Citation Nr: 0004096 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-22 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 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 (West 1991). 3. Entitlement to survivors' and dependents' educational assistance under 38 U.S.C.A., Chapter 35. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from August 1967 to February 1976. He died on March [redacted], 1996, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The claim of entitlement to survivors' and dependents' educational assistance under 38 U.S.C.A., Chapter 35 will be addressed in the REMAND section of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran died on March [redacted], 1996, and the immediate cause of death was cancer of the esophagus, with no underlying causes listed in his death certificate. 3. At the time of the veteran's death, service connection was in effect for coronary artery disease with hypertension and PTSD, both evaluated as 30 percent disabling; a shell fragment wound of the left knee with internal derangement and a residual scar, evaluated as 20 percent disabling; calluses of the feet, a shell fragment wound of the right forearm, a shell fragment wound of the left forearm, tinnitus, a shell fragment wound of the right upper arm, and residuals of head trauma with headaches and a scarred scalp, all evaluated as 10 percent disabling; and traumatic arthritis of the right ankle, bilateral hearing loss, and malaria, all evaluated as noncompensably (zero percent) disabling. 4. There is no competent medical evidence of a nexus between the cause of the veteran's death and either service or a service-connected disability. 5. The combined evaluation for the veteran's service- connected disabilities at the time of death was 80 percent, and the veteran was not in receipt of a total disability evaluation based upon unemployability due to service- connected disabilities. CONCLUSIONS OF LAW 1. The 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). 2. The criteria for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 1991); 38 C.F.R. § 3.22 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for the cause of the veteran's death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Additionally, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). VA regulations also provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era and has one of the diseases listed in 38 C.F.R. § 3.309(e) (1999) shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 3.307(a)(6)(iii) (1999). Service connection due to exposure to an herbicide agent may be granted on a presumptive basis for certain diseases listed in 38 C.F.R. § 3.309(e) (1999). For example, service connection may be granted for an acneform disease consistent with chloracne, or porphyria cutanea tarda, if such a disease is manifested to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). See The Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991). Additionally, service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of 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; 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 (1999). However, the initial inquiry before the Board is whether the appellant has submitted a well-grounded claim, as is required under 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. See Murphy v. Derwinski, 1 Vet. App 78, 81 (1990). While such a claim need not be conclusive, it must be supported by evidence; a mere allegation is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In cases such as this, where the determinative issue is one involving medical causation, competent medical evidence in support of the claim is required for the claim to be well grounded. See Caluza v. Brown, 7 Vet. App. 498, 504 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In the absence of evidence of a well-grounded claim, there is no duty to assist the appellant in developing the facts pertinent to her claim, and the claim must be denied. Epps v. Gober, 126 F.3d 1464, 1468-69 (1997). In the present case, the appellant has contended that the cause of the veteran's death resulted from herbicide exposure in Vietnam. Specifically, during her November 1999 Board hearing, the appellant testified that it was her belief that the veteran's esophageal cancer resulted from Agent Orange exposure during service in Vietnam. The veteran's Certificate of Death indicates that he died on March [redacted], 1996 at Harper Hospital in Detroit, Michigan. The immediate cause of death was cancer of the esophagus, with no underlying causes listed. The Certificate of Death reflects that an autopsy was not performed on the veteran. At the time of the veteran's death, service connection was in effect for coronary artery disease with hypertension and PTSD, both evaluated as 30 percent disabling; a shell fragment wound of the left knee with internal derangement and a residual scar, evaluated as 20 percent disabling; calluses of the feet, a shell fragment wound of the right forearm, a shell fragment wound of the left forearm, tinnitus, a shell fragment wound of the right upper arm, and residuals of head trauma with headaches and a scarred scalp, all evaluated as 10 percent disabling; and traumatic arthritis of the right ankle, bilateral hearing loss, and malaria, all evaluated as noncompensably (zero percent) disabling. The combined evaluation was 80 percent, and a total disability evaluation based on individual unemployability due to service-connected disabilities was not in effect. The Board has reviewed the veteran's service medical records and finds no evidence of esophageal cancer during service. The veteran was first noted to have this disorder in 1995. Following complaints of epigastric pain at various times during that year, the veteran underwent an esophagogastroduodenoscopy (EGD) in September 1995, and a report from Dr. Joseph G. D'Avanzo indicates that this procedure revealed a five centimeter ulcerated mass in the area of the distal esophagus that was "highly suspicious for carcinoma." A private treatment record from October 1995 indicates that a gastric scope had revealed a sarcoma. In February 1996, the veteran was treated for a non-resectable esophageal carcinoma at several private facilities, but none of these treatment records suggest a causal relationship between the veteran's cancer of the esophagus and either service or any of his service-connected disabilities. Overall, there is no competent medical evidence of a nexus between the cause of the veteran's death, as noted on his Certificate of Death, and either service or his service- connected disabilities. There is also no evidence suggesting the incurrence of esophageal cancer within one year following service. Moreover, the Board would point out that esophageal cancer is not among the diseases which the VA has determined to be related to herbicide exposure. Indeed, the only evidence of record suggesting a link between the cause of the veteran's death and either service or a service-connected disability is the appellant's lay opinion. However, as the appellant has not been shown to possess the medical expertise necessary to offer a medical opinion, her lay contentions cannot constitute competent medical evidence to support her claim. See Grottveit v. Brown, 5 Vet. App. at 93; Espiritu v. Brown, 2 Vet. App. 492, 494-95 (1991). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner and unenhanced by any additional medical commentary from that examiner does not constitute competent medical evidence); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Given the evidence described above, the Board finds that the appellant's claim for service connection for the cause of the veteran's death is not well grounded and, therefore, must be denied. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). As the appellant's claim is not well grounded, the VA has no further duty to assist her in developing the record to support this claim. See Epps v. Gober, 126 F.3d at 1467- 68 ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). In this case, the Board observes that, in the appealed May 1996 rating decision, the RO denied the appellant's claim on its merits, while the Board has denied this claim as not well grounded. However, the United States Court of Appeals for Veterans Claims (Court) has held that when an RO does not specifically address the question of whether a claim is well grounded, "there is no prejudice to the appellant solely from the omission of the well-grounded-claim analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). The Board observes that the claims file does not include records of the veteran's hospitalization at Harper Hospital, a private facility, at the time of his death. In this regard, the Board would point out that the VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to notify the appellant of the evidence needed to complete her application for service connection for the cause of the veteran's death when the VA is aware of the existence of relevant evidence. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997); see also Robinette v. Brown, 8 Vet. App. at 77-78. Essentially, the appellant needs competent medical evidence of a nexus between the cause of the veteran's death and either service or a service-connected disability. II. Entitlement to DIC under 38 U.S.C.A. § 1318 Under 38 U.S.C.A. § 1318 (West 1991), the Secretary of Veterans Affairs shall pay 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. See also 38 C.F.R. § 3.22 (1999). In this case, the combined evaluation for the veteran's service-connected disabilities at the time of death was 80 percent, and the veteran was not in receipt of a total disability evaluation based upon unemployability due to service-connected disabilities (TDIU). Although, under certain circumstances, TDIU is warranted in cases where a veteran has service-connected disabilities totaling 80 percent, the VA does not have authorization to find hypothetical entitlement to TDIU with regard to a claim under 38 U.S.C.A. § 1318 (West 1991). See 65 Fed. Reg. 3388-3392 (2000) (reflecting recent changes to 38 C.F.R. § 3.22). Therefore, as the criteria for entitlement to DIC benefits under 38 U.S.C.A. § 1318 (West 1991) have not been met in this case, the appellant's claim must be denied. ORDER A well-grounded claim not having been submitted, 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 (West 1991) is denied. REMAND The Board observes that the appellant's claim of entitlement to survivors' and dependents' educational assistance under 38 U.S.C.A., Chapter 35 was initially denied in a May 1996 rating decision, which the appellant was informed of in June 1996. Her Notice of Disagreement was received in April 1997. Although this issue was not addressed in an April 1997 Statement of the Case, it was subsequently addressed in an April 1999 Supplemental Statement of the Case, which set forth the appellant's rights and responsibilities with regard to issues not previously addressed in a Substantive Appeal. The appellant did not respond to this Supplemental Statement of the Case until her November 1999 Board hearing. Recently, the Court held that the determination of the timeliness of a Notice of Disagreement is an appealable issue for which the claimant must be offered an opportunity to submit additional evidence or argument. See generally Marsh v. West, 11 Vet. App. 468 (1998). The Board interprets Marsh as indicating that the issue of the timeliness of a Substantive Appeal should not be adjudicated by the Board prior to giving the appellant an opportunity to submit additional evidence or argument. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Therefore, in order to fully and fairly adjudicate the appellant's claim, this case is REMANDED to the RO for the following action: The RO should issue a Supplemental Statement of the Case addressing the issue of entitlement to survivors' and dependents' educational assistance under 38 U.S.C.A., Chapter 35. This Supplemental Statement of the Case should include an analysis of whether the appellant submitted a timely Substantive Appeal regarding this issue. Following the issuance of this Supplemental Statement of the Case, the appellant should be allowed a reasonable period of time in which to respond before this case is returned to the Board. The purpose of this REMAND is to obtain additional adjudication in accordance with the VA's due process requirements, and the Board intimates no opinion, either factual or legal, as to the ultimate outcome warranted in this case. The appellant has the right to submit additional evidence and argument on this matter. See generally Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required of the appellant until she is so notified by the RO. _______________________________ WARREN W. RICE, JR. Member, Board of Veterans' Appeals