BVA9502735 DOCKET NO. 93-24 304 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The veteran, who had active service from March 1945 to June 1946, died in March 1987. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 1993 rating decision of the Montgomery, Alabama, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that she is entitled to service connection for the cause of her husband's death, including dependency and indemnity compensation. She asserts that the veteran's death was caused by pneumonia due to or as a consequence of chronic obstructive pulmonary disease and a cerebrovascular accident, which she contends is attributable to his wartime 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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. FINDINGS OF FACT 1. The veteran died in March 1987, and the immediate cause of death as listed on the death certificate was nosocomial pneumonia, due to or as a consequence of chronic obstructive pulmonary disease and a cerebrovascular accident (CVA) with right hemiplegia. Possible left atrial myxoma was also noted as a significant condition related to death. An autopsy was not performed. 2. At the time of the veteran' s death, service connection was not in effect for any disease or disability. 3. A chronic pulmonary or cardiac disability has not been shown to be present during service, or proximate thereto. Chronic obstructive pulmonary disease and cardiovascular disease were initially shown approximately 30 years after service, at a time too remote to be reasonably related thereto. 4. There is no competent medical evidence or opinion relating the disabilities which caused the veteran's death to his service, and the claim is not plausible. CONCLUSION OF LAW 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. §§ 1101, 1110, 1112, 1113, 1310, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim with respect to the issue of service connection for the cause of the veteran's death. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If a particular claim is not well grounded, then the appeal fails and there is no duty to assist in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. 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). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (hereinafter Court) held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." Tirpak, at 611. The evidentiary assertions by the appellant 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 beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). In this case, evidentiary assertions as to the claim for service connection for the cause of the veteran's death are beyond the competence of the appellant. Service connection for the cause of a veteran's death is warranted when the evidence indicates that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1310 (West 1991); 38 C.F.R. § 3.312 (1994). In order to be awarded dependency and indemnity compensation benefits in this case, it must be shown that the veteran died from a service-connected disability. 38 U.S.C.A. § 1310(a) (West 1991); Cariaga v. Brown, 5 Vet.App. 397, 398 (1993). The death certificate reflects that the veteran died at age 71 in March 1987 of nosocomial pneumonia, due to or as a consequence of chronic obstructive pulmonary disease and a CVA with right hemiplegia. Possible left atrial myxoma was also noted to be a significant condition contributing to death. No autopsy was performed. At the time of the veteran's death, service connection was not in effect for any disease or disability. Service medical records, including an examination upon entry and separation from active service, do not contain any complaints, findings or diagnosis of a chronic pulmonary or cardiac or cerebrovascular disability. In fact, upon separation from service, the appellant's lungs and cardiovascular system were found completely normal. Relevant postservice medical reports of record include a treatment report from Mason Field, Jr., M.D., which included information pertaining to hospitalization at Flowers Hospital from May to July 1977, as well as VA inpatient treatment (IPT) reports dated in March 1987. The record reflects that the veteran submitted the 1977 private treatment report in conjunction with 1980 applications for disability compensation. On the application in September 1980, the veteran stated that he then suffered from both heart and lung disease beginning in 1976. In addition, on a previous application for disability compensation dated in July 1980, the veteran reported breathing problems since 1977. The aforementioned private treatment report was completed in conjunction with an application for civil service retirement benefits dated in 1977 in which the veteran reported a two month history of intermittent breathing problems and chest pain, as well as nervousness and weight loss. Dr. Field reported treating him initially in May 1977 at which time a one-year history of symptoms was given. Following examination and inpatient treatment, Dr. Field rendered diagnoses of advanced obstructive and restrictive chronic pulmonary disease with parenchymal pulmonary fibrosis; coronary insufficiency with occult angina pectoris; duodenitis; hypertriglyceridemia with hyperchylomicronemia; and a probable old previous myocardial infarction. Dr. Field further stated that such disabilities began in approximately 1975 or 1976. A subsequent VA IPT report dated in March 1987 indicated that the veteran was transferred from Flowers Hospital, where he was initially treated for a left middle cerebral CVA with right hemiplegia and aphasia, and a possible left atrial myxoma with thrombus. Other reported history at that time included chronic obstructive pulmonary disease with chronic pulmonary fibrosis; hypertension; coronary artery disease with status post coronary artery bypass surgery; a hiatal hernia; possible acalculus cholecystitis; and osteoporosis with multiple vertebral fractures. After admission to the VA hospital for continued physical therapy, he developed a fever, and bilateral pulmonary infiltrates were detected on x-ray. Subsequently, the records indicate that due to hospital acquired pneumonia, the veteran gradually deteriorated until his death on March 18, 1987. Because the appellant has not submitted any competent credible evidence supportive of her claim and has alleged no facts which would support a conclusion that the veteran's death was related to service, we are of the opinion that she has failed in her duty to submit "evidence" which would "justify a belief by a fair and impartial individual" that her claim is plausible. See Tirpak, 2 Vet.App. at 611. The Court has held that lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). See also Barfield v. Brown, 5 Vet.App. 8, 9 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The veteran was not service-connected for any of the underlying causes of his death, pulmonary and cardiovascular disease, and the appellant has failed to submit any evidence attributing such diseases to his wartime service. There is absolutely no evidence of a pulmonary or cardiovascular disability contained in the service medical records, nor is there is any evidence of a chronic cardiovascular disability, including hypertension, within the one year presumptive period. See 38 C.F.R. §§ 3.307, 3.309 (1994). Significantly, the veteran reported on previous disability compensation applications that such pulmonary and cardiac symptomatology did not being until the late 1970's. While the fact that the appellant served in World War II in the Asian- Pacific theater is certainly one factor considered by the Board, it alone is not enough to establish service connection for the cause of the veteran's death. See 38 C.F.R. § 3.303 (a) (1994). Since there is no competent, credible evidence of medical causality, the claim is not well-grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). ORDER The appellant's claim for entitlement to service connection for the cause of the veteran's death is dismissed. HOLLY E. MOEHLMANN 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.