Citation Nr: 0005525 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-12 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1151. 2. Whether new and material evidence has been submitted to reopen the appellant's claim for service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: John Stevens Berry, attorney- at-law ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945 and from February 1948 to February 1952. In September 1998, the Board of Veterans' Appeals (Board) denied entitlement to accrued benefits based upon clear and unmistakable error in an April 1967 rating decision denying service connection for residuals of a shell fragment wound of the back and remanded the issues noted on the title page to the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, for additional development, to include adjudication of the raised issue of entitlement to accrued benefits based upon service connection for pulmonary disability. An August 1999 rating decision and supplemental statement of the case denied the issues on appeal and denied the additional issues of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, entitlement to accrued benefits based upon service connection for pulmonary disability, and eligibility for Dependents' Educational Assistance under chapter 35 of 38 U.S.C.A. The appellant was notified of these actions later in August 1999. Since no subsequent correspondence with respect to these additional issues has been received from the appellant or her representative, these matters are not currently before the Board. FINDINGS OF FACT 1. The claim for DIC benefits pursuant to 38 U.S.C.A. § 1151 is not plausible. 2. Service connection was denied by the Board for the cause of the veteran's death in March 1996. 3. Evidence which is not cumulative or redundant of evidence previously of record and which is so significant that it must be considered to fairly decide the merits of the previously denied claim has not been received since the March 1996 decision. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well- grounded claim for DIC benefits pursuant to 38 U.S.C.A. § 1151. 38 U.S.C.A. § 5107(a) (West 1991). 2. New and material evidence to reopen the appellant's claim for service connection for the cause of the veteran's death has not been received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's service medical records, including his final discharge examination report in February 1952, do not contain any finding or diagnosis of pneumonia or lung cancer. The veteran was hospitalized from October to December 1966 for chronic alcohol addiction. It was noted that the veteran smoked 1/2 to 3/4 of a pack of cigarettes a day. The veteran's chest and lungs were negative to palpation, percussion, and auscultation; no rales were heard. No respiratory disability was diagnosed. The veteran's respiratory system was normal on VA examination in March 1967. December 1992 to June 1993 VA outpatient records reveal that the impressions on an April 1993 chest X-ray report were moderate chronic obstructive pulmonary disease (COPD), which was stable; fibrotic scarring of the right upper lobe; and atherosclerotic vascular disease. COPD and bronchitis were diagnosed in June 1993. On VA examination in June 1993, the veteran said that he had smoked 11/2 to 2 packs of cigarettes a day since 1942, but had stopped smoking about 34 years earlier. COPD and well- controlled hypertension were diagnosed. It was reported on pulmonary function studies in June 1993 that the veteran had a 40 year pack history and had quit smoking for 15 years. The veteran was hospitalized at a VA hospital in July 1993 with a cough, a six month history of occasional yellow phlegm, COPD and hypertension. The diagnoses were squamous cell carcinoma of the lung with atelectasis of the right upper lobe, history of COPD, and history of hypertension. He was hospitalized at a VA hospital again in August and in September 1993 for his lung cancer. It was noted in August 1993 that the veteran was diagnosed with squamous cell cancer in July 1993, by bronchoscopy, after a three year history of recurrent pneumonia. An October 1993 radiation oncology summary from the University of Colorado Health Sciences Center reveals that the veteran was being treated for pathological Stage IIIA squamous cell carcinoma of the right lung. According to VA hospital records for November 1993, the veteran underwent a right pneumonectomy without complications. At the time of discharge, the veteran's wound was considered to be healing well and his staples were removed. Final pathology from his surgical specimen revealed squamous cell carcinoma that extended into the surgical margin; there was no evidence of metastases in the dissected lymph nodes. December 1993 to January 1994 medical records from Regional West Medical Center reveal that the veteran had a history of COPD and carcinoma of the right lung, which had been treated with radiation, chemotherapy, and right pneumonectomy. The veteran indicated that he had been doing fairly well until recently, when he became more and more short of breath with associated productive cough, fever and chills. Chest X-rays revealed moderately extensive left upper lobe pneumonia and a right pneumonectomy; subsequent X-rays showed a left pneumothorax. The veteran's condition deteriorated and he went into cardiac arrest and died. According to a July 1994 statement from Donald M. Gentry, M.D., the veteran died from a pneumonia caused by Pseudomonas. Dr. Gentry noted that the veteran's case was complicated by the fact that he had a right pneumonectomy for carcinoma of the lung, which did not cure the cancer because of residual cancer outside the surgical specimen. An August 1997 statement from Dr. Gentry reiterates that the veteran had had a right pneumonectomy due to cancer. According to a June 1999 statement from Laura M. Brausch, M.D., a pulmonologist with Cheyenne Medical Specialists, who had reviewed the veteran's chart, the veteran had smoked for at least 30 years, quitting in 1978. Dr. Brausch noted that, for approximately six months prior to the August 1993 diagnosis of right upper lobe squamous cell lung cancer, the veteran had been having recurrent episodes of bronchitis and pneumonia. Dr. Brausch noted that although the veteran apparently then had an overwhelming infection and died as a result thereof, her information was from secondary sources because she could not find the reports from the January 1994 hospitalization where the veteran was diagnosed with Pseudomonas pneumonia of the left lung. It was Dr. Brausch's opinion that the veteran's COPD could predispose him to Pseudomonas pneumonia and that the pneumonectomy may have been a complicating factor in the veteran's death. However, Dr. Brausch concluded that the pneumonectomy did not cause the veteran's death and that the veteran's death from Pseudomonas pneumonia was not service related and was not specifically related to the pneumonectomy. The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91, at 92 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, at 610-611 (1992). A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. Subsequent to the filing of the appellant's claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151, 38 U.S.C. A § 1151 was amended by Pub. L. No. 104-204 to limit the payment of compensation or dependency and indemnity compensation for disability or death resulting from VA treatment to those instances where the disability or death is due to fault on the part of VA or an event not reasonably foreseeable. 38 U.S.C. § 1151, as amended, is less favorable to the appellant's claim than the law in effect when the claim was filed. Since the appellant's claim was filed prior to October 1, 1997, the law as it existed when the claim was filed is applicable. See VAOPGCPREC 40-97. Where any veteran has suffered an injury, or an aggravation of an injury, as a result of hospitalization or medical or surgical treatment (not the result of such veteran's own willful misconduct), and such injury or aggravation resulted in additional disability to or the death of such veteran, disability or dependency and indemnity compensation would shall be awarded as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991). In determining whether additional disability existed, the veteran's physical condition immediately prior to the disease or injury on which the claim is based is compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. As applied to medical or surgical treatment, the physical condition prior to the disease or injury is the condition which the specific medical or surgical treatment was designed to relieve. Compensation is not payable for the continuance or natural progress of disease or injuries for which the hospitalization or medical or surgical treatment was authorized. 38 C.F.R. § 3.358(b) (1997). It is also necessary to show that the additional disability was actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. The mere fact that aggravation occurred does not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization or medical or surgical treatment. Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which were certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment are not considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. 38 C.F.R. § 3.358 (c) (1997). According to the death certificate, the veteran died on January [redacted], 1994, at the age of 71, from pneumonia due to Pseudomonas of one month's duration; a right pneumonectomy for cancer of the lung was listed as a condition contributing to death but not related to the immediate cause of death. At the time of his death, the veteran was service connected for tinnitus, 10 percent disabling, and for residuals of a shrapnel wound of the right hand, noncompensable. Although the veteran died only two months after undergoing a right pneumonectomy while hospitalized at a VA medical center in November 1993, there is no competent evidence linking the veteran's death to VA treatment. The hospital records for November 1993 indicate that the veteran's surgery was without complications. The veteran had squamous cell carcinoma of the right lung and was noted to have died from pneumonia due to Pseudomonas of one month's duration. Dr. Gentry, the private physician who treated the veteran prior to his death did not indicate an etiological relationship between the veteran's death and VA treatment. Additionally, Dr. Brausch, a private pulmonologist, stated that the pneumonectomy may have been a complicating factor in the veteran's death, but she did not state that it caused or worsened the veteran's lung cancer or pneumonia. In fact, she concluded that the veteran's death from Pseudomonas pneumonia was not specifically related to the pneumonectomy. The only evidence supportive of the claim is the theory advanced by the appellant. As a lay person, the appellant is not competent to provide evidence requiring medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the appellant's claim for DIC benefits pursuant to 38 U.S.C.A. § 1151 is not well grounded. Generally, a claim which has been denied by the Board may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence is evidence not previously submitted to decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, at 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service incurrence may be presumed for certain chronic disabilities, including malignant tumors, when shown to a degree of 10 percent within a year of service discharge. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). To establish service connection for the cause of the veteran's death, the evidence must show that a disability 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). Service connection was denied by the Board for the cause of the veteran's death in March 1996. Evidence on file at the time of the March 1996 Board decision consisted of the veteran's service medical records, VA outpatient records from December 1992 to June 1993, VA examination reports dated in March 1967 and June 1993, an October 1993 radiation oncology summary from the University of Colorado Health Sciences Center, VA hospital reports dated in November 1993, and a July 1994 statement from Dr. Gentry. The veteran's service medical records do not contain any finding or diagnosis of pneumonia or lung cancer. There was no medical evidence previously of record suggesting the presence of pneumonia earlier than 1990 or lung cancer earlier than 1993. In addition, there was no medical evidence previously of record suggesting that the pneumonia or lung cancer was etiologically related to service or to service-connected tinnitus or residuals of a shrapnel wound of the right hand. Evidence received by VA after March 1996 consists of VA hospital reports dated from July to November 1993, an August 1997 statement from Dr. Gentry, records received in April 1999 from Regional West Medical Center, a June 1999 statement from Dr. Brausch, and statements by and on behalf of the appellant. The medical evidence received after March 1996 primarily involves the veteran's hospitalization and treatment for lung cancer. It includes no medical evidence suggesting that the pneumonia or lung cancer was present in service or until many years thereafter or suggesting that either disorder was etiologically related to service or service-connected disability. Therefore, it is no material. The statements by and on behalf of the appellant express her belief that the veteran's death was related to service. Lay assertions of medical causation cannot serve as a predicate to reopen a claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Consequently, the appellant's claim is not reopened. ORDER DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are denied. New and material evidence not having been received, reopening of the claim for service connection for the cause of the veteran's death is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals