Citation Nr: 0007836 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-03 713A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from July 1964 to August 1967. He died in April 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision rendered by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. According to his certificate of death, the veteran died in April 1997, at age 52, as a result of cardiac arrest, due to (or as a consequence of) sepsis and hypoglycemic liver failure, due to natural killer cell leukemia, due to hepatitis A, B, C. 2. Cardiac arrest, sepsis, hypoglycemic liver failure, leukemia, and hepatitis A, B, and C were not manifested until many years after the veteran's separation from service. 3. It has not been shown that the cardiac arrest, sepsis, hypoglycemic liver failure, leukemia, or hepatitis A, B, and C disorders that caused the veteran's death almost 30 years after his separation from active military service were related in any way to service. 4. Prior to the veteran's death, service connection had been established for a right knee disability, evaluated as 20 percent disabling. 5. The evidence does not demonstrate that any service- connected disability is shown to have been etiologically or causally related to the veteran's death. 6. The veteran was honorably discharged in August 1967 but he did not have a permanent and total service-connected disability at the moment of his death, nor did he die as a result of a service-connected disability. CONCLUSIONS OF LAW 1. Cardiac arrest, sepsis, hypoglycemic liver failure, leukemia, and hepatitis A, B, and C disorders were not incurred in or aggravated by service, nor may those disorders be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). 3. The claim of entitlement to Chapter 35 benefits lacks legal merit or entitlement under the law. 38 U.S.C.A. §§ 3500 through 3566 (West 1991); 38 C.F.R. §§ 3.807 and 21.3001 through 21.3344 (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for the cause of the veteran's death. The threshold question that must be resolved at the outset of the analysis of any issue is whether each one of the appealed claims 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, 81 (1990). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). An appellant has, by statute, the duty to submit evidence that a claim is well-grounded, which means that the evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). When such type of evidence is not submitted, the initial burden placed on the appellant is not met. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). The three elements of a "well grounded" claim for direct service connection normally are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494- 95 (1992). While the first of the requirements set forth in Caluza for the submission of a well-grounded claim, namely, evidence of a current or present disability, are always met in claims for service connection for the cause of the veteran's death (the current disability being the condition that caused the veteran to die), the last 2 requirements need to be supported by the evidence of record. Ramey v. Brown, 9 Vet.App. 40, 46 (1996). If the appellant fails to present competent medical evidence of a causal relationship between the veteran's death and an inservice occurrence or event, his or her claim for direct service connection for the veteran's death fails as not well grounded. Id. As indicated above, the appellant essentially contends that the death of the veteran was related to his active service. After a review of the record, however, the Board finds that her contentions are not supported by the evidence, and that her claim must fail, as it is not well grounded. Governing statutory and regulatory provisions stipulate, in pertinent part, that service connection can be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (1999); see also 38 U.S.C.A. § 1310 (West 1991). This can be demonstrated by showing that the veteran's death was either caused by a disability for which service connection had been established at the time of his or her death, or that his or her death was the result of a disability for which service connection should have been established. According to the veteran's death certificate, the veteran died in April 1997. The immediate cause of death was listed as cardiac arrest, due to (or as a consequence of) sepsis, hypoglycemia liver failure, due to natural killer cell leukemia, due to hepatitis A, B, C. The death certificate indicates that an autopsy was not performed. The veteran's service medical records include two examination reports, dated February 1966 and February 1967, which both indicate that he was clinically evaluated as normal in all relevant aspects. Subsequent to service, a December 1975 VA compensation and pension examination was conducted. That report reveals that the veteran was diagnosed with residuals of internal derangement of the right knee, with post operative status medial arthrotomy, removal of torn medial meniscus, laxity of ligaments, symptomatic, and osteoarthritis. Review of additional post service medical records shows that the veteran was treated for numerous disabilities. Records dated November 1995 show that the veteran had complaints of right leg swelling, and was assessed with right Achilles tendinitis. Additionally, the veteran was hospitalized from September 22, to September 26, 1996. The hospital report shows diagnoses of cellulitis of the toe, insulin dependent diabetes, substance abuse, onychomycosis and tinea pedis of the feet, and atypical lymphocytes. An upper abdominal ultrasound report, dated January 1997, reveals that the liver showed parenchymal disease, and that the gallbladder showed a stone. A second hospital discharge record, dated February 1997, shows that he was diagnosed with acute encephalopathy, natural killer cell leukemia, urinary tract infection with sepsis, hepatitis C, history of cocaine use, and positive HLV-1. The report of a VA general medical examination dated March 1997 is also of record. That report shows that the veteran was diagnosed with leukemia by history, hepatomegaly, and insulin dependent diabetes mellitus. As indicated above, service connection for the cause of the veteran's death is warranted when the death was the result of a disability for which service connection should have been established. Although the veteran exhibited many disorders subsequent to service, there is no medical evidence to show that these particular disorders were manifested during the veteran's active service, or that they are related to that service. In fact, the medical evidence shows that the veteran was diagnosed with the various disabilities almost thirty years after his separation from service. The Board must note that there is simply no evidence showing that these disorders were related to his service from 1964 to 1967. While the appellant has alleged that there is, in fact, such an etiological relationship, she has not demonstrated that she has the medical training or expertise requisite to render a medical finding or conclusion; therefore her assertions can be accorded no probative merit. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Additionally, service connection for the cause of the veteran's death can also be granted when it is shown that death was the result of a disability for which service connection has already been established. Pertinent regulations stipulate that, when demonstrating that a service-connected disability contributed to death, "it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1) (1999). These regulations also provide that "[i]t is not sufficient to show that [a 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) (1999). The veteran had not established service connection for any disorder. In brief, the evidence does not demonstrate that the veteran's cause of death, cardiac arrest due to sepsis, hypoglycemic liver failure, leukemia or hepatitis, was manifested during service, or that it could be presumed to have been manifested therein. In addition, the evidence does not demonstrate that any of the disorders listed on the death certificate were incurred as a consequence of service. Therefore, the appellant has not met the requirements of a well grounded claim, and the claim must therefore be denied. II. Eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. The evaluation of a claim for Chapter 35 benefits requires an initial determination of the applicant's eligibility for such benefits. In particular, the pertinent regulation provides two basic criteria to determine whether a child, spouse or surviving spouse of a veteran has "basic eligibility." First, the veteran must have been discharged from service under conditions other than dishonorable, or must have died in service. 38 C.F.R. § 3.807(a)(1) (1999). The service must have been active military, naval or air service on or after April 21, 1898. 38 C.F.R. § 3.807(b) (1999). Second, in cases where the veteran has already died, the veteran must have had a permanent total service-connected disability at the date of his death or must have died as a result of a service-connected disability. 38 C.F.R. § 3.807(a)(3) and (4) (1999); see, also, 38 U.S.C.A. § 3501(a)(1)(B) and (D) (West 1991); and 38 C.F.R. § 21.3021(a)(2) (1999). The Board must point out that second criterion has not been met because, at the date of his death, the veteran did not have a permanent total service-connected disability, nor did he die as a result of a service-connected disability, as discussed earlier in this decision. It is clear from the above, then, that the appellant in the present case does not fully meet the basic eligibility criteria of 38 C.F.R. § 3.807(a) (1999). Therefore, the Board has no other recourse but to conclude that the claim of entitlement to Chapter 35 benefits is not plausible, as it lacks legal merit or entitlement under the law. As such, the claim has failed and must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, it must be noted that the Board has been unable to locate evidence in the record demonstrating any probability that the appellant will be able to obtain the additional information that would be needed to complete her application for Chapter 35 benefits. Therefore, VA's obligation to further advise her, as required by § 5103(a), has not arisen. ORDER Service connection for the cause of the veteran's death is denied. Eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals