Citation Nr: 0007618 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 96-38 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and her son. ATTORNEY FOR THE BOARD Patricia A. Boston, Counsel INTRODUCTION The appellant is the widow of a veteran who served on active duty from September 1942 to December 1945. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an October 1995 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 1998 and August 1999, the Board remanded this case to the RO for additional development of the evidence. The appellant is unrepresented in this appeal. In VA Form 21-534, the appellant filed a claim for death benefits, including dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. This issue has not been adjudicated by the RO and is referred to the RO for appropriate action. In this regard, the Board notes that during the pendency of the current appeal, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) rendered several decisions specifically on the issue of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 . Marso v. West, No. 97-2178 (U.S. App. Vet. Claims December 23, 1999); Cole v. West, No. 97-679, (U. S. App. Vet. Claims Dec. 23, 1999); Constantino v. West, 12 Vet. App. 517 (1999); Wingo v. West, 11 Vet. App. 307 (1998); Carpenter v. West, 11 Vet. App. 140 (1998). In those decisions the Court determined, in pertinent part, that a surviving spouse may be entitled, pursuant to 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22, to receive DIC benefits as if the veteran's death were service- connected by demonstrating that the deceased veteran hypothetically would have been entitled to receive 100 percent disability compensation based on his service- connected disabilities at the time of death and for a period of 10 consecutive years immediately prior to death, though he was for any reason (other than willful misconduct) not in receipt of that 100 percent compensation throughout that 10 year period. 38 U.S.C.A. § 1318(b). The RO should consider the application of these precedent decisions in its determination of the DIC claim. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Further, the Board notes that a final regulation was recently published which established an interpretive rule reflecting VA's conclusion that 38 U.S.C.A. § 1318(b) authorizes payment of DIC only in cases where the veteran had, during his lifetime, established a right to receive total service- connected disability compensation from VA for the period required by that statute or would have established such a right if not for clear and unmistakable error by the VA. 65 Fed. Reg. 3388-3392 (Jan. 21, 2000). The effective date of that regulation is January 21, 2000. FINDINGS OF FACT 1. The official death certificate discloses that the veteran died on August [redacted], 1995, at the age of 70. The immediate cause of death as reported on the certificate of death d was myocardial infarction due to heart disease and emphysema. The other significant condition contributing to death but not resulting in the underlying cause was prostate cancer. 2. At the time of the veteran's death, service connection was in effect for anxiety reaction, evaluated as 50 percent disabling; and dengue fever, evaluated as noncompensable. The veteran had a combined evaluation of 50 percent. 3. There is no competent medical evidence linking heart disease, emphysema or prostate cancer to military service or demonstrating the presence of prostate cancer or heart disease within a year after service. 4. There is no competent medical evidence establishing a causal relationship between the veteran's service-connected anxiety reaction or dengue fever and his death. 5. No competent medical evidence is of record that shows that the veteran's service-connected disabilities substantially or materially contributed to his death. CONCLUSION OF LAW The claim for entitlement to service connection for the cause of the veteran's death is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question that must be resolved with regard to a claim is whether the appellant has met her initial obligation of submitting evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet.App. at 81. An allegation that a disorder should be service connected is not sufficient; the appellant must submit evidence in support of a claim that would justify a belief by a fair and impartial individual that the claim is plausible. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. This means that there must be evidence of disease or injury during service, a current disability, and a link between the two. Further, the evidence must be competent. That is, an injury during service may be verified by medical or lay witness statements; however, the presence of a disability requires a medical diagnosis; and, where an opinion is used to link the disorder to a cause during service, a competent opinion of a medical professional is required. See Caluza at 504. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty. 38 U.S.C.A. §§ 1110 (West 1991). Furthermore, service connection will be granted for heart disease or prostate cancer, if it is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Secondary service connection may be granted for a disability, which is proximately due to, or the result of a service- connected disorder. 38 C.F.R. § 3.310 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that a claimant is entitled to service connection on a secondary basis when it is shown that the claimant's service- connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 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. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal relationship. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). A review of the record discloses that the veteran died on August [redacted], 1995, at the age of 70. The immediate cause of death as reported on the certificate of death dated in August 1995 was myocardial infarction due to heart disease, which was noted to have had its onset 48 years prior to his death, and emphysema. The other significant condition contributing to death but not resulting in the underlying cause was prostate cancer. It was indicated that the veteran died at his residence and that an autopsy was not performed. At the time of the veteran's death, service connection was in effect for anxiety reaction, evaluated as 50 percent disabling; and dengue fever, evaluated as noncompensable. The veteran had a combined evaluation of 50 percent. The service medical records, including the report of the veteran's separation medical examination, do not show complaints or findings diagnostic of respiratory disorder or prostate cancer. The veteran was hospitalized in May 1944 for shortness of breath after making a hike 4 days previously. The veteran stated that he noticed a dull pain beneath the sternum and became quite dyspneic and felt considerable palpitation. His blood pressure was 140/80. There was a systolic murmur most pronounced over pulmonic area and also heard at the aortic area. This was transmitted to the left axilla. The initial impression was undetermined congenital heart disease. While hospitalized, the diagnoses were valvular heart disease and mitral insufficiency. He was returned to duty later in May 1944. The report of the veteran's separation medical examination performed in December 1945 shows that the clinical evaluation of the cardiovascular system was normal. The veteran's blood pressure reading was recorded at 128/75. There was no evidence of a prostate or pulmonary disorder. The veteran was hospitalized at a VA facility in August 1947. The clinical history indicated that he experienced severe, sharp pressing pain over the precardium. An examination of the heart showed no abnormality. He was discharged later in August 1947 with a diagnosis of no disease found. A VA cardiovascular examination was conducted in September 1947. An electrocardiogram and chest x-ray showed no abnormality. His blood pressure was 110/70. The diagnosis was heart disease not found. The veteran was hospitalized at a VA facility in December 1957 for a burning anterior chest pain, which radiated into the left arm. Examinations of the heart and lungs were essentially normal. After undergoing a work-up, the diagnosis was conversion reaction. Subsequently, the veteran received intermittent treatment at VA and private facilities for several disorders, including his psychiatric disorder. The report of a VA special psychiatric examination conducted in June 1960 included a diagnosis of conversion reaction with cardiac neurosis. A chest X-ray showed auricular pericardial cyst. A summary of VA hospitalization dated in September 1960 revealed that the veteran was hospitalized for a period of observation and evaluation. At that time, it was determined that the veteran's pain was non-cardiac in origin. The veteran underwent an evaluation by a private physician in March 1965. The impression was that the veteran's chest pain would fit into the general category of Tietze's syndrome. There was no evidence of primary heart or lung disease. An August 1965 private medical statement is to the effect that in April 1965 the veteran underwent a right thoracotomy during which a pericardial lipoma was diagnosed. He was hospitalized in October 1971 for pneumonia and diabetes mellitus. VA outpatient records show that several elevated blood pressures were records in the late 1980s. A VA psychiatric examination conducted in March 1990 included diagnoses of generalized anxiety disorder, chronic severe, arteriosclerotic heart disease and chronic obstructive pulmonary disease. VA and private medical records dated from 1991 to 1995 note various diagnoses, to include generalized anxiety disorder, congestive heart failure, bronchiectasis, chronic obstructive pulmonary disease, prostatitis and benign prostatic hypertrophy with nocturia. The veteran was hospitalized at a private facility in June 1995 for congestive heart failure/pulmonary edema. He was hospitalized in August 1995 for hematemesis secondary to vomiting, gastritis, end stage chronic obstructive pulmonary disease, history of hypertension and congestive heart failure and aortic valve disease. The appellant testified at a RO hearing in November 1996 that the veteran had a cough in 1946 when she first met him and that he suffered from pneumonia, chills, fever and night sweats for the rest of his life. She also stated that the veteran had a heart disorder for which he was treated in 1947. Testimony was also provides by the appellant's son. The veteran's case was reviewed by a VA staff physician in September 1998. The physician found that the veteran had a functional murmur while in service, which in itself was not sufficient to make a diagnosis of congenital heart disease. It was reported that the veteran suffered from atypical chest pain, both during the service and after his discharge from active duty, which was diagnosed as cardiac neurosis resulting from chronic conversion reaction. The veteran suffered from congestive heart failure requiring frequent hospital admissions during the last decade of his life, which most likely resulted from myocardial infarction; and that the veteran's death at age 70 was due to myocardial infarction, as reported in the death certificate. After reviewing the veteran's medical history, it was the VA examiner's opinion that there was no connection between the veteran's inservice cardiac manifestations and death 50 years later from myocardial infarction and that there was no scientific data to support that the veteran's service- connected disability-psychiatric disorder-caused or aggravated his cardiovascular disorder. To summarize, lay statements and testimony describing symptoms of a disability is considered to be competent evidence. However, lay assertions of medical causation are not sufficient to establish a well-grounded claim in this case because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In other words, while the Board has no doubt that the appellant is sincere in her belief that the veteran's service-connected disabilities contributed to cause the veteran's death, she is not qualified to make a judgment regarding medical causation. Notwithstanding her many years of close contact with the veteran, such a conclusion requires medical training. Further, the Board cannot rely on its unsubstantiated medical judgment. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this case there is no competent medical evidence of which reasonably establishes a nexus between the heart disease, emphysema or prostate cancer and the veteran's period of active service, or to his service-connected anxiety reaction or dengue fever. Although the veteran was evaluated for a heart disorder during service, the VA examiner opined in effect that cardiovascular disease was not present during service and that the veteran's symptoms both during and following service were not related to his service-connected psychiatric disorder. This opinion is bolstered by the post service medical records. The first postservice clinical confirmation of heart disease, emphysema and prostate cancer was many years after service. The VA examiner further indicated that the cause of death was unrelated to the service connected anxiety disorder. There is no competent medical evidence of record which tends to show that the service connected anxiety reaction and dengue fever either caused or contributed substantially to the cause of the veteran's death. The Board noted that the death certificate placed the onset of the heart disease 48 years prior to the veteran's death. This apparently is based on a medical history and in not supported by the medical evidence. Regardless, this would still place the onset more than one year following service. In the absence of competent medical evidence of a nexus between heart disease, emphysema or prostate cancer and military service, or between the service-connected anxiety reaction or dengue fever and death, the claim is not well grounded and must be denied. Further, the Board views the information provided in the statement of the case, supplemental statement of the case, and other correspondence from the RO, sufficient to inform the appellant of the elements necessary to complete her application for service connection for the cause of the veteran's death. Although the RO did not specifically state that it denied the appellant's claim on the basis that it was not well grounded, the Board concludes that this was not prejudicial to the appellant. See Edenfield v. Brown, 8 Vet.App 384 (1995) (en banc) (when the Board decision disallowed a claim on the merits where the Court finds the claim to be not well grounded, the appropriate remedy is to affirm, rather than vacate, the Board's decision, on the basis of nonprejudicial error). The Board, therefore, concludes that denying the appeal on this issue because the claim is not well grounded is not prejudicial to the appellant. See Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER The claim for entitlement to service connection for the cause of the veteran's death is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals