BVA9501709 DOCKET NO. 93-10 995 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The veteran, who had active service from March 1941 to October 1945, died in August, 1975. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 1992 rating decision of the St. Louis, Missouri, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for the cause of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that she is entitled to service connection for the cause of the veteran's death. She argues that her husband's service-connected disabilities and related medications materially contributed to his death, in that they prevented a timely diagnosis of lung cancer. She further states that her husband's death certificate does not take into account all relevant factors. 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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. FINDINGS OF FACT 1. The veteran died in August, 1975, and the immediate cause of death as listed on the death certificate was respiratory arrest, due to metastatic carcoma to the brain due to carcinoma of the lung. No other significant conditions were noted on such death certificate. An autopsy was not performed. 2. At the time of the veteran's death, he was service-connected for residuals of a gunshot wound penetrating the peritoneal region with adhesions and lacerations of the ileum and rectum with a healed colostomy, evaluated as 30 percent disabling; residuals of a compound comminuted fracture of the inferior ramus of the right pubis, evaluated as 10 percent disabling; a gunshot wound scar over the coccygeal area, evaluated as 10 percent disabling; a scar on the right side of the scrotum, mid-section of the lower abdomen and left lower quadrant, evaluated as 10 percent disabling; and chronic osteomyelitis of the ischium, conjunctivitis, and malaria, all evaluated as noncompensably disabling; for a combined evaluation of 50 percent disabling. The veteran was also entitled to special monthly compensation due to loss of use of a creative organ. 3. Lung cancer metastatic to the brain, along with any related chronic pulmonary or cardiac disability, has not been shown to be present during service, or proximate thereto. Lung cancer was initially medically diagnosed more than 25 years after separation from service, at a time too remote to be reasonably related thereto. Carcinoma of the brain was initially medically diagnosed approximately three months prior to the veteran's death. 4. The veteran's service-connected residuals of a gunshot wound, conjunctivitis and malaria did not cause, materially or substantially contribute to, or accelerate the veteran's death. 5. The veteran's lung cancer metastatic to the brain was not proximately due to or the result of his service-connected disabilities. 6. The appellant has not presented competent medical evidence or opinion which would justify a belief by a fair and impartial individual that her claim is plausible. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.310, 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim with respect to the issue of service connection for the cause of the veteran's death. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If a particular claim is not well grounded, then the appeal fails and there is no duty to assist in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). An appellant 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). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (hereinafter Court) held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." Tirpak, at 611. The evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). In this case, evidentiary assertions as to the claim for service connection for the cause of the veteran's death are beyond the competence of the appellant. Service connection for the cause of a veteran's death is warranted when the evidence indicates that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 1991); 38 C.F.R. § 3.312 (1993). Furthermore, service connection may be granted for a terminal disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). In order to be awarded dependency and indemnity compensation benefits in this case, it must be shown that the veteran died from a service-connected disability. 38 U.S.C.A. § 1310(a) (West 1991); Cariaga v. Brown, 5 Vet.App. 397, 398 (1993). The death certificate reflects that the veteran died at age 56 in August 1975 of respiratory arrest due to carcinoma of the lung metastatic to the brain. There were no other conditions or underlying causes of death noted on such death certificate, and no autopsy was performed. At the time of the veteran's death, he was service-connected for residuals of a gunshot wound penetrating the peritoneal region with adhesions and lacerations of the ileum and rectum with a healed colostomy, evaluated as 30 percent disabling; residuals of a compound fracture of the inferior ramus of the right pubis, evaluated as 10 percent disabling; a gunshot wound scar over the coccygeal area, evaluated as 10 percent disabling; a scar on the right side of the scrotum, mid-section of the lower abdomen and left lower quadrant, evaluated as 10 percent disabling; and chronic osteomyelitis of the ischium, conjunctivitis, and malaria, all evaluated as noncompensably disabling; for a combined evaluation of 50 percent disabling. The veteran was also entitled to special monthly compensation due to loss of use of a creative organ. Service medical records reflect the veteran was treated for acute gonorrhea, acute nasopharyngitis, acute bronchitis, hypospadias, and dermatitis of the hands. Such records further reflect that he suffered a severe penetrating gunshot wound of the perineum and abdomen in March 1945, resulting in a compound comminuted fracture of the inferior ramus of the right pubis, as well as a severe laceration of the ileum and rectum. Subsequently, the records show he underwent a colostomy, sigmoidoscopy, and a sequestrectomy prior to his medical discharge in October 1945. There are no complaints, findings or diagnoses of cancer or any related pulmonary or cardiac symptomatology found in such medical records. Relevant postservice medical records include VA examinations dated in September 1946, December 1947, December 1950, and May 1972; VA inpatient treatment reports dated from January to June 1946, and October 1951; private inpatient treatment reports dated from 1949 to 1971, and private medical statements dated in February 1951, February 1972, and November 1992. The record reveals that there are no complaints, findings or diagnosis of any cancer or related pulmonary disabilities until after 1970, approximately 25 years after separation from service. In fact, VA examinations with accompanying chest x-rays dated in January 1946 and May 1972 specifically indicated no abnormalities were found upon examination of the veteran's lungs and heart. In November 1992, the appellant submitted statements from two of the veteran's private physicians, W.W. Woodward, M.D. and Frank H. Lewis, M.D. While both physicians indicated that they rendered treatment to the veteran's for cancer in the 1970's, neither suggested that such cancer was incurred in or aggravated by the appellant's military service, or was causally or etiologically related to the appellant's service-connected residuals of a gunshot wound, conjunctivitis or malaria. The thrust of the appellant's argument appears to be that the veteran's service-connected disabilities played a significant role in his death from cancer. Specifically, she argues that the veteran suffered from residuals of the inservice gunshot wound throughout his lifetime requiring him to take large dosages of strong pain medication which, in effect, masked any symptomatology of developing cancer and prevented a timely diagnosis thereof. Furthermore, she argues that his service- connected disability contributed substantially and materially to the cause of his death, as it weakened his body so that it was susceptible to developing cancer. As explained above, service connection for the cause of the veteran's death is warranted only when it is shown that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.312 (1993). In addition, service connection may be awarded on a secondary basis if there is competent clinical evidence indicating that a terminal disability is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a) (1993). The veteran's death certificate, which is not refuted by any other medical evidence of record, reflects that the sole cause of the veteran's death was cardiac arrest due to lung cancer metastatic to the brain, with no reference made to any residuals of the gunshot wound, including any related genitourinary or urological symptomatology, conjunctivitis or malaria. While there is medical evidence that the veteran was treated for his service-connected disabilities until his death, there is absolutely no competent medical evidence that such disabilities in any way contributed to his death due to cancer. Furthermore, there is no competent clinical evidence that the veteran's lung cancer metastatic to the brain was proximately due to or in any was etiologically or causally related to the appellant's service-connected disabilities. In fact, in Dr. Woodward's November 1992 statement, he states that while it is not unusual for symptoms of a developing, unrelated illness to be "buried" in the discomforts of the chronic illness, with late recognition of the new one, the extent to which such late recognition of the veteran's cancer symptomatology may have influenced his subsequent course is "not ascertainable." This statement does not support the appellant's claim that the veteran's death was hastened or caused by late recognition of his cancer because of the symptoms of his service-connected disabilities. While Dr. Woodward made a general statement that such occurrence is not unusual, he did not, in fact, state that it had happened in the veteran's case. It is noted that the veteran's service-connected disabilities did not affect his lungs and were not manifested by pulmonary symptoms which would mask symptoms of lung cancer. In any event, Dr. Woodward's statement does not offer a medical opinion that the veteran's service- connected disabilities, including medicine to mask the pain of the service-connected disabilities, resulted in late recognition of his cancer or that there was any ascertainable influence on the course of his cancer due to service-connected disabilities or medication therefor. Dr. Lewis offered no opinion as to any causal or contributory relationship. Because the appellant has not submitted any evidence supportive of her claim and has alleged no facts which would support a conclusion that the veteran's death was related to service or a service-connected disability, nor any evidence that the veteran's cancer was the proximate result of a service-connected disability or that his death was hastened by service-connected disability, we are of the opinion that she has failed in her duty to submit "evidence" which would "justify a belief by a fair and impartial individual" that her claim is plausible. See Tirpak, 2 Vet.App. at 611. The Court has held that lay assertions of medical causation cannot constitute evidence to render a claim well- grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). See also Barfield v. Brown, 5 Vet.App. 8, 9 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The veteran was not service connected for the underlying cause of his death, cancer, and the appellant has failed to submit any evidence linking the veteran's service-connected disabilities to the cause of his death. Since there is no competent, credible evidence of medical causality, the claim is not well-grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). ORDER The appellant's claim for entitlement to service connection for the cause of the veteran's death is dismissed, on the ground that it is not well-grounded. HOLLY E. MOEHLMANN 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.