Citation Nr: 0002548 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-15 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from April 1941 to April 1946. His appeal comes before the Board of Veterans' Appeals (Board) from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The record reflects that the veteran was a Prisoner of War (POW) of the Japanese Government for about 42 months during World War II and he was held captive in both the Philippines and Japan. The veteran died in November 1996, and the appellant is his widow. The Board remanded this case in May 1998 to obtain the veteran's medical records immediately preceding his death, and it is again before the Board. FINDINGS OF FACT 1. The veteran died in November 1996 and his death certificate reflects that his immediate cause of death was pneumonia due to sepsis, with Parkinson's disease noted as contributing to his death but not resulting in the underlying cause. 2. No competent medical evidence provides a nexus between the veteran's cause of death and his period of active service or any of his service-connected disabilities. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant submitted an application for death benefits subsequent to the veteran's death in November 1996. She has stated that the veteran's time as a POW took its toll on his life after his release from captivity, and that the government has been uncompassionate in its handling of this case. The record reflects that the veteran was a POW for about 42 months, and that he suffered from terrible hardship at the hands of the Japanese Government. Service connection for cause of death under 38 U.S.C.A. § 1310 is warranted if a service-connected disability causes, hastens, or substantially and materially contributes to the death. See 38 U.S.C.A. § 1310(b). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. See 38 C.F.R. § 3.312 (1999). The threshold question before the Board, however, is whether the appellant has presented a well-grounded claim for service connection for the cause of the veteran's death. A well- grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. See 38 U.S.C.A. § 5107 (West 1999). While a claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). A well-grounded claim for service connection for the cause of the veteran's death consists of (1) evidence of the veteran's death, (2) evidence of incurrence or aggravation of a disease or injury in service, and (3) competent medical evidence of a nexus between the in-service injury or disease and the veteran's death. See Carbino v. Gober, 10 Vet. App. 507 (1997). In a cause of death case, the determinative issue is whether the cause of the veteran's death can be linked to his period of active service or any of his service-connected disabilities. Because this issue involves medical causation or a medical diagnosis, competent medical evidence is required, rather than lay evidence. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Caluza v. Brown, 7 Vet.App. 498, 504 (1995). The veteran's death certificate indicates that the immediate cause of his death was pneumonia due to sepsis, with Parkinson's disease noted as contributing to the death but not resulting in its underlying cause. No other conditions were listed on the death certificate. These conditions were corroborated as causing or contributing to the veteran's death by medical progress notes made about the time of his death in November 1996. At that point, the veteran had established service connection for numerous conditions as the result of his captivity, specifically: traumatic arthritis, lumbar spine with marked limitation of motion, evaluated as 40 percent disabling; post-traumatic stress disorder, evaluated as 30 percent disabling; traumatic arthritis, right shoulder, evaluated as 30 percent disabling; traumatic arthritis, left shoulder with limitation of motion, evaluated as 20 percent disabling; traumatic arthritis, cervical spine with limitation of motion and muscle spasm, evaluated as 20 percent disabling; history of diarrhea, resolved, evaluated as zero percent disabling; traumatic arthritis, right and left knee, each evaluated as 10 percent disabling; traumatic arthritis, right and left ankle with moderate limitation of motion, each evaluated as 10 percent disabling; peripheral neuropathy, right and left lower extremities, each evaluated as 10 percent disabling; and history of malnutrition, evaluated as zero percent disabling. The Board is empathetic with the appellant in view of the death of her husband and because of the years of torture and depravation the veteran suffered in the name of democracy and for the survival and prosperity of his country. Indeed, the record shows that he was a medic before and after his capture in Bataan, and that he was shipped to Japan under horrific conditions and subjected to intensive manual labor in the depths of an ore mine. The prison commandant in Japan apparently bayoneted him in his arm and the veteran was awarded the Purple Heart Medal. Although the veteran's widow has contended that his service- connected disabilities played a part in his death, the record contains no competent medical evidence linking his death to his period of active duty or with any of his service- connected disabilities. Rather, his death has been attributed to pneumonia due to sepsis and Parkinson's disease as a contributing factor. Because the appellant is a layperson, her contentions by themselves do not constitute competent medical evidence of the existence of a nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Her representative has submitted medical definitions concerning the cause of the veteran's death; specifically, that poor nutrition seems to enhance the colonization of bacteria. However, the Board cannot accept this evidence in lieu of a competent medical opinion. Because the record contains no medical opinion that the veteran's death was caused, hastened, or substantially and materially contributed to by a disability of service origin, the Board must conclude that the appellant has not met her initial burden of submitting evidence of a well-grounded claim for DIC benefits under 38 U.S.C.A. § 1310, based on entitlement to service connection for the cause of the veteran's death. As the Board is not aware of the existence of additional evidence that might well ground the appellant's claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a). See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the appellant of the elements necessary to well ground her claim and to explain why her current attempt fails. The Board also recognizes the appellant's contention that the government has been uncompassionate to the veteran before and after his death, but it is nevertheless bound by the regulations governing the payment of monetary benefits. Although the appellant has not submitted competent medical evidence that serves to well ground her claim, she is notified that any medical evidence she submits, namely a medical opinion that the veteran's death was related to his period of active service or any of his service-connected disabilities, will be associated with this claims file and considered at a future date. For example, an opinion from a competent medical source that the veteran's numerous traumatic arthritic conditions had caused, hastened, or substantially and materially contributed to his death would be probative as to the merits of this case. ORDER Evidence of a well-grounded claim not having been submitted, entitlement to service connection for the cause of the veteran's death is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals