BVA9501738 DOCKET NO. 93-08 267 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served on active duty from November 1942 to December 1945. The veteran died in March 1992 at the age of 71. The appellant is the veteran's widow. This appeal stems from a May 1992 decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's service-connected wounds affected him. She maintains that although he may not have died from his wounds, he certainly suffered from them. 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 not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. FINDING OF FACT There is not a reasonable probability of a valid claim concerning whether the veteran's death was the result of a disability incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim concerning whether a disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of the veteran's death has not been submitted. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted for the cause of the veteran's death if the evidence establishes that a service-connected disability was either the principal or a contributing cause of death. 38 C.F.R. § 3.312. A disability is deemed to be service connected when it was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Also, 38 U.S.C.A. § 5107 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. Some of the basic facts are not in dispute. The veteran died in March 1992. The certificate of death identified the cause of the veteran's death as carcinoma of the lungs with metastases to the brain; chronic obstructive lung disease was identified as a significant condition contributing to death but not resulting in the underlying cause. Service connection had been established for residuals of shell fragment wounds to the buttocks and thighs, Muscle Group XIII, with a disability evaluation of 30 percent, paralysis of the left sciatic nerve as a residual of shell fragment wounds with a disability evaluation of 20 percent, residuals of pleural cavity injuries with a disability evaluation of 20 percent and shell fragment wound scars on the right thigh and left leg evaluated as noncompensable. The combined disability evaluation was 60 percent. The veteran's service medical records are negative for reference to lung cancer or chronic obstructive lung disease and the November 1945 separation examination indicated that his lungs were normal. Also, chest X-rays indicated that the lungs appeared to be normal, although about 20 shadows of metallic density measuring 1 mm. to 5 mm. in diameter were noted superimposed over the left hemithorax. The veteran was examined by the VA in August 1948 and it was reported that his respiratory system was normal. Furthermore, the certificate of death indicates that lung cancer was first manifested in 1991, many years after his separation from service. The appellant contends that the veteran's wounds led to his death. With regard to these contentions, the United States Court of Veterans Appeals (Court) has recently stated that: Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under section 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1992). However, 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Thus, since there is no evidence that the appellant has any level of medical expertise, her contentions are beyond her level of medical competence and do need to be accepted as true for the purposes of determining whether her claim is well grounded. Furthermore, due to the lack of reference in the service medical records to lung cancer or chronic obstructive lung disease and the fact that the first post-service reference to lung cancer or chronic obstructive lung disease was many years after separation from service, her claim is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In reaching its decision, the Board recognizes that the shell fragment wounds sustained by the veteran in the service of his country undoubtedly caused him discomfort throughout his life and adversely affected his daily living. Nevertheless, since the appellant has submitted no medical evidence that would support her contentions, the Board finds that she has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. Thus, since the Board does not have jurisdiction to adjudicate her claim, her appeal is dismissed. See Boeck v. Brown, 6 Vet.App. 14 (1993). The Board notes that this decision is to the appellant's benefit since, if she should decide to file another claim in the future, she will not be burdened with having to submit new and material evidence; she need only present a well-grounded claim. McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Board regrets any impression created by prior actions on this claim that the appellant's claim was considered well grounded; however, recent Court decisions have espoused the Court's view that, "Implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which --as well-grounded-- required adjudication." Grivois v. Brown, 6 Vet.App. 136,139 (1994). ORDER A well-grounded claim for entitlement to service connection for the cause of the veteran's death has not been submitted; the case is dismissed. WAYNE M. BRAEUER 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.