BVA9502791 DOCKET NO. 93-08 143 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran had a period of recognized guerrilla service from January to June 1945. This matter comes before the Board of Veterans' Appeals (the Board) from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its December 1992 rating determination, the RO denied service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran suffered from severe headaches, dizziness, and high blood pressure during his years in service which she believes are related to the cause of his 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 the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for the cause of the veteran's death is well grounded. FINDINGS OF FACT 1. The veteran's death in September 1985 was due to cardio- respiratory arrest, due to a cerebral hemorrhage following a ruptured cerebral "aneuryn." 2. There is no competent medical evidence of record that points to a causal relationship between the veteran's service activities and any disability causing or contributing to cause his death. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the appellant has presented evidence of a well-grounded claim, that is, a claim which is plausible, meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by evidence which justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the appellant has not submitted competent evidence which meets the statutory prerequisite of submitting a well-grounded claim, the case must be dismissed, as the Board does not have jurisdiction to adjudicate a claim that is not well-grounded. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Further, the statutory duty to assist the appellant in the development of his claim does not arise unless and until a well-grounded claim is presented. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Service connection may be granted for a disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war and a brain hemorrhage, brain thrombosis, endocarditis, myocarditis, or a tumor of the brain becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. An enlistment physical examination, if performed, is not of record. The separation physical examination conducted in April 1947 evaluated all conditions as normal. A processing affidavit dated April 12, 1947 reported no wounds or illnesses incurred in service. There are no other service records in the file. It is noted that no VA examinations or private treatment records are in the file, covering approximately forty years between the appellant's separation from service and his death, nor does the appellant allege that there was any such treatment of the veteran during this time The death certificate shows that the veteran was 65 years old when he died. The death certificate shows that the veteran's death was due to cardio-respiratory arrest resulting from a cerebral hemorrhage caused by a ruptured cerebral "aneuryn." It is not clear whether an autopsy was performed. The appellant's claim was filed in August 1992, almost seven years after the appellant's death. The appellant was asked in May 1992 (in connection with another claim), October 1992 and April 1993, to provide relevant evidence in support of her current claim, but none such was provided, except for documentation relating to the appellant's marriage to the veteran and to his official death records. According to letters submitted by the appellant in May 1993 and June 1994, she has no additional evidence to support the claim. The records are sparse in this case which the appellant attributes a typhoon and flooding in 1964 and 1965 resulting in the loss and destruction of records which she asserts, supported her claim. The veteran was medically attended to on September 9, and September 10, 1985, the date of his death. In October 1992, the RO requested the clinical records from the Romana Pangan District Hospital in San Jose, which apparently did not provide the records and from the appellant, who stated that the clinical records had been destroyed during a volcanic eruption. No competent evidence has been submitted which establishes a causal relationship between the veteran's service activities and the cause of his death. The appellant has argued that the veteran's service activities were related to his death. However, her allegations provide the only evidence in support of her claim. As a lay person, she lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In Moray v. Brown, 5 Vet.App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. The appellant's statements are not within her competence since she is not a physician or trained health care provider. She has not provided any competent evidence linking any incidents or activities during the veteran's period of service, with his death. In the absence of competent evidence, the Board has no alternative but to conclude that the claim is not well-grounded. A review of the record reflects that the RO's denial was based on a review of the merits of the appellant's claim reflecting that the RO found the claim well-grounded. The appellant was fully informed of his procedural rights and the applicable laws and regulations regarding the RO decision in the statement of the case and supplemental statement of the case. The Board's decision is based on the fact that the claim is not well-grounded and is not final as to the actual merits of the claim. Accordingly, the Board finds that the appellant's procedural rights have not been prejudiced and a remand to the RO for additional development is not deemed necessary. Bernard v. Brown, 4 Vet.App. 384 (1993). By dismissing this claim, the Board does not burden the appellant with a final determination on the merits of the claim. Therefore, if a well-grounded claim is submitted in the future, the appellant will not be required to submit new and material evidence to reopen this claim. McGinnis v. Brown, 4 Vet.App. 239 (1993). ORDER The claim of entitlement to service connection for the cause of the veteran's death is not well grounded, and, accordingly, the appeal is dismissed. RICHARD B. FRANK 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.