BVA9505681 DOCKET NO. 93-09 195 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for cause of the veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The veteran had active service from November 1942 to October 1945. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an April 1991 rating decision of the Atlanta, Georgia, Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to burial benefits. The appellant also appeals an August 1991 rating decision, which denied entitlement to service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection is warranted for the veteran's cause of death. She asserts that the veteran's bronchiectasis could have or did begin in service, and that it was progressive in nature, leading to death. The appellants also contends that the claim for entitlement to burial benefits should be granted. She submits that burial benefits should be awarded based on the veteran's military service. 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 for entitlement to service connection for the cause of the veteran's death is plausible, and it is also the decision of the Board that the claim for entitlement to burial benefits lacks legal entitlement. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the agency of original jurisdiction. 2. The veteran had active service from November 1942 to October 1945. 3. The veteran died on February [redacted] 1991, at the age of 75. The death certificate shows that the immediate cause of death was severe chronic lung disease. 4. Competent medical evidence showing that the cause of the veteran's death, a severe chronic lung disorder, was related to service has not been submitted nor alleged. 5. The veteran was not in receipt of pension or compensation at the time of his death, and he did not have any such application pending at the time of his death. 6. The veteran did not die in a VA medical center, domiciliary or a nursing home, or while traveling under proper authorization, and at the VA's expense to or from a specified place for the purpose of examination or care. 7. The veteran's body was not held by a State, or political subdivision of a state while the next of kin or other persons failed to claim the body. CONCLUSIONS OF LAW 1. The claimant has not submitted evidence of a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5107 (West 1991). 38 C.F.R. §§ 3.303, 3.312 (1994). 2. The claim for entitlement to burial benefits, including a plot or internment allowance, is denied for failure to state a claim upon which relief may be granted. 38 U.S.C.A. §§ 1110, 2302, 2303, 2306, 2307, 5107 (West 1991); 38 C.F.R. §§ 3.1600, 3.1601, 3.1604 (1994); Sabonis v. Brown, 6 Vet.App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for the Cause of the Veteran's Death Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 5107 (West 1991). Where the disability is bronchiectasis, service connection may also be granted where the disease became manifest to a compensable degree within one year following separation. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially and materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). Factual Background According to a Marine Corps Recruiting Station examination report, dated in May 1938, the veteran's application for enlistment was rejected because he was underweight, and for a slight deviation of nasal septum (not entirely suspending passage of air), and for chest expiration one inch under the requirement. The disqualification was waived. It was noted that a chest x-ray was not performed at recruitment because facilities were unavailable. According to a service medical examination, dated in August 1942, the veteran's respiratory system was normal. The chest was 32 1/2 at expiration, and 34 1/2 at inspiration. In August 1943, the veteran was seen for complaints of pain in the right side of his chest of several days duration. Physical examination was negative except for a rash, diagnosed as herpes zoster. At discharge in October 1945, a photofluorogram of the chest was negative. A report of physical examination, dated in October 1945, shows that the respiratory system, bronchi, lungs, pleura, et cetera, were all normal. The chest was 33 at expiration, and 35 at inspiration. There were no defects or abnormalities noted on the discharge examination. A rating sheet, dated in April 1947, shows that the veteran was service-connected for a dental disorder, carious teeth, for outpatient treatment purposes only. In November 1986, the veteran applied for benefits for several conditions, claimed to be service-connected, including bronchiectasis. The veteran wrote that he had bronchiectasis or lung condition, which he claimed resulted from working in the dust making runways from 1943 to 1945. The veteran wrote that he had been hospitalized in August 1986, but he did not indicate the reason for hospitalization. Although he wrote that he had been treated for several other disorders since service, for which he was claiming service-connection, he did not identify any post- service treatment for bronchiectasis. The RO denied entitlement to service connection for bronchiectasis and other disorders in February 1987. The veteran submitted a notice of disagreement, but failed to perfect his appeal, and the decision became final. 38 U.S.C.A. § 7105 (West 1991). The veteran's Death Certificate shows that he died on February [redacted] 1991 at the age of 75. The immediate cause of death was severe chronic lung disease. Analysis The threshold question before us is whether the claim for entitlement to service connection for cause of the veteran's death is plausible, that is, meritorious on its own or capable of substantiation. See Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a claimant has met the burden of submitting evidence of a well- grounded claim, the VA has a duty to assist the claimant in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the 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 (1991). However, where the 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 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). If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92- 93 (1993). Emphasis provided. The appellant claims that the veteran had bronchiectasis in service, and that it "could or did start then but to the extent only no one knows." She refers to the hours that the veteran spent in the dust on the air field. She asserts that this eventually led to his death. However, neither bronchiectasis nor other chronic lung disease were shown during service, and bronchiectasis was not manifested to a compensable degree within one year following separation from service. The veteran had no service-connected disorders at the time of his death. Severe chronic lung disease was not demonstrated until decades after the veteran's service. Other than the information set forth on the application for benefits, dated in November 1986, and the appellant's statements, there is no evidence that the veteran was, in fact, diagnosed with or treated for bronchiectasis. The stated cause of death on the Death Certificate was severe chronic lung disease. As noted above, the appellant's unsupported contentions cannot constitute a well-grounded claim without supporting medical evidence. Espiritu, 2 Vet.App. at 492; King v. Brown, 5 Vet.App. 19 (1993). Clearly, her statement that bronchiectasis "could or did start then but to the extent only no one knows," is merely speculative. In two recent decisions, Grottveit v. Brown, 5 Vet.App. 91 (1993) and Grivois v. Brown, 6 Vet.App. 91 (1994), the Court, has held that claims for service connection denied on the merits by the Board and, preceding the Board's decisions, by the Regional Office, were not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, 5 Vet.App. at 92. With respect to 38 U.S.C.A. § 5107(a)(West 1991), the Court stated, [t]his statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which--as well-grounded-- required adjudication...Attentiveness to this threshold issue is, by law, not only for the Board but for adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, 6 Vet.App. at 139. The Court expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because new and material evidence would be required to reopen. The Court deemed it appropriate, where the Board denied on the merits a claim that was not well-grounded, to "recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, 5 Vet.App. at 93 Grivois, 6 Vet.App. at 140. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. Id., Grivois, 6 Vet.App. at 141. In view of the clear indication given by the Court, finality in accordance with 38 C.F.R. § 3.104 (1993) must not attach to the rating decision of August 1991 with respect to the claim of service connection for the veteran's cause of death. II. Entitlement to Burial Benefits The law provides that VA burial benefits may be paid when a veteran dies of a service-connected disability or disabilities. 38 U.S.C.A. § 2307 (West 1991); 38 C.F.R. § 3.1600(a) (1994). In addition, if a veteran's death is not service-connected, a burial allowance may be paid for a deceased veteran who, at the time of his death, was in receipt of compensation or pension or, but for the receipt of retirement pay, would have been in receipt of compensation. 38 U.S.C.A. § 2302(a)(1) (West 1991); 38 C.F.R. § 3.1600(b)(1) (1994). In addition, burial benefits may also be paid if the veteran, at the time of his death, had an original or reopened claim for VA pension or compensation pending, which would have resulted in an award of such benefit. 38 C.F.R. § 3.1600(b)(2) (1994). If the deceased was a veteran of any war or was discharged or released from active military service for a disability incurred or aggravated in line of duty, and the body was held by a State or a political subdivision of a State, and there was no next of kin or other person claiming the body, and there were not sufficient available resources to cover burial and funeral expenses, VA burial benefits will be awarded. 38 U.S.C.A. § 2303(a)(2) (West 1991); 38 C.F.R. § 3.1600(b)(3) (1994). Burial benefits may also be paid if the veteran dies of a non- service connected cause while properly hospitalized by VA. Hospitalized by VA means admission to a VA facility for hospital, nursing home, or domiciliary care. 38 U.S.C.A. § 2303(a) (West 1991); 38 C.F.R. § 3.1600(c) (1994).. Even if the veteran is not hospitalized in such a facility, benefits may still be paid if he died while traveling under prior authorization at the VA's expense to or from a specific place for the purpose of examination, treatment, or care. 38 C.F.R. § 3.1605 (1994). It does not appear that the veteran was in receipt of VA compensation or pension at the time of his death. He did not have an original or reopened claim for VA pension or compensation pending, which would have resulted in an award of such a benefit. The veteran did not die at any of the specified types of facilities, and there is no evidence or allegation that the veteran died while traveling at the VA's expense to or from a specific place for the purpose of examination, treatment, or care. The Death Certificate shows that the veteran died at the Athens Regional Medical Center in Athens, Georgia. There has been no evidence submitted or alleged that the veteran's body was held by a State or political subdivision of a State. On the application for burial benefits, received in March 1991, the appellant indicated that the veteran's burial was not in a State-owned cemetery, or section thereof, nor used solely for persons eligible for burial in a national cemetery. The appellant submitted evidence of funeral and burial expenses, which shows that she paid for the burial and funeral expenses. A plot or internment allowance may be paid if the appellant otherwise qualified to receive burial benefits. 38 C.F.R. § 3.1600(f) (West 1991). Since the appellant is not eligible to receive burial benefits, she is also ineligible to receive the plot and internment allowance. While we recognize the service the veteran performed, we regret that the laws and regulations do not provide for burial benefits based on such service, alone. It appears that there is no possible provision to allow a grant of the benefit sought on appeal since the statutory and regulatory requirements are shown not to have been met. The United States Court of Veterans Appeals has stated that: ...where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA [Board of Veterans' Appeals] terminated because of the absence of legal merit or the lack of entitlement under the law. Cf. Fed.R.Civ.P. 12(b)(6) ('failure to state a claim upon which relief can be granted'). Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Accordingly, the claim for service connection for burial benefits is denied. ORDER 1. The claim for entitlement to service connection for the veteran's cause of death is dismissed as not well-grounded, and the rating decision of August 1991, insofar as it pertains to this issue, is vacated. 2. Entitlement to burial benefits is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.