BVA9504145 DOCKET NO. 93-03 902 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. J. McCarty, Associate Counsel INTRODUCTION The veteran had active service from November 1945 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 1994, the Board remanded the appellant's case to the RO for further development regarding the veteran's exposure to radiation-risk activities in service. The RO requested further information and evidence, fully specified, from the appellant in August and November 1994, both by letter and by telephone, but she did not respond. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the wife of the deceased veteran, contends that service connection is warranted for the cause of the veteran's death from acute myelocytic leukemia as the leukemia was caused by inservice exposure to radiation. 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. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the appellant has not met her burden of submitting evidence to support a belief by a fair and impartial individual that the claim for entitlement to service connection for the cause of the veteran's death is well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. During his lifetime, the veteran was service connected for low back strain, evaluated as 10 percent disabling; recurrent urticaria, evaluated as noncompensable; and right elbow strain, evaluated as noncompensable, each effective from February 1967. 3. In July 1984, at age 56, the veteran died from acute myelocytic leukemia. 4. Myelocytic leukemia was not present until many years after service, and there is no evivdence on file that it was in any way related to service. CONCLUSION OF LAW 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 CONCLUSION Under VA regulations, service connection can be granted for disability resulting from disease or injury incurred in or aggravated during active military service in wartime or peacetime. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection can also be granted for any type of leukemia if it becomes manifest to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Also, leukemia, other than chronic lymphocytic leukemia, is recognized as being a disease specific to radiation- exposed veterans, which may be presumed to have been incurred in service if it is shown that a veteran had exposure to "radiation- risk activity" in service. Radiation risk activity means either onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, between August 6, 1945 and July 1, 1946; or internment as a prisoner of war in Japan during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who occupied Hiroshima or Nagasaki, Japan, as described above. 38 U.S.C.A. § 1110, 1112 (West 1991); 38 C.F.R. § 3.309, 3.311b (1993) (now § 3.311). To establish service connection for the cause of the veteran's death, the evidence must establish that a service-connected disease or injury either caused or contributed substantially or materially to cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The threshold question to be answered with respect to this appeal is whether the appellant has presented evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a claim that is plausible, that is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1991). If a claim is not well grounded, the appeal must fail with respect to it, and there is no duty to assist the appellant further in the development of facts pertinent to the claim. Id. After a careful review of the record, the Board finds that the claim for service connection for the cause of the veteran's death is not well grounded. According to the death certificate, the veteran died in July 1984 as a result of acute myelocytic leukemia. No other significant conditions contributing to death were noted. An autopsy was not indicated as being done. At the time of the veteran's death, service connection was in effect for low back strain, evaluated as 10 percent disabling; recurrent urticaria, evaluated as noncompensable; and right elbow strain, evaluated as noncompensable, for a combined rating of 10 percent from February 1967. The service medical records are negative for treatment or diagnosis of leukemia. There is no evidence of record which indicates that the veteran was diagnosed as having leukemia within one year of discharge from service. In fact, the only clinical evidence of record indicating that the veteran had leukemia is the death certificate itself. Although the appellant contends that the veteran's leukemia resulted from exposure to atomic weapons in service, she is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 494 (1992). The lay statement provided by [redacted], a fellow serviceman, indicates that he recalled the veteran having joint pain in the 1950s, which Mr. [redacted] believes may have been related to leukemia. However, he too is not qualified, as a lay person, to furnish medical opinions or diagnoses. See Espiritu, supra. The fact that he recalled the veteran speaking of prior service in Japan does not make this claim well grounded. The Board finds it pertinent that the veteran's service records clearly indicate that he had no foreign service from November 1945 to at least February 1949. Therefore, even assuming that the veteran served in Japan, he could not have been in Hiroshima or Nagasaki, Japan, between August 6, 1945 to July 1, 1946. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.311. Further, there is no evidence of record which indicates that the veteran had exposure to radiation at any nuclear test sites or was a prisoner of war in Japan. Finally, the record contains no medical opinion at all which suggests a link between radiation and leukemia in this case. The evidence of record fails to establish that the veteran's service-connected disabilities substantially or materially contributed to the veteran's cause of death. As noted above, the death certificate identified no significant contributing factors to the veteran's death by leukemia. The appellant has offered no evidence other than her assertions, and those of Mr. [redacted] and her representative, to demonstrate a causal relationship between service and the subsequently diagnosed myelocytic leukemia or to show that service-connected disabilities played any role in the veteran's death. She has been afforded full opportunity to either furnish or identify such evidence. Thus, the Board concludes that the appeal is not well grounded and must be dismissed. 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 (1993). 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. J. J. SCHULE Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.