Citation Nr: 0004653 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-33 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1318 (West 1991). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The appellant, the surviving spouse of the veteran who had active service from December 1943 to August 1945, appealed this decision to the BVA. The claim of entitlement to dependency and indemnity compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1318 (West 1991) is the subject of a remand which follows this decision on the merits. FINDINGS OF FACT 1. The veteran's death certificate shows he died in March 1997 at the age of 71 due to probable acute myocardial infarction. 2. At the time of the veteran's death, service connection had been established for the residuals of muscle injuries to the right shoulder girdle muscle groups III and IV, and left elbow muscle group VI. In addition, a total rating based upon individual unemployability due to service-connected disabilities (TDIU) was assigned effective February 1, 1991. 3. A disability of service origin is not shown to have caused, hastened, or materially and substantially contributed to the veteran's death. CONCLUSION OF LAW The appellant's claim of entitlement to 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 Service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other conditions, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b); see Ashley v. Brown, 6 Vet. App. 52, 57 (1993). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c); see Ventigan v. Brown, 9 Vet. App. 34, 36 (1996). A person who submits a claim for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). 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 [38 U.S.C.A. § 5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for service connection for the cause of death must be supported by evidence to establish that the claim is well grounded. See Bloom v. West, 12 Vet. App. 185, 187 (1999). To establish that a claim of entitlement to service connection for the cause of the veteran's death is well grounded, an appellant must demonstrate the incurrence or aggravation of a disease or injury in service, see Layno v. Brown, 6 Vet. App. 465, 469 (1994) and Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and a nexus between the in-service injury or disease and the cause of death, see Lathan v. Brown, 7 Vet. App. 359, 365 (1995) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Medical evidence is required to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The truthfulness of evidence for the purpose of determining whether the appellant's claim of entitlement to service connection for the cause of the veteran's death is well grounded will be presumed, as required by Robinette v. Brown, 8 Vet. App. 69, 77 (1995), and King v. Brown, 5 Vet. App. 19, 21 (1993). Alternatively, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, supra. In this case, at the time of the veteran's death, service connection had been established for the residuals of muscle injuries to the right shoulder girdle muscle groups III and IV, and left elbow muscle group VI. In addition, a total rating based upon individual unemployability due to service- connected disabilities (TDIU) was assigned effective February 1, 1991. The appellant essentially contends the veteran's death was caused by the pressures/stress his heart had to endure through the years due to the injuries he sustained during his service, and for which he was service connected prior to his death. In addition, the appellant contends the veteran was totally disabled and unemployable due to his service- connected disabilities for a period of time in excess of 10 years prior to his death. In this regard, the appellant further notes the veteran's entitlement to TDIU arose in April 1985 when, as per an April 1985 rating decision, his combined evaluation was increased to 60 percent. However, the issue of the appellant's entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318 will be addressed in the remand that follows this decision. With respect to the appellant's claim for service connection for the cause of the veteran's death, the veteran's death certificate shows he died in March 1997 at the age of 71 as a result of a "probable acute myocardial infarction." However, the evidence of record is negative for any indication that the veteran was ever treated for any heart problems prior to his death. Specifically, the veteran's service medical records are negative for any complaints of or treatment for any heart problems during his service. In addition, the post service medical evidence includes medical records from the VA Medical Centers in St. Louis, Columbia, and Kansas City dated from 1961 to 1991. These records describe the treatment the veteran received over time for various health problems including, but not limited to, painful right shoulder, rheumatoid arthritis, degenerative joint disease of the left knee, synovitis of the right shoulder, and residuals of superficial and deep shrapnel wounds. However, and more importantly, these VA records neither contain any indication that the veteran was treated for any heart problems prior to his death, nor contain any indication that a disability of service origin caused, hastened, or materially and substantially contributed to his death. Furthermore, during the July 1999 appeal hearing before the undersigned member of the Board, the appellant testified that the veteran was never treated for a heart condition prior to his myocardial infarction. Based on this evidence, the Board finds that the appellant has not presented a well-grounded claim of entitlement to service connection for the cause of the veteran's death. The present record does not contain competent medical evidence showing that the veteran's immediate cause of death, probable acute myocardial infarction, was linked to his period of service. Given this, the question then becomes whether the appellant has presented evidence that a service-connected disability caused or contributed substantially or materially to the cause death, and the Board observes that there is no evidence linking any of the veteran's service-connected disabilities to his death. With regard to the appellant's belief that the veteran's death was caused by his service-connected disabilities, a lay person is competent to describe symptoms observed, but is not competent to offer evidence which requires medical knowledge, such as diagnosis or a determination of etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). If the only evidence on a medical issue is the testimony of a lay person, the claimant does not meet the burden imposed by 38 U.S.C.A. § 5107(a) and does not have a well-grounded claim. Unsupported by medical evidence, a claimant's personal belief, however sincere, cannot form the basis of a well- grounded claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). For these reasons, the Board must find that the appellant's claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a). As the foregoing explains the need for competent evidence linking the cause of the veteran's death to his active duty service, the Board views its discussion as sufficient to inform the appellant of the elements necessary to complete her application. See Graves v. Brown, 8 Vet. App. 522, 524- 525 (1996). ORDER The claim for service connection for the cause of the veteran's death is denied. REMAND The appellant contends, in effect, that the veteran should have been rated as totally disabled for at least ten years prior to his death, and as a consequence, DIC benefits should be granted. The Board notes that the appellant's representative has argued in written argument and at a personal hearing held before the undersigned in July 1999 that there was error in an April 1985 rating decision which increased the combined evaluation for the veteran's service- connected disabilities to 60 percent and essentially failed to award a TDIU. In this regard, the Board notes that the April 1985 rating decision, which followed a January 1985 Board decision, not only increased the combined disability evaluation assigned the veteran, but also notified him that the award constituted a complete grant of benefits sought on appeal. The representative asserts that because 38 C.F.R. 4.16 (1999) permits, for purposes of arriving at the 60 or 40 percent ratings required for an award of a total rating based on individual unemployability, disabilities of common etiology to be considered as one disability, the RO should have solicited and adjudicated a claim for TDIU from the veteran and in this regard, failed in its duty to assist the veteran. The appellant essentially asserts that the veteran was totally disabled at that time and should have been so rated. It thus appears to the Board that it is being asserted by and on the appellant's behalf that there was clear and unmistakable error (CUE) in the April 1985 rating decision. However, the RO has not addressed these arguments and should do so on remand. Pursuant to 38 U.S.C.A. § 1318 (West 1991), the Secretary of Veterans Affairs shall pay dependency and indemnity compensation (DIC) benefits to the surviving spouse and to the children of a deceased veteran who dies, not as a result of his own willful misconduct, and who was in receipt of or entitled to receive compensation for a service-connected disability that either was continuously rated totally disabling for a period of ten years or more immediately preceding death, or, if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran's discharge or other release from active duty. The Board notes that 38 C.F.R. § 3.22 is the corresponding regulation on this matter. The language of 38 C.F.R. § 3.22(a) (1999) reflected that benefits are payable if a veteran's death was not caused by his or her own willful misconduct, and the veteran was in receipt of, or would have been "entitled to receive," compensation for a service- connected disablement that was continuously rated totally disabling by a schedular or unemployability rating for a period of ten or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of discharge from service for a period of not less than five years preceding death. In Wingo v. West, 11 Vet. App. 307 (1998) the Court interpreted 38 C.F.R. § 3.22(a) (1999) as permitting a DIC award in a case where the veteran had never established entitlement to compensation for a total disability and had never filed a claim for such benefits which could have resulted in entitlement to compensation for the required period. The Court concluded that this regulation would permit a DIC award where it was determined that the veteran "hypothetically" would have been entitled to a total disability rating for the required period if he or she had applied for compensation during his or her lifetime. In response to Wingo, 38 C.F.R. § 3.22 was revised and VA has established an interpretative rule reflecting its conclusion that section 1318 authorizes payment of DIC only in cases were the veteran had, during his or her 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 VA. These changes are set forth in 65 Fed. Reg. 3388-3392 (Jan. 21, 2000). The revised regulation clearly sets forth that the term "entitled to receive" means that, at the time of death, the veteran had a service- connected disability rated totally disabling by the VA but was not receiving compensation for one of the following reasons, listed in 38 C.F.R. § 3.22(b): (1) the VA was paying the compensation to the veteran's dependents (2) the VA was withholding the compensation under the authority of 38 U.S.C.A. § 5314 to offset an indebtedness of the veteran (3) the veteran had applied for but been denied entitlement to total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issues of service connection, disability evaluation, or effective date (4) the veteran had not waived retired or retirement pay in order to receive compensation (5) the VA was withholding payments under the provisions of 10 U.S.C.A. § 1174(h)(2) (6) the VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service- connected disability rating (7) the VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. These regulatory changes reflect the view that an interpretive rule, as opposed to a legislative rule, can create no law and have no effect that beyond that of the underlying statute. As 38 U.S.C.A. § 1318 does not authorize the VA to pay DIC benefits in cases where the veteran had no more than "hypothetical entitlement" to the underlying compensation, and because Congress has not authorized the VA to establish legislative rules creating a right to DIC in such cases, the VA has no authority to create such a right. As this regulatory change was prompted in view of the clear absence of congressional intent to create a right to DIC in cases of hypothetical entitlement to compensation for total disability, it appears to follow that the revisions to 38 C.F.R. § 3.22(a) are not subject to Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), which holds that where laws or regulations change during the pendency of an appeal, the version most favorable to the claimant applies except where there is congressional intent to the contrary. As a practical matter, then, it appears that cases of "hypothetical entitlement" to TDIU are insufficient to warrant entitlement to DIC under the revisions of 38 C.F.R. § 3.22. The reverse is true only for cases that fall under the very limited list of exceptions in 38 C.F.R. § 3.22(b), which appears to be essentially what the appellant is arguing. The Court has held that if action by the Board involves a question not previously adjudicated by the RO, and such action could be prejudicial to the veteran, further due process must be provided. Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the case is remanded for a determination as to whether the veteran would have had a total rating for the 10 years preceding his death but for clear and unmistakable error in an April 1985 rating decision by VA. In adjudicating this claim, the Board notes that determinations concerning the existence and duration of the veteran's entitlement to compensation based on a total rating are governing by the generally-applicable provisions of 38 U.S.C.A. §§ 5101, 5110, 7104(b) and 7105(c) (West 1991), governing claim-filing requirements, effective dates of entitlement, and the finality of RO and Board decisions. Accordingly, this case is REMANDED to the RO for the following action: The RO should again review the appellant's claim of entitlement to DIC under 38 U.S.C.A. § 1318 benefits with consideration of the claim that the April 1985 rating decision was clearly and unmistakable erroneous in not soliciting and adjudicating a claim for a total rating based on individual unemployability at that time. Consideration should be given to the recent regulatory changes, the applicable legal criteria governing claims of CUE and the provisions of 38 U.S.C.A. §§ 5101, 5110, 7104(b) and 7105(c). If any benefit sought on appeal remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to accord the appellant due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Member, Board of Veterans' Appeals