Citation Nr: 0004638 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-49 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to compensation for residuals of head trauma under 38 U.S.C.A. § 1151 for accrued benefits purposes. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 to April 1966. He died in October 1995. The veteran's widow is the appellant in the instant appeal. This appeal arises from a November 1995 rating decision of the San Juan, Puerto Rico, Regional Office (RO) that denied service connection for the cause of the veteran's death. In a March 1996 rating decision, the RO denied a claim for compensation for brain paralysis residuals under 38 U.S.C. § 1151 for accrued benefits purposes. In March 1998, the RO denied compensation under 38 U.S.C. § 1151 for residuals of head trauma for accrued benefits purposes. The Board of Veterans' Appeals notes that in October 1995, when filing for benefits, the appellant indicated that she was "interested in continuing the [veteran's service- connected] claim and in receiving all accrued benefits in this case." Prior to his death, in June 1995, the veteran had also filed a claim seeking service connection for post- traumatic stress disorder, but no further action was taken with regard to that claim. See Landicho v. Brown, 7 Vet. App. 42 (holding that veteran's compensation claim did not survive his death). It is not clear whether the appellant is seeking accrued benefits on the basis of this claim. Accordingly, this matter is referred to the RO for consideration in the first instance, as appropriate. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of the appellant's claims has been obtained. 2. In May 1994, the veteran suffered an epileptic seizure while waiting in a Department of Veterans Affairs (VA) pharmacy waiting area and suffered head trauma requiring a craniotomy. 3. Following the craniotomy performed to treat the head trauma and its consequences, the veteran suffered left hemiparesis, which resolved by the time of his hospital discharge. 4. The veteran died in October 1995 due to sepsis, renal failure, respiratory failure, and perforated diverticuli. 5. The appellant has not presented evidence that the veteran died as a result of a service-connected disability or that the diseases producing death are due to service. 6. The appellant has not presented evidence that she is entitled to accrued benefits based on the veteran's head trauma residuals as a result of VA medical treatment. CONCLUSIONS OF LAW 1. A claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. §§ 1110, 1310, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.312 (1999). 2. A claim for accrued benefits for residuals of head trauma due to VA medical treatment or care is not well grounded. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reviewing each of the appellant's claims, the Board must first consider whether the claims are well grounded. Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), "a person who submits a claim for benefits administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." A well-grounded claim is "a plausible claim, one that is meritorious on its own or capable of substantiation." Robinette v. Brown, 8 Vet. App. 69, 73-74 (1995); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The truthfulness of evidence is presumed for purposes of determining if a claim is well grounded. Robinette, 8 Vet. App. at 75-76; King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). The Court has further held that "[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is ordinarily required to fulfill the well- grounded-claim requirement of section 5107(a)." Edenfield, 8 Vet. App. at 388 (emphasis added). If the claimant has not presented a well-grounded claim, then the appeal fails as to that claim, and the Board is under no duty under 38 U.S.C.A. § 5107(a) to assist the claimant any further in the development of that claim. Epps, 126 F.3d at ; Murphy, 1 Vet. App. at 81. Cf. Morton v. West, 12 Vet. App. 477 (July 14, 1999) (VA cannot assist a claimant in developing a claim which is not well grounded). 1. Service connection for the cause of the veteran's death Determining whether a claim is well grounded requires consideration of the pertinent statutes and regulations. Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (1999); see 38 U.S.C.A. § 1310 (West 1991); see also 38 U.S.C.A. §§ 1110, 1112 (West 1991) (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b) (1999). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1) (1999). See Johnson v. Brown, 8 Vet.App. 423, 426-27 (1995); see generally Harvey v. Brown, 6 Vet.App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Under principles of direct service connection, compensation is payable to a veteran "[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. . . ." 38 U.S.C.A. § 1110 (West 1991). The issue, therefore, is whether a service-connected disability caused the veteran's death. At the time of the veteran's death, service connection had been established for the following conditions: osteoarthritis of the right ankle, residuals of a fracture of the malleolus (evaluated as 10 percent disabling); osteoarthritis of the left ankle, residuals of a fracture of the malleolus (10 percent disabling); and status post tonsillectomy (noncompensably disabling). The death certificate indicated that the immediate cause of the veteran's death was sepsis, with contributory causes of death of renal failure, respiratory failure, and perforated diverticuli. None of the conditions for which service connection had been established was listed as a cause of death on the death certificate. The appellant argues that the veteran's death was a direct result of injuries incurred in a fall at a VA medical center in May 1994 that was due, in turn, to weakness attributable to his service-connected ankle disabilities. In mid-May 1994, the veteran sought treatment at a VA medical center with complaints of chronic low back pain and a growing abscess on his face. While waiting in the pharmacy area, he had an epileptic seizure and he fell, suffering trauma to his head. He was initially diagnosed as having a right temporal hemorrhagic contusion. Following observation and examination, he underwent a right craniotomy with evacuation of the contusion. On discharge from the VA hospital, the diagnoses were epilepsy, chronic alcoholism, head trauma, and a primary diagnosis of right acute subdural hematoma and intracerebral hemorrhagic contusion. The appellant states that the veteran had never suffered epileptic seizures or memory loss prior to the fall. However, as will be discussed below, in the section regarding the claim for accrued benefits based on residuals of head trauma, medical records contemporary with the May 1994 injury and subsequent surgery and treatment indicate that the veteran had suffered seizures prior to the May 1994 fall. Significantly, there is no indication whatsoever from the evidence of record that there was any relation between any in-hospital fall and the causes of death (sepsis, renal failure, respiratory failure, and perforated diverticuli). The appellant's argument is weakened by several factors. First, her argument that the veteran fell because of his service-connected ankles is not supported by the record. The medical records indicate that the veteran suffered an epileptic seizure and that he fell as a result, thus suffering trauma to the head requiring surgical intervention. Second, the appellant was not present, nor does she argue that she was present, when the veteran fell. Therefore, unlike in Harvey, 6 Vet. App. at 393-94, the appellant is not testifying as to a sequence of events that she personally observed. Finally, as the appellant lacks the medical training to render an opinion establishing a medical link between the in-hospital fall, its residuals, and the causes of death listed on the death certificate, see Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992), her claim is not well grounded. Nor is service connection warranted for any of the causes of death listed on the death certificate. None of those conditions listed on the death certificate was present during the veteran's active military service. Moreover, the appellant has not presented any competent evidence to suggest that these conditions were related to the veteran's period of active military service. Accordingly, service connection for the cause of the veteran's death is not warranted. 2. Accrued benefits based on residuals of head trauma as a result of VA treatment Turning to the appellant's claim that she is entitled to accrued benefits based on residuals of head trauma attributable to VA treatment or hospitalization, the Board analyzes the pertinent laws and regulations. Accrued benefits are payable to the spouse of a deceased veteran in certain circumstances. Those accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by VA to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death and that have been due and unpaid for no greater than two years. 38 U.S.C.A. § 5121(a) (West 1991 & Supp. 1999) (emphasis added). At the time of the appellant's October 1995 claim, 38 U.S.C.A. § 1151 (West 1991) provided, in pertinent part: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment . . ., and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991). (While that provision was subsequently amended, the amendments apply only to claims filed on or after October 1, 1997. See Pub. L. No. 104-204 § 422(b)(1), (c), 110 Stat. 2926-27 (1996) (found at 38 U.S.C.A. § 1151 note) (subsection (c) nullifying October 1, 1996, effective date set forth in subsection (b)(1)); see also 38 U.S.C.A. § 1151 (Supp. III 1997); Jones v. West, 12 Vet. App 460, 463 (1999) (discussing amendment to section 1151). The appellant filed her claim in October 1995. "Hence, the earlier version of section 1151 . . . is applicable to the instant case and will be the only version hereafter referred to . . . ." Jones, supra; see Boggs v. West, 11 Vet. App. 334, 343-44 (1998).) For section 1151 claims filed prior to October 1, 1996, such as the appellant's claim, a claimant is not required to show an element of fault on the part of VA. See Brown v. Gardner, 513 U.S. 115, 130 (1994) (holding that 38 U.S.C.A. § 1151 did not require claimant to show an element of fault in the VA medical treatment). But see 38 U.S.C.A. § 1151 (Supp. III 1997) (amending this section to requiring some element of fault in the VA medical treatment for all claims filed after October 1, 1996). The Court recently held that a claim under prior section 1151 must, as must all claims, be well grounded, and that such a claim is well grounded when a claimant submits: "(1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of [VA] hospitalization [or] medical or surgical treatment . . . ; and (3) medical evidence of a nexus between that asserted injury . . . and the current disability." Jones, 12 Vet. App. at 464. To determine whether the appellant is entitled to accrued benefits, the Board must review the evidence that was in the file at the time of the veteran's death. When he fell in May 1994, the veteran suffered a severe right temporal contusion with associated hematoma in the tentorium and right subdural hematoma. There also was minimal shift of the midline structures. As a result of the trauma suffered to his head, the veteran underwent a right temporoparietal craniotomy for right subdural hematoma with malasic changes involving portions of the right temporoparietal lobes with associated hydroexvacuo of the temporal and occipital horns of the right lateral ventricle. According to the June 1994 operation report, the veteran tolerated the surgical procedure well and there were no complications. Following this surgery, the veteran was initially unable to move his extremities. This situation improved as he regained the ability to move his extremities during his hospitalization. The veteran also experienced left hemiparesis. However, according to the discharge summary, the left hemiparesis resolved upon discharge from the hospital in early June 1994. In July 1994, the veteran was assessed for residuals of his head trauma. It was noted that the veteran had developed a mild left hemiparesis after the hemorrhagic event. The veteran also complained of disorientation as to place and short memory span. He described falling several times in the shower as well as tingling in his feet and an electric sensation in the plantar aspect of his feet. On examination, there was generalized muscle wasting and marked atrophy. The examining VA physician assesses the veteran as not having any secondary motor deficits attributed to his accident. The physician further opined that decreased peripheral sensation and muscle wasting could be ascribed to a possible alcohol neuropathy. In March 1995, in connection with a VA aid and attendance examination, the veteran stated that he began having seizures after he suffered head trauma as a result of the May 1994 fall at the VA medical center. It was noted that the veteran was receiving two medications for headaches. On examination, the veteran was well nourished and well developed. He was chairridden most of the time and walked with the aid of a walker or Canadian crutches. The diagnoses on this examination included a history of fractured ankles with residuals, degenerative joint disease, presbyopia, history of alcohol dependence, and seizure disorder. In March 1995, the veteran also underwent a VA mental disorders examination. On evaluation for objective findings, the veteran was alert and oriented as to person, place, and time. His mood was anxious and somewhat depressed. His affect was blunted. His attention was good, and his concentration and memory were fair. His speech was clear, coherent, and soft. He did not hallucinate, nor was he suicidal or homicidal. His insight and judgment were fair, and he exhibited good impulse control. The mental disorders diagnoses were alcohol dependence with depressive features. The veteran also underwent a miscellaneous neurological disorders examination in March 1995. On this examination, the veteran indicated that he was not certain when he began having seizures but that he believed that he was already being treated for seizures at the time that he fell in the VA medical center. On objective examination for specific cerebral functions, there was no aphasia, and there was no impairment of the cranial nerves. There was generalized muscle wasting, but normal tone. Generalized weakness was graded as 4/5. On examination of the sensory system, there was diminished pinprick, vibration, and proprioception distally. Testing for deep tendon reflexes revealed absent ankle jerks and no Babinski signs. He was diagnosed with generalized seizure disorder, status post right temporoparietal craniotomy for right subdural hematoma with malasic changes involving portions of the right temporoparietal lobes with associated hydroexvacuo of the temporal and occipital horns of the right lateral ventricle (the May 1994 post-head trauma surgery), and peripheral neuropathy secondary to alcohol intake. The veteran's and the appellant's statements that the veteran began suffering seizures as a result of the May 1994 incident do not assist the appellant in the prosecution of her claim. First, the veteran and the appellant's statements to this effect, absent medical support, are not competent evidence on a matter requiring knowledge of principles of medical causation. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993); Espiritu, 2 Vet. App. at 494. Second, statements that the veteran's seizures postdated his May 1994 head trauma are inconsistent with statements in May 1994 indicating that the veteran had a history of seizures and of epilepsy prior to the fall. Indeed, on a May 1994 Report of Special Incident Involving a Beneficiary, a witness, a VA medical clerk, indicated that the veteran was on the floor with an "apparent epileptic episode." (The Board also notes a prior history of seizures and falls due to alcohol withdrawal in January 1991.) Additionally, the veteran's and the appellant's statements relate to the veteran's fall, not to the residuals of any surgery (i.e., the VA medical treatment that would form the basis for a claim under 38 U.S.C.A. § 1151). Indeed, prior to the veteran's death, while he was seeking service connection for "brain paralysis" due to the May 1994 fall, he characterized the event as "an accident." This statement by the veteran indicates that he was arguing that any residuals were attributable to the fall itself, not to the ensuing remedial VA surgical intervention. The appellant has not presented any evidence that the veteran suffered a diagnosed residual disability as a result of the head trauma. Moreover, and more significantly for purposes of this claim, the appellant has not presented evidence that the veteran suffered any residual disability as a result of VA medical treatment or care. Cf. Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993) (to be compensable under section 1151, any injury or aggravation of an injury must result from examination itself, "not from the process of reporting for the examination"). In Sweitzer, the United States Court of Appeals for Veterans Claims stated: "The statute [section 1151] does not address disabilities that are merely coincidental with the receipt of VA treatment or which are the result of actions by the claimant, i.e., applying for or seeking hospitalization, treatment, or examination." Ibid. Absent evidence in the file at the time of the veteran's death that he suffered a residual disability and that this disability was the result of VA treatment or care (based on competent medical evidence to that effect), the appellant's claim for accrued benefits is not well grounded. ORDER Service connection for the cause of the veteran's death is denied as not well grounded. Entitlement to accrued benefits under 38 U.S.C.A. § 1151 for residuals of head trauma as the result of VA hospitalization, treatment, or care is denied as not well grounded. JEFF MARTIN Member, Board of Veterans' Appeals