Citation Nr: 0004336 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 96-22 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Associate Counsel INTRODUCTION The veteran had over 26 years of active service from July 1946 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 1997 the Board remanded the case for additional development. FINDINGS OF FACT 1. The appellant has submitted no competent medical evidence linking the cause of the veteran's death to active service, nor competent evidence otherwise demonstrating that a disease for which the presumption of service connection may be warranted contributed substantially or materially to the cause of death. 2. The veteran was not in receipt of, or shown to have been entitled to, a total disability schedular or unemployability rating prior to his death. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well- grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for DIC under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cause of Death Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Certain disorders associated with herbicide agent exposure in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 C.F.R. §§ 3.307, 3.309 (1999). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Id. VA, under the authority of the Agent Orange Act of 1991, has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for gastrointestinal tumors, including stomach cancer. See 64 Fed. Reg. 59232 (1999). The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. See 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(a) (1999). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. See 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). If the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Court has held that a well- grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. See Grottveit, 5 Vet. App. at 93 (Court held that lay assertions of medical causation cannot constitute evidence to render a claim well grounded); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (Court held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), the Court reaffirmed these holdings stating in order for a claim to be well grounded there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). In this case, the veteran's death certificate reflects that he died on May [redacted], 1995, as a result of respiratory failure due to malignant pleural effusions and ascites and metastatic gastric cancer. The appellant contends the veteran's gastric cancer was the result of Agent Orange exposure during service in Vietnam. In her April 1996 substantive appeal she stated that entitlement to service connection was warranted under 38 C.F.R. § 3.309 because the veteran's cancer could be classified as either leiomyosarcoma or a malignant granular cell tumor. Hospital records dated in April 1995 include a surgical pathology report which found adenocarcinoma to the gastroesophageal junction and stomach. The postoperative diagnosis was gastric cancer. A May 1995 death summary included a diagnosis of esophagogastric cancer. No opinions as to etiology were provided. The medical records are negative for diagnosis or treatment for leiomyosarcoma or a malignant granular cell tumor. Based upon a review of the record, the Board finds no competent medical evidence demonstrating that the veteran's cause of death was due to a disorder related to active service. There is also no competent medical evidence demonstrating that a disease for which the presumption of service connection may be warranted contributed substantially or materially to the cause of death. The Board notes VA has determined that gastrointestinal tumors, including stomach cancer, were not entitled to a presumption of service connection. While entitlement to direct service connection for gastric cancer is not precluded by VA's determination as to the presumption of service connection, the only evidence in support of the appellant's claim that the veteran's death was the result of Agent Orange exposure during active service are her own statements. While she is competent to testify as to symptoms the veteran experienced, she is not competent to provide a medical opinion because this requires specialized medical knowledge. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Therefore, the Board finds that the appellant has not submitted evidence of a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107(a). The Board further finds that the appellant has not indicated the existence of any additional evidence that would well ground this claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). DIC Claim Benefits are paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death is service connected when the veteran's death was not caused by his or her own willful misconduct and the veteran was in receipt of, or for any reason was not in receipt of but would have been entitled to receive, compensation at the time of death for a service-connected disablement that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of the veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999). In this case, the record reflects that at the time of his death the veteran was service-connected for right ear hearing loss, assigned a 0 percent disability rating. The Board notes the appellant does not contend and the evidence does not reflect that the veteran was entitled to an applicable total schedular disability or unemployability rating prior to his death. Therefore, the Board finds entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is not warranted. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals