Citation Nr: 0001538 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-37 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania 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 L. Cryan, Associate Counsel INTRODUCTION The appellant is the widow of the veteran who had active military service from April 1969 to April 1975. Other periods of active service have not been verified. The veteran died on May [redacted], 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1996 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim seeking entitlement to service connection for the cause of the veteran's death. At that time, the RO also denied appellant's eligibility for Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35, and additional claims have since been denied; however, she has appealed only the cause of death issue. FINDINGS OF FACT 1. The veteran died on May [redacted], 1996, at 53 years of age. 2. The Certificate of the Death indicates that the immediate cause of the veteran's death was cardiac arrest, and which was due to or a consequence of coronary artery disease (consistent with the Necropsy Report). No other significant conditions contributing to death were identified. 3. During the veteran's lifetime, service connection was established only for post-traumatic stress disorder (PTSD), evaluated as 70 percent disabling. 4. There is no competent medical evidence of a nexus between the heart condition resulting in the veteran's death and either service or a service-connected disability. 5. A disability of service origin did not cause, hasten, or contribute substantially or materially to cause the veteran's death. CONCLUSION OF LAW The appellant's 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). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of the veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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 (1999). To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 1991). Service connection for coronary artery disease may be presumed if it became manifest to a degree of at least 10 percent disabling during the veteran's first year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In reviewing a claim for service connection, however, the initial question is whether the claim is well grounded. The veteran 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); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). 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 § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Slater v. Brown, 9 Vet.App. 240, 243 (1996); Gregory v Brown, 8 Vet.App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In order for a claim for service connection to be well- grounded, there must be competent evidence (lay or medical, as appropriate) of: (1) a current disability; (2) an in- service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Epps v. Gober, 126 F.3d 1464, 1468 (1997); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In a claim for service connection for the cause of death of a veteran, the first requirement of well-groundedness, evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die), but the last two requirements must be supported by evidence of record. Ramey v. Brown, 9 Vet. App. 40, 46 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). The appellant essentially contends that the veteran's stress associated with his service-connected PTSD led to his cardiac arrest, resulting in death. A review of the record reflects that extracardiac systolic apical sound was noted on the report of the veteran's July 1960 enlistment examination. The veteran was nonetheless found qualified for enlistment and there were no abnormalities listed on any of his periodic routine examinations during his active military service. Moreover, there record reflects no complaints, findings, or diagnosis of a heart condition during service. In January 1975, the veteran was afforded a chest x-ray in conjunction with his separation examination, which revealed great vessels, superior mediastinum, with normal lungs and diaphragms, and bilateral apical pleural thickening. No complaints, findings, or diagnosis of a heart condition was then noted. The veteran was granted service connection for PTSD, with a 10 percent evaluation assigned, in August 1987. Thereafter, the veteran's PTSD evaluation was increased to 30 percent in July 1988. In April 1990, the veteran's PTSD evaluation was further increased to 70 percent. Since the date of service connection in August 1987, the veteran was hospitalized for his PTSD on at least 4 occasions and was granted temporary total ratings for those periods of hospitalization. Outpatient treatment records and examination reports in 1994 and 1995 reflect continuing treatment/evaluation for PTSD. The veteran died on May [redacted], 1996. At that time he was 53 years old. The veteran's Certificate of the Death indicates that the immediate cause of the veteran's death was cardiac arrest, the onset of which was listed as occurring 1 to 2 hours before death. This was considered to be due to (or as a consequence of) coronary artery disease. No other significant conditions contributing to death were identified. In a May 1996 Necropsy Report, the probable cause of death was listed as cardiac arrest secondary to coronary artery disease in a gentleman with significant alcohol consumption and gastrointestinal hemorrhage. Specifically, the pathologist listed the major diagnoses as A. chronic cardiac disease to include: 1. focal severe atherosclerosis of left circumflex artery; 2. old subendocardial myocardial infarction; 3. moderate myxomatous degeneration of mitral valve; and 4. multifocal interstitial fibrosis; and B. gastrointestinal hemorrhage to include: 1. bloody fluid in stomach and small intestines; and 2. Serum alcohol = 0.175. Accessory diagnoses were listed as mild pulmonary anthracosilicosis with focal interstitial fibrosis; passive congestion of the liver, spleen, and lungs; and mild chronic portal inflammation of the liver. As indicated above, the post-service medical evidence of record reflects that the veteran received consistent treatment for his PTSD, and was occasionally hospitalized for his PTSD. However, there is no competent medical evidence establishing a relationship between the heart condition ultimately resulting in his death and either service or his service-connected PTSD (the only disability for which service connection was established during the veteran's lifetime). As noted above, a heart condition was not shown in service or for many years thereafter. Furthermore, none of the post- service medical records show that any heart disability was considered by any medical professional to be related in any way to the veteran's service, or to his service-connected PTSD, and the appellant has not proffered or indicated the existence of any medical evidence to this effect. In view of the foregoing, the Board finds that there is no plausible basis for finding that a disability of service origin caused, hastened, or contributed materially or substantially to cause the veteran's death. Thus, the appellant has not met the burden imposed by 38 U.S.C.A. § 5107(a) (West 1991) of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim of entitlement to service connection for the cause of the veteran's death is well-grounded. In reaching the conclusion that the veteran's claim is not well grounded, the Board is mindful of the appellant's sincere belief that the veteran's stress caused by his service-connected PTSD contributed to his death. That notwithstanding, the Board is bound by pertinent laws and regulations in our role in deciding claims on appeal, and must point out that the appellant does not meet the burden of presenting evidence of a well-grounded claim by offering her own medical conclusions regarding the cause of the veteran's death. See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); cert. denied, 119 S. Ct. 404 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In the absence of competent medical evidence to support the appellant's assertions, service connection for the cause of the veteran's death must be denied as not well grounded. As such, VA is under no duty to assist the appellant in developing the facts pertinent to the claim. See Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well-ground the appellant's claim of entitlement to service connection. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Although the RO did not specifically deny the claim as not well grounded, the Board notes that there is no prejudice to the appellant solely from the omission of the well-grounded analysis. See Meyer v. Brown, 9 Vet.App. 425, 432 (1996). Furthermore, in the August 1996 Statement of the Case, the RO set forth the legal requirement for submitting a well- grounded claim, and explained the basis for the denial of the claim. Hence, the Board finds that the duty to inform the appellant of the evidence needed to well ground her claim (and the reasons why the current claim is inadequate) has been met. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER In the absence of evidence of a well-grounded claim, service connection for the cause of the veteran's death is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals