BVA9505172 DOCKET NO. 92-03 794 ) 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 veterans death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Julianne Robertson-King, Associate Counsel INTRODUCTION The appellant served on active duty from May 1968 to May 1971. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 1990 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. This matter was before the Board in October 1993, at which time, it was remanded to the RO for further factual development. Specifically, the RO was directed to request a search by the National Personnel Records Center for any additional service medical records pertaining to the veteran. Additionally, the RO was to contact the appellant to obtain the names and dates of treatment for all post-service clinical treatment rendered to the veteran. In this regard, it is noted that a copy of the Board's October 1993 remand was mailed to the appellant. This document was returned to the VA undelivered with information from the United States Postal Service which indicates that the appellant moved without providing a forwarding address. Additionally, the November 1993 VA letter sent to the appellant requesting that she provide information pertinent to the claim was returned with an identical notation from the Postal Service. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that the RO erred in not granting her claim for service connection for the cause of the veteran's death. She avers that the veteran had a heart disorder prior to release from active duty and that this disability was the same as that which caused his fatal arteriosclerotic heart disease. 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 has failed to submit evidence of a well- grounded claim. FINDINGS OF FACT 1. The veteran died of arteriosclerotic heart disease in November 1989. 2. Arteriosclerotic heart disease was not present in service or manifest within one year thereafter. 3. VA attempts to develop facts pertinent to this claim have been unsuccessful. 4. There is no competent, medical evidence of record linking the veteran's death with any in-service incident or disability of service origin. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim. 38 U.S.C.A. §§ 1121, 1141, 5107(a) (West 1991); 38 C.F.R. §§ 3.304(f) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the claim is well- grounded under 38 U.S.C.A. § 5107 (a)(West 1991). A well- grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The United States Court of Veterans Appeals (Court) has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992) The Court has further held that "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 v. Brown, 5 Vet.App. 93 (1993) The Board finds that although the claim appeared, on initial review, to be well- grounded in the sense that it was "capable of substantiation," all relevant evidence has been developed to the extent the cooperation of the appellant permitted. As it is now clear that the claim is not ultimately well grounded, there is no further duty to assist the appellant. Under the law, service connection requires a showing of disease or injury in service resulting in chronic disability or death. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (1994). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d)(1994). Additionally, where a veteran who has served for 90 days or more during a period of war or during peacetime service after January 1, 1947, develops arthrosclerosis or cardiovascular renal disease, including hypertension, to a degree of 10 percent within one year from the date of separation from such wartime or peacetime service, such disease may be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309 (1994). In this regard, the appellant has indicated through correspondence and in her claim that she feels that her husband had a chronic heart problem when he was discharged from the military but that medical records from the time of his induction do not reflect that he had a heart disorder on induction. Simply stated, the evidence of record in this case does not support these contentions. The service medical records and post service records, while showing that the veteran was found to have a functional systolic ejection murmur (not considered disabling) on separation from service, do not indicate that the appellant suffered from a chronic disability as a result of that condition. There is no showing in the service medical records by complaints, statements of medical history or findings that arteriosclerosis or cardiovascular-renal disease, including hypertension, were present. The records do show that, during an April 1969 hospitalization, the veteran complained of pain and numbness in both arms. On examination, both radial pulses were found to be obliterated and a bruit was noted over the left subclavian artery. A subclavian arteriogram was said to reveal narrowing of the arteries in the area of the first rib. The veteran's first left rib was resected. The diagnosis was Thoracic Outlet syndrome. The Board requested that the National Personnel Records Center, St. Louis, Missouri, conduct a search for any additional service medical records for the appellant, specifically, the report of the noted subclavian arteriogram. The resulting search brought forth no more than a duplicate copy of an April 1971 examination performed at the time of the veteran's release from active duty. Additionally, post-service private medical records reflect that at the time the veteran was treated for a pilonidal cyst in May 1972, his cholesterol level was recorded as 400. The record contains a notation to the effect that the veteran had been known to have hypercholesterolemia in the past. At the time of the Board's remand, it was requested that any additional private medical records pertaining to the veteran, to include the terminal medical records from the Houston Northwest Medical Center should be obtained and associated with the claims folder. As noted in the introduction section of this decision, the necessary development of facts pertinent to this claim has been thwarted inasmuch as the appellant has not availed herself of opportunities to assist the VA in the performance of its statutory obligations in this matter. Specifically, in remaining unavailable she has made it impossible for the VA to obtain any documentation which could have verified her claim. In the normal course of events, it is the burden of the claimant to keep the VA appraised of their whereabouts. If the claimant does not do so, there is no burden on the part of the VA to "turn up heaven and earth" to find her. Hyson v. Brown, 5 Vet.App. 262, 265 (1993). Under the law, if a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Indeed, a purported adjudication of a claim which is not well grounded is a nullity in contemplation of law. See Grivois v. Brown, 5 Vet.App. 91 (1993). In this case, neither the in service nor the post-service medical evidence confirms that arteriosclerosis or cardiovascular renal disease, including hypertension was present in service or manifest within one year thereafter. The nondisabling "functional systolic ejection murmur" noted at separation is not shown thereafter by competent medical evidence. There is no competent medical evidence of record to show that it resulted in chronic disability or that it was causally connected to the disability that produced death or that it contributed to the production of death. Thus, where service records do not show the claimed disability and there is no current medical evidence to link any current disability with events in service, the claim is not well- grounded. See Montgomery v. Brown, 4 Vet.App. 343 (1993) (Single judge disposition cited for its persuasive reasoning per Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992).) Finally, it should be emphasized that by dismissing the appellant's current appeal, she is not burdened with a prior decision on the merits. Therefore, should she be able to present a well-grounded claim in the future, she will not face the higher hurdle of presenting new and material evidence to reopen her claim. McGinnis v. Brown, 4 Vet.App. 239 (1993). ORDER The claim for service connection for the cause of the veteran's death is dismissed. RICHARD B. FRANK 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.