Citation Nr: 0005186 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-15 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to accrued benefits. INTRODUCTION The veteran was in beleaguered status from December 14, 1941 to April 8, 1942; was a prisoner of war from April 9, 1942 to June 27, 1942; was in a no casualty status from June 28, 1942 to February 11, 1945 and had regular Philippine Army service from February 12, 1945 to March 20, 1946. The veteran died in July 1996, and the appellant is his widow. By rating decision dated in February 1997, the Regional Office (RO) denied the appellant's claim for service connection for the cause of the veteran's death. She was notified of this determination and of her right to appeal by a letter dated later that month, but a timely appeal was not received. The appellant submitted a letter in June 1997 requesting a review of her claim. In a rating action dated in June 1998, the RO again denied service connection for the cause of the veteran's death. The appellant filed a timely appeal of this decision. The Board of Veterans' Appeals (Board) acknowledges that the RO failed to recognize that the February 1997 determination had become final. However, in light of the fact that the June 1998 rating decision considered the entire evidence of record, the Board concludes that no prejudice to the appellant will result from a de novo determination. See Bernard v. Brown, 4 Vet. App. 384 (1993). The June 1998 rating decision also denied a claim for accrued benefits. Effective March 1, 1999, the name of the United States Court of Veterans Appeals was changed to the United States Court t of Appeals for Veterans Claims ("the Court). FINDINGS OF FACT 1. At the time of the veteran's death in July 1996, service connection was in effect for anxiety neurosis, evaluated as 20 percent disabling; and for duodenal bulb deformity and helminthiasis, evaluated as 10 percent disabling. 2. The veteran's death was due to a cerebrovascular accident. 3. The veteran was a prisoner of war. 4. There is no clinical evidence of localized edema during the veteran's captivity. 5. There is no competent medical evidence linking the veteran's fatal cerebrovascular accident to service or to his service-connected disabilities, or establishing that his service-connected disabilities played any role in his death. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well- grounded claim of entitlement to accrued benefits. 38 U.S.C.A. § 5107(a) (West 1991). 2. 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. § 5107(a) (West 1991). 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, meritorious on its own 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 Court held that a claim must be accompanied by evidence. As will be explained below, the appellant has not submitted competent evidence to support her claims for accrued benefits or for service connection for the cause of the veteran's death. Thus, the Board finds that her claims are 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, 4 Vet. App. 384. The Board concludes, however, that a claim which is not well grounded is inherently implausible, and any error by the RO in the adjudication of the claim could not be prejudicial. Although when a claim is not well grounded, the VA does not have a statutory duty to assist an appellant in developing facts pertinent to her claim, the VA may be obligated to advise an appellant of the evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). By this decision, the Board is providing the appellant with notice of the evidentiary insufficiency of her claim, and what evidence would be necessary to make the claim well grounded. Factual background The veteran's service medical records are apparently not available. In a statement dated in March 1992, a private physician related that he had treated the veteran since October 1991 for acute dysentery, malaria, rheumatoid arthritis and otitis media. There was no indication of any cardiovascular problems or a cerebrovascular accident. A chest X-ray study at a private facility in May 1992 revealed an atherosclerotic aorta. The veteran completed a Former Prisoner of War Medical History form in May 1993. He stated that he had acquired beriberi while in captivity. He denied that he experienced swelling of the legs and/or feet during captivity. During a VA former prisoner of war protocol examination in May 1993, it was noted that the heart impulse was normal. Palpitation, rhythm and auscultation were normal. The veteran denied chest pain and shortness of breath. There was no indication of edema. It was noted that there was no evidence of a nervous system dysfunction. No diagnosis pertaining to heart disease or a cerebrovascular accident was made. On VA social work survey evaluation in May 1993, the veteran related that after his military discharge in "1949" he started to experience, on and off, symptoms including fever, chest pain and cough. He had a medical check-up and treatment for almost five months. A VA general medical examination was also conducted in May 1993. The veteran had no pertinent complaints. On evaluation of the cardiovascular system, there were no murmurs. Rate was normal. A chest X-ray study revealed arteriosclerosis of the thoracic aorta. An electrocardiogram was normal. There was no diagnosis referable to a cerebrovascular accident or cardiovascular disease. A chest X-ray study at a private facility in January 1995 revealed an atherosclerotic aorta. By rating decision dated in October 1995, the RO denied the veteran's claim for service connection for ischemic heart disease. He was notified of this decision and of his right to appeal by a letter dated the following month. The veteran did not submit a notice of disagreement with this determination prior to his death. The veteran was admitted to a private hospital from June to July 1996. He reported a two day history of a fever and body weakness. The diagnosis was systemic viral illness. He was discharged against medical advice. The death certificate discloses that the veteran was 78 years old when he died of a cerebrovascular accident in July 1996. No other conditions were listed as contributing to his death. In July 1997, the VA reviewed an outside chest X-ray study. It was compared to an X-ray of May 1993 and it was indicated that it appeared to have been taken earlier, probably within a period of ten years or less. The impression was arteriosclerosis. In a statement dated August 1997, the appellant stated that the veteran had been hospitalized in August 1994 for complaints of vomiting, epigastric pain and dyspnea. Analysis Service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). In addition, the diseases specific to former prisoners of war listed in 38 C.F.R. § 3.309(c) will be considered to have been incurred in service even though there is no evidence of such diseases during the period of service, if a veteran is a former prisoner of war and, as such, was interned or detained for not less than 30 days and these diseases have become manifest to a degree of 10 percent or more at any time after discharge or release from active service. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309(c) (1999). The diseases specific as to former prisoners of war include beriberi (including beriberi heart disease). For purposes of this section, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema during captivity. 38 C.F.R. § 3.309(c) (1999). Evidence that may be considered in rebuttal of service incurrence of a disease listed in § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d) (1999). The diseases listed in 38 C.F.R. § 3.309(c) shall have become manifest to a degree of 10 percent or more at any time after discharge or release from active service. 38 C.F.R. § 3.307(a)(5). Where a veteran served 90 days or more during a period of war and cardiovascular disease or a cerebrovascular accident 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 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). 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 the service-connected disability to the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 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). Except as provided in §§ 3.1001 (1999) and 3.1008 (1999), where death occurred on or after December 1, 1962, periodic monetary benefits (other than insurance and servicemen's indemnity) authorized under laws administered by the VA, to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not to exceed 2 years prior to the last date of entitlement as provided in § 3.500(g) will, upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (I) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a widow or remarried widow, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000 (1999). In order for a claim to be well grounded, there must be competent evidence of a 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 in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). It is not clear from the record what specific accrued benefits the appellant is seeking. The record discloses that the veteran submitted a claim for service connection for ischemic heart disease. This was denied by the RO in a rating decision dated October 1995. While he was notified of this decision, the veteran did not file a notice of disagreement prior to his death in August 1996. The Board will consider this as a claim that was pending at the time of the veteran's death. The appellant argues, in effect, that the veteran's cerebrovascular accident was a consequence of cardiovascular disease. She points out that the veteran was a prisoner of war and that he subsequently developed ischemic heart disease. Therefore, she asserts that service connection is warranted for the cause of the veteran's death. It is significant to note, however, that the regulation cited above requires a history of localized edema during captivity and the later development of ischemic heart disease. The evidence of record in this case fails to demonstrate that the veteran had localized edema of the feet, ankles of legs while he was a prisoner of war. The Board emphasizes that when the veteran completed a former prisoner of war medical history in May 1993, he specifically denied having experienced swelling of the legs or feet during his period of captivity. The Board observes that the initial evidence of heart disease was many years after the veteran's separation from service. Even if it were assumed that the veteran had ischemic heart disease at the time of his death, the fact remains that in the absence of evidence of localized edema during captivity, there is no basis on which service connection could have been granted. Thus, the appellant's argument is without foundation. The record clearly establishes that the veteran died of cerebrovascular accident. There is no competent medical evidence which shows that the veteran had a cerebrovascular accident either during service or within one year thereafter. 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 appellant's lay assertions to the effect that the veteran had a cerebrovascular accident or ischemic heart disease which 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. Accordingly, the Board concludes that the appellant has not submitted well-grounded claims for accrued benefits or for the cause of the veteran's death. ORDER Accrued benefits are denied. Service connection for the cause of the veteran's death is denied. James R. Siegel Acting Member, Board of Veterans' Appeals