Citation Nr: 0004519 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 95-00 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from July 1968 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appeal. 2. The veteran died in January 1994, at age 44. The immediate cause of the veteran's death was metastatic glioblastoma multiforme. There were no other significant conditions contributing to death. 3. There is no evidence of an etiologic connection between the fatal disability and any disease or injury in service. CONCLUSION OF LAW The claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The death certificate shows the veteran died in January 1994, at age 44. The immediate cause of the veteran's death was listed as metastatic glioblastoma multiforme. The approximate interval between onset and death was listed as one year. There were no other significant conditions listed as contributing to death. There was no autopsy. A glioblastoma multiforme is a rapidly growing tumor, usually confined to the cerebral hemispheres. Dorland's Illustrated Medical Dictionary 699 (27th ed. 1988), as quoted in Murphy v. Derwinski, 1 Vet. App. 78, 80 (1990). Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service caused 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. 38 U.S.C.A. § 1310 (West 1991). Dependency and Indemnity Compensation (DIC) is paid to the surviving spouse, children, or parents of a qualifying veteran who dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 1991). For such a death to be considered service connected, it must result from a disability incurred or aggravated in the line of duty. See 38 C.F.R. § 3.312 (1999). As with any other type of claim, a claimant seeking DIC benefits has the initial burden of showing that the claim is well grounded. 38 U.S.C.A. § 5107 (a); see Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For a claim to be well grounded, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Brown, 9 Vet. App. 341, 343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 524 U.S. 940, 118 S. Ct. 2348, 141 L. Ed. 2d 718 (1998). To be considered well grounded, a claim must be more than an allegation; there must be some supporting evidence. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). "Where the determinative issue involves medical causation or medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet. App. at 93; see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995). A lay person is competent to describe symptoms, but is not competent to offer evidence which requires medical knowledge, such as a diagnosis or a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. Robinette v. Brown, 8 Vet. App. 69, 75 (1995). If the only evidence on a medical issue is the testimony of a lay person, the claimant does not meet the burden imposed by section 5107(a) and does not have a well-grounded claim. See Grottveit, 5 Vet. App. at 93. Unsupported by medical evidence, a claimant's personal belief, however sincere, cannot form the basis of a well-grounded claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993); Grottveit, 5 Vet. App. at 92. In this case, the appellant's claim is not well grounded because she has failed to provide any medical evidence which establishes a relationship between the cause of her husband's death and his military service. The appellant's unsubstantiated assertions that her husband's death was caused by his exposure to radiation are not supported by any medical evidence in the record on appeal. Several medical reports noted the veteran's medical history, including headaches during service in 1975. However, none of the physicians who noted this history indicated that the 1975 headaches could have been a manifestation of the fatal tumor. No medical professional has linked the fatal disorder to the headaches in service or to any other disease or injury in service. Prior to his death, the veteran submitted a statement that his duties in service required his head to be close to a transmitter. A lay witness who served with the veteran provided similar information. The appellant also provided sworn testimony to the same effect. This is all credible information. However, it goes to the question of injury in service and does not provide the competent evidence of a nexus or link between the veteran's duties in service and the fatal disorder. Another means to provide a relationship between a disease and military service is through a legal or regulatory presumption. Malignant tumors of the brain may be presumed to have been incurred during active military service if manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Veterans who meet these criteria are not required to present a medical nexus because a medical nexus is presumed to exist. See generally Cosman v. Principi, 3 Vet. App. 503 (1992). In this case, all the medical evidence indicates that the disability was first manifested in February 1993. There is no evidence from a competent medical source which identifies any manifestations of the fatal disorder within the year after the veteran retired from active service. Likewise, there is no competent evidence that demonstrates that the veteran had been exposed during service to radiation; see 38 C.F.R. §§ 3.309, 3.311 (1999). Service connection for the cause of the veteran's death also may be granted if the evidence shows that disability incurred in or aggravated by service contributed substantially or materially to cause death. 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. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Here, there is no evidence from any competent medical professional that any disability resulting from disease or injury in service contributed to death. Rather, the evidence shows that the metastatic glioblastoma multiforme was the sole and fulminant cause of the veteran's death. As the veteran's death was less than 5 years after he left active service, there is no hypothetical entitlement to benefits under 38 U.S.C.A. § 1318 (West 1991). The Board is sympathetic to the appellant. The veteran served his country well for over 20 years and died much too young. Nevertheless, the evidence here does not provide any basis to connect his death to service. ORDER Service connection for the cause of the veteran's death is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals