Citation Nr: 0002525 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 98-20 209 ) 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 Dependent's Educational Assistance benefits pursuant to the provisions of 38 U.S.C.A. Chapter 35. ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel INTRODUCTION The veteran served on active duty from July 1943 to December 1945, and from January 1950 to April 1969. This appeal arises from a May 1997 rating decision from the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO), which denied the appellant service connection for the veteran's cause of death, and denied entitlement to Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. FINDINGS OF FACT 1. The veteran died at the age of 72 years in April 1997. The death certificate listed the immediate cause of death was esophageal carcinoma. 2. At the time of his death, service connection was in effect for fibromyositis of the lumbosacral spine with arthritis, evaluated as 20 percent disabling; rotator cuff tear and capsulitis of the right shoulder, evaluated as 10 percent disabling; sensorineural hearing loss, evaluated as 10 percent disabling; and bronchial asthma, evaluated as 10 percent disabling. The veteran's combined service-connected rating was 40 percent. 3. The record contains no competent medical evidence that the veteran's service-connected disabilities were either the principal cause of his death or a contributory cause of death. 4. The record contains no competent evidence that the veteran had esophageal cancer during active military service. 5. The record contains no competent medical evidence of a nexus between the veteran's death from esophageal cancer and any inservice disease or injury, to include exposure to Agent Orange. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Eligibility for dependent's educational assistance under 38 U.S.C.A. Chapter 35 is not established. 38 U.S.C.A. § 3501 (West 1991); 38 C.F.R. §§ 3.807, 21.3021 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Cause of Death For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In the absence of such evidence, the regulations require a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. §§ 3.310(a), 3.312 (1999). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In making a claim for service connection for a disorder, including a disorder which caused the death of a veteran, the claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has defined the term "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has further noted that "[a]lthough the claim need not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); 38 U.S.C.A. § 5107(a) (West 1991). Moreover, the Court has stated that "[t]he quality and quantity of the evidence required to meet this statutory burden . . . will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Where the issue in a case is factual, competent lay evidence may suffice; however, "where the determination involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Id. at 93. The appellant contends that service connection is warranted for the veteran's cause of death as his service-connected bronchial asthma caused his death. She further contends that the veteran was exposed to Agent Orange while in Vietnam and complications due to this exposure "can not be ruled out completely." These theories of entitlement involve medical causation and therefore the appellant is required to present "competent medical evidence to the effect that the claim is 'plausible' or 'possible' . . . ." to establish a well-grounded claim. Id. Regulations have established that a veteran who has had active service in the Republic of Vietnam during the Vietnam era 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. 38 C.F.R. § 3.307(a)(6)(iii) (1999). Further regulations provide a list of diseases that are considered to be associated with herbicide exposure for purposes of presumptive service connection. 38 C.F.R. § 3.309(e) (1999). Esophageal cancer is not included in the diseases listed. Id. Service medical records are negative for any complaints or findings referable to esophageal carcinoma for either period of the veteran's service. The veteran's January 1969 retirement examination for his second period of service described his mouth, throat, lungs and chest as normal. VA hospitalization records indicate that the veteran was admitted in June 1996 with a primary diagnosis of esophageal carcinoma, with lymph node metastasis, anemia, and pleural effusion. The veteran reported a history of a strange sensation of itching while swallowing since a month earlier, which was determined to be an esophageal mass. An Ivor Lewis Esophagogastrectomy was performed which revealed poorly differentiated adenocarcinoma, mostly signet ring cell type. The death certificate indicates that the veteran died in April 1997, at the age of 72. The immediate cause of death was esophageal carcinoma, with the approximate interval between onset and death was reported to be 6 months. An autopsy was not performed. A May 1997 statement from the veteran's private physician R. Castillo, M.D., reported that the veteran had been diagnosed as having esophageal carcinoma which required surgery. He later relapsed requiring chemotherapy and respiratory therapy. Dr. Castillo reported that the veteran was hospitalized and died due to respiratory complications. Dr. Castillo noted that the degree of respiratory complications was unusual for esophageal carcinoma. Following review of the record, the appellant has not met her initial burden of presenting a well-grounded claim. There is no indication of esophageal carcinoma in the veteran's service medical records, or that he was exposed to Agent Orange. Additionally, there is no evidence of the record that indicates that the veteran's service-connected disabilities, to include bronchial asthma, were either the principal cause of his death or a contributory cause of death. The statement from Dr. Castillo does not relate the veteran's death to a service-connected disorder, to include bronchial asthma, or to any incident in service, to include any exposure to Agent Orange. The appellant's assertion that her husband was exposed to herbicides is not sufficient to justify a belief by a fair and impartial individual that he was indeed exposed. There is no evidence of record that the veteran was exposed to Agent Orange while in service or at any time. Additionally, although the appellant contends that the veteran died due to his service-connected bronchial asthma, or in the alternative, due to exposure to Agent Orange, her statements are not competent evidence to establish the cause of the veteran's death. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit, 5 Vet. App. at 93. The fact remains that there is no medical evidence on file linking the veteran's death to service or to any incident of service, despite the appellant's assertions that such a causal relationship exists. As there is no competent evidence that provides the required nexus between military service and the cause of the veteran's death, service connection for the cause of the veteran's death is not warranted. See Caluza v. Brown, 7 Vet. App. 498 (1995). II. Chapter 35 Basic eligibility for Chapter 35 educational assistance benefits is established for a surviving spouse if a veteran dies from a service-connected disability or has a total disability permanent in nature or is missing in action or is captured or forcibly detained by a foreign government. 38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807, 21.3021. As detailed above, service connection for the cause of the veteran's death is not in order. Therefore, in this case, it has been determined that the veteran did not die of a service-connected disability. Additionally, a review of the record shows that the veteran did not have a total disability permanent in nature resulting from a service-connected disability and he did not die while a disability so evaluated was in existence. Further review reveals that at the time of the appellant's application, the veteran was not missing in action or captured or detained by a hostile force or government. Therefore, the criteria for Chapter 35 educational assistance benefits have not been met. Id. Accordingly, the appellant is not eligible for educational assistance under Chapter 35, Title 38, United States Code as a matter of law. Id.; Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for the cause of the veteran's death is denied. Entitlement to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals