BVA9501955 DOCKET NO. 93-07 230 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant is the widow of a deceased World War II veteran. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1992 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs Regional Office (VARO). The undersigned notes that the appellant has filed a claim under 38 U.S.C.A. § 1541 for death pension benefits. See Statement in Support of Claim, VA Form 21-4138 (January 15, 1992). Since this claim is not in appellate status at this time it will not be considered on appeal by the Board; however, the claim is referred to the agency of original jurisdiction for appropriate development and adjudication. The Board will now proceed to consider the claim which is presently certified for appeal. See Certification of Appeal, VA Form 1-8 (October 20, 1992). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that dependency and indemnity compensation (DIC) benefits should be granted to her on the basis of her husband's alleged service-connected death. 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(s). 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 has not met her statutory duty of submitting evidence sufficient to justify a belief that her claim for service connection for the cause of the veteran's death is well-grounded. FINDINGS OF FACT 1. The veteran served on active duty from June 1942 to September 1945. 2. The veteran expired on December 31, 1991; the immediate cause of death, as noted on the death certificate dated January 2, 1992, was pulmonary edema due to left ventricular heart failure, end stage, due to atherosclerotic heart disease. The other significant condition which caused his death was diabetes mellitus. 3. The appellant is the widow of the veteran. 4. The evidence of record fails to show that any disability of service origin has been etiologically related to the cause of the veteran's death, or that a service-connected disability contributed materially or substantially to his death. CONCLUSION OF LAW The appellant has not presented a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board must first determine whether the appellant has submitted evidence which is sufficient to justify a belief that this claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a "plausible claim, one which is meritorious on its own or is capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record 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 (1993). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (1993). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1) (1993). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. During the veteran's lifetime, service connection was in effect for residuals of a shell fragment wound to his left foot, rated noncompensably disabling from August 29, 1973. As indicated above, the evidence of record must show that a service-connected disorder either caused or substantially or materially contributed to the veteran's death. In this instance, therefore, it must be shown that the veteran's heart disease which caused his death was incurred in or aggravated by service or that his service- connected disabilities contributed substantially and materially to cause his death. However, review of the record reveals no evidence that the veteran's heart disease which caused his death is in any way related to service. The record discloses that the veteran was awarded service connection in 1974 for residuals of a shell fragment wound to his left foot. His available service records reflect that he was awarded the Purple Heart in connection with the aforementioned shrapnel wound while serving in France on January 16, 1944. These records show no complaints, findings, treatment or diagnosis of any cardiovascular diseases. The post service medical evidence reveals only that the veteran was examined by VA in October 1973 and June 1974 in connection with the evaluation of his service-connected shrapnel wound. Pertinent findings on those examinations failed to reveal any abnormal cardiac pathology. There is no other evidence of record which shows that the veteran was treated for a cardiovascular disease in the years soon after service. More importantly, there is no medical evidence of record which shows that the veteran was treated after service for the heart condition which caused his death nearly half a century later. The veteran did have diabetes mellitus; but there is no evidence linking this disease with his period of service. Since there is no objective medical evidence whatsoever linking the veteran's death to an in-service event or occurrence, or which shows any ratable disability of service origin which contributed materially or substantially to his death, the claim presented is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (lack of evidence of the claimed disability existing since service). The evidence of record does not show a history or diagnosis of the heart condition which caused the veteran's death until many years after service. Moreover, there is no medical evidence of record which links his service-connected shrapnel wound to his heart condition. The appellant's contentions of record are of insufficient probative value so as to be dispositive of the issue presented on appeal. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (holding that the Board is not required to entertain unsupported lay speculation on medical issues). As the instant claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. See Boeck v. Brown, 6 Vet.App. 14 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993). In fact, purported adjudications of claims which are not well grounded are a nullity in contemplation of law. Grivois v. Brown, 6 Vet.App. 136 (1994). In the opinion of the Board, dismissal of this appeal on the basis of lack of a well grounded claim does not prejudice the appellant. See Bernard v. Brown, 4 Vet.App. 384 (1993). Dismissal of the appeal and vacation of VARO's rating action of April 1992 will preclude the more restrictive application of VA "finality" law and regulations should the appellant desire to attempt to "reopen" her claim for benefits in the future. ORDER Having found the claim not well grounded, the appeal of service connection for the cause of the veteran's death is dismissed and the VARO rating action of April 1992 from which this appeal arose is vacated. KENNETH R. ANDREWS, JR. 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.