Citation Nr: 0004008 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 94-07 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from May 1967 to December 1971. In September 1976, the veteran's name was legally changed. His death occurred on June [redacted], 1992, and the appellant in this matter is the veteran's widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision entered in July 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, denying the appellant's claim of entitlement to service connection for the cause of the veteran's death. By its remand of February 1996, the Board returned the case to the RO for the completion of additional development, and following the RO's completion of the requested actions, the case is again before the Board for further review. FINDING OF FACT The appellant's claim of entitlement to service connection for the cause of the veteran's death is not supported by cognizable evidence demonstrating that such claim is plausible or capable of substantiation. 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 FINDING AND CONCLUSION The primary allegations of the appellant are that inservice hepatitis and Agent Orange exposure of the veteran each contributed to his fatal liver disease. As well, the appellant argues that stressors to which the veteran was exposed during his period of military service, including a tour of duty in Vietnam, led to the onset of PTSD which prompted the development of alcoholism and in turn contributed to the veteran's untimely death by end stage liver disease. As referenced above, this matter was remanded by the Board to the RO in February 1996, in accordance with the holding of the United States Court of Appeals for Veterans Claims (Court) in Robinette v. Brown, 8 Vet. App. 69 (1995), to permit the appellant to furnish a listing of the names and addresses of the veteran's medical care providers and to facilitate the submission of any additional medical data in support of the appellant's claim for entitlement to service connection for the cause of the veteran's death, particularly as to documentation regarding alleged inservice treatment for hepatitis. Pursuant to the remand instructions, the RO advised the appellant in a March 1996 letter, which the appellant acknowledges receiving, that the Board had requested she submit the names and addresses of the veteran's medical providers and any evidence she might have in support of her claim that the veteran's death was due to inservice hepatitis from service. The appellant responded in June 1996, requesting only that records be obtained from the VA Medical Center in Providence, Rhode Island, from 1973 to 1992. Contact by the RO with the National Personnel Records Center during 1997 produced documentation of the veteran's inservice hospitalization, beginning in April 1969, for treatment of infectious hepatitis. As well, multiple volumes of VA treatment records were thereafter associated with the other evidence on file. Inasmuch as all of the actions requested by the Board were completed by the RO, and in the absence of any allegation to the contrary by or on behalf of the appellant, further development action is not indicated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence, such as a psychosis, if manifested to the required degree within a prescribed period from the veteran's separation from active duty; or one that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1999). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 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, or 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 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, if the veteran has a listed disease associated with exposure 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 (1999). Diseases associated with exposure to herbicide agents, listed in 38 C.F.R. § 3.309 (1999), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (1999) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1999) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Note two following 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for post-traumatic stress disorder (PTSD) requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f), as in effect prior to March 7, 1997. During the pendency of this appeal, § 3.304(f) was amended, effective March 7, 1997. 64 Fed. Reg. 32807-32808 (1999). As amended, § 3.304(f) provides that service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter (rather than a clear diagnosis); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed inservice stressor. Id. The threshold question to be answered as to this portion of the appeal is, however, whether the appellant has presented evidence of a well-grounded claim; that is, a claim that is plausible and meritorious on its own or capable of substantiation. If she has not, her appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). The provisions of 38 C.F.R. § 3.303(b) (1999) provide a substitute way of showing inservice incurrence and medical nexus for purposes of well-grounding a claim. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that an appellant had a chronic condition in service or during an applicable presumption period and still has the condition. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. If the chronicity provision is not applicable, a claim may still be well-grounded if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Id. The record reflects that the veteran's death occurred on June [redacted], 1992, at the age of 42 years. No autopsy is shown to have been performed. According to the death certificate, the veteran's death was caused by massive intracranial bleeding, due to or as a consequence of end stage liver disease (cirrhosis), hepatitis B, hepatitis C, and coagulopathy. The approximate interval between the onset of the intracranial bleeding and death was shown to be five days; the approximate interval of several years was noted to exist as to the date of onset regarding liver disease, hepatitis B and C, and coagulopathy and the occurrence of the veteran's death. Other significant conditions contributing to death but not resulting in the conditions noted previously included encephalopathy and malnutrition. During the veteran's lifetime, service connection was established for a single disability; namely, a gunshot wound scar of the left elbow, for which a 10 percent rating had been assigned, effective from August 1991. Service medical records disclose that the veteran underwent a medical examination by a private physician in August 1968, findings from which showed a palpable spleen, a hemoglobin level of 16.1 grams percent, and a sliding hiatus hernia. The physician concluded that the veteran was experiencing stress polycythemia. A six percent elevation of red cell mass was indicated, as were a total blood volume decrease of four percent and a decrease in plasma volume of fourteen percent. Such findings were found to be due to hemoconcentration and not true polycythemia. Service medical records otherwise indicate that, in March and April 1969, the veteran was treated for gonorrhea. A period of hospitalization followed, beginning April 28, 1969, for treatment of infectious hepatitis, and the veteran remained under hospital care for his hepatitis at other service department facilities through June 23, 1969. According to an attending service department physician, the veteran's hepatitis had its onset on April 20, 1969, with symptoms of nausea, vomiting, and dark urine. His hospital course at the last facility to which he was transferred was noted to be unremarkable, and it was shown that, shortly after his admission to the hospital, he was sent on convalescent leave because of the minimal abnormalities in his liver function tests. Following his convalescent leave from May 19 to June 8, 1969, it was noted that he had had no difficulties while on such leave and, upon his return to the hospital with but minimal liver dysfunction, he was discharged to duty. Outpatient treatment was received in June 1970 for gastroenteritis and, in December 1970, for stomach complaints, with no specific diagnosis resulting. Service medical records are otherwise negative for indications of intracranial bleeding, cirrhosis, hepatitis B or C, coagulopathy, encephalopathy, or malnutrition or residuals of any of the foregoing. No additional medical treatment is shown by available medical data until 1983, when the veteran was seen in an emergency room of a private facility for evaluation of complaints of anorexia, incoordination, short temper, and insomnia. It was then noted that he had been discharged from that facility three days prior thereto, following a period of hospitalization for alcohol detoxification, with use of Valium to control delirium tremens. The diagnosis was of questionable benzodiazepine withdrawal. Periods of hospitalization and/or emergency care are shown in 1988 and 1989 primarily for alcohol dependence and alcohol detoxification, but also including related entities, such as seizures, thrombocytopenia, and macrocytic anemia. In September 1990, the veteran was hospitalized principally for treatment of alcohol dependence, with secondary diagnoses of a history of alcohol withdrawal seizures, chronic liver disease, history of drug abuse, edema, and nicotine dependence. It was noted by way of history during that period of hospital care that the veteran had contracted hepatitis B while in Vietnam and that he had been told about ten years earlier that he had cirrhosis of the liver based on findings from a liver-spleen scan. Further hospitalization was also required in October 1990 for alcohol dependence; secondary diagnoses included cirrhosis, nicotine dependence, history of withdrawal seizures, edema-resolved, coagulopathy, and history of hepatitis B and C. During the course of such hospital care, the veteran voiced a complaint of nightmares, which he attributed to PTSD, although it was noted in the report of such hospitalization that it was the opinion of the medical staff that the veteran did not meet the criteria for entry of a diagnosis of PTSD. Additional periods of hospital care for management of the veteran's alcoholism occurred in March and May 1991, and during the latter hospitalization, the veteran reported having started consuming alcohol 20 years earlier upon his return from Vietnam. He was afforded a VA medical examination in October 1991, findings from which culminated in entry of diagnoses of a history of a gunshot wound of the left elbow 23 years ago, obesity, and questionable alcohol abuse. An extended period of hospitalization followed at VA facilities from January to March 1992 for chronic alcoholic liver disease and secondary coagulopathy, Mallory-Weiss tear, urethral laceration, and acute renal failure. Upon hospital admission, the veteran complained of flashbacks from Vietnam and among the admission diagnoses was that of substance abuse due to PTSD, although PTSD was not referred to at any later point in medical records compiled during that hospitalization and no diagnosis of PTSD was set forth at the time of the veteran's discharge from that VA facility. Several subsequent periods of hospital care occurred in the months thereafter for management of the veteran's end stage liver disease and complications therefrom, such as intracranial bleeding, subdural hematomas, hepatic encephalopathy, and coagulopathy, and he succumbed to his end stage liver disease and its complications while hospitalized by VA in June 1992. In March 1994, the appellant offered testimony at an RO hearing, to the effect that it was her belief that the veteran's death resulted from exposure to hepatitis in service, alcoholism induced by PTSD, and Agent Orange exposure. Reference was made to alleged inservice stressors of the veteran while in Vietnam, including the killing of a four-year-old Vietnamese child and his witnessing of the bombing of a bridge by the enemy, from which he sustained a shrapnel injury in the resulting explosion. At the request of the RO, the Chief of the Gastroenterology Section at the VA Medical Center in Providence, Rhode Island, undertook in July 1998 a review of the entirety of the veteran's claims folder and other data for the purpose of determining whether it was at least as likely as not that the cause of the veteran's death was related to infectious hepatitis diagnosed and treated in service. The records reviewed included the veteran's service medical records which were discussed in the opinion. Such physician's conclusions were set forth in a written report, dated in July 1998, with an addendum thereto, noting the receipt and review of additional records, dated several days later. The physician noted that he would suspect that the veteran was infected with hepatitis B in service at the time he contracted gonorrhea and that the available data suggested that the inservice hepatitis of the veteran had resolved and that chronic hepatitis B did not result from the inservice episode. The physician pointed to serologic testing performed at Roger Williams Medical Center in 1990 and 1992, findings from which were consistent with previous infection and subsequent immunity, but which did not demonstrate chronic hepatitis B. The veteran's records were noted to reveal that the veteran was a very heavy user and abuser of alcohol, with multiple failed attempts at detoxification and rehabilitation. Based on the amount of alcohol consumed and the duration of such use, it was found that such were consistent with an alcohol-induced etiology for the veteran's chronic liver disease. In the physician's opinion, it was unlikely that the veteran's chronic liver disease and subsequent death were related to hepatitis B contracted while in service. The physician reported that there was no evidence available in the records to suggest that the veteran was infected with Hepatitis C at the same time he was infected with Hepatitis B. Also noted was that the available data did not permit him to render an opinion as to whether the veteran had hepatitis C, when he might have contracted hepatitis C, or whether hepatitis C contributed to the veteran's death. It is evident that the veteran was treated in service for infectious hepatitis and that hepatitis is among the diseases shown to have caused or contributed to his death. Lacking, however, is a demonstration by means of competent medical evidence that the inservice hepatitis had any role whatsoever in the veteran's death. Notwithstanding the occurrence of hepatitis in service, no medical professional has specifically linked the veteran's fatal hepatitis to the acute episode of infectious hepatitis occurring in service. A reviewing VA physician in July 1998 found that the veteran's inservice hepatitis resolved after a period of treatment and that he did not contract chronic hepatitis B as a result; no contrary opinion is offered by any other medical professional. Also lacking is evidence of a continuity of hepatitis-related symptomatology following the inservice episode of hepatitis and there is no competent evidence of a nexus between the hepatitis shown at death and the inservice infectious hepatitis. See Savage, supra; see also, Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). This is also not a case where lay testimony is competent to provide the required evidence of a nexus. Id. Although the appellant is competent to describe those manifestations she observed or what was said to her by the veteran as to his symptoms, she is not competent to offer an opinion that the infectious hepatitis in service was productive of chronic disablement that caused or contributed to the veteran's untimely death. In this regard, the record fails to demonstrate that she is in possession of the requisite medical knowledge or training as to render her opinions as to medical diagnosis or etiology competent medical evidence. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The record otherwise fails to show that any entity shown on the certificate of death as being a direct or contributory cause of the veteran's death had its onset in service or is otherwise related to any inservice event. Moreover, it is not alleged or shown by the evidence presented that the veteran's service-connected gunshot wound scar of the left elbow in any way caused or contributed to the veteran's demise. As for the claim that inservice exposure to Agent Orange may have rendered the veteran more susceptible to the liver disease that claimed his life, inservice exposure to a herbicide cannot be presumed as the veteran is not shown to have contracted one of the diseases for which there exists a presumption of service connection based on herbicide exposure. See McCartt v. West, 12 Vet. App. 164, 168 (1999). None of the entities causing or contributing to death is a disease attributable to exposure to Agent Orange or other herbicide pursuant to 38 C.F.R. §§ 3.307, 3.309(e). Moreover, the Secretary of VA has determined, under the authority granted by the Agent Orange Act of 1991, that the presumption of service connection based on herbicide exposure does not extend to any disease excepted those noted in 38 C.F.R. § 3.309(e). 61 Fed. Reg. 41442 (1996). Therefore, as a matter of law, the appellant cannot avail herself of the rebuttable presumption of service incurrence set forth in 38 C.F.R. §§ 3.307, 3.309(e) as to any of the entities in question. Lastly, there is not presented for review any evidecne of actual inservice exposure to a herbicide and, as well, no medical professional has offered an opinion specifically linking any direct or contributory cause of death to alleged herbicide exposure in service. See Combee, supra. In this instance, available records show that the veteran, while on active duty, served as a lineman in the Republic of Vietnam. During his Vietnam tour, he sustained a wound of the left elbow during combat, for which he was later awarded the Purple Heart Medal. That notwithstanding, there is no allegation of the appellant or any showing by competent medical evidence that any of disease processes which caused or contributed to the veteran's death, that is intracranial bleeding, cirrhosis, hepatitis B or C, coagulopathy, encephalopathy, or malnutrition, are directly related to any incident of combat. See 38 U.S.C.A. § 1154(b) (West 1991); Collette v. Brown, 82 F.3d 389, 390-92 (Fed. Cir. 1996). The appellant does aver that one of the stressors leading to the postservice onset of PTSD was the incident in service in which the veteran was in close proximity to the bombing of a bridge and sustained bodily injury as a result of flying shrapnel. However, 38 U.S.C.A. § 1154(b) does not constitute a substitute for evidence of current disablement, causal nexus between a combat injury and a current disability, or the continuation of symptoms subsequent to service. Kessel v. West, 13 Vet. App. 9, 17 (1999). Regarding the appellant's argument that stressors to which the veteran was exposed during his tour of duty in Vietnam led to the onset of PTSD, competent medical evidence is not presented that the veteran was ever diagnosed as having PTSD. While a clinical impression of substance abuse due to PTSD was offered at the time of the veteran's VA hospital admission in January 1992, such does not appear to have been based on other than the veteran's own history and, thus, it is not competent medical evidence as to the existence of the claimed PTSD. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, PTSD was ruled out as a diagnostic possibility during the course of a VA hospitalization in October 1990, and all other records compiled during the VA hospitalization from January to March 1992 in no way confirm the admission diagnosis as to the existence of PTSD. In fact, such records contain no further reference whatsoever to the veteran's claimed PTSD. While there is a showing of alcoholism postservice, which the appellant avers is due to PTSD, competent medical evidence of PTSD is absent and the record is otherwise devoid of competent medical evidence to the effect that the veteran's alcoholism originated in service or is otherwise related to the veteran's military service. In view of the foregoing, denial of the claim presented is warranted on the basis that it is not well-grounded. See Epps, supra. In reaching this disposition, the undersigned recognizes that such issue is being disposed of in a manner that may differ from that utilized by the RO. However, the Court has held that "when a RO does not specifically address the question whether a claim is well-grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Moreover, the Board views the foregoing discussion as sufficient to inform the appellant of the elements necessary to complete her application as to her claim of entitlement to service connection for the cause of the veteran's death. Robinette at 77-78. Further, the Board is not aware of any relevant evidence which may have existed, or could have been obtained, that, if true, would render the claim in question "plausible" and, thus, require VA to notify the appellant of that relevant evidence in order that she may complete her application. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997) (per curiam). Lastly, as the appellant's claim is not well-grounded, VA has no duty to assist her in developing the record to support her claim. Grivois v. Brown, 5 Vet. App. 136, 140 (1994). Inasmuch as the appellant's claim is not well-grounded, a weighing of the merits of such claim is not herein undertaken and thus the provisions of 38 U.S.C.A. § 5107(b) as to the resolution of reasonable doubt where the evidence is in relative equipoise is not for application. See Gilbert v. Derwinski, 1 Vet App. 49, 55-6 (1990). ORDER Service connection for the cause of the veteran's death is denied. STEVEN L. COHN Member, Board of Veterans' Appeals