Citation Nr: 0001047 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 94-39 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from December 1951 to June 1955. He died in May 1983. This appeal arises from a rating decision of December 1993 from the San Juan, Puerto Rico, Regional Office (RO). The appellant is the veteran's widow. FINDINGS OF FACT 1. The veteran died in May 1983. The cause of death was undetermined. 2. There is no competent evidence which shows that the veteran's service connected disability caused or contributed to his death. 3. All evidence necessary for an equitable disposition of the appellant's claim for entitlement to dependency and indemnity compensation (DIC) benefits has been developed. 4. The veteran was not rated totally disabled due to a service connected disability for 10 or more years prior to his death. 5. A total disability rating is not available for the veteran's service connected shoulder disability. 6. The veteran was not unemployable due to service connected disability for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.312 (1999). 2. The criteria for entitlement to DIC benefits are not met. 38 U.S.C.A. §§ 1155, 1318, 5107 (West 1991); 38 C.F.R. §§ 3.22, 4.14, 4.16, 4.71a, 4.73, 4.118, Diagnostic Codes 5200, 5201, 5303, 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Cause of death The threshold question to be resolved is whether the appellant's claim for service connection for the cause of the veteran's death is well-grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The statutory "duty to assist" under 38 U.S.C.A. § 5107(a) (West 1991) does not arise until there is a well-grounded claim. Epps v. Gober 126 F.3d 1464 (Fed.Cir. 1997). A claimant has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The disease entity must be identified and shown to be chronic during service. In the absence of chronicity, continuity of symptomatology following discharge is required. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted when all of the evidence demonstrates that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service connection for the cause of a veteran's death may be established where the evidence shows that a disability incurred in or aggravated by service either caused or contributed substantially and materially to cause 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); 38 C.F.R. § 3.312 (1999). The veteran died in May 1983. The death certificate notes that the cause of death was undetermined. Police reports and a witness statement indicate that in May 1983, the veteran had been fishing and had presumably drowned trying to retrieve a boat. A February 1984 autopsy report indicates the cause and manner of death were undetermined and the cadaver was in an advanced stage of decomposition. A final note indicates that the cause of death could not be determined although death from asphyxia due to submersion could not be totally ruled out. At the time of the veteran's death, service connection had been established for "residuals fragment wound, left shoulder, well healed tender scar" with a 10 percent disability rating assigned. The cause of the veteran's death, as shown on the death certificate and autopsy report, could not be determined. As noted, the veteran was service connected for the residuals of a fragment wound to the left shoulder. Since the cause of death was undetermined, there is no evidence that the veteran's service connected shoulder disability caused or contributed to his death. 38 C.F.R. § 3.312 (1999). The appellant claims that the veteran's service connected left shoulder disability caused his death due to drowning. However, the manner of the veteran's death was undermined. Additionally, the police reports and the witness statement only show that the veteran tried to retrieve his boat and drowned. There is no competent evidence in the record which shows that the veteran's service connected left shoulder disability had anything to do with his death. Her assertions amount to speculation and are not probative since as a lay person, she is not considered competent to offer an opinion as to medical causation. 38 C.F.R. § 3.312(a) (1999); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. 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 (1993). The appellant has not submitted evidence that would justify a belief by a fair and impartial individual that the claim is plausible. There is no competent evidence in the record that a service connected disability caused or contributed to the veteran's death. Accordingly, the claim is not well grounded. Tirpak v. Derwinski, 2 Vet.App. 609 (1992), Caluza v. Brown, 7 Vet.App. 498, 506 (1995). A claim that is not well grounded is still a claim, and the appropriate disposition of such a claim is to disallow it. See Edenfield v. Brown, 8 Vet.App. 384 (1995). Additionally, where a claim is not well grounded, the VA does not have a statutory duty to assist the claimant in developing the claim. Epps v. Gober 126 F.3d 1464 (Fed.Cir. 1997). Based on the foregoing, the claim for service connection the cause of the veteran's death is denied as being not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Entitlement to DIC benefits