BVA9507229 DOCKET NO. 92-22 922 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from August 1950 to August 1953 and from October 1953 to May 1956. The appellant is the veteran's widow. The matter on appeal arises from an April 1991 decision by the aforementioned regional office (RO) in which service connection for the cause of the veteran's death was denied. The appellant submitted a notice of disagreement with that decision in August 1991, and a statement of the case was issued in September 1991. A substantive appeal was received in November 1991, and in November 1992, the appellant appeared at a hearing conducted at the RO before a member of the Board. Thereafter, the case was forwarded to the Board in Washington, D.C., and in May 1993, the Board remanded the matter to the RO for further development. In January 1994, a supplemental statement of the case was issued, after which the case was returned to the Board. CONTENTIONS OF APPELLANT ON APPEAL The appellant, who is entitled to death pension, contends that after the car accident in service which resulted in the injuries for which service connection was in effect at the time of the veteran's death, the veteran's pattern of behavior changed such that he was unable to care for himself properly. She believes this resulted in a deterioration in the veteran's health that led to gastric carcinoma, causing his death. Her representative asserted that the appellant in her testimony was alleging that the service-connected head injury caused a personality change which lead to alcohol abuse which led to stomach cancer. DECISION OF THE BOARD The 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 veteran's 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 the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim for service connection for the cause of the veteran's death is well grounded. FINDINGS OF FACT 1. The cause of the veteran's death in April 1990, according to the death certificate, was gastric carcinoma. 2. At the time of death, service connection was in effect for right talotibial joint ankylosis, and cicatrix, skin 4 inches long left forehead; bony depression of supra orbital ridge due to fracture of frontal bone. 3. The appellant's claim that the veteran's service connected disorders played a part in his death is not supported by any medical evidence. 4. The appellant's claim is not plausible. CONCLUSION OF LAW The appellant has not submitted evidence of a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the record reveals that the veteran's death certificate shows that the veteran died in April 1990, due to gastric carcinoma. At the time of his death, service connection was in effect for right talotibial joint ankylosis, rated 30 percent disabling, and cicatrix, skin 4 inches long left forehead; bony depression of supra orbital ridge due to fracture of frontal bone rated 10 percent disabling. These ratings had been effect since the initial grant of service connection for them in September 1956. Thus, the veteran was assigned a protected 40 percent combined rating for his service connected disabilities at the time of his death. The service medical records show no complaints, findings or diagnoses of any gastric disorder. Similarly, the report of a VA examination conducted in July 1956, fails to show any complaints, findings or diagnoses related to a gastric disorder. At the hearing conducted at the RO in November 1992, the appellant stated her belief that the veteran was first diagnosed to have gastric carcinoma at a the VA hospital in Philadelphia. However she also indicated that she had not been sharing the same residence with the veteran for a period of time, and did not have precise knowledge of where the veteran received his medical care. In any event, a VA Form 10-7131 (Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action) showed that the veteran was hospitalized at the Philadelphia VA hospital for a gastrointestinal bleed, rather than for gastric carcinoma. There was no indication on this record, that the gastrointestinal bleed was related to service or a service connected disorder, or that it was related to gastric carcinoma. The records from the veteran's terminal hospitalization at The Graduate Hospital in Philadelphia, show that he was admitted for supportive care in March 1990, with a diagnoses of advanced gastric carcinoma. A week earlier he had been admitted with dysphasia and found to have a gastric carcinoma with esophageal extension resulting in severe esophageal narrowing and inability to eat. At that time, he underwent laser ablation of the tumor, and was able to tolerate oral foods. However, he had returned to the hospital with worsening dysphasia, an inability to eat and dehydration. He was treated supportively during his hospital stay, but underwent a downhill course and died in April 1990. The final diagnoses were metastatic gastric carcinoma; Korsakoff's psychosis and conjunctivitis. Significantly, these records do not show that the veteran's fatal carcinoma was related to service, or to his service connected disabilities, and none of these records show that the veteran's service connected disorders prevented any appropriate treatment of the veteran's terminal illness. Under applicable criteria, service connection may be granted for disability incurred in or aggravated by service. 38 U.S.C.A. § § 1110, 1131 (West 1991). Where a veteran served ninety days or more during a period of war and carcinoma becomes manifest to a degree of 10 percent within one year form the 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, 1112, 1113, 1137 (West 1991); 38 C.F.R. § § 3.307, 3.309 (1994). Service connection may be granted for carcinoma which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (1994). 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, 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 connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). A person who submits a claim for benefits under a law administered by the Secretary of the Department of Veterans Affairs 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 Secretary shall assist such a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible. If she has not presented a well grounded claim, her appeal must fail, and there is no duty to assist her further in the development of her claim. Murphy v. Derwinski, 1 Vet.App. 78(1990). Because a well grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. 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(a). Murphy at 81. However, to be well grounded, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet.App. 261, 262-263 (1992). The United States Court of Veterans Appeals (Court) has held that evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). 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. Murphy at 81. A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu at 495. In this case, the appellant has opined that the veteran's death is related to his service or his service connected disabilities. As noted above, lay persons are not competent to offer medical opinions. The appellant is not a health care professional, and the opinion she proffered is beyond her competence to make. Furthermore, she has not submitted any medical evidence supporting her contentions. Accordingly, she has not met the initial burden of presenting evidence of a well grounded claim imposed by 38 U.S.C.A. § 5107 (a), and her claim may be dismissed. ORDER The appellant's claim for service connection for the cause of the veteran's death is dismissed. E. M. KRENZER 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. CONTINUED ON NEXT PAGE 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.