Citation Nr: 0006226 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-15 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, 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 Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran had active service from April 1946 to October 1947, and from August 1956 to June 1966. The veteran died on August [redacted], 1997. The appellant is the veteran's widow. This matter arises from an October 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefit sought. The appellant filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (BVA or Board) for resolution. FINDING OF FACT There is no competent medical evidence of a nexus or link between the veteran's cause of death and any incident of the veteran's service, to include Agent Orange exposure therein. CONCLUSION OF LAW The appellant's claim for 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 FINDING AND CONCLUSION The appellant contends that the listed causes of the veteran's death, cardiac arrest due to acute myeloid leukemia with COPD and cirrhosis of the liver listed as contributory causes, were the result of exposure to Agent Orange. The law provides that benefits arising from the death of a veteran may be granted to a spouse of a veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). A service-connected disability is one that was incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). The Board observes that at the time of his death, the veteran was not service connected for any disabilities. Moreover, service connection for cardiovascular disease, including hypertension, and a gastrointestinal disease, including hiatal hernia, was denied by a September 1985 Board decision. Cirrhosis of the liver, leukemia, and hypertension may be presumed to have been incurred during service if such diseases become manifest to a degree of 10 percent or more within one year following separation from service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War era and has a disease listed at 38 C.F.R. § 3.309(e) (1999) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. See 38 C.F.R. § 3.307(a)(6)(iii) (1999). Thus, service connection may be presumed for residuals of exposure to Agent Orange by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C.A. § 1116 (West 1991); 38 C.F.R. § 3.307(a)(6) (1999). Secondly, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Standards (Radiation Compensation) Act, Pub.L.No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection by proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, an individual who submits a claim for VA benefits has the burden of first "submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." See 38 U.S.C.A. § 5107(a) (West 1991); 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 (1995). If the evidence presented by the appellant fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993). To establish that a claim for service connection is well grounded, the appellant must satisfy three elements. First, there must be evidence of an incurrence or aggravation of a disease or injury in service. Second, there must be competent (i.e. medical) evidence of a disability at the time of the veteran's death. Third, there must be evidence of a nexus or link between the in-service injury or disease listed on the death certificate as the direct or contributory cause of death, and the in-service injury or disease, as shown through the medical evidence. See Epps, supra. Lay or medical evidence, as appropriate, may be used to substantiate the service incurrence. See Caluza v. Brown, 6 Vet. App. 498, 506 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). For disorders subject to presumptive service connection, the nexus requirement may be satisfied by evidence of manifestation of the disease to the required extent within the prescribed time period, if any. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Alternatively, a claim may be well grounded based on the application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). A review of the record shows that the veteran served in the Republic of Vietnam during the Vietnam War era, and was awarded the Vietnam Service Medal. His death certificate indicates that he died on August [redacted], 1997, of cardiac arrest due to acute myeloid leukemia, with COPD and cirrhosis of the liver listed as contributory causes of death. The onset of the veteran's diagnosed acute myeloid leukemia was noted to be several weeks prior to his death. The appellant, the veteran's widow, contends in pertinent part, that the veteran also suffered from cancer of the bladder, which was manifested in the area where the prostate gland connects with the bladder. She maintains that the veteran's myeloid leukemia and bladder cancer were caused by exposure to Agent Orange. Alternatively, the appellant argues that the diseases listed as the direct and contributory causes of the veteran's death were manifested during his active service, and that service connection for the cause of the veteran's death is therefore warranted on a direct basis. The veteran's service medical records are completely negative for any indication of acute myeloid leukemia, COPD, cirrhosis of the liver, or any bladder or prostate cancer. The veteran was discharged from active duty in October 1966. Less than three years after his discharge, he underwent a VA rating examination in January 1969. The report of that examination fails to disclose the presence of any of the diseases listed as the direct or contributory causes of the veteran's death. In July 1982, the veteran underwent a VA Agent Orange protocol examination. The report of that examination indicates that the veteran was not shown to manifest any diseases or other disorders associated with Agent Orange exposure. In addition, none of diseases listed as the cause of his death were shown to be present at that time. Based on the medical evidence, service connection for residuals of Agent Orange exposure was denied by a June 1984 rating decision. In addition, by an administrative decision dated in December 1994, the veteran's attempt to reopen the previously denied claim for service connection for residuals of Agent Orange exposure was again denied. His claims were denied on the basis that the available medical evidence failed to disclose that he had any of the diseases presumptively associated with Agent Orange exposure. In support of her claim, the appellant submitted VA treatment records dating from January 1984 through August 1986. These records show that the veteran gave a history of having been exposed to Agent Orange, and that he was noted to have an enlarged prostate gland, and was diagnosed with transitional carcinoma of the bladder. The veteran was also noted to have a history of COPD. However, aside from noting the presence of the above listed diseases, the treatment records do not contain any medical opinion suggesting any service etiology or to otherwise indicate that any of the listed diseases were incurred as a result of exposure to Agent Orange. Other treatment records dating from November 1996 through August 1997 fail to contain any medical opinion suggesting that any of the veteran's diagnosed diseases or disorders had been incurred during his periods of active duty. The records do not show any diagnosis of prostate cancer. Concerning the appellant's contention that the veteran's bladder cancer and myeloid leukemia were incurred as a result of exposure to Agent Orange in Vietnam, the Board notes that there is no medical evidence of any kind linking the fatal diseases to any exposure the veteran may have had to Agent Orange during his active service. In addition, there is no medical evidence to show any link between the veteran's terminal or other disease process and any other incident of his active service. The claim that the veteran's death was due to exposure to Agent Orange must be denied on two grounds. First, acute myeloid leukemia, COPD, cirrhosis of the liver, and bladder cancer are not diseases attributable to Agent Orange under the applicable regulations. See 38 C.F.R. §§ 3.307, 3.309(e). In this regard, the Board notes that the veteran was noted to have an enlarged prostate gland, but he was not shown to have been diagnosed with prostate cancer, a disorder which has been associated with Agent Orange. Moreover, the Secretary of the VA has determined that a presumption of service connection based on exposure to herbicides utilized in the Republic of Vietnam during the Vietnam War era is not warranted for such diseases. See 64 Fed. Reg. 59232 (1999); 38 C.F.R. §§ 3.307(a)(6)(d), 3.309(e) (1999). The Board emphasizes that the disorders manifested by the veteran at the time of his death are not listed among the disorders for which presumptive service connection due to Agent Orange exposure is warranted. Diseases subject to presumptive service connection due to Agent Orange exposure include chloracne or other acneform disease consistent with chloracne; Hodgkin's disease, non-Hodgkin's lymphoma; porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma, prostate cancer, and acute and sub-acute peripheral neuropathy. See 38 C.F.R. § 3.309(e). Second, the Board finds that there is no competent medical evidence of record of a direct causal link between any herbicide exposure while in Vietnam and the subsequent development of acute myeloid leukemia, bladder cancer, an enlarged prostate gland, COPD, or cirrhosis of the liver. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Further, even assuming arguendo that the veteran's enlarged prostate gland actually was indicative of prostate cancer, neither the enlarged prostate nor the bladder cancer were listed as direct or contributory causes of death on the veteran's death certificate. Although the appellant has asserted that she believes that the diseases listed as the direct or contributory causes of the veteran's death in addition to diseases with which he was also diagnosed at the time of death, were caused by exposure to Agent Orange or were otherwise incurred in service, the record is completely negative for any medical opinion supportive of this assertion. Since the appellant has not introduced into the record competent medical evidence that establishes a nexus between the cause of the veteran's death and any disease associated with or claimed to have been the result of Agent Orange exposure during service, the appellant's claim for service connection for the cause of the veteran's death, claimed as secondary to Agent Orange exposure, must be denied as not well grounded. Further, there is no competent medical evidence to establish a nexus between the cause of the veteran's death and his active service on a direct basis. The veteran was not service-connected for any disorder at the time of his death, and as noted, there is no medical opinion of record to suggest that any diagnosed diseases were incurred in service. In short there is no medical evidence of record to show that any diagnosed diseases existing at the time of the veteran's death were incurred within any presumptive period for establishing service connection for the diseases. See Savage, supra. In addition, lay statements by the appellant that the veteran's listed causes of death were incurred as a result of exposure to Agent Orange or were otherwise incurred in service do not constitute medical evidence. As a layperson lacking in medical training and expertise, the appellant is not competent to address an issue requiring an expert medical opinion, to include medical diagnoses or opinions as to medical etiology. See Moray v. Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, such lay statements and opinions are insufficient to render the appellant's claim well grounded. For the above reasons, it is the decision of the Board that the appellant has failed to meet her initial burden of submitting evidence of a well-grounded claim for service connection for the cause of the veteran's death. The Board has not been made aware of any additional relevant evidence which could serve to well ground the appellant's claim. As the duty to assist is not triggered here by a well-grounded claim, the Board finds that the VA has no obligation to further develop the appellant's claim. Therefore, it is not required to remand the case for further action. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, supra; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The Board further recognizes that this matter is being disposed of in a manner that differs from that employed by the RO. The RO denied the appellant's claim on the merits while the Board has found her claim to be not well grounded. However, when an RO does not specifically address the question of whether a claim is well grounded, but rather, as here, proceeds to adjudication on the merits, 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). ORDER Evidence of a well-grounded claim not having been submitted, service connection for the cause of the veteran's death is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals