BVA9502328 DOCKET NO. 93-02 483 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether the appellant's application for entitlement to service connection for the cause of the veteran's death is well grounded. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from August 17, 1943 until June 23, 1944. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Reno, Nevada, Regional Office (RO). On appeal, the appellant, widow of the veteran, again raised the issue of entitlement to dependency and indemnity benefits under 38 U.S.C.A. § 1318 (West 1991) and entitlement to death pension benefits as the surviving spouse of the veteran. These issues have not been developed and certified to the Board. As such, these issues are being referred back to the RO for adjudication purposes because they are not inextricably intertwined with the properly certified issue of service connection for the cause of the veteran's death which can be addressed by the Board without further RO action. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the appellant contends that a service-connected disability caused her husband's death. She notes that for over the last thirty years of the veteran's life the VA considered him 100 percent disabled because of schizophrenia and that the schizophrenia substantially contributed to the cause of the veteran's death. Reliance is made upon the record in support of the claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's application for entitlement to service connection for the cause of the veteran's death is not well grounded. FINDING OF FACT The claim for service connection for the cause of the veteran's death is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for 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 Factual Background The veteran died in February 1991 at 64 years of age. A copy of his death certificate shows the cause of death as arteriosclerotic cardiovascular disease. No underlying contributing conditions are listed on the death certificate. The certificate also shows that no autopsy was performed. At the time of the veteran's death, he was not service-connected for any disability. On the other hand, he was considered permanently and totally disabled for VA pension purposes from August 1957 until July 1958, and again from March 1959 until his death in February 1991, because of non-service connected schizophrenia. The appellant filed her application for dependency and indemnity compensation or death pension by a surviving spouse with the VA in April 1991. Analysis The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which 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) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is not enough that a claim be submitted. The claim must be accompanied by evidence to support the claim. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Grivois v. Brown, 6 Vet.App. 136, 139 (1994). The Board finds that the appellant's application for service connection for the cause of the veteran's death is not well grounded and there is no further duty to assist her in the development of her claim. Service connection for the cause of a veteran's death can be granted where the evidence shows that a disability which was either incurred while the veteran was on active duty service or, if the disability existed prior to the veteran's period of active duty, which was permanently aggravated during active duty service either caused or contributed substantially or materially to the cause of death. Where, at the time of death, the veteran had a service-connected disability that was rated 100 percent disabling, careful consideration is given as to whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). In the case at hand, the veteran died from arteriosclerotic cardiovascular disease. At the time of death, he was not service connected for any heart or cardiovascular disability. On the other hand, he was considered permanently and totally disabled by the VA from securing or following a substantially gainful occupation because of his non-service connected schizophrenia which was initially diagnosed in 1949. He was in receipt of non- service connected VA pension benefits because of schizophrenia from August 1957 until June 1958 and again from March 1959 until his death in February 1991. Although he was considered unemployable, he was also considered competent to handle his own affairs from November 1965 until the time of his death. The appellant contends that the non-service connected long- standing schizophrenia contributed to her husband's death. However, she has submitted no competent, cognizant, evidence to support this assertion. Pertinent case law provides that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required to that effect in order to render the claim plausible. In other words, medical evidence is necessary to make the claim well grounded. A claimant does not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit, 5 Vet.App. at 91 (1993). The appellant has presented no cognizant evidence nor is there any of record that links the veteran's schizophrenia to his death or the cause of his death. No evidence has been presented in any correspondence or the testimony at the RO that the veteran's psychosis prevented him from pursuing medical care for a heart condition Because the appellant has not submitted evidence to justify a belief that the claim is well grounded insofar as establishing schizophrenia as a cause or contributory cause of death, the Board need not rule on whether schizophrenia was a service connected impairment. The principles mentioned above also apply to the question whether cardiovascular disease which caused death was incurred in service directly or presumptively. As to this matter, the service medical records and the post service medical records do not provide evidence helpful to the appellant's claim More importantly, the appellant makes no argument and presents no competent evidence associating the veteran's heart disease with service. At her hearing in June 1992, the appellant testified that the veteran earlier never had any problems with his heart. In conclusion, therefore, the Board holds that the appellant's claim is not well grounded and must be dismissed. Lastly, the Board recognizes that the appellant's claim has been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether she has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claim and her failure to meet her initial burden in the adjudication process, the Board concludes that she has not been prejudiced by the decision to dismiss her claim. Moreover, a finding that the appellant has not submitted a well grounded application is a denial that there is a claim. Glynn v. Brown, 6 Vet.App. 523, 528 (1994). Hence, the Board is not denying service connection for the cause of the veteran's death, the Board is merely stating that the appellant has failed to meet her initial burden of presenting a plausible claim. As such, this decision finding that the appellant’s attempt to establish entitlement to service connection for the cause of the veteran's death is not well grounded will not stand as a bar to any further attempts to open a claim on her part. ORDER The application for entitlement to service connection for the cause of the veteran's death is dismissed. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.