Citation Nr: 0003444 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-19 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana 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 J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision of the New Orleans, Louisiana, Regional Office (RO) which, in pertinent part, denied service connection for the cause of the veteran's death. The appellant filed a timely appeal to this adverse determination. The appellant has been represented throughout this appeal by the American Legion. FINDINGS OF FACT 1. The veteran died in August 1996. The "immediate cause" of death was certified as liver carcinoma. 2. At the time of the veteran's death, service connection was not in effect for any disability. 3. Competent evidence attributing the cause of the veteran's death to active service has not been presented. CONCLUSION OF LAW The claim for entitlement to service connection for the cause of the veteran's death is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection for the Cause of the Veteran's Death Initially, it is necessary to determine if the appellant has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim for service connection for the cause of a veteran's death, like any other claim for service-connected benefits, must be well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). See Darby v. Brown, 10 Vet. App. 243, 245 (1997); Johnson (Ethel) v. Brown, 8 Vet. App. 423, 426 (1995). Hasty v. West, 13 Vet. App. 230 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that: [An appellant] claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. See 38 U.S.C.A. § 5107(a) (West 1991). See Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992). Boeck v. Brown, 6 Vet. App. 14, 17 (1993). The Court has clarified that: Because a well-grounded claim is neither defined by the statute nor by the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 3007(a) [presently enacted as 38 U.S.C.A. § 5107(a) (West 1991)]. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), the United States Court of Appeals for the Federal Circuit held that the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well-grounded claims. The Court has clarified that the VA cannot assist an appellant in developing a claim which is not well-grounded. Morton v. West, 12 Vet. App. 477 (1999). When a claim is determined to be not well-grounded, the VA does not have a statutory duty to assist the appellant in developing the facts pertinent to her claim. However, the VA may be obligated under the provisions of 38 U.S.C.A. § 5103(a) (West 1991) to advise her of the evidence needed to complete her application. This obligation is dependent upon the particular facts of the claim and the extent to which the Secretary of the VA has advised the appellant of the evidence necessary to support a claim for VA benefits. Robinette v. Brown, 8 Vet. App. 69 (1995). The appellant has not alleged that there are additional relevant records which may be incorporated into the record. She is fully aware of the reasons for the denials and the deficiencies in the record. Dependency and indemnity compensation may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). The appellant asserts on appeal that: the veteran was exposed to Agent Orange while serving with the Army in the Republic of Vietnam; he subsequently developed cancer; the cancer metastasized throughout his body including to his lungs; and he ultimately succumbed to metastatic liver cancer as a direct result of his inservice exposure to Agent Orange. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served continuously for ninety days or more during a period of war and a malignant tumor becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Under the provisions of 38 C.F.R. § 3.309(e) (1999), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases set forth in 38 C.F.R. § 3.309(e) (1999) shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) (1999) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. These diseases include chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (including cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. A veteran who served in the Republic of Vietnam during the Vietnam era and has a disease listed in 38 C.F.R. § 3.309(e) (1999) shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii) (1999). The veteran died in August 1996. The "immediate cause" of death was certified as liver carcinoma. At the time of the veteran's death, service connection was not in effect for any disability. The veteran's service medical records do not refer to carcinoma of the liver or any other form of cancer. A May 1996 hospital summary and associated clinical documentation from Rapides Regional Medical Center indicates that the veteran complained of fatigue, night sweats, and a low-grade fever. The veteran presented a history of alcoholism and cigarette smoking. He denied any history of cancer. Contemporaneous diagnostic studies revealed a malignant neoplasm of the liver and no lung lesions. An impression of "multiple lesions in the liver, metastatic disease vs. liver ____ vs abscess" was advanced. A July 1996 hospital summary and associated clinical documentation from Rapides Regional Medical Center states that the veteran was diagnosed with a "metastatic neoplasm to liver." The veteran's treating physician commented that the veteran exhibited "multiple tumors in his liver, adenocarcinoma, apparently metastatic, but unknown primary site." The Board has reviewed the probative evidence of record including the appellant's statements on appeal. The veteran's claims file is devoid of any competent evidence establishing that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to his demise. While the veteran's terminal adenocarcinoma of the liver was determined to metastatic in nature, the veteran's treating physicians were unable to identify the primary site of the cancer. No medical professional has advanced any findings as to the etiology of the veteran's primary adenocarcinoma. Indeed, the appellant's claim is supported solely by the accredited representative's and her own statements on appeal. The Court has held that lay assertions of medical causation do not constitute competent evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Savage v. Gober, 10 Vet. App. 488 (1997). The Court has commented that: Just as the BVA must point to a medical basis other than its own unsubstantiated opinion (Colvin [v. Derwinski, 1 Vet. App. 174, 175 (1991)]), the veteran cannot meet his initial burden by relying upon his own, or his representative's, opinions as to medical matters. Robinette v. Brown, 8 Vet. App. 69, 74 (1995). There is no indication that either the appellant or the accredited representative is a medical professional. To the extent that the lay statements attempt to question a medical diagnosis or other clinical determinations as to the origins of the veteran's terminal disabilities, they may not be considered as competent evidence. Given the absence of competent evidence reflecting that the veteran's fatal adenocarcinoma of the liver originated during active service or may be presumed to have been either incurred during active service or as a result of the veteran's alleged Agent Orange exposure, the Board concludes that the appellant's claim for service connection for the cause of the veteran's death is not well-grounded. As noted above, the VA cannot assist an appellant in developing a claim which is not well-grounded. Accordingly, the claim is denied. 38 U.S.C.A. § 5107 (West 1991). The Board acknowledges that it has decided the current appeal on a different basis than did the RO. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the appellant has been given adequate notice and opportunity to respond and, if not, whether she will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that she has not been prejudiced by the decision herein. The appellant was denied by the RO. The Board considered the same law and regulations. The Board merely concludes that the appellant did not meet the initial threshold evidentiary requirements for a well-grounded claim. The result is the same. See Meyer v. Brown, 9 Vet. App. 425, 431 (1996). II. Doctrine of Doubt At the merits stage, there is weighing and balancing of the evidence of record. When addressing whether a claim is well-grounded, after establishing the competency of the evidence, the veracity of the evidence is accepted. The doctrine of doubt is not applicable where a claim is not well-grounded as there is no evidence to weigh or balance. ORDER Service connection for the cause of the veteran's death is denied. J. T. HUTCHESON Acting Member, Board of Veterans' Appeals