Citation Nr: 0001001 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 94-05 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M. W. ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The appellant is the widow of a World War II veteran who had active military service from October 1941 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which denied the appellant's claim for service connection for the cause of the veteran's death. This case was previously before the Board and in February 1996 and May 1997 was remanded to the RO for further development of the evidentiary record in order to help the appellant complete her application for benefits pursuant to 38 U.S.C.A. § 5103(a) (West 1991); see also, Costantino v. West, 12 Vet. App. 517 (1999). The case has since been returned to the Board and is now ready for appellate review. The Board notes that, in June 1993, in connection with her current claim, the appellant filed VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child. The statute provides that periodic monthly benefits to which an individual was entitled to at death, referred to as "accrued benefits" and due and unpaid for a period not to exceed one year, shall upon the death of the veteran be paid to his surviving spouse. 38 C.F.R. § 3.1000 (1993). At the time of his death in May 1993, the veteran had a pending claim seeking an increased rating for his service-connected post concussion syndrome. In fact, this issue had been appealed to the Board, but not certified for appellate review when the veteran died. As a claim for accrued benefits was received within a year of the veteran's death, it is being referred to the RO for appropriate development and adjudication. In adjudicating this claim, the matters raised by the appellant in her November 23, 1992, letter, and elsewhere in the record, are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. During his lifetime, the veteran was service connected for post-traumatic stress (previously diagnosed as post concussion syndrome), trench feet and residuals of an appendectomy scar. As of May 1993, his combined disability evaluation was 40 percent. 2. The veteran died on May [redacted], 1993, of sepsis due to or as a consequence of organic brain disease. 3. No competent evidence has been presented which would tend to relate the organic brain disease responsible for the veteran's death to the veteran's military service, or to any of his service-connected disabilities. 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. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a threshold matter, one claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief that a given claim is well grounded. See 38 U.S.C.A. § 5107(a). "[T]he [VA] benefits system requires more than just an allegation," a claimant must submit supporting evidence sufficient to justify a belief by a fair and impartial individual that a given claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992). The first question thus presented is whether the appellant has met this burden; if not, there would be no claim, per se, to adjudicate on the merits. The veteran's service medical records disclose that the veteran sustained a shell blast injury in December 1944 and was rendered unconscious for approximately four days. He was subsequently presented to a battalion aid station where he complained of a "terrific" headache and grogginess. He thereafter was hospitalized for 110 days with a diagnosis of concussion and combat exhaustion. Scalp films taken during this hospitalization were interpreted to be entirely negative for cranial or intracranial pathology. The veteran was diagnosed as suffering from a psychoneurosis, anxiety state, incurred in the line of duty. When examined in October 1945 for separation from service, no significant pathology was noted. The veteran, however, complained of a history of occasional severe occipital headaches, occurring about once a month and approximately of six hours' duration. The veteran, in a claim dated in October 1945, sought service connection for residuals of a concussion from a shell blast. Service connection for post concussion syndrome was granted by an RO rating action in March 1946. This disorder has been continuously rated 30 percent disabling since October 1947. On a VA examination in October 1947, the veteran complained of several types of headaches, which were getting worse over the prior 8 to 10-month period. Neurologic examination noted that both occipital nerves were sensitive to pressure. Tremors were also noted involving the finger and lid (apparently eyelid). Post concussion syndrome was diagnosed. On reexamination in December 1947, the veteran's examiner noted that the veteran described experiencing both nausea and anxiety associated with headaches. In elaborating on the prior diagnosis of post concussion syndrome, the examiner noted that this disorder resulted in headaches and associated symptoms and signs of irritation of the cerebral autonomic centers caused very probably by a slight temporary increase of intracranial pressure. A May 1948 special VA neuropsychiatric examination noted that the veteran had constant headaches, which were relieved by codeine and aspirin. Encephalopathy, traumatic, following concussion was diagnosed. Post concussion cerebral syndrome, moderately severe, was the diagnosis on VA neuropsychiatric examination in October 1950. It was noted that this disorder resulted in moderately severe social and industrial incapacity. Private clinical data received in April 1988 shows that, in early 1987, the veteran was diagnosed to have primary carcinoma of the brain. In May 1987, it was noted that he was completing radiation therapy for an astrocytoma, Grade II, of the right temporal parietal area. Private and VA clinical records on file reveal that the veteran was treated thereafter for a Grade II astrocytoma, deemed to be unresectable. As a result of multiple medical problems secondary to his astrocytoma, the veteran in October 1992 was placed by VA in a long-term care institution, the Bowman Nursing Center. Nurses' notes received from that facility reveal that the veteran, while resting quietly at that facility, died on the evening of May [redacted], 1993. The appellant contends that the veteran died as a result of his service-connected disability. In essence, she maintains that the organic brain disease noted as the cause of the veteran's death on his death certificate was, in fact, his service-connected post concussion injury residuals or disability attributable thereto. Notwithstanding the appellant's opinion in this regard, no medical evidence has been submitted which would tend to indicate that the veteran's service-connected injury residuals were implicated in his demise. The record indicates that the veteran developed a brain tumor in early 1987, which was essentially untreatable and that the natural progression of this disability resulted in his death in 1993. The underlying question then is whether the appellant is competent to testify regarding the etiological and/or causal relationship between the veteran's brain tumor and/or organic brain disease and his service-connected post concussion syndrome, which was recharacterized as post-traumatic stress disorder by the RO in it's April 1992 rating action. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). If not, her statements and allegations are without probative value. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). Whether the veteran's service-connected post concussion syndrome residuals resulted in the veteran's organic brain disease, indicated by the clinical data to be due to a brain tumor, and ultimately death, are questions involving medical causation. The appellant is a lay person, and her assumption regarding the relationship between the veteran's service- connected post concussion residuals and the development of the organic brain disease implicated in his death do not constitute evidence sufficient to render a claim well grounded. See Espiritu, 2 Vet. App. at 494-95. Because no other evidence has been submitted which substantiates the appellant's allegations, she has not met the burden imposed by 38 U.S.C.A. § 5107(a). See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Here we observe that the competent medical evidence to the extent that it addresses this question provides no support for the appellant's contentions. Specifically, on a VA neurological examination provided to the veteran in February 1992, a VA neurologist noted that he was unsure as to what relationship the veteran's brain tumor had to the veteran's post concussion syndrome. Furthermore, in testimony proffered March 1997 the appellant stated that a VA neurologist who treated the veteran for his organic brain syndrome had no opinion on its relationship to his service-connected disabilities. The absence of competent medical evidence in support of the claim for service connection for the cause of the veteran's death is therefore fatal, and the claim must be denied as not well grounded. Parenthetically, the Board would point out that if, as here, a claim is not well grounded, a claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a); Epps v. West, 126 F.3d 1464 (Fed. Cir. 1997); Grottveit, 5 Vet. App. at 93. Furthermore we also observe that the evidence does not appear to suggest and the appellant has not alleged that the veteran would have been entitled to a total disability rating for compensation purposes for 10 or more years immediately preceding his death such as to entitle the appellant to dependency and indemnity compensation under 38 U.S.C.A. § 1318 (West 1991). See Green v. Brown, 10 Vet. App. 111 (1997). Although the veteran had filed a claim for an increased evaluation for his service-connected post concussion syndrome and trench feet in January 1991, this claim was denied as the then current medical evidence showed that these disorders were stable. Furthermore, there is no evidence that his service-connected disabilities played a role in his incapacity in the years immediately preceding his death. As there is no basis upon which to grant the benefits sought, the claim for entitlement to service connection for the cause of the veteran's death must be denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied as not well grounded. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals