BVA9507165 DOCKET NO. 92-18 774 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from September 1950 to April 1953. He died in March 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1992, rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in June 1992. The statement of the case was sent to the veteran in July 1992. The substantive appeal was received in July 1992. In an August 1993 decision, the Board remanded this case to the RO for further development. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant has advanced several contentions regarding the cause of the veteran's death. She asserts that the veteran fell due to his prosthesis and struck his head. She asserts that his service-connected hypertension and amputation of the left lower leg damaged his heart and caused and/or contributed to his death. She further asserts that the veteran self-medicated his service- connected disabilities with alcohol, and, thus, his service- connected disabilities caused and/or contributed to his death. The appellant's representative has also presented several additional arguments. The representative asserts that the veteran's service-connected hypertension was more disabling that 10 percent. He asserts that the provisions of 38 C.F.R. § 3.312(c)(3) and (4) (1994) are for application. Pursuant to 38 C.F.R. § 3.312(c)(3) (1994), the representative argues that the veteran's service-connected hypertension involved active processes affecting vital organs which contributed to his death as they rendered the veteran materially less capable of resisting the effects of other disease, injury, and death. Pursuant to 38 C.F.R. § 3.312(c)(4) (1994), the representative asserts that the veteran's service-connected hypertension contributed to death as it had a material influence in accelerating death because it affected a vital organ and was of itself of a progressive or debilitating nature. 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's claim is not well grounded. FINDINGS OF FACT 1. The cause of the veteran's death on March 2, 1992 was acute ethyl alcohol intoxication. No significant conditions contributing to cause of death were listed. 2. At the time of death, the veteran was service-connected for the following disabilities: amputation, left thigh, middle third, rated as 60 percent disabling; scar, left nipple and lower chin, rated as noncompensable; limitation of the left hip with sciatica, rated as 10 percent disabling; hypertension with abnormal electrocardiogram, rated as 10 percent disabling; and postoperative left inguinal hernia, rated as noncompensable for a combined schedular evaluation of 70 percent. A total rating for compensation based on individual unemployability was in effect from December 3, 1989. Special monthly compensation was in effect from May 1, 1953 for anatomical loss of one foot. 3. The appellant has not submitted any objective evidence, nor is there any in the claims folder that supports her allegation that the veteran's death was related to service or that his service-connected disabilities played any role in his death. CONCLUSION OF LAW The appellant's claim is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the time of the veteran's death on March 2, 1992, the veteran was service-connected for the following disabilities: amputation, left thigh, middle third, rated as 60 percent disabling; scar, left nipple and lower chin, rated as noncompensable; limitation of the left hip with sciatica, rated as 10 percent disabling; hypertension with abnormal electrocardiogram, rated as 10 percent disabling; and postoperative left inguinal hernia, rated as noncompensable with a combined schedular evaluation of 70 percent. A total rating for compensation based on individual unemployability was in effect from December 3, 1989. Special monthly compensation was in effect from May 1, 1953 for anatomical loss of one foot. As listed on his death certificate, the cause of death was acute ethyl alcohol intoxication. The appellant does not currently contend that the veteran developed alcohol dependence during service, rather she contends that the veteran's self-medicated his service-connected disabilities following service with alcohol, and, thus, his service-connected disabilities caused and/or contributed to his death. She further asserts that his service-connected hypertension and amputation of the left lower leg damaged his heart and caused and/or contributed to his death. She also asserts that the veteran fell due to his left leg prosthesis and struck his head. The appellant's representative has also presented several additional arguments. Her representative asserts that the veteran's service-connected hypertension was more disabling that 10 percent. He asserts that the provisions of 38 C.F.R. § 3.312(c)(3) and (4) (1994) are for application. Pursuant to 38 C.F.R. § 3.312(c)(3) (1994), the representative argues that the veteran's service-connected hypertension involved active processes affecting vital organs which contributed to his death as they rendered the veteran materially less capable of resisting the effects of other disease, injury, and death. Pursuant to 38 C.F.R. § 3.312(c)(4) (1994), the representative asserts that the veteran's service-connected hypertension contributed to death as it had a material influence in accelerating death because it affected a vital organ and was of itself of a progressive or debilitating nature. In a claim for service connection for the cause of the veteran's death, the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim is a plausible claim, and one which is meritorious on its own or capable of substantiation. Such a claim may not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990). The claim must be accompanied by supporting evidence, an allegation is not enough. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). In addition, in cases in which the determinative issues is the medical causation of the veteran's death, competent medical evidence is required for the appellant to establish a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A grant of service connection for the cause of the veteran's death is appropriate when a disability incurred in or aggravated by service caused or contributed substantially or materially to death. 38 U.S.C.A. §§ 1110, 1310 (West 1991); 38 C.F.R. § 3.312 (1994). 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 thereto. 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 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, and/or 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. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as l00 percent disabling), but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(1)(2) (1994). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (1994). Where, at the time of death, the veteran had service- connected disability rated 100 percent disabling, careful consideration is given as to whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects a vital organ as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3) (1994). There are two primary areas of concern in this case: first, the alleged relationship of the veteran's disabilities to the alcoholism which caused his death, and secondly, the purported contributory relationship between the veteran's disabilities and his death. As to the issue relating to alcoholism, service connection may be granted for disability resulting from disease or injury (not of misconduct origin) incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (1994). In the case of alcohol consumption, the simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance, or under conditions which would raise a presumption to that effect, will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. However, notwithstanding the above cited provisions, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a) (1994). If the veteran's alcohol abuse is determined to be part of or secondary to a service-connected condition, it and the resulting organic disabilities as a result thereof may also be granted service connection. As noted, the Board points out that prior to addressing the merits of the claim, the appellant is required to submit a well- grounded, i.e., plausible claim. The claim must be accompanied by supporting evidence, i.e., competent medical evidence. Tirpak, Grottveit. If however, the appellant does not submit a well-grounded claim with supporting medical evidence, the claim will be dismissed and the merits of the claim will not be addressed. In this case, in order for the claim to be well- grounded, the evidence would have to show that a disability incurred in or aggravated by service caused or contributed substantially or materially to death. In this case, the appellant has submitted her own allegations, those of her representative, and various medical records. As noted, the appellant does not assert that the veteran developed alcohol dependence in service, rather, she contends that he self-medicated his service-connected disabilities with alcohol after service. The Board has considered the entire evidence of record pertaining to the veteran's abuse of alcohol. There is no objective medical evidence directly relating alcoholism to a service-connected disability. The appellant's contention that the veteran self-medicated his service-connected disabilities with alcohol which caused alcohol dependence does not establish a cause and effect relationship as there is insufficient medical evidence to support that contention. VA treatment records disclosed that the veteran abused alcohol for many personal reasons including job loss and his personal desire to drink. There is no medical opinion or record which indicated that the veteran developed alcohol dependence due to his service- connected disabilities. The appellant has not been shown qualified as an expert to make medical conclusions, therefore, her own medical conclusions regarding the veteran's death are not probative. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). As such, her unsupported allegation is not probative as to the issue of medical causation. The appellant also asserted that the veteran fell due to his left leg prosthesis and struck his head. She further asserted that the veteran's service-connected hypertension and left lower leg amputation damaged his heart, a vital organ, so that his heart was unable to resist the effects of other disease or injury primarily causing death. Her representative also asserted that the veteran's service-connected hypertension involved active processes affecting vital organs which contributed to his death as they rendered the veteran materially less capable of resisting the effects of other disease, injury, and death and/or had a material influence in accelerating death because it affected a vital organ and was of itself of a progressive or debilitating nature. The Board has considered the appellant's and her representative's contentions, however, the death certificate listed only acute ethyl alcohol intoxication as the cause of death. No significant conditions contributing to the cause of death were listed in the space provided on that certificate. The State Department of Health provided the veteran's toxicology report supporting the cause of death as listed on the certificate of death. In addition, there was no indication on the death certificate that the veteran had fallen and struck his head or that a fall caused or contributed to his death in any way. Neither the appellant nor her representative has been shown qualified as an expert to make medical conclusions. Espiritu. The Board notes that the question of whether the veteran's death was caused by his service-connected disabilities or whether those disabilities contributed to cause his death can only be resolved by a person competent to make medical judgments. Espiritu. The unsubstantiated assertions of the appellant and her representative are, therefore, insufficient to establish that the veteran's death was the result of his service-connected disabilities. The unsupported assertions do not add up to a plausible claim for service connection for the cause of the veteran's death and the record on appeal does not include any competent medical evidence establishing a connection between the veteran's death due to acute ethyl alcohol intoxication and any injury or disease in service nor is there any medical evidence showing that the service-connected disorders played any role in the veteran's death whatsoever. Although the veteran had service-connected hypertension there is no medical evidence which indicates that the hypertension or any other service-connected disability contributed to his death by rendering the veteran materially less capable of resisting the effects of death and/or had a material influence in accelerating death because it affected a vital organ and was of itself of a progressive or debilitating nature. The Board cannot presume that the representative's assertions are valid without medical substantiation. Even assuming that the veteran's service- connected hypertension was debilitating in nature, there is no medical evidence of record to establish that the debilitation was to an extent that it would render the veteran materially less capable of resisting death. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet.App. 155 (1993). The medical evidence of record indicates the veteran had cardiovascular problems within the past few years, however, the Board finds it significant to note that the evidence pertinent to the veteran's death revealed that the only cause of death was acute ethyl alcohol intoxication with no other significant conditions contributing to death. Without any medical evidence to establish a causal connection between the veteran's service- connected disabilities and his death, and without any evidence to establish that the veteran's service-connected disabilities were of such a severity as to render the veteran materially less capable of resisting death, the claim is not plausible. Although the appellant asserts that the veteran's service- connected disabilities caused and/or contributed to his death, she has not submitted medical evidence to support this assertion, which involves a complex issue of medical causation. The United States Court of Veterans Appeals (Court) has stated that, in determining whether a claim is well grounded, 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. Grottveit citing Murphy. Further, the appellant does not meet the burden imposed by 38 U.S.C.A. § 5107(a) (West 1991), merely by presenting her own lay statements because lay persons are not competent to offer medical opinions. Grottveit citing Espiritu. Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Grottveit citing Tirpak. Therefore, the Board finds that since the appellant has only submitted her own unsubstantiated medical opinion as evidence that a disability incurred in or aggravated by service caused and/or contributed to the cause of the veteran's death, she has not submitted evidence that would justify a belief by a fair and impartial individual that her claim is well-grounded. Thus, the appellant has not met her initial burden under 38 U.S.C.A. § 5107(a) (West 1991), and her claim as a matter of law is not well grounded. As a result, the VA is not required to carry her claim to full adjudication, since the claim is not well grounded under 38 U.S.C.A. § 5107(a) (West 1991). ORDER The appeal 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. 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.