BVA9503734 DOCKET NO. 92-08 190 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines 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 J. A. McDonald, Associate Counsel INTRODUCTION The veteran served on active duty from February 1955 to October 1968. This case was previously before the Board of Veterans' Appeals (hereinafter Board) in September 1993, at which time the case was remanded to the Department of Veterans Affairs Regional Office in Manila, Philippines (hereinafter RO) for further development of the evidence. The veteran's representative raises the issue of clear and unmistakable error in a February 1971 rating action. This matter is referred to the RO. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran developed an addiction to nicotine as a consequence of his service-connected psychiatric disability. As such, the veteran smoked incessantly and this led to the heart disease and a fatal myocardial. 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 for service connection for the cause of the veteran's death is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. At the time of his death, the veteran was service connected for schizophrenic reaction, paranoid type, incompetent, rated as 100 percent disabling. 3. In November 1991, the veteran died of acute myocardial infarction due to occlusive coronary atherosclerotic disease. 4. There are no medical records or other probative evidence that demonstrate that the veteran's death was attributable to military service or his service-connected psychiatric disorder. 5. The appellant has not submitted a plausible claim. CONCLUSION OF LAW A well-grounded claim for entitlement to service connection for the cause of the veteran's death has not been presented. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.159(a), 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded or capable of substantiation. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Board finds that the appellant has failed to submit a well-grounded claim. Service connection for the cause of the veteran's death is warranted when the evidence demonstrates that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The veteran had active military duty from February 1965 to October 1968. The veteran's service medical records do not demonstrate heart or cardiovascular disease. The first evidence of record of a heart disorder or cardiovascular disease was at the time of the veteran's death in 1991. Pertinent Department of Veterans Affairs (hereinafter VA) law provides that entitlement to service connection may be allowed for a disability which is incurred in or aggravated during the veteran's period of active military service. 38 U.S.C.A. § 1110, 1131 (West 1991). An allowance of service connection requires that the facts show that a disability was incurred in service, which may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). Moreover, in the case of cardiovascular disease, service connection may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Although the appellant did not focus her contentions on whether the veteran's cardiovascular disease had its inception in service, the Board has reviewed the evidence of record and has determined that cardiovascular disease was first shown many years subsequent to service discharge. The appellant contends that the veteran developed a nicotine addiction from smoking which was caused by his service-connected psychiatric disorder. The appellant then claims that this addiction to nicotine caused by service-connected psychiatric disorder, caused the heart disease which, in turn, caused the veteran's death. Based on the Board remand in September 1993, the RO requested an expert's opinion as to the etiological relationship between the veteran's service-connected psychiatric disorder and his alleged addiction to nicotine. Although it was reported that cigarette smoking was thought to cause heart disease, it was noted that there was no evidence that schizophrenia "will compel an afflicted person to smoke and expire due to its complications." Furthermore, upon review of the record, there is no evidence, except the appellant's assertions, that the veteran was addicted to nicotine as a consequence of his psychosis, or otherwise addicted for that matter. The death certificate listed the immediate cause of death as acute myocardial infarction due to occlusive coronary atherosclerotic disease. As the appellant has not submitted any supportive evidence of her claim and has alleged no facts which would support a conclusion that the veteran's death was related to service or his service-connected psychiatric disorder, the Board finds that the appellant has failed in her duty to submit evidence which would justify a belief by a fair and impartial individual that her claim is plausible. Tirpak, 2 Vet.App. at 611. The United States Court of Veterans Appeals (hereinafter Court) has held that where the determinative issues involve medical causation or diagnosis, competent medical evidence demonstrating that the claim is plausible or capable of substantiation is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). In such cases, the appellant cannot meet the burden imposed by statute of submitting a well-grounded claim by presenting lay statements and assertions, as lay persons are not considered by the Court to be competent to offer medical opinions. 38 U.S.C.A. § 5107(a); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, the Court has reasoned that "lay assertions of medical causation cannot constitute evidence to render a claim well grounded under § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded." Grottveit, 5 Vet.App. at 93. Before his death, the veteran was in receipt of service connection for schizophrenic reaction, paranoid type, incompetent, rated as 100 percent disabling. The veteran was not service-connected for his underlying cause of his death, cardiovascular disease, and the appellant has failed to submit any evidence, other than her own statements, linking the veteran's service-connected psychiatric disorder to the cause of his death. Indeed, as noted above, there is no evidence, other than the appellant's statements, that the veteran was addicted to nicotine as a consequence of his psychosis. The Board therefore concludes that the appellant has failed in her duty to submit a well-grounded claim. ORDER Service connection for the cause of the veteran's death is dismissed. E. W. SEERY 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.