Citation Nr: 0006974 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-07 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania 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 J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1973 and December 1990 to April 1991. The appellant is the veteran's widow. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Philadelphia, Pennsylvania, (hereinafter RO). The RO is directed to take appropriate action with regard to the appellant's application for burial benefits submitted in July 1997. FINDINGS OF FACT 1. The veteran died in May 1997 as a result of a metastatic malignant melanoma. 2. At the time of the veteran's death, service connection was not in effect for a melanoma or any other disabilities. 3. There is no competent evidence linking the disability which caused the veteran's death to any in-service symptomatology or pathology. CONCLUSION OF LAW A well-grounded claim for service connection for the cause of the veteran's death has not been presented. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 a contributory cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). For a service-connected disability to be considered to be a "contributory" cause of death, it must be shown that the disability contributed substantially to or materially to the cause of the veteran's death. 38 C.F.R. § 3.312 (1999). A contributory cause of death, defined as one inherently not related to the principal cause, must have substantially or materially contributed to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (1999); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). After reviewing the evidence of record, the Board concludes that the appellant has not submitted a well-grounded claim for service connection for the cause of the veteran's death within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim must be accompanied by supportive evidence which must justify a belief by a fair and impartial individual that the claim is plausible. Magana v. Brown, 7 Vet. App. 224, 227 (1994) (citing Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992)). "To be well grounded, a claim 'need not be conclusive,'. . . but must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits." Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Moreover, because the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter Court) recently issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded, Morton v. West, 12 Vet. App. 477 (1999), the Board is not under a duty to remand this case to afford the appellant the additional development requested by her representative in his February 1999 presentation to the Board. To establish that a claim for service connection for cause of death is well grounded, there must be medical evidence of a nexus or link between the veteran's service-connected diseases or injuries and the cause of his death. See Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue, as in this appeal, involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement. Grottveit v. Brown, 5 Vet. App 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the absence of any evidence of medical expertise, a claimant is not capable of testifying as to matters involving medical causation, such as the cause of a veteran's death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The veteran died in May 1997 as a result of a metastatic malignant melanoma. Service connection for a melanoma, or any other disability, was not in effect at the time of the veteran's death, and the service medical records do not reflect treatment for a melanoma. Clinical evidence of record indicates that metastatic melanoma was not diagnosed by biopsy until December 1993. See Medical report from Kwan H. Won, M.D, received in October 1994. Thus, the condition which ultimately caused the veteran's death was not shown by clinical evidence of record to have manifested to a compensable degree within the one year presumptive period for establishing entitlement to service connection for chronic diseases under 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Similarly, reported clinical history indicates that a melanoma from the left pariental area of the scalp was excised in June 1985, several years after the veteran's separation from his first period of service in July 1973. The appellant contends that the veteran died of a "rare cancer that was caused or aggravated by his service in the Persian Gulf." However, she has submitted no competent medical evidence indicating that the veteran died from a disease incurred in or aggravated by such service. Accordingly, in the absence of probative evidence that provides a nexus between service and the cause of the veteran's death, the claim for service connection for the cause of the veteran's death cannot be considered to be well grounded. Caluza, 7 Vet. App. at 506; Epps, 126 F.3d at 1464. In finding the claim on appeal to be not well grounded, the obligation of the RO under 38 U.S.C.A. § 5103(a) and the holding in Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995), to advise the appellant of the evidence needed to complete her application when she has failed to present a well- grounded claim has been considered. The Board concludes that this obligation was fulfilled by the RO to the extent that it has notified the appellant by rating action and statement of the case that her claim was being denied due to the lack of any medical evidence showing a malignant melanoma during service or that this condition was manifested to a compensable degree within one year of service. Moreover, there is no indication that there are medical reports that are available which would show that the veteran died from a disease caused by in-service symptomatology or pathology. Finally, the Board recognizes that it has denied the appellant's claim on a different basis than that of the RO. Therefore, pursuant to Bernard v. Brown, 4 Vet. App. 384, 393 (1993), the Board has thus considered whether this action will result in any prejudice to the appellant. However, the Court has held that when the agency of original jurisdiction does not specifically address the question of whether a claim is well grounded, but proceeds to adjudication on the merits, there is no prejudice to a claimant solely from the omission of the well-grounded analysis. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). ORDER The claim for service connection for the cause of the veteran's death is not well-grounded and is therefore denied. M. C. GRAHAM Acting Member, Board of Veterans' Appeals