Citation Nr: 0006062 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-23 404A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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 Robin M. Webb, Associate Counsel INTRODUCTION The veteran had active service from September 1967 to September 1970. The record also indicates that the veteran served in the Texas National Guard from April 1977 to April 1992. This appeal arises before the Board of Veterans' Appeals (Board) from a rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The Board notes that the appellant was in receipt of a VA death pension from December 1995 to December 1996. It was then terminated as the appellant's countable income exceeded VA's maximum allowable amount. In April 1998, the RO received the appellant's request for reinstatement of such pension, in which she stated that her income had changed for the worse. To date, the RO has taken no action on the appellant's claim as to this issue. Accordingly, it is referred to the RO for further development, as warranted. FINDINGS OF FACT 1. The record shows that the veteran died on November [redacted], 1995, at the age of 50, due to the immediate cause of anteroseptal myocardial infarction, with severe coronary arteriosclerosis and generalized passive congestion as underlying causes of death. 2. Prior to the veteran's death, service connection had not been established for any disease or disorder, although the veteran was in receipt of a nonservice-connected disability pension. 3. No competent medical evidence has been presented linking the veteran's death from anteroseptal myocardial infarction, with severe arteriosclerosis and generalized passive congestion, to his service and events therein. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Pertinent Law and Regulations In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(a) (1999). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (1999). To be a contributory cause of death, evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the veteran's death. In effect, the service-connected disability, to be a contributory cause of death, must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death; a causal relationship must be shown. 38 C.F.R. § 3.312(c)(1) (1999). The threshold question that must be resolved with regard to each claim of entitlement to VA benefits is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If the appellant has not, the appeal fails as to that claim, and the VA is under no duty to assist the appellant in any further development of that claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that the three elements of a well grounded claim for service connection are: 1) evidence of a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence; and 3) a nexus, or link, between the service related disease or injury and the current disability, as provided by competent medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1994). The quality and quantity of evidence required to meet the statutory burden for establishing a well grounded claim depends upon the issue presented by the claim. 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions as to medical diagnosis and causation are insufficient. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Controlling law provides that service connection may be established for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Additionally, service connection may be presumed where a chronic disease, including arteriosclerosis and hypertension, manifests itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1999). Service connection may also be presumed for those diseases associated with exposure to certain herbicide agents, which manifest themselves within the period prescribed (if any) at any time after service. 38 U.S.C.A. § 1116(a)(1)(B) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). Neither anteroseptal myocardial infarction, nor coronary arteriosclerosis, nor generalized passive congestion, nor hypertension, nor any psychosis is included in this list of diseases. Id. II. Factual Background The veteran's death certificate lists as the immediate cause of death anteroseptal myocardial infarction. Underlying causes listed were severe coronary arteriosclerosis and generalized passive congestion. No other significant conditions, which contributed to death but did not result in the underlying cause of death, were listed. The veteran's service medical records are negative for any complaints, diagnoses, or treatment of hypertension, arteriosclerosis, and any psychosis. The records are also negative for any indication of exposure to Agent Orange. Upon separation examination (conducted in June 1970), no pertinent abnormalities were reported or clinically noted, and the veteran's blood pressure reading was 128/76. The veteran's service records from the Texas National Guard pertain primarily to the veteran's body fat content and do not contain any pertinent diagnoses or indicate that the veteran was receiving treatment for hypertension, arteriosclerosis, or for any psychosis. The veteran's private medical records from Dr. R. (dated from October 1990 to September 1991) are silent as to any discussion of the veteran's service (including exposure to Agent Orange) and his service medical history, as to any disease or disorder. These records do not reflect diagnoses of hypertension, arteriosclerosis, or of any psychosis. Rather, they document treatment for chronic obstructive pulmonary disease, diabetes mellitus, and hyperlipidemia. The veteran's VA treatment records (dated from September 1991 to June 1995) indicate that the veteran was a nonservice- connected Vietnam veteran, who had smoked for more than 20 years. These records pertain primarily to treatment received by the veteran for diabetes mellitus with hypertension, elevated cholesterol, degenerative joint disease of the thoracic and lumbar spine, hyperlipidemia, and peripheral vascular disease of the left leg. There is no discussion of the veteran's service (including exposure to Agent Orange) and his service medical history, as to any disease or disorder, including those for which treatment is documented. III. Analysis The Board recognizes the appellant's contentions that she is entitled to service connection for the cause of her husband's (the veteran's) death. Specifically, the Board acknowledges that the appellant believes that the veteran's death was caused by