BVA9503055 DOCKET NO. 93-04 070 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from September 1974 to October 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a February 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran died on November [redacted] 1991. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the cause of the veteran's death, gastric adenocarcinoma with widespread skeletal metastasis, first manifested during service. She maintains that he started complaining about gastrointestinal problems about five years prior to his discharge from service. 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's claim of entitlement to service connection for the cause of the veteran's death is not 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 claim of entitlement to 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 FINDING AND CONCLUSION The Board notes that the appellant's claim for service connection for the cause of the veteran's death must be plausible and capable of substantiation, and thus well-grounded, within the meaning of 38 U.S.C.A. § 5107(a). If not, VA has no further duty to assist her in developing facts pertinent to that claim. 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Malignant tumors may be presumed to have been incurred during service if they become manifest to a degree of 10 percent within one year following separation from service, even though there is no evidence of such tumors during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The service medical records are negative for any complaints or findings of gastrointestinal disability. Also, there is no clinical confirmation of any such disability within the one year period following the veteran's separation from service. The first medical evidence of the veteran's stomach cancer is a report from Bruce Hospital dated September 10, 1990. The veteran was seen for emergency care complaining of abdominal pain. On September 19, 1990, the veteran was seen at the VA Hospital complaining of nausea, vomiting, and back pain. The diagnosis was gastric adenocarcinoma with bony metastases. On September 25, 1990, the veteran was hospitalized at a VA facility. He stated that the nausea and vomiting started one year prior to his admission. He noted a 30 pound weight loss over the previous year. It was noted at one point that the veteran had provided a two-year history of nausea and vomiting, but at another point he stated that the nausea and vomiting began six weeks prior to his admission. The veteran died on November [redacted] 1991, of gastric adenocarcinoma with widespread skeletal metastasis. The appellant and two lay witnesses alleged that the veteran had nausea, vomiting and weight loss either during service or immediately following service, and the appellant stated that in her opinion the cancer was caused by his service. However, there is absolutely no medical attribution of the veteran's cancer to his period of service or to the one-year period following his discharge from service. The appellant and the two lay witnesses are not shown to have medical expertise in the field of oncology. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, without the requisite competent medical evidence establishing that the appellant's claim is plausible, she has not met her burden of submitting evidence that the claim of entitlement to service connection for the cause of the veteran's death is well grounded. Although the Board has considered and denied this appeal on a ground different from that of the RO, that is, whether the appellant's claim is well grounded rather than whether she is entitled to prevail on the merits, the appellant has not been prejudiced by our decision. In assuming that the claim was well grounded, the RO accorded the appellant greater consideration than her claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant's 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. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Evidence of a well-grounded claim not having been submitted, the claim for service connection for the cause of the veteran's death is dismissed. 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.