BVA9501726 DOCKET NO. 93-11 146 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for the cause of the veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from March 1945 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which denied service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the causes of the veteran's death entered by the physician on the veteran's death certificate are inaccurate because the veteran was not hospitalized prior to his death. The appellant contends that the veteran's hands and feet began swelling before his death, and that this shows that his service-connected conditions caused or contributed to his death. 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 claim for entitlement to service connection for the cause of the veteran's death is not well grounded. FINDINGS OF FACT 1 The veteran died on April [redacted] 1991, and the immediate cause of death as listed on the death certificate was cardio-pulmonary arrest due to myocardial infarction due to hypertension. No other significant conditions contributing to the cause of death are listed. Apparently, no autopsy was performed. 2. At the time of the veteran's death he was service-connected for partial paralysis of the radial and median nerves, left arm, with marked loss of motion of the left thumb and the index and middle fingers, rated 40 percent disabling, and for traumatic arthritis of the left elbow, rated as noncompensable. 3. A cardiovascular disorder including hypertension has not been shown to be present during service or proximate thereto. Other than the veteran's death certificate, no medical evidence of a cardiovascular disorder including hypertension is present in the record. The veteran's death approximately 45 years after service has not been shown to be related to service or any event or occurrence therein. 4. Since there is no medical evidence or opinion in any way relating the veteran's service-connected partial paralysis of the left radial and medical nerves to the cardio-pulmonary arrest, myocardial infarction, or hypertension which caused his death, nor is there any medical evidence that the partial paralysis of the nerves in his left arm contributed to the veteran's death, the appellant's claim is not plausible. CONCLUSION OF LAW The appellant has not submitted evidence of 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 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim with respect to the issue of service connection for the cause of the veteran's death. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If a particular claim is not well grounded, then the appeal fails and there is no duty to assist in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (Court) held that the appellant had not presented a well- grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." Tirpak, at 611. The evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). In this case, evidentiary assertions as to the claim for service connection for the cause of the veteran's death are beyond the competence of the appellant. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The appellant cannot meet her initial burden of proof for purposes of determining that her claim is well-grounded by relying on her own opinion, or the opinions of the veteran's neighbors, as to medical matters. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Service connection for the cause of a veteran's death is warranted when the evidence indicates that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1993). The death certificate reflects that the veteran died on April [redacted] 1991, nearly 45 years after discharge from service in June 1946. The death certificate shows that the veteran's death was due to cardio-pulmonary arrest and myocardial infarction due to hypertension, with no other significant conditions noted as contributing to his death. At the time of the veteran's death, he was service-connected for partial paralysis of the radial and medial nerves, left arm, with marked loss of motion of the left thumb and the index and middle fingers, as a result of a fracture of the left radius, rated 40 percent disabling effective 1946, and traumatic arthritis of the left elbow, rated zero percent disabling. The veteran's service medical records include records from the veteran's May 1946 hospitalization for treatment of his left elbow fracture. Those records do not contain any complaints, findings, or diagnoses for any cardiac or pulmonary disease, including hypertension. Examinations during hospitalization reported all cardiac and pulmonary assessments as normal. No blood pressure readings appear in the available service medical records. Post-service medical records include a VA orthopedic examination conducted in January 1951, a discharge summary from a November 1957 hospitalization in Veterans Memorial Hospital, a VA orthopedic examination conducted in May 1958, and a discharge summary from a May 1961 hospitalization in Veterans Memorial Hospital, as well as numerous radiologic examinations of the veteran's left arm. No evidence suggestive of cardiac or pulmonary disease or hypertension appears in any of these records prior to 1961. At the time of the veteran's 1961 hospitalization, his blood pressure was recorded as 140/90, but no diagnosis of hypertension or cardiac disease was noted. No records of medical examinations or medical treatment after 1961 appear in the record except the veteran's death certificate. At a personal hearing in August 1992, the appellant testified that the veteran suffered swelling of his knees and elbows before his death. The appellant submitted an affidavit from Jose Likiyan and Lucio Fukasan, who stated that they were neighbors of the veteran, and who stated that he suffered from severe pain of both legs and hands for three days prior to his death. The appellant also submitted an affidavit from Peter El Lanaon, who stated he was the postmaster where the veteran lived and that the veteran's mail was delivered to his home because he suffered from painful legs and hands for three years prior to his death. The appellant, the postmaster, and the veteran's neighbors are lay witnesses who are not capable of making a medical diagnosis as to the cause of the veteran's death, since such a diagnosis requires medical knowledge. Barfield v. Brown, 5 Vet.App. 8, 9 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Lay assertion of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In this case, the lay testimony that the veteran had pain in his hands and feet would not be plausible evidence to establish that the veteran's service-connected partial paralysis of the left arm caused or contributed to his death even if these lay assertions could constitute evidence as to the cause of the veteran's death. The record of the veteran's 1946, 1957, and 1961 hospitalizations support a finding that a cardiovascular disorder including hypertension was first manifested many years after service and were unrelated to the veteran's left elbow fracture or partial paralysis of the radial and median nerves in the left arm. Furthermore, there is no evidence that there was cardiovascular disease or hypertension in service or within the one-year presumptive period after separation. There is, therefore, no basis for granting service connection for the disorders that caused the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113: 38 C.F.R. § 3.303, 3.307, 3.309. The death certificate, which is not refuted by any medical evidence of record, reflects that the underlying cause of the veteran's death was myocardial infarction due to hypertension, with no reference to the veteran's left arm disability. The Board finds that there is no interpretation or construction of this evidence which establishes or suggests that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the cause of the veteran's death that would warrant service connection for the cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (1993). Because the appellant has not submitted any medical evidence supportive of her claim that the veteran's death was related to service or a service-connected disability, we are of the opinion that she has failed in her duty to submit "evidence" which would "justify a belief by a fair and impartial individual," that her claim is plausible. See Tirpak, 2 Vet.App. at 611. The Court has held that lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. See Grottveit, 5 Vet.App. at 93; Barfield v. Brown, 5 Vet.App. at 9 (1993). The veteran was not service-connected for the underlying cause of his death, myocardial infarction due to hypertension, and the appellant has failed to submit any competent, credible evidence linking the veteran's service-connected disability to the cause or production of his death. Since there is no competent, credible evidence of medical causality or contribution, the claim is not well-grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). ORDER The appellant's claim for entitlement to service connection for the cause of the veteran's death is not well grounded, and the appeal is dismissed. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.