BVA9501106 DOCKET NO. 93-08 144 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran had recognized guerrilla service on October 15, 1944, and from January 1, 1945 to March 4, 1946. He was in a no- casualty status from October 16, 1944 to December 31, 1944. He died in June 1991. The record contains a statement in support of a claim in 1960 from the veteran indicating that the appellant is his daughter. This matter comes before the Board of Veterans Appeals (the Board) on appeal from a decision from the Regional Office (RO). By rating action dated in July 1992, the RO denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection is warranted for the cause of the veteran's death. She points out that he died of a myocardial infarction and argues that if it was due to beriberi heart disease, then service connection could be granted. Therefore, she requests that the case be remanded to resolve this question. 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 the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for the cause of the veteran's death is well-grounded. FINDINGS OF FACT 1. At the time of the veteran's death, service connection was not in effect for any disability. 2. The veteran's death was due to a myocardial infarction. 3. Any underlying cardiovascular disease was first present many years after service and is unrelated to any incident of service. 4. There is no competent medical evidence linking the veteran's myocardial infarction to service. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the appellant has presented evidence of a well-grounded claim, that is, one which is plausible or capable of substantiation. If not, her appeal must fail and there is no duty to assist her further in the development of her claim, since any such development would be futile. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (the Court) held that a claim must be accompanied by evidence (emphasis in original). As will be explained below, the appellant has not submitted competent evidence to support her claim. Thus, the Board finds that her claim is not well-grounded. Accordingly, there is no duty to assist her in the development of her claim. When the Board addresses in its decision a question that has not been addressed by the RO, 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). In light of the appellant's failure to meet the initial burden of the adjudication process, and the fact that by dismissal of her claim she is not burdened with the prior final adjudication on the merits, the Board finds that she is not prejudiced by its consideration of these issues. Thus, if she is able to submit a well-grounded claim in the future, she will not be faced with the higher hurdle of providing new and material evidence to reopen her claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). Under the law, service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Affidavits for Philippine Army service dated in September 1945 and February 1946 disclose no wounds or illnesses attributable to the veteran's recognized guerrilla service. There are no records available concerning any treatment the veteran might have received while in recognized guerrilla service. The record shows that the veteran was 84 years old when he died in June 1991. The death certificate reveals that he died of a massive myocardial infarction. The appellant has not submitted any evidence linking the underlying cardiovascular disease to service. She has not even alleged that heart disease was present in service or within one year thereafter. The only claim made on behalf of the appellant is that the veteran might have had beriberi in service, and that service connection for the cause of death could be granted on the basis that he died of beriberi heart disease. It is significant to point out, however, that the provisions regarding service connection for beriberi (including beriberi heart disease) permit service connection to be granted for this condition only if the veteran was a prisoner or war for at least thirty days. See 38 C.F.R. § 3.309(c) (1993). There is no evidence that the veteran was a prisoner of war, and the appellant has not made this assertion. In this case the evidence in support of the appellant's assertion that the veteran's heart disease was present in service or within one year thereafter consists solely of her statements. She has not submitted any competent evidence linking his cardiovascular disorder, which was first shown to be present in 1982, to his period of service. As a lay person, the appellant lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education. See Espiritu, 2 Vet.App. 492. The evidence of record establishes that the veteran's cardiovascular disease had its onset many years after service. In the absence of competent medical evidence demonstrating that cardiovascular disease was present in service or within one year following discharge from service, the Board must find that the appellant's claim for service connection for the cause of the veteran's death is not well-grounded. No physician or other health care provider has suggested that the veteran's cardiovascular disease was present during service or within one year thereafter, or that he had beriberi heart disease. The Court has held that if the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). Thus, the lay assertions to the effect that cardiovascular disease is related to service are neither competent nor probative of the issue in question. Indeed, in Moray v. Brown, 5 Vet.App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. In the absence of such evidence, the Board has no alternative but to conclude that the appellant's claim is not well-grounded. ORDER The claim of entitlement to service connection for the cause of the veteran's death is not well-grounded and, accordingly, the appeal is dismissed. RICHARD B. FRANK 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.