either exposure to Agent Orange, by hypertension, or because of an anxiety or psychiatric disorder, for which he should have been service-connected. However, the Board must adhere to established laws and regulations in its determinations. As such, the appellant's claim must be denied, as it is not well grounded. In this instance, the recorded immediate cause of the veteran's death was anteroseptal myocardial infarction. The recorded underlying causes were severe coronary arteriosclerosis and generalized passive congestion. No other significant conditions, which contributed to the veteran's death, were noted. During his lifetime, the veteran was not service-connected for any disability. Indeed, the RO had denied entitlement to service connection for diabetes, hypertension, an eyesight condition, a sleep disorder, skin rashes, breathing problems, low back pain, and for weakness and pain in body joints in an August 1994 rating decision; the RO granted the veteran a nonservice-connected disability pension. Moreover, none of the post-service medical evidence of record offers any opinions relating either the veteran's immediate or underlying causes of death to his service, and nothing in the record indicates that the veteran was diagnosed with either arteriosclerosis or hypertension within one year of his separation from service. In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). Here, there simply is no competent medical evidence of record relating any of the veteran's claimed disorders to his service and events therein, including exposure to Agent Orange, hypertension, and any psychosis. Such competent medical evidence is needed for a well grounded claim of entitlement to service connection for the cause of the veteran's death. See Caluza v. Brown, supra. Further, as to the appellant's assertion that an anxiety disorder or psychosis caused the veteran's death, the Board stresses that the clinical evidence of record does not even contain a diagnosis of any type of psychosis. As to the veteran's claimed exposure to Agent Orange and the development of any related disorder that the appellant believes caused the veteran's death, the Board notes the recent Court decision, in which it was stated that neither the statutory not the regulatory presumption of exposure to Agent Orange will satisfy the incurrence element of the Caluza well grounded claim test where the veteran had not developed a condition enumerated in either 38 U.S.C.A. § 1116(a) or 38 C.F.R. § 3.309(e). See McCartt v. West, 12 Vet. App. 164 (1999). As discussed above, neither anteroseptal myocardial infarction, nor coronary arteriosclerosis, nor generalized passive congestion, nor hypertension, nor any psychosis is included in this list of diseases. See 38 C.F.R. § 3.309(e). In effect, the appellant has proffered only her assertions that the veteran's death was caused by a disorder for which he should have been service-connected. In this regard, nothing in the record indicates that she is competent to provide a medical opinion as to diagnosis and causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical diagnosis and causation, competent medical evidence is required. See Grottveit v. Brown. Accordingly, absent competent medical evidence of a nexus, or link, between the veteran's cause of death and events in service (including exposure to Agent Orange), the appellant has not presented a well grounded claim of entitlement to service connection for the cause of the veteran's death. See Caluza v. Brown, supra; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Also, as the appellant's claim is not well grounded, VA is under no duty to assist her in further development of her claim. 38 U.S.C.A. § 5107(a); Morton v. West, 12 Vet. App. 477 (1999). Additionally, the Board finds that the appellant has not provided any indication of the existence of additional evidence which would make her claim well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the RO obtained private medical records from Dr. R., which the appellant contended were relevant to adjudication of her claim. They were duplicates of those already of record, and as discussed above, were not probative of the issue of entitlement to service connection. As to private medical records from Dr. C., which the appellant also contended were relevant to adjudication of her claim, the RO was subsequently informed that Dr. C. had destroyed all of his records when he retired from practice. With respect to the veteran's service records from the Texas National Guard, the Board acknowledges the possibility that the veteran's claims file is incomplete in this aspect, but the RO attempted three times to obtain additional records from the National Personnel Records Center (NPRC) but was informed by NPRC that no additional records were available. Cf Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). The RO was advised to contact the Adjutant General's Office in Texas, which it did. The RO then incorporated the documents received from the Adjutant General's Office into the veteran's claims file. The Adjutant General's Office did not indicate that the veteran's records were incomplete. The Board notes that it has considered these documents in its determinations. The Board has disposed of this claim on a ground different than that of the RO, as allowed by law. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Green v. Brown, 4 Vet. App. 382 (1993). As such, the Board has considered whether the appellant was given adequate notice of the need to submit evidence or argument on the question presented for review, along with an opportunity to respond. Bernard v. Brown, 4 Vet. App. 384 (1993). In view of the supplemental statement of the case (dated in November 1999), the Board finds that the appellant has been adequately informed of the evidence required in this case and afforded an opportunity to respond. Further, by addressing the appellant's claim on the merits, the RO provided the appellant's claim greater consideration than warranted under the circumstances. As such, the appellant is not prejudiced by the Board's more limited consideration. Application of the rule regarding benefit of reasonable doubt is not required, as the appellant has not met her burden of submitting a well grounded claim. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to service connection for the cause of the veteran's death is denied. V. L. Jordan Member, Board of Veterans' Appeals