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1151 is whether she has presented evidence of a well-grounded claim; that is, a claim 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 the claim because such additional development would be futile. 38 U.S.C.A. § 5107(a). As explained below, the Board finds that the claim is not well-grounded. Prior to October 1, 1997, Section 1151 of Title 38 of the United States Code provided, in pertinent part, that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under Chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of the veteran, disability or death compensation under this chapter and dependency and indemnity compensation under chapter 13 of this Title shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151. In Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, ___ U.S. ___, 115 S.Ct. 552 (1994), the United States Supreme Court held that fault of the VA need not be shown as an element of recovery under 38 U.S.C.A. § 1151. Title 38 C.F.R. § 3.358, an implementing regulation for 38 U.S.C.A. § 1151, was revised to comply with the Gardner decision. The Board notes that effective October 1, 1997, 38 U.S.C.A. § 1151 was amended such that VA negligence would generally have to be shown for a claimant to obtain compensation under the statute. This amendment, however, does not apply to cases filed prior to the effective date. Pub. L. No. 104- 204, § 422(a)-(c) (1996). As this claim was filed prior to the effective date, the former statute must be applied. Cf. Karnas v. Derwinski, 1 Vet.App. 308 (1991) (in the present case, the former statute, is more favorable to the appellant). See also Dudnick v. Brown, 10 Vet.App. 79 (1997). To obtain VA compensation, it is required that the veteran's disability or death must have been the result of VA hospitalization, surgical or medical treatment - essentially a "medical nexus" requirement. Cf. Lathan v. Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (Medical nexus required in the direct service connection context). The Board notes in passing that the medical nexus requirement for 38 U.S.C.A. § 1151 is actually a higher standard than what is required for direct service connection. For the latter, generally a claimant need only show that a disability had an onset in service; for the former, a mere coincidental onset is not enough - VA treatment must be shown to be a causal factor. 38 C.F.R. § 3.358(c)(1). As noted above, 38 U.S.C.A. § 1151 provides that, when a veteran suffers an injury or an aggravation of an injury as a result of VA hospitalization, medical or surgical treatment, and such injury or aggravation results in the death of the veteran, dependency and indemnity compensation shall be awarded in the same manner as if such death were service connected. In this case, the appellant has maintained that the veteran received improper care at a VA medical facility in 1987, and that the improper treatment caused or hastened his death. The appellant has not alleged that the right knee disability for which she was awarded accrued benefits caused or contributed to his death and that disability is not apparently involved in the current appeal. The Board notes that although the results of the veteran's 1988 liver biopsy are not of record, the report of the veteran's final hospitalization, and his Death Certificate, do not state that he was suffering from any chronic liver disorder. Thus, even if the veteran had active hepatitis in 1988, there is no medical evidence that he still had that disorder in 1992 at the time of his death, or that it contributed to his death. A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Here, the appellant has not submitted any medical opinion or authority in support of her assertions that the veteran received improper medical care while undergoing treatment by the VA and that the medical care he did receive contributed to or resulted in his death. Although the appellant has expressed her opinions with regard to the medical care the veteran received at the VA medical facility, she is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet. App. at 494-95. There is no medical evidence of record that would establish that the veteran sustained an injury or an aggravation of an injury as a result of VA hospitalization, medical or surgical treatment which resulted in his death. Thus, the appellant's claim may not be considered well-grounded. 38 U.S.C.A. §§ 1151, 5107(a). Since her claim is not well-grounded, it must accordingly be denied. Grottveit v. Brown, 5 Vet. App. 91 (1993); Edenfield v. Brown, 8 Vet. App. 384 (1995). IV. Accrued Benefits The Board notes that the appellant's claim is well-grounded, within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is possible to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). As a preliminary matter, the Board finds that the appellant filed a timely claim for accrued benefits. See 38 U.S.C.A. § 5121(c) (application for accrued benefits must be made within one year after the date of the veteran's death); see also 38 C.F.R. § 3.1000(c). An accrued benefit is a periodic payment to which the veteran was entitled at death under existing ratings or decisions, or based on evidence in the file at the date of death and due and unpaid for a period not to exceed two years. [One year for benefits paid prior to October 1996]. 38 U.S.C.A. § 5121(a); Lathan v. Brown, 7 Vet. App. 359, 368 (1995). In the case of Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed.Cir. 1996), cert. denied, 117 S. Ct. 2478 (1997), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999), stated that the substance of a survivor's claim for accrued benefits is purely derivative from any benefits to which the veteran might have been entitled at the time of his death. The survivor cannot receive any benefit that the veteran could not have received upon proper application therefor. What the law gives to the survivor is, therefore, essentially the right to stand in the shoes of the veteran and pursue his claim after his death. In the present case, the veteran had sought entitlement to benefits, under the provisions of what is now 38 U.S.C.A. § 1151, for non-A non-B hepatitis, and acute renal insufficiency claimed as disability residual to the left lower leg infection. As noted above, in accordance with the holding in Karnas v. Derwinski, 1 Vet.App. 308 (1991), the language of 38 U.S.C.A. § 1151 in effect prior to October 1, 1997 will be applied in this case, as it is more favorable to the veteran and the appellant. Under that earlier version of 38 U.S.C.A. § 1151, fault on the part of VA need not be shown in order for a claimant to obtain benefits. See Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, ___ U.S. ___, 115 S.Ct. 552 (1994). However, the appellant must still show that the veteran sustained some injury or aggravation of an injury or illness as a result of VA treatment which resulted in additional disability to the veteran, in order to be awarded accrued benefits under 38 U.S.C.A. § 1151. In this case, the acute renal failure the veteran suffered in March 1987 had resolved by the time of his discharge from the VA Medical Center in June of that year. Further, no medical evidence has been presented to show that that incident of acute renal failure caused any worsening of his pre-existing membranous glomerulonephritis. Additionally, the report of the veteran's VA hospitalization in July and August 1987 characterized his non-A non-B hepatitis as an acute form of hepatitis, and noted that the veteran's hepatic inflammation was improving. The claims file contains no medical evidence indicating that his acute hepatitis did not ultimately resolve without residuals. Thus, when the veteran filed his claim in April 1990 for compensation under the former section 38 U.S.C.A. § 351 for non-A non-B hepatitis, and renal insufficiency, there was no medical evidence to show that he still had those disorders, or any additional disability residual to those disorders. They were acute in nature and were medically managed and resolved. Therefore, the Board finds that the RO was correct to deny compensation for those disorders. Since the veteran thus would not have been entitled to benefits under 38 U.S.C.A. § 1151 for non-A non-B hepatitis or for acute renal insufficiency, and since the appellant "stands in the shoes" of the veteran and cannot get benefits to which the veteran was not entitled, there are no further accrued benefits owed to the appellant. See 38 U.S.C.A. § 5121; 38 C.F.R. §§ 3.1000. ORDER Because evidence of a well-grounded claim has not been submitted, the appellant's claim for service connection for the cause of the veteran's death is denied. Because evidence of a well-grounded claim has not been submitted, the appellant's claim for dependency and indemnity compensation, under the provisions of 38 U.S.C.A. § 1151, for the veteran's death, is denied. Entitlement to compensation benefits, under the provisions of 38 U.S.C.A. § 1151, for non-A non-B hepatitis and renal insufficiency, for the purposes of accrued benefits, is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals