Citation Nr: 0006984 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-09 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the veteran's cause of death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to December 1967. He died on November [redacted], 1997. The appellant is the surviving spouse of the veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia, which denied a claim by the appellant seeking entitlement to service connection for the veteran's cause of death. It is noted that in a December 1997 Statement In Support of claim, VA Form 21-4138, the appellant raised the issue of dependency and indemnity compensation (DIC). The RO's rating decision of January 1998 denied service connection for the cause of the veteran's death. The issue of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 (West 1991) has not been adjudicated by the RO. The Board finds that this issue is not inextricably intertwined with the issue on appeal. This issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The claims file contains no competent evidence indicating that the cause of the veteran's death was related to service, including to any service-connected disability. 2. The appellant has not presented evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for the cause of the veteran's death is plausible. 3. The case does not involve a complex medical issue or controversy. CONCLUSIONS OF LAW 1. The appellant has not presented a well grounded claim of entitlement to service connection for the cause of the veteran's death, 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). 2. The need for an independent medical opinion is not shown. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 3.328 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Laws & Regulations The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have 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) (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Generally, a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In specific regard to service connection for disability, the three requirements for a well grounded claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). For service connection for the cause of death of a veteran, the first requirement for a well grounded claim, i.e. evidence of a current disability, will always be met (the current disability being the condition that caused the veteran to die). However, the last two requirements must be supported by evidence of record. Ruiz v. Gober, 10 Vet. App. 352, 356 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 46 (1996)). If the second element of a well grounded claim has been satisfied, i.e. that of an inservice injury or disease, then the final requirement for a well grounded claim is a nexus between the veteran's death and the inservice injury or disease. Opinions by lay persons as to a relationship, or nexus, between a disability or death and an inservice injury or disease are not competent evidence for purposes of a well grounded claim. Id. (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). II. Evidence Service medical records indicate that the veteran had no physical defects at the time of his October 1964 induction medical examination. Records show treatment for shrapnel wounds to the neck, left chest, and left upper arm, incurred in June 1966; there was no nerve or artery involvement. He had a small piece of shrapnel removed from his left index finger in August 1966. An October 1967 separation medical report shows no physical defects. Subsequent to service, VA outpatient records from April 1968 show that the veteran complained of shrapnel wounds to his left arm, left anterior chest, right anterior neck, and mouth. A May 1968 VA examination report indicates that his shrapnel wounds involved the skin only, with his left upper arm having the only persistent symptoms. Cardiovascular examination was normal. Musculoskeletal examination revealed pain to palpation, atrophy, and reduced grip strength in the left arm. Neuropsychiatric evaluation revealed that he had anxiety reaction with some depression, incurred as the result of combat in Vietnam. On that basis of the above medical evidence, the veteran was granted entitlement to service connection for residuals of shell fragment wounds to the left upper arm, chest, neck (with fracture 1st rib), face (lip), and left index finger, as well as for anxiety reaction with depression. A May 1970 VA admission record shows that the veteran was seen for left arm weakness. He underwent surgical left neck exploration and transection of left anterior scalene muscle. A June 1973 VA examination report shows the results of psychiatric examination, indicating that the veteran had chronic anxiety neurosis. A chest X-ray was normal. VA medical records from May 1970 to May 1980 show intermittent treatment for the veteran's left arm disorder and for headaches, the latter were opined to be unrelated to the former. It was felt that they were tension headaches. A May 1980 record indicates that the veteran was diagnosed with hypertension. A July 1980 VA examination report shows that the veteran complained of left neck, shoulder, and arm pain, as well as left anterior chest pain at the site of the shell fragment wound. He was noted to have high blood pressure. Chest X- rays were normal. Diagnosis was residuals of shell fragment wound, left upper arm, left chest, and right lower anterior neck. He also continued to have anxiety neurosis. An April 1987 VA admission record shows treatment for psychiatric problems. A chest X-ray was normal. Blood pressure was high. Diagnoses were anxiety disorder, borderline hypertension, and hiatal hernia. VA medical records from October 1993 to April 1995 show treatment for the veteran's psychiatric disorder, gastrointestinal problems, low back pain, numbness in the legs, and weight loss. An August 1995 VA psychiatric examination report reflects that the veteran was laid-off from his job of 27 years. Chief complaints were of depression, leg and back problems, and weight loss due to vomiting and diarrhea. Diagnosis was anxiety reaction with depression. The veteran was granted a 100 percent total disability rating for his service-connected anxiety neurosis pursuant to RO decision in September 1995. A November 1997 VA psychiatric examination report provides the results of additional mental status examination of the veteran. A death certificate shows that the veteran died on November [redacted], 1997. His immediate cause of death was "acute myocardial infarction." No other underlying causes of death or contributing conditions are listed. The appellant submitted VA Form 21-534 in December 1997. In a January 1998 rating decision, the RO denied entitlement to service connection for the cause of the veteran's death, which the appellant properly appealed. In her February 1998 Notice of Disagreement, she argued that the veteran's death had to be related to his service in Vietnam. Specifically, she asserted that his anxiety neurosis could have contributed to his death. Alternatively, she indicated that the medications that he took for his psychiatric and other health problems may have contributed to his death. She also indicated that the veteran's complaints of chest pains, which were diagnosed as symptoms of a hiatal hernia, may have been something else, like a heart disorder. In support of the appellant's claim, she submitted approximately 100 pages of additional VA medical records in June 1998. The records are dated December 1992 to October 1997. The records show a complaint of chest pain and headaches in August 1996. An August 1996 chest X-ray revealed hyperexpansion of the lungs, but no other signs of disease; the heart size was normal. The other records show treatment for several unrelated physical problems. III. Analysis As stated above, the first requirement for entitlement to service connection for the cause of the veteran's death is that the appellant submit a well grounded claim. This requires medical evidence of a current disability; competent evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. Here, it is clear that the veteran had a current disability, namely an acute myocardial infarction, that caused his death. This is evidenced by his death certificate. This evidence fulfills the first requirement of a well grounded claim for service connection for the cause of the veteran's death. See Ruiz v. Gober, 10 Vet. App. 352 (1997). The Board also finds that the second element of a well grounded claim, i.e. an inservice disease or injury, has been met. Specifically, it recognizes that the veteran incurred shell fragment wounds to his left upper arm, chest, neck (with fracture 1st rib), face (lip), and left index finger, during service. He received service connection for these disabilities and for anxiety reaction with depression, which was also determined to have resulted from service. However, the Board concludes that the veteran's acute myocardial infarction, or any other cardiovascular disease, was not incurred in or related to service. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires that the evidence show the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1999). Where a veteran served for 90 days in active service, and a cardiovascular disorder develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. 38 C.F.R. §§ 3.307, 3.309 (1999). In this case, service medical records show no complaints of, treatment for, or diagnosis of any heart problems. The first showing of any cardiovascular problems is a May 1980 VA outpatient record, indicating that the veteran had hypertension. No medical records, other than the veteran's November 1997 death certificate, indicate that he had heart disease or some other cardiovascular disease related to an acute myocardial infarction. In light of the above, the determinative issue is whether the veteran's acute myocardial infarction is related to his service-connected shell fragment wounds or anxiety neurosis with depression. There must be some medical evidence supporting such a conclusion for the Board to consider this claim on the merits. 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). Unfortunately, after careful review of the entire record, the Board finds no competent evidence showing a relationship between the veteran's acute myocardial infarction and his service-connected shrapnel wounds or anxiety disorder. It recognizes that the appellant believes that there is such a connection, possibly due to the medications he took for his service-connected disabilities. However, the Board cannot accept these speculations as evidence for purposes of meeting the third element of a well grounded claim. Medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As a result, the Board finds insufficient evidence of a well grounded claim for service connection for the cause of the veteran's death. There is no evidence in the claim file indicating that his death from a myocardial infarction was related to service. 38 C.F.R. § 3.303 (1999); Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. The appellant's representative has requested that the Board obtain an independent medical opinion to provide evidence of a nexus between the service-connected disabilities and the cardiovascular disorder. In the absence of competent evidence indicating such a relationship, the claim is not well-grounded and development is not warranted. Because the appellant has not submitted any competent evidence that shows that disability that was incurred or aggravated in service caused or contributed to cause the veteran's death, the claim is not well grounded and no duty to assist exists. IV. Conclusion In light of the above, the appellant's claim seeking entitlement to service connection for the cause of the veteran's death must be denied. Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete the application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the appellant has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make the claim well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER The claim of entitlement to service connection for the cause of the veteran's death is denied as not well grounded. A. BRYANT Member, Board of Veterans' Appeals