Citation Nr: 0005387 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-06 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for arteriosclerosis and a heart condition for accrued purposes only. 2. Entitlement to service connection for diabetes mellitus for accrued purposes only. 3. Entitlement to service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: Peter J. Cipoletta, Attorney ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from August 1965 to July 1969. The veteran died on November [redacted], 1995. The appellant is the veteran's widow. This case came to the Board of Veterans' Appeals (Board) on appeal from a June 1996 rating decision by the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for the cause of the veteran's death, and service connection for arteriosclerosis, a heart condition, and diabetes mellitus for accrued purposes. FINDINGS OF FACT 1. The claims for service connection for arteriosclerosis, a heart condition, and diabetes mellitus were pending at the time of the veteran's death. 2. Competent evidence showing a nexus between the veteran's arteriosclerosis and his active service, to include exposure to herbicides including Agent Orange, is not of record. 3. There is no evidence that the veteran's arteriosclerosis was diagnosed in service or within a year of separation from service. 4. Competent evidence showing a nexus between the veteran's diabetes mellitus and his active service, to include exposure to herbicides including Agent Orange, is not of record. 5. There is no evidence that the veteran's diabetes mellitus was diagnosed in service or within a year of separation from service. 6. The cause of the veteran's death was certified as arteriosclerotic heart disease with renal failure listed as other significant condition contributing to death. 7. At the time of the veteran's death, service connection had been established for post traumatic stress disorder, evaluated as 10 percent disabling. 8. Competent medical evidence attributing the veteran's cause of death to service has not been presented. CONCLUSIONS OF LAW 1. The appellant's claim for service connection for arteriosclerosis and a heart condition as a result of service, to include exposure to herbicides, for accrued benefits purposes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The appellant's claim for service connection for diabetes mellitus as a result of service, to include exposure to herbicides, for accrued benefits purposes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking, for accrued benefit purposes, service connection for arteriosclerosis, a heart condition, and diabetes mellitus to include exposure to herbicides during service, as well as service connection for cause of death. It is necessary to determine if a well-grounded claim with respect to each issue has been submitted. In making claims for service connection for accrued purposes and service connection for cause of death, the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that each claim is well grounded. 38 U.S.C.A. § 5107(a). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well grounded claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Moreover, establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service or resulted from a service-connected disability. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. An injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis. Where an opinion is used to link the current disorder to a cause during service, a competent opinion of a medical professional is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). I. Accrued benefits Generally, the issue of entitlement to accrued benefits must be based on the evidence of record at the time of death. In this case, additional documents were associated with the claims file after the veteran's death. However, certain records might be viewed from the Court as in the constructive possession of VA, and continuation of a regulatory process rather than the creation of new evidence. Therefore, the Board has reported all the evidence. However, we again note that the determination must be made based on the evidence on file. At the time of the veteran's death, he had initiated an appeal from a denial of claims for entitlement to service connection for arteriosclerosis, a heart condition, and diabetes mellitus as a result of service to include inservice exposure to herbicides. Although the veteran's appeals terminated with his death, the regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased claimant's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121; see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the appellant's claim for accrued benefits in this appeal is separate from the claim for service connection that the veteran filed prior to his death, the accrued benefits claim is "derivative of" the veteran's claim and, by statute, the appellant takes the veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones v. West, 146 F.3d 1296 (Fed. Cir. 1998). In the instant case, the veteran died in November 1995, and the appellant's claim for accrued benefits was received in May 1996. The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a claimant was entitled at the time of his or her death under existing ratings or based on evidence in the file at the time of his or her death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000. Here, the appellant (the veteran's widow) is advancing essentially the same service connection claims (for accrued benefit purposes) which the veteran had pending at the time of his death. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Additionally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1999). The provisions of 38 C.F.R. § 3.307(a)(6)(iii) stipulate that "service in the Republic of Vietnam" contemplates service "in the waters offshore...if the conditions of service involved duty or visitation in the Republic of Vietnam." (Emphasis added.) With respect to Agent Orange, the Board notes that a veteran who, during active service, served in the Republic of Vietnam or off the coast of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e) (1999), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. Diseases that have been positively associated with Agent Orange exposure are chloracne or other acneform diseases consistent with chloracne, porphyria cutanea tarda, Hodgkin's disease, non-Hodgkin's lymphoma, respiratory cancers, multiple myeloma, and soft-tissue sarcomas. 38 C.F.R. §§ 3.307(a)(6), 3.309(e)(1999). No condition other than one listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1999). As the veteran served onboard ship, which cruised off the coast of Vietnam, the Board acknowledges his possible exposure to Agent Orange and/or other herbicides. The Court determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). A. Arteriosclerosis and a heart condition Prior to his death, the veteran asserted that service connection should be granted for arteriosclerosis and a heart condition directly and as a result of his exposure to Agent Orange. As noted previously, his surviving spouse has continued this claim for accrued benefit purposes only and thus, her claim may be considered only on the evidence in the file at the time of his death. Service medical records do not reveal that the veteran complained of, was treated for, or was diagnosed with arteriosclerosis or any other heart condition during active service or within one year thereof. At a December 1985 VA medical examination, an EKG revealed sinus tachycardia; however, there was no diagnosis of arteriosclerosis or any other heart condition. The first documentation of a diagnosis of arteriosclerosis and other heart conditions, including cardiomyopathy and congestive heart failure in the veteran's claims folder is a July 1992 medical insurance form with attached medical forms showing the veteran's private hospitalizations being in October 1991. The insurance forms show diagnoses only, there were no actual private hospital reports of record at the time of the veteran's death. The appellant's statement that the veteran's heart disease was related to his service cannot serve to well ground the claim because she is not shown to be competent to make such an allegation, as this requires competent medical evidence which indicates that the claim is plausible or possible. Caluza, 7 Vet. App. at 507; see also Robinette v. Brown, 8 Vet. App. 69, 77 (1995); Edenfield v. Brown, 8 Vet. App. 384 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The Board notes that the veteran was discharged from service in July 1969 and the record does not contain a diagnosis of arteriosclerosis or other heart condition until July 1992, more than 20 years after his discharge from service. Moreover, no medical professional has related the veteran's arteriosclerosis or other heart condition to service in any manner including exposure to herbicides including Agent Orange. In view of the absence of that fact, her allegation that there is some relationship to service is unsupported. Therefore, the Board concludes that the appellant's claim for service connection for arteriosclerosis or other heart condition for accrued purposes is not well grounded and is denied. B. Diabetes mellitus Prior to his death, the veteran asserted that service connection should be granted for diabetes mellitus directly and as a result of his exposure to Agent Orange. As noted previously, his surviving spouse has continued this claim for accrued benefit purposes only; thus, her claim may be considered only on the evidence in the file at the time of his death. Service medical records do not reveal that the veteran complained of, was treated for, or was diagnosed with diabetes mellitus during active service or within one year thereof. The first documentation of a diagnosis of diabetes mellitus in the veteran's claims folder was during a December 1985 VA examination. During that examination, the examiner noted that the veteran had nonservice-connected diabetes mellitus. The only other evidence of record of diagnoses of diabetes mellitus is a July 1992 medical insurance form with attached medical forms showing the veteran's private hospitalizations being in October 1991. The appellant's statement that the veteran's diabetes mellitus was related to his active service cannot serve to well ground the claim because she is not shown to be competent to make such an allegation, as this requires competent medical evidence which indicates that the claim is plausible or possible. Caluza, 7 Vet. App. at 507; see also Robinette, 8 Vet. App. at 77; Edenfield, 8 Vet. App. 384; Grottveit, 5 Vet.App. at 93. The Board notes that the veteran was discharged from service in July 1969 and the record does not contain a diagnosis of diabetes mellitus until December 1985, more than 15 years after his discharge from service. Moreover, no medical professional has related the disorder to service in any manner including exposure to herbicides including Agent Orange. In view of the absence of that fact, her allegation that there is some relationship to service is unsupported. Therefore, the Board concludes that the appellant's claim for service connection for diabetes mellitus for accrued purposes is not well grounded and is denied. II. Cause of death The appellant contends that the veteran's death was due to disabilities incurred in service or as the result of his exposure to herbicides during service. 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 veteran's demise. For a service-connected disability to cause death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it is not sufficient to show that is casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). The regulations provide that service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributing cause of death from the viewpoint of whether there were resultant debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of the disease primarily causing death. 38 C.F.R. § 3.312(c)(3) (1999). Moreover, there are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. A service-connected disability is not generally held to have accelerated death unless such disability affects a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (1999). The death certificate shows that the veteran died in November 1995, at age 50. The immediate cause of death was listed as arteriosclerotic heart disease. Renal failure was listed as an other significant condition contributing to death. Service medical records do not contain findings or diagnoses of arteriosclerosis, a heart condition, or renal failure. The first diagnosis of record of diabetes mellitus was a December 1985 VA examination. The first diagnosis of record of a cardiovascular disease was a July 1992 medical report for insurance purposes. The veteran's physician indicated that the veteran began to receive treatment for coronary arteriosclerotic disease and cardiomyopathy in 1991. The examiner also noted that the veteran had diabetes mellitus. Private medical records received subsequent to the veteran's death reveal that he was diagnosed with arteriosclerotic heart disease, cardiomyopathy, congestive heart failure, coronary artery disease, diabetes, ascites, and pleural effusion in October 1991. At the time of admission, the veteran's medical history included a 12-year history of insulin dependent diabetes. The October 1991 private discharge summary revealed that a culture revealed a contaminant. There were no other statements regarding the contaminant. Additional private medical records to November 1995 show continued treatment for arteriosclerotic disease, cardiomyopathy, congestive heart failure, and insulin dependent diabetes mellitus. Private hospital discharge summaries in late 1995 contain statements that the veteran has had diabetes mellitus for over 20 years and had been sick since the 1970's. Diagnoses included gastroparesis, diabetes, congestive heart failure, renal failure, hypotension, and nephritis. At the time of the veteran's death, service connection was in effect for posttraumatic stress disorder, evaluated as 10 percent disabling. The evidentiary record reveals that the veteran's death in November 1995 was the result of arteriosclerotic heart disease due to renal failure. The appellant contends that the veteran's death was a result of his exposure to Agent Orange during service. However, no physician has established an etiological relationship between the veteran's arteriosclerotic heart disease or renal failure and his active service. Furthermore, while the Board notes that a 1991 private medical record references a contaminant, there is no finding as to what type of contaminant existed and there is no competent evidence that this contaminant influenced death. 38 C.F.R. § 3.312(c)(3). There is no competent medical evidence relating the finding of this contaminant to the veteran's period of service. Additionally, while private medical records indicate that the veteran had had diabetes for over 20 years, there is no competent medical evidence relating the diabetes to the veteran's period of service. The appellant's claim is supported solely by her own statements on appeal. The Court has held that lay assertions of medical causation do not constitute competent evidence to render a claim well grounded. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 495. In the absence of any evidence establishing an etiological relationship between the veteran's cause of death and his active service, there is no plausible basis for entitlement to service connection for the cause of the veteran's death. Thus, the Board concludes that the appellant's claim for service connection for the cause of the veteran's death is not well grounded. The Board acknowledges that it has decided some of the issues on appeal on a different basis than did the RO. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the appellant has been given adequate notice and opportunity to respond and, if not, whether the appellant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that the appellant has not been prejudiced by the decisions herein. The appellant's claims were denied by the RO. The Board considered the same law and regulations. The Board merely concludes that the appellant did not meet the initial threshold evidentiary requirement to submit well grounded claims. The result is the same. ORDER Service connection for arteriosclerosis and a heart condition, for accrued benefit purposes, is denied. Service connection for diabetes mellitus, for accrued benefit purposes, is denied. Service connection for the cause of the veteran's death is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals