Citation Nr: 0000626	
Decision Date: 01/10/00    Archive Date: 01/19/00

DOCKET NO.  98-04 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, 
Philippines


THE ISSUE

Entitlement to service connection for the cause of the 
veteran's death.


ATTORNEY FOR THE BOARD

Solomon J. Gully, IV, Associate Counsel


INTRODUCTION

The veteran had recognized service from January 1942 to 
November 1942, and from March 1945 to June 1946.  He was a 
prisoner of war (POW) of the Japanese government from April 
to June 1942.  The veteran died in June 1991, and the 
appellant is his widow.

This matter is currently before the Board of Veterans' 
Appeals (Board) on appeal from an October 1997 rating 
decision of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Manila, Philippines, which denied the 
appellant's claim of entitlement to service connection for 
the cause of the veteran's death.  This case was previously 
before the Board in May 1999, at which time it was remanded 
for additional development.  The case is now, once more, 
before the Board for appellate review.

In the May 1998 remand, the Board referred the issue of 
entitlement to dependency and indemnity compensation benefits 
under the provisions of 38 U.S.C.A. § 1318 to the RO for 
appropriate action.  A review of the claims folder reveals 
that the appellant has not perfected an appeal as to this 
issue.  Consequently, the issue of entitlement to service 
connection for the cause of the veteran's death is the only 
issue that has been properly developed and certified for 
appeal.  Accordingly, the Board will limit its consideration 
to this issue.


FINDINGS OF FACT

1.  All evidence necessary for an equitable adjudication of 
the issue on appeal has been obtained.

2.  The veteran had recognized service from January 1942 to 
November 1942, and from March 1945 to June 1946, which 
included internment as a POW for more than 30 days.

3.  The veteran died in June 1991 at the age of 73; the 
immediate cause of death was listed as cardio-respiratory 
arrest, the antecedent cause being chronic Parkinson's 
Disease, and the underlying cause being senility and 
malnutrition. 

4.  At the time of the veteran's death, service connection 
was in effect for a shrapnel wound of the left shoulder, with 
a metallic foreign body, evaluated as 20 percent disabling, 
and for shrapnel wound scars of the scalp and neck, evaluated 
as noncompensable.

5.  The probative evidence of record does not show that any 
disability incurred in or aggravated by active service was 
the principal or contributory cause of death.


CONCLUSION OF LAW

The diseases that caused the veteran's death were not 
incurred in or aggravated by service, and may not be presumed 
to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 
1112, 1113, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303, 
3.307, 3.309, 3.312 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

Service medical records dated in January 1942 note that the 
veteran sustained multiple small shrapnel wounds of the left 
shoulder, scalp, right ear and neck, which were caused by 
aerial bomb fragments.  These wounds were cleaned with water, 
iodine and alcohol, and a small piece of shrapnel was removed 
from the neck.

Affidavits for Philippine Army Personnel dated in August 
1945, and May 1946 note a history of shrapnel wounds of the 
right ear, neck and head.

The May 1946 separation examination report notes a normal 
heart and respiratory system.  The record is negative for 
complaints or findings of cardiopulmonary disease, 
Parkinson's Disease, senility, malnutrition or 
encephalopatis. 

An April 1956 VA examination report is similarly negative for 
complaints or findings of cardiopulmonary disease, 
Parkinson's Disease, senility, malnutrition or 
encephalopatis. 

A November 1955 private medical statement provides 
information that the veteran was hospitalized with a 
"working diagnosis" of rheumatic heart disease, mitral 
stenosis in May 1949.

A death certificate discloses that the veteran died at age 73 
in June 1991, with the immediate cause of death listed as 
cardio-respiratory arrest, the antecedent cause being chronic 
Parkinson's Disease, and the underlying cause being senility 
and malnutrition. 

At the time of the veteran's death, service connection was in 
effect for a shrapnel wound of the left shoulder, with 
metallic foreign body, evaluated as 20 percent disabling, and 
for shrapnel wound scars of the scalp and neck, evaluated as 
noncompensably disabling.

The appellant filed a claim of entitlement to service 
connection for the cause of the veteran's death in February 
1997.

In support of her claim, the appellant submitted a July 1997 
report from Dr. G.C., the veteran's private physician.  
Therein, the physician reported the veteran's causes of 
death, as listed on the June 1991 Certificate of Death, and 
opined that senility, malnutrition and Parkinson's Disease 
"could have been acquired by [the veteran] during the world 
war."  He explained that encephalopatis of non-Economo 
occurred in the years following the World War II, followed by 
"a syndrome clinically indistinguishable from Parkinson's 
Disease."  He noted that the veteran "had a traumatic 
injury via a foreign body lodged in his cervical area which 
could have caused his Parkinson's Disease."  The physician 
concluded that the veteran's Parkinson's Disease 
"contributed greatly in his being malnourished and early 
senility which eventually led to his death."  

In September 1997 correspondence, the RO requested that the 
appellant ask Dr. G.C. to provide his basis for certifying 
the causes of death listed on the veteran's death 
certificate.  The RO further requested that if the physician 
had ever treated the veteran, he should submit the records of 
that treatment.  Later that month, the appellant submitted a 
second statement from Dr. G.C. reiterating the information 
contained in the July 1997 report.  In a signed statement in 
the comments section of the September 1997 VA Form 21-4142, 
Dr. G.C. again repeated virtually the same identical 
statements made in his earlier reports.  He listed the dates 
of treatment of the veteran as extending from 1989 to the 
date of death.  The physician did not submit any clinical 
records. 

Based on this evidence, an October 1997 rating decision 
denied entitlement to service connection for the cause of the 
veteran's death.  The appellant filed a notice of 
disagreement (NOD) with this decision in December 1997, and 
submitted a substantive appeal (Form 9) in April 1998, 
perfecting her appeal.

In March 1998, the RO advised the claimant that the 
recognized causes of Parkinsonism included postencephalitic 
Parkinson, also previously called von Economo's disease, 
which occurred in a pandemic between 1919 and 1926 and "is 
considered rare today."  The RO further noted that drugs, 
toxins, infections and trauma have been implicated as 
probable causes.  The trauma, however, was in the form of 
pugilistic encephalopathy, or repeated brain trauma such as 
acquired form boxing.  The RO cited as authority Cecil's 
Textbook of Medicine, 19th Edition, pp. 2130-2132 and The 
Merck Manual, 16th Edition, pp. 1495 to 1497.  
 
In June 1998, the RO requested a medical opinion from a VA 
neurologist as to the likelihood that the head and neck 
injuries sustained by the veteran in service resulted in the 
development of Parkinson's Disease.  Following a review of 
the claims folder, Dr. R.J. concluded that "single, isolated 
injuries to the head or neck injuries are not etiologic 
antecedents of Parkinson's Disease."

Based on this evidence, a December 1998 rating decision 
continued the denial of service connection for the cause of 
the veteran's death.

In May 1999, the Board remanded the case for further 
development.  In particular, the Board directed the RO to 
obtain a medical opinion regarding the degree of medical 
probability that a disability due to malnutrition was 
causally related to the veteran's period of service. 

In an August 1999 report, Dr. L.B. notes that the veteran's 
last VA examination in May 1956 revealed that the veteran was 
105 pounds, 62 inches tall, was fairly nourished, and fairly 
developed.  Based on these findings, and a review of the 
claims folder, the examiner determined that malnutrition was 
not evident in May 1956, and that the veteran's malnutrition 
was not causally related to service, including the his 
internment as a POW.  The physician noted that Parkinson's 
Disease was reported as an antecedent cause of death on the 
June 1991 Certificate of Death.  He explained that 
Parkinson's Disease is an idiopathic, slowly progressive, 
degenerative central nervous system disorder with 
characteristic features including slowness, poverty of 
movement, muscular rigidity, resting tremor and postural 
instability.  He related that while the hands, arms and legs 
are most affected by the disease, there may also be 
involvement of the jaw, tongue, forehead and eyelids.  He 
stated that involvement of the muscles of deglutition would 
hamper the veteran's swallowing reflexes, thereby causing 
aspiration of food and difficulty in swallowing, leading to 
malnutrition.  The physician concluded that the progression 
of the veteran's Parkinson's Disease and associated 
intercurrent illnesses caused his demise.

The RO continued the denial of service connection for the 
cause of the veteran's death in September 1999.

Analysis

The threshold question is whether the appellant has presented 
evidence of a well-grounded claim.  The United States Court 
of Appeals for Veterans Claims (known as the United States 
Court of Veterans Appeals prior to March 1, 1999) 
(hereinafter "the Court") has defined a well-grounded claim 
as a claim that is plausible.  In other words, a well-
grounded claim is meritorious on its own or capable of 
substantiation.  If the claim is not well grounded, the 
appeal must fail.  38 U.S.C.A. § 5107(a); Murphy v. 
Derwinski, 1 Vet. App. 78, 81 (1990).  If the appellant has 
not submitted evidence of a well-grounded claim, there is no 
duty to assist her in developing facts pertinent to the 
claim.  38 U.S.C.A. § 5107(a).

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.  For 
a service-connected disability to be the cause of death, it 
must singly, or with some other condition be the immediate or 
underlying cause, or be etiologically related.  For a 
service-connected disability to constitute a contributory 
cause, it is not sufficient to show that it casually shared 
in producing death; rather, it must be shown that there was a 
causal connection.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of a pre-existing 
injury suffered or disease contracted in the line of duty.  
38 U.S.C.A. § 1110.  Service connection may also be granted 
for a disability that is proximately due to or the result of 
a service-connected disease or injury.  See 38 C.F.R. § 
3.310(a).  In order to show that a disability is proximately 
due to or the result of a service-connected disease or 
injury, the appellant must submit competent medical evidence 
showing that the disabilities are causally-related.  Jones v. 
Brown, 7 Vet. App. 134, 137 (1994).

For the purposes of section 1110 of this title, and subject 
to the provisions of section 1113 of this title, in the case 
of any veteran who served for ninety days or more during a 
period of war and a chronic disease becomes manifest to a 
degree of ten percent or more within one year from the date 
of separation from such service, such disease shall be 
presumed to have been incurred in or aggravated by such 
service notwithstanding there is no record of evidence of 
such disease during the period of service.  38 U.S.C.A. § 
1101, 1110, 1112, 1113, 1133 (West 1991); 38 C.F.R. § 3.307, 
3.309 (1999).  Where there is affirmative evidence to the 
contrary, or evidence to establish that an intercurrent 
injury or disease which is a recognized cause of any of the 
disease within the purview of section 1112 of this title, has 
been suffered between the date of separation from service and 
the date of onset of any such diseases, or the disability is 
due to the veteran's own willful misconduct, service 
connection pursuant to section 1112 will not be in order.  
38 U.S.C.A. § 1113 (West 1991).

When a former prisoner of war who was interned or detained as 
such for not less than 30 days incurs avitaminosis, chronic 
dysentery, helminthiasis, malnutrition (including optic 
atrophy associated with malnutrition), pellagra, any other 
nutritional deficiency, psychosis, any of the anxiety states, 
dysthymic disorder (or depressive neurosis), organic 
residuals of frostbite if it is determined that the veteran 
was interned in climatic conditions consistent with the 
occurrence of frostbite, post-traumatic osteoarthritis, 
irritable bowel syndrome, peptic ulcer disease, peripheral 
neuropathy except where directly related to infectious 
causes, beriberi, or beriberi heart disease, to include 
ischemic heart disease in a former prisoner of war who 
experienced localized edema during captivity, to a degree of 
10 percent or more at any time after service, such disease 
shall be presumed to have been incurred in service, even 
though there is no evidence of such diseases during the 
period of service.  These presumptions are rebuttable by 
affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 
1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999).

Where the determinant issue involves a question of medical 
diagnosis or medical causation, competent medical evidence to 
the effect that the claim is plausible or possible is 
required to establish a well-grounded claim.  Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993).  The Court has held that a 
lay party is not competent to provide probative evidence as 
to matters requiring expertise derived from specialized 
medical knowledge, skill, expertise, training, or education.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). 

The Board has carefully reviewed all evidence of record in 
this case set forth below, and has presumed it to be credible 
for the limited purpose of ascertaining whether the claim is 
well grounded.  King v. Brown, 5 Vet. App. 19, 21 (1993).  
Having done so, the Board finds the appellant's claim of 
service connection for the cause of the veteran's death is 
plausible, and therefore is well grounded.  The appellant's 
contention that the veteran's service-connected disabilities 
caused or contributed substantially or materially to cause 
the veteran's death are found to be plausible in light of the 
evidence provided by Dr. G. C.  Thus, the VA has a duty to 
assist the appellant in the development of facts pertinent to 
her claim.  38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 
Vet. App. 78, 81 (1990).  The Board also finds that all 
relevant available evidence has been obtained and that the 
duty to assist the claimant is satisfied.
 
The appellant contends that the veteran's death was related 
to service.  In particular, she maintains that the veteran's 
Parkinson's Disease was related to trauma to his cervical 
spine from a shrapnel wound during service.  She further 
asserts that his malnutrition was related to his internment 
as a POW.  The appellant, as a lay person untrained in the 
field of medicine, is not competent to offer such an opinion.  
Espiritu, 2 Vet. App. at 494-95 (1992).  Therefore, her 
opinion that the veteran's death was related to service, 
including his time as a prisoner of war, is not competent 
evidence.  As stated by the Court, where determinative issues 
involve medical causation or a medical diagnosis, competent 
medical evidence is required.  Grottveit, 5 Vet. App. at 93.

In evaluating the probative value of competent medical 
evidence, the Court has stated, in pertinent part:

The probative value of medical opinion 
evidence is based on the medical expert's 
personal examination of the patient, the 
physician's knowledge and skill in 
analyzing the data, and the medical 
conclusion that the physician reaches. . 
. . As is true with any piece of 
evidence, the credibility and weight to 
be attached to these opinions [are] 
within the province of the adjudicators; 
. . .

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

As stated by the Court, credibility is the province of the 
Board.  It is not error for the Board to favor the opinion of 
one competent medical expert over that of another when the 
Board gives an adequate statement of reasons and bases.  See 
Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The Board has evaluated the medical evidence for and against 
the claim in detail.  The evidentiary assertions made by the 
appellant as a lay party as to medical diagnosis or causation 
are not competent and therefore are not for consideration in 
this context.  

The medical evidence in support of the appellant's claim 
includes opinions from Dr. G.C., and opinions from VA 
examiners in June 1998 and August 1999.  In July 1997, Dr. 
G.C. opined that senility, malnutrition and Parkinson's 
Disease "could have been acquired by [the veteran] during 
the world war."  He noted that the veteran sustained a 
shrapnel wound to the neck during service, and suggested that 
this traumatic injury "could have caused his Parkinson's 
Disease."  In this regard, the Board also notes that the 
physician additionally referred in July 1997 to an epidemic 
of "non Economo" after the "world war" causing a syndrome 
indistinguishable from Parkinson's Disease.  In September 
1997, the physician again referred to the epidemic etiology.  
In examining these statements, however, the Board does not 
find that they purport to link the veteran's specific case of 
Parkinson's disease with his active service during World War 
II on the basis of an epidemic disease acquired in service.  
In his reports, the private physician concluded that the 
veteran's Parkinson's Disease "contributed greatly in his 
being malnourished and early senility which eventually led to 
his death."  Dr. G.C. reiterated these comments without any 
material alteration in two written statements dated in 
September 1997.

While Dr. G.C. generally asserts that trauma to the veteran's 
neck during service could have caused Parkinson's Disease, he 
provided no evidence to support this opinion and has offered 
no supporting rationale.  The claimant was informed that she 
should ask the physician to provide actual records of 
treatment, but no such records were submitted.  Accordingly, 
the Board finds that this opinion is entitled to little 
probative weight. 

The VA examiners who provided medical opinions in June 1998 
and August 1999 reviewed the veteran's entire claims folder, 
including Dr. G.C.'s medical opinion noted above, before 
providing opinions regarding the cause of the veteran's 
death.  In June 1998, Dr. R.J., a VA neurologist, opined that 
"single, isolated injuries to the head or neck injuries are 
not etiologic antecedents of Parkinson's Disease."  This 
specific opinion addressing the facts of the veteran's case 
is also consistent with the general medical principles 
concerning the recognized etiologies of Parkinson's Disease 
cited by the RO in March 1998.  In an August 1999 report, Dr. 
L.B. further determined that the veteran's malnutrition was 
not causally related to service, including the veteran's 
internment as a POW.  Rather, he concluded that the 
progression of the veteran's Parkinson's Disease and 
associated intercurrent illnesses caused his demise.  The 
physician provided a detailed rationale for his medical 
opinion.  He explained that Parkinson's Disease would hamper 
the veteran's swallowing reflexes, thereby causing aspiration 
of food and difficulty in swallowing, leading to 
malnutrition.  The Board finds the rationale of these VA 
opinions to be entitled to great probative weight.

Accordingly, the Board finds that the competent evidence in 
support of the claim is entitled to extremely little 
probative weight.  On the other hand, the evidence against 
the claim is entitled to great probative weight.  The June 
1998 and August 1999 VA opinions clearly support the denial 
of the appellant's claim.

The record in this case is devoid of evidence of cardio-
respiratory arrest, Parkinson's Disease, senility or 
malnutrition prior to the veteran's death in June 1991.  Both 
the May 1946 separation examination, and the April 1956 VA 
examination were are negative for these disorders.  In fact, 
the only medical evidence relating the cause of the veteran's 
death to service comes from Dr. G.C., the veteran's private 
physician.  

The Board has considered the appellant's argument that the 
veteran died as the result of malnutrition incurred while he 
was a POW.  In this regard, the Board acknowledges that under 
the provisions of 38 C.F.R. § 3.309(c), malnutrition will be 
considered service-connected if found at any time after 
discharge or release from active service, even though there 
is no record of such disease during service, provided the 
rebuttable presumption provisions of 38 C.F.R. § 3.307 are 
also satisfied.  It is noted that malnutrition, which is 
listed as an underlying cause of the veteran's death, is one 
of the presumptive diseases for a former POW listed at 38 
C.F.R. § 3.309(c).  However, the August 1999 VA medical 
opinion provides the specific affirmative evidence to the 
contrary that serves to rebut the presumption that the 
disability was incurred as a result of service.  See 38 
C.F.R. § 3.307(d).  In the report, Dr. L.B. expressly found 
that the veteran's malnutrition was related to Parkinson's 
Disease, rather than his internment as a POW.  Further, Dr. 
R.J. explained in June 1998, that the veteran's Parkinson's 
Disease was not caused by trauma from shrapnel wounds in 
service, as Dr. G.C. suggests.  Finally, it appears that Dr. 
G.C. also links the malnutrition to Parkinson's' Disease; the 
physician does not expressly state that malnutrition was 
causally linked to the veteran's period of service.  

The Board has carefully considered the benefit of the doubt 
doctrine in this case.  As currently codified, the law 
defines the "benefit of the doubt" doctrine as:

When, after consideration of all evidence 
and material of record in this case 
before the Department with respect to the 
benefits under the law administered by 
the Secretary, there is an approximate 
balance of positive and negative evidence 
regarding the merits of an issue material 
to the determination in this matter, the 
benefit of the doubt doctrine in 
resolving such issue shall be given to 
the claimant.

38 U.S.C.A. § 5107(b).

The Court has found that, under this standard, when the 
evidence supports the claim or is in relative equipoise, the 
appellant prevails.  However, where the "preponderance of 
the evidence" is against the claim the appellant loses and 
the benefit of the doubt doctrine has no application.  
Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  "A 
properly supported and recent conclusion that the 
preponderance of the evidence is against the claim 
necessarily precludes that the possibility of the evidence 
also being in an approximate balance."  Id. at 58.  
Accordingly, in this case, for reasons cited above, the 
preponderance of the evidence is against the claim.  As the 
preponderance of the evidence is against the claim, the 
benefit of the doubt doctrine is not for application in the 
instant case.  See 38 C.F.R. § 3.102 (1999).


ORDER

Entitlement to service connection for the cause of the 
veteran's death is denied.



		
	Richard B. Frank
	Member, Board of Veterans' Appeals