Initially, the Board of Veterans' Appeals (Board) finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, a plausible claim has been presented. The appellant has not indicated that additional relevant evidence of probative value may be obtained which has not already been sought and associated with the claims folder. Accordingly, the Board finds that the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The appellant claims that the veteran should have received a higher disability rating for his service connected left shoulder disability and that she qualifies for DIC benefits. DIC benefits shall be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service connected when the veteran was in receipt of or for any reason was not in receipt of but would have been entitled to receive compensation at the time of death for a service- connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999). The severity of a disability is ascertained by application of the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities contained in 38 C.F.R. Part 4 (1999) (Schedule). The use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same disability manifestations under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). At the time of his death, the veteran was service connected for the residuals of a shrapnel wound to the left shoulder with a 10 percent disability rating was assigned. Therefore, the veteran did not have a service connected disability rated as totally disabling for 10 or more years at the time of his death. 38 C.F.R. § 3.22 (1999). Entitlement to DIC benefits may also be established where the veteran would have been entitled to receive a total rating due to service connected disability continuously for 10 years prior to his death even though he was not so rated at the time of his death. Green v. Brown, 10 Vet. App. 111 (1997). As noted, the veteran was service connected for the residuals of a shrapnel wound to the left shoulder. An August 1976 VA examination report notes the veteran was right handed. Therefore, the left shoulder is the minor shoulder. The appellant has indicated that there was restricted motion of the veteran's left shoulder. However, the maximum disability rating under the provisions of Diagnostic Code 5201 for limitation of motion of the minor arm is 30 percent. Additionally, the maximum disability rating that is available under the provisions of Diagnostic Code 5200 for ankylosis of the scapula and humerus is 40 percent for the minor shoulder. Accordingly, a total disability rating is not available due to limitation of motion or ankylosis of the shoulder. 38 C.F.R. § 4.71a. Diagnostic Codes 5200, 5201 (1999). The veteran was service connected for the residuals of a shrapnel wound to the left shoulder. This implicates the rating criteria of Diagnostic Code 5303 for a muscle injury to Muscle Group III. However, the maximum disability rating available under this Diagnostic Code is a 30 percent rating for the non dominant shoulder. Therefore, a total disability rating is not available under the muscle injury rating criteria due to a muscle injury of the shoulder. 38 C.F.R. § 4.73, Diagnostic Code 5303 (1999). The veteran was noted to have a scar due to his shrapnel wound. Under the criteria of Diagnostic Code 7803, a 10 percent disability rating is the maximum rating available for a scar that is poorly nourished with repeated ulceration. A 10 percent rating is also the maximum rating available under Diagnostic Code 7804 for a scar that is tender and painful. Diagnostic Code 7805 provides that other scars are rated based on limitation of the part affected. This would implicate the criteria of Diagnostic Codes 5200, 5201, and 5303 that were addressed above. However, these criteria do not provide for a total disability rating. Therefore, a total disability rating is not available due to scars of the shoulder. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). If the veteran had been rendered unemployable due to his service connected disabilities yet was not rated as 100 percent disabled, he could still be rated totally disabled due to individual unemployability. However, the death certificate indicates that the veteran last worked in 1983 as an engineer. This was the year of his death. Therefore, the evidence indicates that the veteran was employable for a period of 10 or more years prior to his death. 38 C.F.R. § 4.16 (1999). As noted, the veteran was not rated totally disabled due to a service connected disability for 10 or more years prior to his death. Additionally, a total disability rating is not available in the Schedule for the veteran's service connected disability. The evidence also does not show that he was unemployable due to service connected disability for 10 or more years prior to his death. Accordingly the preponderance of the evidence is against the appellant's claim for entitlement to DIC benefits. 38 U.S.C.A. §§ 1155, 1318, 5107 (West 1991); 38 C.F.R. §§ 3.22, 4.14, 4.16, 4.71a, 4.73, 4.118, Diagnostic Codes 5200, 5201, 5303, 7803, 7804, 7805 (1999). ORDER 1. Service connection for the cause of the veteran's death is denied. 2. Entitlement to DIC benefits is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals