BVA9502494 DOCKET NO. 93-03 921 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The appellant is the widow of a deceased veteran who had active service from January 1942 to September 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1992, decision of the Department of Veterans Affairs (VA) regional office (RO) in Jackson, Mississippi. CONTENTIONS OF APPELLANT ON APPEAL The appellant disagrees with the decision of the RO that denied service connection for the cause of the veteran's death. The veteran died of carcinoma of the lung, and it is her assertion that because he suffered from service-connected filariasis and hyperplasia, his body was weakened and made more susceptible to lung cancer. She asserts that chest X-rays taken in service in 1943 showed scarring on his lungs, and that pneumonia in service contributed to the weakness of his lungs. 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 the appellant has not met her initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for the cause of the veteran's death is well grounded. FINDING OF FACT The claim for service connection for the cause of the veteran's death is not plausible. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran was born in 1920. He had active service between 1942 and 1945, and died from respiratory failure due to carcinoma of the lung in August 1981. The appellant, his widow, is seeking service connection for the cause of his death. As an initial matter, one who submits a claim for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Veterans Appeals (the Court) has further defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). With these criteria in mind, the Board finds that the appellant has not met her initial burden of submitting evidence of a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of his death. For a service connected disability to be the cause of death, it must singularly or with some other condition, be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death certificate lists the immediate cause of the veteran's death as carcinoma of the lung. Respiratory failure is listed as a contributing factor. At the time of his death, he was service connected for filariasis, rated as non-compensably disabling from 1950; and hyperplasia of the left axillary and inguinal lymph nodes, rated as non-compensably disabling from 1946. The veteran's lung cancer was diagnosed in 1980, and in a decision of March 1981, he was found to be 100 percent disabled for pension purposes. He was also found to be entitled to special monthly pension from September 1980, due to his need for regular aid and attendance. In November 1981, the appellant's claim for death pension was approved, effective August 1981. The notice of that award included the statement that the veteran's death was not related to a service-connected disease or injury. The appellant's present claim for dependency and indemnity compensation was received in August 1991. On the VA Form 21-534, Part VIII, under remarks, she stated, "service connected death for widow due to filariasis. Vet was discharged with filariasis and had it for the rest of his life". No other evidence was offered in support of her claim. Review of the file shows that the veteran's final hospital summary is of record. This VA hospitalization was from July 6, to July 29, 1981. The diagnosis was adenocarcinoma of the lung with metastasis, with related altered sensorium. The summary contains no indication that service connected filariasis or hyperplasia of the left axillary lymph nodes was in any way related to the lung cancer. Neither does a VA hospitalization report from March 1981, or a March 9, 1981 letter from a private physician indicate a relationship between service-connected disorders and lung cancer. The appellant has stated that a 1943 chest X-ray of the veteran shows scarring of the lungs. She has also asserted her belief that a bout of pneumonia in service weakened his lungs. Service medical records show that the veteran was hospitalized with lobar pneumonia in February 1944. However, he was discharged to duty in March 1944. The report of a chest X-ray taken in July 1945 was negative. The report of a VA examination conducted in September 1946 showed that his respiratory system was normal at that time. Also, a chest X-ray taken in July 1950 showed no evidence of cardiovascular or pulmonary pathology. In summary, the only evidence of a relationship between the veteran's service connected disorders and the cause of his death is the appellant's assertion that she believes there is a connection. Recently, the Court has discussed the probative value of lay evidence of medical disorders, stating that "[a] layperson can certainly provide an eye-witness account of a veteran's visible symptoms....However, the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge such as a diagnosis as to the cause of a veteran's death." Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Service connection of a disorder must be established by affirmative evidence, 38 C.F.R. § 3.303(a), and the lay assertion of a medically unsupported supposition cannot be considered evidence. The appellant has, therefore, offered no evidence to support the claim for service connection for the cause of the veteran's death. A claim made without evidence or the suggestion of the existence of evidence is not plausible, and, therefore not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). See also Moore v. Derwinski, 1 Vet.App. 401, 405 (1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the Board has dismissed this appeal on a different basis from that of the RO, the appellant has not been prejudiced by this decision since the RO actually accorded her greater consideration than her claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-394 (1993). To remand this case to the RO for consideration of the issue of whether this claim is well-grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the appellant. Id. ORDER The claim for service connection for the cause of the veteran's death is dismissed as not well grounded. ROBERT E. SULLIVAN 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.