Citation Nr: 0002701 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-23 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to VA dependency and indemnity compensation benefits pursuant to 38 U.S.C.A. § 1318. 3. Eligibility for dependents' educational assistance benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from June 1940 to October 1945. He died in January 1997. The Department of Veterans Affairs (VA) Regional Office (RO) denied the benefits sought in March 1997, and the appellant, who is the veteran's surviving spouse, appealed. FINDINGS OF FACT 1. The veteran died in January 1997. The death certificate indicates that the cause of his death was cardiac arrest caused by urosepsis. 2. At the time of the veteran's death, service connection was in effect for scar, right side of neck, scalp, and ear, with moderate deformity of right ear and retained metallic bodies, evaluated as 30 percent disabling; scar, right shoulder, with damage to muscle group I, 30 percent; gunshot wound, cervical spine, with retained foreign bodies, 10 percent; right ear defective hearing, 10 percent; and right ear tinnitus, 10 percent. The veteran's combined service-connected rating was 60 percent. 3. The claim for service connection for the cause of the veteran's death is not supported by competent medical evidence demonstrating a nexus between the veteran's military service or his service-connected disabilities and his death. 4. The evidence of record does not show that the veteran was in receipt of or entitled to receive compensation at the time of death for service-connected disability that was rated totally disabling on either a schedular or unemployability basis for a period of 10 years immediately preceding death. 5. The veteran did not die in service, did not have a permanent total service-connected disability at the time of his death, and did not die as the result of a service-connected disability. CONCLUSIONS OF LAW 1. The claim for service connection for the cause of the veteran's death is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (2000). 3. The appellant's claim of entitlement to basic eligibility for dependents' educational assistance benefits under Chapter 35, Title 38, United States Code, lacks legal merit and entitlement under the law. 38 U.S.C.A. §§ 3500 and 3501 (West 1991); 38 C.F.R. § 3.807 (1999); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for the cause of the veteran's death; dependency and indemnity compensation benefits pursuant to 38 U.S.C.A. § 1318; and dependents' educational assistance benefits under Chapter 35, Title 38, United States Code. In the interest of clarity, the Board will initially discuss the cause of death claim, and then it will discuss the dependency and indemnity compensation claim under 38 U.S.C.A. § 1318. The format for these discussions will consist of a factual background followed by pertinent law and regulations and then analysis of the issue presented. Thereafter, the Chapter 35 dependents' educational assistance benefits claim will be discussed. Entitlement to service connection for the cause of the veteran's death The appellant asserts that the veteran had a service-connected psychiatric disorder which caused or contributed to his death. Factual background The veteran was wounded in action in Belgium in January 1945. The medical record also establishes that hearing problems and tinnitus began during service. Service medical records do not diagnose cardiovascular-renal disease or a psychiatric problem, nor does a May 1948 VA examination report. During a December 1949 VA examination, mild psychoneurosis, anxiety state, was diagnosed,. The examiner indicated this the veteran's psychiatric disorder was die to recent surgery. Service connection was denied for anxiety state in an October 1950 rating decision. A September 1981 private medical record shows that the veteran had essential hypertension and arteriosclerotic heart disease. A November 1981 VA examination diagnosed, inter alia, cerebral arteriosclerosis, arteriosclerotic heart disease, and Parkinson's disease. Mild chronic anxiety state was also diagnosed; the examiner stated that organic brain syndrome was also present and "might be expected to create problems in the future." The veteran's December 1996 to January 1997 terminal VA hospital report shows that he had nephrotic syndrome with proteinuria, and that he also had hyponatremia which was thought to be due to his nephrotic syndrome. Also diagnosed were numerous other physical problems, as well as organic mental disorder with agitation. Anxiety state was not mentioned. The veteran's death certificate indicates that he was 78 years old when died at a VA hospital in January 1997. The death certificate indicates that the cause of his death was cardiac arrest caused by urosepsis, and that there were no other significant conditions contributing to his death. No autopsy was performed. At the time of the veteran's death, service connection was in effect for scar, right side of neck, scalp, and ear, with moderate deformity of right ear and retained metallic bodies, evaluated as 30 percent disabling; scar, right shoulder, with damage to muscle group I, 30 percent; gunshot wound, cervical spine, with retained foreign bodies, 10 percent; right ear defective hearing, 10 percent; and right ear tinnitus, 10 percent. The veteran's combined service-connected rating was 60 percent. Relevant law and regulations Service connection - cause of death In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310 (West 1991 and Supp. 1998); 38 C.F.R. § 3.312 (1999). A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303 (1999). Service connection for cardiovascular-renal disease or psychosis may be presumed if it is manifested to a degree of 10 percent within one year from the date of separation from a period of qualifying active service lasting 90 or more days. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113, 1131, 1137 (West 1991 and Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1999). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when it is shown that it contributed substantially or materially to death, that it combined to cause death, or that it 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). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death in order for service connection to be warranted on a contributory cause theory. See Lathan v. Brown, 7 Vet. App. 359 (1995). Well grounded claims The threshold question to be answered in this or any other case is whether the appellant has presented evidence of a well-grounded claim; that is, a claim which is plausible and meritorious on its own or capable of substantiation. If she has not, her appeal must fail. 38 U.S.C.A. § 5107(a); see Murphy v. Derwinski, 1 Vet. App. 78 (1990). If the Board finds that the claim for service connection for the cause of the veteran's death is not well-grounded, there is no further duty to assist her in the development of her claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). In order for a claim for service connection for the cause of the veteran's death to be well-grounded, there must be (1) evidence of the veteran's death; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) and evidence of a nexus between the in-service injury or disease and the veteran's death. See Ramey v. Brown, 9 Vet. App. 40, 46 (1996), aff'd 120 F.3d 1239 (Fed. Cir. 1997); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well-grounded; if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). Analysis The first prong of the Ramey/Caluza analysis is satisfied by medical evidence of the veteran's death. As will be discussed in detail below, with respect to the second (in- service incurrence) and third (medical nexus evidence) prongs of the Ramey/Caluza analysis, there is no competent medical evidence of record showing that the veteran's nephrotic syndrome and urosepsis had their onset in service or that any of his service-connected disabilities in any way caused or contributed substantially or materially to his death. The appellant has in essence contended that the veteran had a service-connected psychiatric disability, and that it caused or contributed substantially and materially to his death. However, there is no competent medical evidence of record which indicates either that a psychiatric disability was related to the veteran's service or that any psychiatric disability caused or contributed substantially or materially to the veteran's death. The appellant, being a layperson, is unable to indicate that one did. Espiritu, 2 Vet. App. 495; Grottveit, 5 Vet. App. 93. Medical evidence of a nexus between the claimed service-connected disability and death is required. There is no such medical nexus evidence of record. Medical evidence is required to show a nexus between a fatal disease and the veteran's service or between the fatal disease and a service-connected disability. See Caluza, Espiritu, and Grottveit, supra. The medical evidence of record indicates that the primary cause of the veteran's death was urosepsis. There is no competent medical evidence of record which indicates that urosepsis, nephrotic syndrome, or cardiovascular-renal disease had its onset in service or was manifested to a degree of 10 percent within a year of service discharge. Competent medical evidence of record first shows a diagnosis of essential hypertension and arteriosclerotic heart disease in September 1981, decades after the veteran left service. The record does not show that the appellant possesses the requisite experience, training or education to qualify as a medical expert in order for her statements to be considered competent evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay persons are not considered competent to offer medical opinions regarding causation or diagnosis. Grottveit v. Brown, 5 Vet. App 91, 93 (1993). Thus, the appellant's assertion that the veteran had a service-connected psychiatric disability which caused or contributed substantially and materially to his death is not sufficient to well ground the claim. In short, no competent medical evidence of record indicates that service-connected disabilities had anything to do with the veteran's death. The third Ramey/Caluza prong has not been met. For the reasons and bases expressed above, therefore, the appellant's claim of entitlement to VA benefits for the cause of the veteran's death is not well grounded. The benefit sought on appeal is accordingly denied. Additional matters When the Board addresses in its decision a question that has not been addressed by the RO, in this case well groundedness, it must consider whether the appellant has been given adequate notice to respond and, if not, whether she has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that the appellant has been given ample opportunity to present her case, including in light of the information given to her by the RO in its March 1997 rating decision, which it mailed to her in April 1997, and in the May 1997 statement of the case and the September 1999 supplemental statement of the case, and that any error by the RO in the adjudication of the instant claim on its merits rather than on the issue of whether the claim is well- grounded could not be prejudicial. It accorded her claim more consideration than it was entitled. Edenfield v. Brown, 8 Vet. App. 384 (1995). Because the appellant's claim for service connection for the cause of the veteran's death is not well-grounded, VA is under no duty to further assist her in developing facts pertinent to it. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a) (1998); Epps v. Gober, 126 F.3d 1454 (Fed. Cir. 1997); see also Gilbert and Grottveit. VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has recently held that the obligation exists only in the limited circumstances where the appellant has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). The VA is not on notice of any other known and existing evidence which would make the cause of death claim plausible. The Board's decision serves to inform the appellant of the kind of evidence which would be necessary to make her claim well-grounded, specifically, medical evidence which establishes a connection between the veteran's service and/or his service-connected disabilities and his death. Entitlement to dependency and indemnity compensation benefits pursuant to 38 U.S.C.A. § 1318 Factual background At the time of the veteran's death in January 1997, service connection was in effect for scar, right side of neck, scalp, and ear, with moderate deformity of right ear and retained metallic bodies, evaluated as 30 percent disabling; scar, right shoulder, with damage to muscle group I, 30 percent; gunshot wound, cervical spine, with retained foreign bodies, 10 percent; right ear defective hearing, 10 percent; and right ear tinnitus, 10 percent. The veteran's combined service-connected rating was 60 percent, effective December 28, 1949. Pertinent law and regulations Under 38 U.S.C.A. § 1318, benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service-connected when, in pertinent part, the following conditions are met: (1) the veteran's death was not caused by his or her own willful misconduct and either the veteran was in receipt of or was entitled to receive compensation at the time of death for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 years or more immediately preceding death or if totally rated for a lesser period, the veteran was so rated continuously for a period of not less than five years from the date of the veteran's discharge from active duty; or (2) the veteran would have been entitled to receive a 100 percent disability rating for such time period but for factors such as the receipt of military retired pay or clear and unmistakable error in a final rating or Board decision. See also 38 C.F.R. § 3.22 (1999). In a line of cases, the United States Court of Appeals for Veterans Claims (Court) has indicated that there is a third way of obtaining VA dependency and indemnity compensation benefits, namely by showing that a veteran "hypothetically" would have been entitled to a total disability rating for the required period if he or she had applied for compensation during his or her lifetime, or based on evidence in the veteran's claims folder or VA custody prior to his death. See Wingo v. West, 11 Vet. App.307 (1999); Carpenter v. Gober, 11 Vet. App.140, 147 (1998); and Marso v. West, U.S. Vet. App. No. 97-2178 (December 23, 1999). However, Secretary of Veterans Affairs has recently indicated that the Court's interpretation of 38 C.F.R. § 3.22(a) as permitting a hypothetical entitlement claim did not accurately reflect VA's intent, and the VA Secretary has further indicated that 38 U.S.C.A. § 1318 does not authorize VA to award dependency and indemnity compensation benefits in cases where the veteran merely had hypothetical entitlement. Pursuant to 65 Fed Reg. 3388 (Jan. 22, 2000), 38 C.F.R. § 3.22 currently reads as follows: Sec. 3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of death. (a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) The veteran's death was not the result of his or her own willful misconduct, and (2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or (ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death. (b) For purposes of this section, "entitled to receive" means that at the time of death, the veteran had service- connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (3) The veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) The veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. (c) For purposes of this section, "rated by VA as totally disabling" includes total disability ratings based on unemployability (Sec. 4.16 of this chapter). * * * * * (Authority: 38 U.S.C. 1318) Analysis At the time of the veteran's death, he was not, nor had he ever been, in receipt of total disability compensation for his service-connected disabilities . Therefore, recovery pursuant to 38 U.S.C.A. § 1318 is precluded. With respect to the "entitled to receive" clause in 38 C.F.R. § 3.22(a), the appellant has not specifically raised any matters that are delineated in 38 C.F.R. § 3.22(b), and the Board has been unable to identify any such. In particular, the appellant has not raised the issue of clear and unmistakable error in any final RO rating decision. See Marso v. West, No 97-2178 (U.S. Vet. App. Dec 23, 1999), slip op. at 4 and cases cited therein. The appellant here has asserted that the veteran "should have been receiving" 100 percent disability based on the anxiety neurosis, which she feels should have been service-connected. This assertion is in the nature of a hypothetical entitlement claim. However, recovery based upon a hypothetical entitlement claim is precluded by law. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22; 65 Fed. Reg. 3388 et seq. The Board notes that it is bound by VA law and regulations, see 38 U.S.C.A. § 7104(c) (West 1991). The Board observes in passing that, where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. See Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, although 38 C.F.R. § 3.22 was revised after the appellant's claim was filed, the law itself has not changed. As the Secretary's interpretive rule makes clear, the law was always that hypothetical claims were not permitted to establish entitlement to dependency and indemnity compensation. Accordingly, for the reasons and bases expressed above, the Board concludes that the appellant's claim of entitlement to dependence and indemnity benefits is precluded as a matter of law. Because the law, and not the facts, is dispositive of the issue, the appellant has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Basic Eligibility for Dependents' Educational Assistance under 38 U.S.C.A., Chapter 35. Pertinent law and regulations For the purposes of dependents' educational assistance under 38 U.S.C.A. Chapter 35, a child or surviving spouse of a veteran will have basic eligibility for benefits where the veteran was discharged under other than dishonorable conditions, and had a permanent total service connected disability in existence at the date of the veteran's death; or where the veteran died as a result of a service connected disability. 38 C.F.R. § 3.807(a) (1999). Analysis Review of the record discloses that the veteran was honorably discharged from service in October 1945. A permanent total service-connected disability was not in existence at the date of the veteran's death. Moreover, service connection for the cause of the veteran's death has been denied. Hence, basic eligibility for Chapter 35 dependents' educational assistance benefits is not met. Where the law and not the evidence is dispositive of the issue before the Board, the claim is denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, as none of the conditions cited above for educational assistance benefits under Chapter 35 are applicable to the facts in this case, the Board must deny the appellant's claim for these benefits. ORDER The appellant not having submitted a well-grounded claim of entitlement to service connection for the cause of the veteran's death, the claim is denied. Entitlement to dependency and indemnity compensation benefits pursuant to 38 U.S.C.A. § 1318 is denied. CONTINUED ON NEXT PAGE Basic eligibility for dependents' educational assistance benefits under 38 U.S.C.A. Chapter 35 not being established, the appellant's claim for these benefits is denied. Barry F. Bohan Member, Board of Veterans' Appeals