Citation Nr: 0004942 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-30 870 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland THE ISSUES Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is the widow of the veteran, who served on active duty from January 1942 to February 1946; he died in December 1996. The appellant has been represented throughout her appeal by the Disabled American Veterans. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of March 1997, by the Regional Office (RO), which denied service connection for the cause of the veteran's death. A notice of disagreement with that determination was received in April 1997. A statement of the case was issued in August 1997. The appellant's substantive appeal (VA Form 9) was received in October 1997. The appeal was received at the Board in November 1997. In addition, the RO denied eligibility for Dependents' Educational Assistance (DEA) under chapter 35 of title 38, United States Code,in the March 1997 rating decision. The appellant included this issue in her notice of disagreement, and it was included in the statement of the case issued in August 1997. However, in her VA Form 9, the appellant stated that her appeal was not to establish eligibility for DEA; she clarified that she was seeking to establish eligibility for Dependency and Indemnity Compensation (DIC) benefits, payable for a service-connected death. The appellant's statement that she was not seeking eligibility for Chapter 35 educational benefits is sufficient to withdraw that issue from the appeal. FINDINGS OF FACT 1. The veteran died in December 1996, at the age of 77; the immediate cause of death was reported as Alzheimer's dementia. No other significant condition contributing to death was reported on the death certificate. No autopsy was performed. 2. At the time of his death, service connection was in effect for residuals of gunshot wound, right chest, evaluated as 30 percent disabling; status post gunshot wound, right lower chest, with pleural thickening and adhesions, evaluated as 20 percent disabling; scar, upper quadrant abdomen, evaluated as 10 percent disabling; and peritoneal adhesions resulting from subphrenic abscess, evaluated as 0 percent disabling. The combined evaluation was 50 percent. 3. Competent medical evidence of record does not show that the veteran's Alzheimer's dementia was manifested in service or in the first post-service year, or that it was caused by the service-connected disabilities or was otherwise related to his military service. 4. There is no medical evidence showing that a service- connected disability was the immediate or underlying cause of the veteran's death; nor is there competent medical evidence showing that a service-connected disability or disabilities contributed substantially or materially to cause death. The appellant's claim is therefore not plausible under the law. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim for entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The record reflects that the veteran died in December 1996, at the age of 77. A certificate of death, dated in December 1996, shows that the veteran's death was attributed to Alzheimer's dementia. No other significant condition contributing to the death was reported on the death certificate. No autopsy was performed. At the time of the veteran's death, service connection was in effect for residuals, gunshot wound, right chest, evaluated as 30 percent disabling; status post gunshot wound, right lower chest with residual pleural thickening and adhesions, evaluated as 20 percent disabling; scar, upper quadrant abdomen, evaluated as 10 percent disabling; and peritoneal adhesions, resulting from subphrenic abscess, evaluated as noncompensably disabling. The combined disability evaluation was 50 percent. The service medical records are negative for the presence of Alzheimer's disease, organic brain syndrome, or complaints thereof. Accordingly, there exists no credible or competent evidence of symptomatology attributable to this disorder during service. There is also no evidence of any complaints, treatment, findings, or diagnosis of any organic brain syndrome within one year of the veteran's separation from active service. The veteran's combat wounds were incurred on Guadalcanal in November 1942, when he sustained penetrating wounds to the abdomen and chest in action against the enemy. Medical evidence of record in 1948 reflects clinical evaluation for residuals of a gunshot wound of the left abdomen and chest sustained in service. Evaluation of the nervous system, conducted in January 1948, was reported to be normal. A VA outpatient treatment report dated in March 1974 indicates that the veteran was seen and treated for complaints of low back pain. This report reflects clinical evaluation of the back and right knee. There is no indication that the veteran complained of or was evaluated for any nervous disorder. The report of a VA compensation examination conducted in April 1974 reflects evaluation solely of the residuals of gunshot wound of the right chest and residuals of pleural thickening and pleural adhesions. Of record is a private hospital report, dated in July 1996, which shows that the veteran was admitted to the hospital after waking up and complaining of shortness of breath and generalized weakness; it was noted that he was confused at the time. The veteran's wife indicated that he was struggling to breathe, and appeared very pale and lethargic. The report indicates that a chest X-ray taken in the emergency room showed severe pulmonary edema and, at that time, Lasix was given to initiate diuresis; subsequently, the veteran showed improvement and was determined to be stable enough to be discharged to home. The final diagnoses were pulmonary emphysema, slight evidence of congestive heart failure; paroxysmal supraventricular tachycardia; non- insulin-dependent diabetes mellitus, controlled; and hypertension, controlled. Received in July 1997 were VA treatment records dated from January 1996 to March 1996. These records indicate that the veteran was admitted to the hospital in January 1996 because of progressive loss of physical and mental ability over the last several years; the veteran's wife denied any acute change in his mental status. She also reported that he had become less ambulatory, and he had also been noted to have several falls over the last several weeks to months. On examination, the lungs were clear to auscultation bilaterally. The abdomen, on examination, was soft, nontender, and nondistended. Neurologically, the veteran was alert and oriented times two; he was confused as to the time. It was felt that the veteran was most likely suffering from a dementia; for this, he underwent dementia work-up. He had a head CT which demonstrated diffuse cerebral atrophy, but no masses were noted. The pertinent discharge diagnoses were dementia, diabetes mellitus, and hypertension. The veteran was discharged to home in stable condition. He died at home. II. Legal analysis The appellant maintains that the cause of the veteran's death as listed on the death certificate is incorrect, because the VA doctor who signed the certificate did not examine the veteran and, as a result, had no idea what the cause of death was. The appellant asserts that the veteran's death was caused by his service-connected residuals of gunshot wound to the pleural cavity, which caused his chest congestion and complications in his chronic obstructive pulmonary emphysema. In fact, the appellant points out that, on the day of his death, the veteran was visited at home by a VA nurse practitioner, who commented on his breathing difficulties. She asserts, with the support of her representative, that the veteran's service-connected lung problems were, at the very least, a contributing cause of his death. The first question which must be addressed in the appeal is whether a well-grounded claim for the cause of the veteran's death has been presented. If not, the application for service connection for the cause of the veteran's death must fail, and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (previously known as the U.S. Court of Veterans Appeals, prior to March 1, 1999) which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). The United States Supreme Court declined to review that case. Epps v. West, 118 S. Ct. 2348 (1998). See also Morton v. West, 12 Vet.App. 477, 480 (1999). The Court of Appeals for Veterans Claims has held that a claim for service connection for cause of death filed by a veteran's survivor, like a claim for service connection for disability by a living veteran, must be well grounded. Darby v. Brown, 10 Vet.App. 243, 245 (1997); Johnson v. Brown, 8 Vet.App. 423, 426 (1995). The Court has further held that, in order to establish that a claim for service connection is well grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a connection or link) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. See Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table), and Epps, supra. "Although the claim need not be conclusive, the statute [38 U.S.C.A. §5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). In a claim seeking 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(s) 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). Evidentiary assertions by the appellant must be accepted as true for the purpose of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). Where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The Board acknowledges with great admiration and respect the veteran's exceptional and meritorious service during World War II, which included his being wounded as a result of enemy action on Guadalcanal. As will be explained below, however, we find that there is insufficient evidence to establish a well-grounded claim in this case. Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty in active military service, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also state that service connection may 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 (1999). In addition, organic diseases of the nervous system are deemed to be chronic conditions, and there is a presumption of service connection if shown to a compensable degree within one year of separation from service, even though there was no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of 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 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. Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. As noted above, the threshold question in this case is whether the appellant has presented a well-grounded claim. This requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible under the law. Tirpak v. Derwinski, supra. In reviewing the evidence of record, the Board is unable to find that the appellant has presented a well-grounded claim for entitlement to service connection for the cause of the veteran's death. The evidence does not show that the veteran's Alzheimer's dementia was incurred in or aggravated by service. The record reflects that Alzheimer's dementia was not diagnosed until 1996. Therefore, Alzheimer's dementia may not be presumed to have been incurred in service. Also, there is no competent medical evidence linking the veteran's Alzheimer's dementia, listed on his 1996 death certificate, to any disease or injury noted during the veteran's service. In addition, there is no medical evidence relating the veteran's Alzheimer's dementia to a service- connected disorder. Further, there is no competent medical evidence that the veteran's Alzheimer's dementia was proximately due to or the result of a service-connected disability, or that the Alzheimer's dementia was aggravated by a service-connected disorder. 38 C.F.R. § 3.310; See Allen v. Brown, 7 Vet.App. 439 (1995). Moreover, there is also no competent medical evidence showing that a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. There is simply no suggestion in the pertinent medical records that the veteran's service- connected disabilities played any role in his death. We recognize the appellant's sincere belief that the veteran's death was related in some way to his service- connected disabilities. As noted above, evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, but an exception to that rule is where the evidentiary assertion is beyond the competence of the person making it. In this case, the appellant has not been shown to have the professional expertise necessary to provide meaningful evidence regarding any causal relationship between the veteran's service- connected disabilities and his death. See, e.g., Voerth v. West, 13 Vet.App. 117, 120 (1999) ("Unsupported by medical evidence, a claimant's personal belief, no matter how sincere, cannot form the basis of a well-grounded claim."); Bostain v. West, supra ("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 (1992); Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993). Therefore, although we are deeply sympathetic with the appellant's loss of her husband, we find a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet.App. 546, 553 (1996). Here, the appellant's "claim is not well grounded because she has failed to submit medical evidence to provide a nexus between any in-service injury and the conditions which contributed to the veteran's death." Bloom v. West, 12 Vet.App. 185 (1999). The Board notes that, even where a claim is not well grounded, VA may be obligated, under 38 U.S.C.A. § 5103(a), to advise a claimant of evidence needed to complete her application. This obligation depends upon 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); see McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997) (expressly adopting Robinette's interpretation of section 5103(a)). Here, in the statement of the case, as well as in other correspondence, the appellant has been notified of the defects in the evidentiary record, and of the kind of information which would be needed in order to well ground this claim. Unlike the situation in Robinette, the appellant has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. See also Epps v. Brown, supra. Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a). ORDER The claim for entitlement to service connection for the cause of the veteran's death is denied as not well-grounded. ANDREW J. MULLEN Member, Board of Veterans' Appeals