Citation Nr: 0004120 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-10 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. 3. Entitlement to service-connected VA burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alberto H. Zapata, Counsel INTRODUCTION The veteran served on active duty from January 1952 to December 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant was afforded a personal hearing before the undersigned Member of the Board via videoconference in June 1999. At that hearing, the appellant submitted substantial medical and other evidence pertinent to her claims on appeal. Given that a signed waiver of RO consideration of the new evidence was submitted with this material, referral of this evidence to the RO for issuance of a supplemental statement of the case is not required. See 38 C.F.R. § 20.1304(c) (1999). In a VA Form 9 submitted in March 1998, the appellant expressed disagreement with what she identified as a denial of accrued benefits. The record reflects that in its July 1997 rating decision, the RO deferred consideration of the accrued benefits claim. In May 1998, the RO informed the appellant that her March 1998 VA Form 9 was not accepted as a notice of disagreement with respect to the accrued benefits issue since the RO had not decided this issue until after the notice of disagreement was received. She was told that she would be informed in a separate letter of the disposition of her accrued benefits claim. In a May 1998 rating decision, the appellant's claim for accrued benefits was denied. She was informed of this decision and of her appellate rights in June 1998. No subsequent written communication addressing this issue has been received from the appellant or her representative. Therefore, the Board has concluded that the appellant is not currently seeking appellate review with respect to this issue. The Board further notes that the issue of entitlement to non service-connected burial benefits is raised by the appellant's statements and the evidence of record. This issue has not been adjudicated by the RO. Therefore, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The claims for service connection for the cause of the veteran's death is not plausible, service-connected burial benefits and basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code are not plausible. 2. No complex or controversial medical question has been presented in this appeal. CONCLUSIONS OF LAW 1. The appellant's claims for service connection for the cause of the veteran's death, service-connected burial benefits and basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. An opinion from an independent medical expert is not warranted. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 of death, or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that is causally shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Service incurrence of a malignant tumor may be presumed under certain circumstances if it is manifested to a compensable degree within one year after a veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). For the purposes of educational assistance under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. See 38 C.F.R. § 3.807(a) (1999); see also 38 U.S.C.A. §§ 3501, 3510 (West 1991); 38 C.F.R. § 21.3021 (1999). Payment of burial expenses may be authorized if the veteran died as the result of a service-connected disability. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(a) (1999). As a preliminary matter, the Board must determine whether the appellant has presented evidence of well-grounded claims, that is, whether she has presented claims that are plausible and meritorious on their own or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). 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 at 92; Tirpak at 610-11. 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. If the claimant has not submitted evidence of a well-grounded claim, the claim must fail, and VA has no duty to assist in the development of the claim. See Epps, supra; Caluza v. Brown, 7 Vet. App. 498, 504 (1995). At her June 1999 videoconference hearing before the undersigned Member of the Board, the appellant testified that the veteran suffered from multiple disabilities prior to his death, including colon cancer, venereal disease, coccidioidomycosis (San Joaquin Valley Fever), skin cancer, exposure to toxic chemicals (including Agent Orange), heart disease, and rheumatoid arthritis. She testified that it was her belief that these disabilities were directly related to the veteran's military service. She also testified that the veteran had been a prisoner of war during his military service in the Korean War and that he suffered combat injuries. The appellant also testified that the veteran had a tumor removed from his neck region during service and that this tumor was etiologically related to the veteran's terminal disease process: colon cancer. The veteran's death certificate states that he died on January [redacted], 1997, and that the immediate cause of his death was aspiration pneumonia due to or as a consequence of colon cancer. No other condition was certified as causing or contributing to the veteran's death. The terminal hospitalization records from the Jackson County Hospital state that the veteran was admitted to the hospital with a history of bloody diarrhea and that subsequent workup revealed a colon malignancy. The terminal report states that the veteran had a cardiopulmonary arrest and most likely aspirated. He was then on a respirator for a period and nonresponsive. His condition continued to deteriorate and the family eventually agreed to allow the veteran to expire. At the time of the veteran's death, service connection was in effect for no disability. The certificate of death and terminal hospital records are the only medical evidence of record addressing the cause of the veteran's death. They establish that the veteran's death was due to the effects of colon cancer. Service medical records are negative for evidence of colon cancer, and there is no post-service medical evidence of record suggesting that the fatal cancer was manifested in service or until decades thereafter. With respect to the appellant's assertions that the veteran had been a prisoner of war and participated in combat, the Board has reviewed the entire record and found no official evidence that the veteran was ever a prisoner of war or combat participant. Similarly, the record is devoid of evidence that the veteran was exposed to Agent Orange. In any event, there is no medical evidence of record suggesting that the veteran's colon cancer was etiologically related to the alleged combat service, prisoner of war service, or Agent Orange exposure in service; and colon cancer is not subject to presumptive service connection on the basis of Agent Orange exposure or status as a former prisoner of war. See 38 C.F.R. § 3.309 (1999). The Board further notes that there is no medical evidence of record suggesting that the colon cancer was etiologically related to a tumor present during service or that it was otherwise etiologically related to service. The evidence of a nexus between the veteran's military service and the cause of his death is limited to the appellant's own statements. As a lay person, she is not qualified to render a medical diagnosis or an opinion concerning medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board must conclude that the appellant's claim for service connection for the cause of the veteran's death is not well grounded. The appellant's claims for service-connected burial benefits and for basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code were premised upon establishing that the veteran's death was service-connected. Therefore, the Board must also conclude that these claims are not well grounded. The Board has considered the representative's request that an opinion be obtained from an independent medical expert; however, no complex or controversial medical question has been presented in this appeal. Therefore, there is no need for the requested opinion. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1999). ORDER Service connection for the cause of the veteran's death is denied. Basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, is denied. Entitlement to service-connected burial benefits is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals