BVA9503448 DOCKET NO. 89-45 751 ) 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: The American Legion ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran upon whose service this claim is based served on active duty from January 1942 to May 1945. He died in September 1988. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision dated October 17, 1988, from the Cleveland, Ohio, Regional Office (RO). The notice of disagreement was received in January 1989. In a rating decision in January 1989 the RO corrected the October 17, 1988, rating decision. The statement of the case was sent to the appellant in February 1989. The substantive appeal was received in May 1989. This appeal was previously before the Board and was remanded in May 1990, January 1992, and April 1994. The Board notes that a claim for accrued benefits could be construed from the appellant's Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (Including Accrued Benefits and Death Compensation, Where Applicable). That claim has not been developed or adjudicated, however, and the Board refers it to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant, who is the veteran's widow, contends the veteran's death should be afforded service connection because the cardiac disease that caused his death was caused by the medication he was prescribed to treat his service-connected anxiety neurosis with depression. She also asserts that the veteran suffered from alcoholism due to his service-connected anxiety, and believes the alcoholism caused the cardiac disease that resulted in his death. She asks that she be afforded the benefit of the doubt. 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's claim for service connection for the cause of the veteran's death is not well grounded. FINDINGS OF FACT 1. The veteran served on active duty from January 1942 to May 1945. 2. The veteran died in September 1988 at the age of 63 as a result of cardiopulmonary arrest due to or as a consequence of end stage cardiac disease. 3. The veteran's cardiovascular system was normal during his tour of active duty, and he did not have a cardiovascular disability until many years after his active duty ended. 4. At the time of death, service connection was in effect for anxiety neurosis with depression, rated permanently and totally disabling from 1980. 5. The appellant has not submitted any objective evidence, nor is there any in the record before the Board on appeal, that supports her allegations that the veteran's death was related to service or to his service-connected disabilities, or that the veteran's death was contributed to materially or substantially by his service-connected disabilities. CONCLUSION OF LAW The appellant's claim of entitlement to 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 FINDINGS AND CONCLUSION The veteran served on active duty from January 1942 to May 1945. When he died in September 1988 at the age of 63 he had one service-connected disability, anxiety neurosis with depression. That disability had been rated permanently and totally disabling since 1980. The veteran's death certificate reflects that the immediate cause of death was cardiopulmonary arrest due to or as a consequence of end stage cardiac disease. The appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. A claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Service connection for the cause of a veteran's death is appropriate when, by the exercise of sound judgment and without recourse to speculation, it is determined that a disability incurred or aggravated in service and which was not due to the veteran's own willful misconduct caused or contributed substantially or materially to death. 38 U.S.C.A. §§ 1110, 1310 (West 1991); 38 C.F.R. § 3.312(b)(c) (1994). A cardiovascular disability will be deemed to have been incurred in service if it is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Under 38 C.F.R. § 3.312(c) (1994), it is not sufficient to show that the veteran's service- connected disability casually shared in producing death, but rather it must be shown there was a causal relationship. The veteran's surviving spouse may receive benefits in the same manner as if the veteran's death were service-connected if on the date of death the veteran is in receipt of or entitled to receive disability compensation for a service-connected disability that was continuously rated totally disabling for 10 or more years preceding his death, or if he was so rated for a lesser period of time, was so rated continuously for a period of not less than five years from the date of release from active duty. 38 U.S.C.A. § 1318 (West 1991) (formerly codified at 38 U.S.C.A. § 410). Although this issue is not currently in appellate status, the Board observes that at the time of his death the veteran had not been rated permanently and totally disabled for 10 or more years. Furthermore, he had not been rated permanently and totally disabled for a period of not less than five years from May 3, 1945, the date he was released from active duty. Accordingly, based on the current record, his surviving spouse is not shown to be entitled to compensation as if his death were service- connected under the requirements of 38 U.S.C.A. § 1318 (West 1991). One possible avenue for an allowance of this claim is a finding that the veteran incurred cardiac disease in service, and that the disease was present to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1110, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The veteran's service medical records reflect treatment for a psychiatric disability, tonsillitis, cellulitis and a fractured mandible. However, those records contain only two blood pressure readings: in November 1944 the reading was 100/65; on December 29, 1944, it was 120/68. In a Report of Medical Survey dated in March 1945 it was noted that the veteran suffered from psychoneurosis, anxiety neurosis, which the Medical Board determined was aggravated by his time in service. He was separated from service on May 3, 1945, but there is no separation examination report available. Service connection was awarded for anxiety neurosis effective May 4, 1945, and the disability was assigned a 50 percent rating. The next available blood pressure reading appears in a VA examination report dated in March 1949, during which the veteran's blood pressure was 124/72. His cardiovascular system was characterized as normal. At the next VA examination in 1952 the blood pressure reading was 100/70, and no cardiovascular problems were noted. There are additional medical records in the claims folder, but the earliest date of a diagnosis of a cardiac problem is the 1983 Hospital Summary from VA's Little Rock, Arkansas, Medical Center, which contains the diagnosis of mild congestive heart failure with right-sided pleural effusion; abnormal electrocardiogram with left bundle branch and frequent premature ventricular contraction. The veteran told the examiners at that time that he had no history of organic heart disease. None of the blood pressure readings taken in service, nor any of the other service medical records, show evidence of a cardiovascular disability in service. The claims folder does not contain records that show when the veteran's cardiac disease was first detected, but the disease was clearly not first present to a compensable degree during service or within one year following separation from service. As the determinative issue in this case involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The burden imposed by 38 U.S.C.A. § 5107(a) (West 1991) is not met by presenting lay evidence from persons who are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions, such as the appellant's, of medical causation and diagnosis cannot constitute evidence to render a claim well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). There is no medical evidence of record to substantiate the appellant's claim that the veteran incurred or aggravated cardiac disease in service, or within one year following separation. Therefore, the claim of service connection for the cause of death is not well grounded. Tirpak, id. The appellant has raised a claim of service connection on a secondary basis: she contends that the medication the veteran took for his service-connected anxiety neurosis with depression caused a neurological disorder, which in turn caused cardiac disease. She also contends the veteran's service-connected anxiety caused him to become an alcoholic, which also caused his cardiac disease. The claims folder contains medical records that show treatment the veteran received for his service-connected disability. The records created incident to his terminal hospitalization at Akron City Hospital are also of record. However, there is no medical evidence in the record to support the appellant's allegations of a causal connection between his service-connected disability and his death. The United States Court of Veterans Appeals held in Jones v. Brown, 7 Vet.App 134 (1994), that VA is required to process and adjudicate beyond the point of determining well-groundedness only those claims that are well grounded. As discussed above, the appellant's burden of presenting a well grounded claim imposed by 38 U.S.C.A. § 5107(a) (West 1991) is not met by presenting lay evidence from persons when the determinative issue involves medical causation or diagnosis. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In this case, the appellant's claim that the veteran's service-connected disability caused or contributed to his death clearly involves matters of medical causation or diagnosis, so her unsubstantiated assertion of a causal connection between the veteran's death and a disability incurred in or aggravated by service has little probative value. Therefore, competent medical evidence to the effect that the claim is plausible or possible is required. The appellant has submitted no competent medical opinion of such a causal connection. Since the record clearly demonstrates that the only evidence in support of the claim of entitlement to service connection for the cause of death on a secondary basis is the appellant's unsubstantiated lay testimony on that medical question, the claim is also not well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The Board observes that it remanded this case on three occasions, citing VA's duty to assist set out in 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103(a) (1994). The Board points out that the duty to assist only attaches to well grounded claims. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In light of the Board's decision that this claim is not well grounded, there is no duty to assist and the fact that the RO did not complete all the actions directed in those remand decisions does not, in this instance, necessitate an additional remand. Likewise, the incomplete information obtained by the VA field investigator from Dr. Jon Weingart or his office staff with regard to the appellant's assertion that she was told by him that the medication the veteran took for his service-connected anxiety caused his neurological problems and then his cardiac disease does not require an additional remand. For the reasons set out above, the appellant's lay testimony of a causal connection was not enough to establish a well-grounded claim. Based on the foregoing findings, the Board concludes that the claim of service connection for the cause of the veteran's death is not well grounded, and the appeal must be dismissed. 38 U.S.C.A. § 5107(a) (West 1991). ORDER The appeal is dismissed. EUGENE A. O'NEILL Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.