Citation Nr: 0006549 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-18 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to dependency and indemnity compensation for the cause of the veteran's death pursuant to 38 U.S.C.A. § 1151 (West 1991) as a result of care rendered at a VA medical facility. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from September 1948 to October 1951. The veteran died in June 1997. The appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. FINDINGS OF FACT 1. The veteran died in June 1997. The death certificate lists the cause of death as anoxic encephalopathy, and other significant conditions contributing to death but not resulting in the underlying cause was chronic obstructive pulmonary disorder and hypothyroidism. 2. The appellant's claim that medical care provided at a VA medical facility caused or hastened the veteran's death is not plausible. CONCLUSION OF LAW The appellant's claim of entitlement to dependency and indemnity compensation for the cause of the veteran's death pursuant to 38 U.S.C.A. § 1151 as a result of care rendered at a VA medical facility is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dependency and indemnity compensation may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.5(a) (1999); see 38 U.S.C.A. Chapter 11. Generally, the death of a veteran is service connected if "the death resulted from a disability incurred or aggravated [ ] in the line of duty in the active military, naval, or air service." 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). Under certain circumstances, dependency and indemnity compensation shall be awarded for a qualifying death of a veteran in the same manner as if such death were service- connected. 38 U.S.C.A. § 1151(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.358(a) (1999). First, the death must be caused by hospital care, medical or surgical treatment, or examination furnished the veteran by VA, and the proximate cause of the death was a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or b) an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1). In determining whether death resulted from disease or injury or aggravation of an existing disease or injury suffered as a result of VA care or treatment, the evidence must show actual causation rather than coincidental occurrence. 38 C.F.R. § 3.358(c)(1) and (2). Compensation is not payable for the continuation or natural progress of the disease or injuries for the VA care or treatment was authorized. 38 C.F.R. § 3.358(b)(2). Moreover, compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. 38 C.F.R. § 3.358(c)(3). "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. Id. Finally, the death must not be the result of the veteran's willful misconduct. 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.358(c)(4). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). VA cannot undertake to assist a veteran in developing facts pertinent to his claim until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). A review of the claims folder reveals that the veteran died in June 1997 while an inpatient at a VA facility. The death certificate lists the cause of death as anoxic encephalopathy, and lists other significant conditions contributing to death but not resulting in the underlying cause as: chronic obstructive pulmonary disorder and hypothyroidism. Although an autopsy was performed, no specific cause of death was found. The medical evidence shows that the veteran was admitted to VA care in February 1989, following a December 1988 suicide attempt in which he suffered anoxic encephalopathy with resulting dementia. In March 1997, the veteran was transferred to the VA nursing home at Aspinwall for continued care. In May 1997, the veteran was transferred to the VA hospital Dementia Special Care Unit due to wandering when restraints were removed. He had become more agitated, and was in need of complete care in activities of daily living. Notes indicated that the veteran showed improvement there, including weight gain and increased strength. On the date of his death, the veteran was found without vital signs. Pursuant to previous orders, no resuscitation was initiated. In this case, the appellant essentially asserts that the veteran's death was caused or hastened by changes associated with downsizing within the VA healthcare system. During the January 2000 hearing, she related that she was told the veteran was transferred from the VA hospital to the VA nursing home because VA was closing intermediate care units. She noticed a change in his care that came about when he was transferred, specifically, changes in medication and restraining policies. The determination as to whether medical care caused or hastened an individual's death is necessarily a medical determination. Accordingly, a well grounded claim requires medical evidence, rather than the appellant's personal lay opinion, which relates the veteran's death to the VA care in question. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. The appellant conceded during her January 2000 hearing that she has not been advised by a physician that such a relationship exists. A review of the claims folder fails to uncover any such evidence. In fact, the medical evidence shows that the veteran had showed recent improvement and had been in his normal state of health until he was found on the date of his death. Without medical evidence to support the appellant's assertion, the Board cannot conclude that the claim is plausible. Therefore, the Board finds that the appellant has not submitted a well grounded claim for compensation for the cause of the veteran's death pursuant to 38 U.S.C.A. § 1151. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the appellant's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). On this point, the Board observes that the appellant has requested an independent medical expert opinion concerning the cause of the veteran's death. The law provides that the Board may request such an opinion when the medical complexity or controversy involved so warrants. U.S.C.A. § 7109(a); 38 C.F.R. §§ 20.901(a). However, the Board does not find that the medical issue involved in this appeal is so complex or controversial as to require an independent medical expert opinion. In any event, in this case, the claims folder lacks the requisite evidence to establish that the claim is even plausible and therefore well grounded, the Board has no authority to further develop the claim. Morton, 12 Vet. App. at 486. The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the appellant's claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the [appellant] solely from the omission of the well-grounded analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). If the appellant wishes to complete hers application for compensation for the cause of the veteran's death pursuant to 38 U.S.C.A. § 1151, she should submit medical evidence that affirmatively relates the veteran's death to VA care. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. ORDER Entitlement to dependency and indemnity compensation for the cause of the veteran's death pursuant to 38 U.S.C.A. § 1151 as a result of care rendered at a VA medical facility is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals