BVA9505900 DOCKET NO. 93-09 016 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for the cause of the death of the veteran. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Appellant and Ms. [redacted] ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from September 1947 to August 1966. This appeal arises from a February 1992 rating decision of the RO. That determination denied the claim for entitlement to service connection for the cause of death of the veteran. CONTENTIONS OF APPELLANT ON APPEAL The appellant, who is the deceased veteran's widow, contends that the veteran's service-connected disabilities resulted in or contributed to his death. Specifically, she contends that service-connected cirrhosis of the liver, as well as service- connected anal fissure and alleged service-connected colitis, could have resulted in cancer which resulted in the veteran's death. DECISION OF THE BOARD The Board of Veterans' Appeals (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 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 sufficient evidence has not been submitted to justify a belief by a fair and impartial individual that the appellant's claim for entitlement to service connection for the cause of the veteran's death is well grounded. FINDINGS OF FACT 1. The certificate of death shows that the veteran died on October [redacted] 1991, as an immediate result of bronchopneumonia, due to, or as a consequence of, metastatic cancer of the prostate with pathological fracture of the femur. Other significant conditions contributing to death, but not resulting in, the underlying cause of death, are identified as anemia and ulcerative colitis with metastasis to the liver. 2. Bronchopneumonia, metastatic cancer of the prostate with anemia and ulcerative colitis with metastases to the liver were first manifested many years after service. 3. At the time of the veteran's death, service connection had been established for peripheral neuropathy, evaluated as 10 percent disabling; cirrhosis of the liver; duodenal ulcer, perforated, operated; vascular hypertension; and anal fissure were all evaluated as noncompensably disabling. 4. The appellant has submitted no competent evidence associating service or service-connected disability with the cause of death of the veteran. As such, a plausible claim for entitlement to service connection for the cause of the veteran's death has not been submitted. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim for entitlement to service connection for the cause of the veteran's death, and the appeal is dismissed. 38 U.S.C.A. §§ 5107, 7105(d) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical Service medical records indicate no treatment for or diagnosis of broncho-pneumonia, metastatic cancer of the prostate, or ulcerative colitis with metastases to the liver during service. The veteran was medically discharged in August 1966 due to partial paralysis of the lower extremities. At that time, the veteran was diagnosed with Laennec's cirrhosis of the liver, probably of alcoholic origin, subsequent peripheral neuropathy of undetermined etiology, duodenal ulcer, and vascular hypertension secondary to steroid therapy for iatrogenic Cushing's syndrome. A February 1966 bone marrow biopsy ruled out lymphoma. Post-service treatment records indicate continued treatment for service-connected disabilities, including cirrhosis of the liver and duodenal ulcer. Multiple VA examination reports of March 1969, November 1977, and April 1978 indicate no prostate or colon abnormality, nor related cancer. In March 1969, while the veteran's abdomen was somewhat protruding, there was no evidence of fluid present, no masses were palpated, and liver, kidneys and spleen were not palpable. In April 1978 the veteran complained of occasional passage of small amounts of bright blood with bowel movement, usually after eating rough or spicy foods, and he denied rectal or abdominal pain, nausea, or vomiting. Terminal treatment records indicate that the veteran was admitted in March 1991 with complaints of right hip pain. X-rays showed focal areas of lytic lesions in the inferior ramus of the right ischiopubic bone, as well as a suspicious lytic area in the intertrochanteric region of the right proximal femur, and possible lytic lesion in the subtrochanteric region of the right proximal femur. The diagnosis upon admission was adenocarcinoma with bone metastases and question of gastrointestinal primary and history of ulcerative colitis. A CT scan of March 1991 was suggestive of liver metastases and there was an extensive area of bone destruction at the thoracolumbar junction which was felt to probably represent metastatic disease, with compression of the spinal cord. Palliative radiation therapy was initiated, and in April 1991 the veteran sustained a pathological fracture of the right femur, for which a pin was inserted and later reinserted. In May 1991, the veteran was transferred for long term and pain management, with a diagnosis of carcinoma of the colon, with metastases to the liver. A nuclear scan of the liver showed a large area of non-attenuation possibly secondary to prostate metastases or metastases coming from the colon area. Heroic measures were refused for comfort measures only. Mild anemia was later noted, and the veteran was unable to eat. At the time of the veteran's death, diagnoses were noted as bronchopneumonia, carcinoma of the prostate, adenocarcinoma with pathological fracture of the femur and metastases to the vertebrae and possibly to the ribs, questionable adenocarcinoma of the colon with metastases to the liver. The Board notes that at the time of death, service-connection had not been established for bronchopneumonia, colitis, disease of the prostate, or cancer. Additionally, service-connected cirrhosis of the liver had been assigned a noncompensable evaluation since November 1977, service-connected duodenal ulcer, perforated, operated, had been assigned noncompensable evaluations since march 1969, and service-connected vascular hypertension and service-connected anal fissure both had been assigned noncompensable evaluations since February 1968. The veteran's sole compensable service-connected disability, peripheral neuritis, had been evaluated as 10 percent disabling since March 1969. II. Service Connection for Cause of Death The threshold question that must be resolved with regard to every claim is whether the appellant has presented evidence that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). This statutory requirement of well-groundedness places upon a claimant the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded, that is, that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In that case, the United States Court of Veterans Appeals (the Court) defined a plausible claim as "one which is meritorious on its own or capable of substantiation." However, if such plausible claim is not presented, the appeal fails as to that claim, and the Board is under no duty to assist in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In this case, the appellant has not met this initial statutory requirement and the claim is dismissed as not well-grounded. The Court has held that a claim that is not well grounded must be dismissed by the Board. Recent Court precedent opinion underlines this initial burden: [An appellant] claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Boeck v. Brown, 6 Vet. App. 14, 17 (1993). The appellant contends that cirrhosis of the liver, as well as service-connected anal fissure and nonservice-connected colitis, may have resulted in cancer and caused the veteran's death. We find that this statement is not competent evidence so as to support a plausible claim, to the extent that it is offered as proof of a medical diagnosis. The Court has held that lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet. App. 91 (1993). This is especially true when the lay statement is directly contradicted by evidence of record, as in the instant case. We therefore find that to the extent that the statement is offered for reasons which require medical knowledge under the Court's holding in Espiritu, the statement fails to raise a question of fact or law. Service medical records clearly indicate no diagnosis of bronchopneumonia, cancer or adenocarcinoma of the prostate or colon during service or for many years thereafter. Post-service treatment records, terminal treatment records, and the October 1991 certificate of death, indicate that the veteran died as an immediate cause of bronchopneumonia, due to, or as a consequence of, metastatic cancer of the prostate with pathological fracture of the femur, with no additional cause or death, but with anemia and ulcerative colitis with metastasis to the liver as other significant conditions contributing to death, but not resulting in, the underlying cause of death. As such, her controverted statement that some relation could have existed between service-connected disability and the death of the veteran it is not competent evidence, under the holding of Grottveit, for that purpose. The Court notes that such a lay statement can certainly provide an eyewitness account of a veteran's visible symptoms, as the capacity of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, the appellant's contentions are not offered for that purpose, and do not indicate the veteran's visible symptoms. Accordingly, the essentially contradicted lay opinion, without description of symptoms, does not establish a well-grounded claim for entitlement to service connection for the cause of the veteran's death, and the claim is not plausible. The evidence of record, including service medical records, post-service treatment records, VA examination reports, and terminal treatment records, do not show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause the death of the veteran. 38 U.S.C.A. §§ 5107, 7105(d) (West 1991). At the appellant's hearing in July 1992, there was testimony from a registered nurse in addition to the testimony of the appellant. The nurse's testimony was to the effect that there was some difficulty in determining where the veteran's cancer began. According to this testimony, it was possible that the veteran's cancer began in his liver. Although the nurse's testimony is not lay testimony, it falls short of establishing a well-grounded claim. Whether the veteran's cancer began in his liver or elsewhere, the evidence is uniformly to the effect that the cancer began many years after the veteran's active service ended, and the record includes no medical reports or testimony establishing a connection between the cancer and the veteran's service-connected disabilities. The appellant has not submitted a claim that is meritorious on its own or capable of substantiation; she has not supported her claim for entitlement to service connection for the cause of the veteran's death with any plausible, probative evidence linking the veteran's prior service or service-connected disability, with the identified cause of the veteran's death. The certificate of death fails to associate service or service-connected disability with the cause of the veteran's death. Furthermore, the approximate interval between the onset of bronchopneumonia and death is identified in the certificate of death as 72 hours, with several months identified as the approximate interval between the veteran's death and metastatic cancer of the prostate with pathologic fracture of the femur. As such, the current claim, as stated, is not plausible. We must accordingly find that the claim for entitlement to service connection for the cause of the veteran's death, is not well grounded. Since the claim is not a well-grounded one, it must be dismissed as no question of fact or law has been submitted over which the Board has jurisdiction. 38 U.S.C.A. §§ 5107, 7105(d) (West 1991). ORDER The claim for entitlement to service-connection for the cause of death of the veteran is dismissed. G. H. SHUFELT 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.