BVA9504949 DOCKET NO. 93-08 972 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran's DD-214 reflects that he served on active duty from July 1975 to October 1980. He also had a prior unverified period of active duty that amounted to 15 years and twenty-one days. This matter comes before the Board of Veterans' Appeals (Board) from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL Appellant contends that the RO committed error in denying her claim for service-connection for the cause of the veteran's death. Specifically, she contends that the disability that caused the veteran's death was incurred during service. In this regard, she notes that during service the veteran reported experiencing episodes of vomiting and that the vomiting was a precursor to his death on April [redacted] 1992. She further contends that the veteran began experiencing mild gastrointestinal hemorrhage episodes in service which gradually over the years gave way to the massive gastrointestinal hemorrhage which resulted in his death. She also contends that the veteran's service-connected duodenal ulcer was at least a contributory cause of his death. In this regard, she contends that the veteran's duodenal ulcer was related to and led up to the gastrointestinal hemorrhage which caused his death. 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 claim for service connection for the cause of the veteran's death is not a well grounded claim. FINDINGS OF FACT 1. The veteran died on April [redacted] 1992 and appellant filed a claim for dependency and indemnity compensation in May 1992. 2. The immediate cause of the veteran's death was massive gastrointestinal hemorrhage due to or as a consequence of end-stage liver disease. 3. At the time of his death the veteran was service connected for various disorders, including duodenal ulcer, rated as noncompelsably disabling. 4. In November 1988, the veteran was shown to have a long history of alcohol abuse. In July 1991, he was treated for, among other things, alcohol-related liver disease. 5. No medical evidence has been submitted to render plausible the claim that a massive gastrointestinal hemorrhage was one of several "gastrointestinal episodes" which began in service. 6. No medical evidence has been submitted to render plausible a claim that the veteran's service-connected duodenal ulcer was either a principal or a contributory cause of death. CONCLUSION OF LAW The claim for service connection for the cause of the veteran's death is not well grounded, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). Omnibus Budget and Reconciliation Act of 1990, Pub.L. No. 101-508 § 8052, 104 Stat. 1388-1, 1388-351 (1990). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In making a claim for service connection for a disorder, including a disorder which caused the death of a veteran, the claimant has 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) (West 1991). The United States Court of Veterans Appeals (Court) has defined the term "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has further noted that "[a]lthough the claim need not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); 38 U.S.C.A. § 5107(a) (West 1991). Moreover, the Court has stated that "[t]he quality and quantity of the evidence required to meet this statutory burden . . . will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Where the issue in a case is factual, competent lay testimony may suffice; however, "where the determination involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Id. at 93. The law provides dependency and indemnity compensation for a spouse of a veteran who dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 1991). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1994). Appellant contends that the disability that caused the veteran's death was incurred during service and that the veteran's service-connected duodenal ulcer was "at least" a contributory cause of death. These determinations involve medical causation and therefore "competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet.App. at 93. With regard to the principal cause of death, VA regulations provide that a "service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b) (1994). The death certificate in this case shows the immediate cause of death to have been a massive gastrointestinal hemorrhage and the underlying cause of death to have been end-stage liver disease. "Underlying cause" is defined on the death certificate as "[d]isease or injury that initiated events resulting in death." The immediate and underlying causes of death shown on the death certificate reflect the findings of an April 1992 medical report on the veteran's death from the hospital in which he died. The final diagnoses on this report were massive gastrointestinal hemorrhage and end-stage liver disease. In support of her claim that the disability which caused the veteran's death was incurred in service, appellant asserts in a March 1993 statement by her representative that the veteran "started with evidently mild gastrointestinal hemorrhage episodes in service which ever so slowly gave way over the years to massive gastrointestinal hemorrhage resulting in [the] death of [the veteran]." Appellant refers to evidence in the service medical records showing that the veteran complained of various stomach disorders, including vomiting and vomiting blood, and to post-service medical evidence in November 1988 and on the day of the veteran's death in April 1992 which shows that the veteran had vomited blood. She contends, in essence, that these incidents of vomiting were "gastrointestinal hemorrhage episodes," the last of which was massive and caused the veteran's death. The Board observes that the service medical records reveal that in twenty years of military service, the veteran reported various stomach disorders on six occasions. Doctor's impressions in 1965, 1975, and 1978 included gastroenteritis and possible stomach virus. In January 1969, the veteran reported to the dispensary with a "chest cough [with] thick 'small lumps' reddish sputum, plus nausea and vomiting especially post prandial." Examination of the pharynx revealed minimum hyperemia. The examiner's impression was flu syndrome. Twice in 1976, the veteran reported abdominal cramps and vomiting while running during physical training. The examiner's assessment was that there was no pathology, but he noted that the merits of the physical training program should be compared to the damage it was doing. He recommended remedial physical training. On a report of medical history for his separation examination in September 1980, the veteran checked that he had coughed up blood and noted that he "sometimes vomit[ed] a green substance and sometimes blood." The examiner noted with regard to the veteran's having coughed up blood that this had occurred "only [after] vomiting [after high alcohol] consumption." Post-service medical evidence reveals that on VA examination in 1981 the veteran gave a history of a stomach condition for several years. He reported having had two episodes of hematemesis, and he also reported that he vomited when running or jogging but that there was no blood, just vomitus. A VA upper gastrointestinal series revealed a shallow duodenal ulcer which was described in the radiographic report as "probably partially healed." The VA examiner diagnosed "stomach condition, historical." In November 1988 the veteran was hospitalized with the chief complaint of vomiting small amounts of blood. Medical history included a long history of alcohol abuse and a history of peptic ulcer disease. Discharge diagnoses were hepatitis, probably secondary to alcohol, primary cause of admission, resolving; alcohol abuse; anemia, evaluation pending; and erosive esophagitis. In July 1991, the veteran was hospitalized with a five-day history of worsening bilateral lower extremity edema to the knees and increasing abdominal girth. The veteran denied nausea, vomiting, abdominal pain, and diarrhea at the time of admission. Discharge diagnoses were alcoholic hepatitis; history of alcohol abuse; anemia of chronic disease; thrombocytopenia secondary to chronic liver disease; ascites secondary to alcoholic hepatitis; and asymptomatic cholelithiasis. On the day of his death in April 1992, the veteran was "found down in the field after vomiting blood." The Board notes that there is no evidence in the service medical records of gastrointestinal hemorrhage or of liver disease. Moreover, there is no medical evidence at all to render plausible appellant's lay assertion that the incidents of vomiting in service were "gastrointestinal hemorrhage episodes" or that they were etiologically related to the massive gastrointestinal hemorrhage or the underlying liver disease which caused the veteran's death in April 1992. In addition, the Board observes that the post-service medical records reveal that the veteran suffered from several disorders and exhibited many symptoms. Distinguishing between disorders and symptoms, delineating causes for and connections between multiple disorders, deciding which symptoms are attributable to which disorders, and determining which symptoms and disorders are part of a progressive pathology that culminates in death are all matters requiring medical knowledge, and medical evidence is required to render assertions about these matters plausible. Grottveit, 5 Vet.App. at 92-93; Tirpak, 2 Vet.App. at 611; see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). In the absence of medical evidence to render plausible appellant's lay assertion that the massive gastrointestinal hemorrhage which was the principal cause of the veteran's death in April 1992 was one of many "gastrointestinal hemorrhage episodes" which began in service, the Board concludes that appellant's claim that the disability which caused the veteran's death was incurred in service is not a well grounded claim. See Moray v. Brown, 5 Vet.App. 211, 214 (1994) (representative's lay assertion as to medical causation was not competent evidence to reopen a claim); cf. Harvey v. Brown, 6 Vet.App. 390, 393 (1994) (lay testimony as to an incident or event that resulted in physically observable injury was not a medical matter involving medical causation and rendered appellant's claim well grounded). To the extent that the term "disability" includes liver disease with regard to appellant's claim for service connection for the "disability" that caused the veteran's death, her claim is not well grounded because no medical evidence has been submitted to render plausible the claim that liver disease had its onset in service or was etiologically related to a service-connected disorder. In this case, the medical evidence that has been received by the RO shows that chronic liver disease was first noted in July 1991 and was related to a long history of alcohol abuse. To the extent that the term "disability" includes liver disease as a consequence of alcohol abuse during service, the Board notes that that claim must be dismissed for lack of entitlement as a matter of law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Alcohol dependence is deemed by statute to be the result of willful misconduct and cannot itself be service connected. See 38 U.S.C.A. §§ 105(a), 1110 (West 1991). In addition, for claims filed after October 31, 1990, service connection is also barred for disabilities that are the result of abuse of alcohol or drugs. See Omnibus Budget and Reconciliation Act of 1990, Pub.L. No. 101-508 § 8052, 104 Stat. 1388-1, 1388-351 (1990). Appellant's claim for dependency and indemnity compensation was filed after October 31, 1990. Therefore, the Board concludes that a claim for service connection for cause of death due to liver disease as a consequence of alcohol abuse during service must be dismissed for lack of entitlement as a matter of law. Sabonis v. Brown, 6 Vet.App. at 430; see also Gabrielson v. Brown, 7 Vet.App.36, 41 (1994) (where claim for service connection for cause of death was filed before October 31, 1990, and Board concluded that service-connection could not be granted for a disability resulting from alcohol use because that disability would be considered a result of willful misconduct, Court held Board erred as a matter of law). Appellant also contends that the veteran's service-connected duodenal ulcer was at least a contributory cause of his death, i.e., that it was related to and led up to the massive gastrointestinal hemorrhage which caused his death. VA regulations provide, in pertinent part, that 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; that it aided or lent assistance to the production of death. 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)(1) (1994). As to appellant's contention that the service-connected duodenal ulcer was "at least" a contributory cause, the Board observes first that no medical evidence has been submitted to show that the veteran's service-connected duodenal ulcer was "plausibly" or "possibly" the immediate or underlying cause of death or was etiologically related thereto. Grottveit, 5 Vet.App. at 93. Therefore, a claim that it was the principal cause of death is not well grounded. Second, the Board observes that appellant's claim that the veteran's duodenal ulcer was a contributory cause of death is equally unsupported by medical evidence. In this regard, the Board notes that as early as July 1981 the veteran's ulcer was described on the VA radiographic report as a "shallow duodenal ulcer probably partially healed." As noted above, a VA examiner diagnosed "stomach condition, historical" at that time. A September 1988 hospital report reflected "peptic ulcer disease which is currently stable on no medication." In November 1988, when the veteran was hospitalized for vomiting small amounts of blood, the hospital report shows a history of peptic ulcer disease but it is not listed among the discharge diagnoses. The results of an esophagogastroduodenoscopy revealed "erosive esophagitis and pyloric and bulbar deformity consistent with old peptic ulcer disease." The July 1991 hospital report showing treatment primarily for alcoholic hepatitis and the April 1992 hospital report of the veteran's death do not mention the veteran's ulcer. The death certificate has a space to list "[o]ther conditions contributing to death but not resulting in the underlying cause," but no conditions are listed there. Whether or not the duodenal ulcer contributed to the cause of the veteran's death is a determination involving medical causation, and "competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet.App. at 93. Based on its review of all the medical evidence in the claims file pertaining to the veteran's service-connected duodenal ulcer, the Board finds that no medical evidence has been submitted to render plausible the appellant's claim that the veteran's ulcer contributed substantially or materially to the veteran's death or that it combined with the principal cause of death to cause death or that it aided or lent assistance to the production of death such that it can be said that there was a causal connection between the duodenal ulcer and death. 38 C.F.R. § 3.312(c)(1) (1994). Accordingly, the Board concludes that appellant's lay assertion that the service-connected duodenal ulcer was a contributory cause of the veteran's death is not sufficient to establish a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); Grottveit, 5 Vet.App. at 92-93; Tirpak, 2 Vet.App. at 611; see also Moray, 5 Vet.App. at 214; Espiritu v. Derwinski, 2 Vet.App. at 494-95 (1992); 38 C.F.R. § 3.312(c)(1) (1994). In light of the foregoing, the Board concludes that appellant's claim for service connection for cause of death is not well grounded, and that the RO was not under a duty to assist the appellant in developing facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991). Although the RO did not specifically state that it denied the claim on the basis that it was not well grounded, the Board concludes that this error was harmless. See Robinette v. Brown, No. 93-985, slip op. at 13 (U.S. Vet.App. Sept. 12, 1994), citing Grottveit, 5 Vet.App. at 93; Edenfield v. Brown, 6 Vet.App. 432 (1994) (per curiam order) (requesting briefing on whether remedy for deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error, or vacating of the Board decision). Accordingly, the Board dismisses appellant's claim for service connection for the cause of the veteran's death as not well grounded. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993) (if a claim is not well grounded, the Board does not have jurisdiction to adjudicate it). ORDER Because it is not well grounded, appellant's claim for service connection for the cause of death of the veteran is dismissed. JOAQUIN AGUAYO-PERELES 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. 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.