Citation Nr: 0005675 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-05 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991) resulting from alleged improper care for a hypertensive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran had active military service from February 1943 to January 1946. He died on August [redacted], 1995. The appellant is the surviving spouse of the deceased veteran. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1997 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the appellant and her son appeared at a hearing before the undersigned Member of the Board on November 17, 1999. A transcript of that hearing has been associated with the record on appeal. It is noted that a VA Form 646 was not filed by the appellant's local American Legion representative in connection with this appeal after a reasonable amount of time was allotted to do so. See VA Form 8, dated December 30, 1998. The representative did, however, appear along with the appellant and her son at the aforementioned Travel Board hearing in November 1999. Consequently, the Board will proceed to a disposition of the case. FINDINGS OF FACT 1. The veteran died in August 1995, at the age of 72, due to cerebrovascular infarction. Hypertension was listed as a significant condition contributing to death but not resulting in the underlying cause of death. 2. At the time of his death, the veteran did not have a disability recognized by VA as causally related to hypertension, cerebrovascular infarction, or any other medical condition treated by VA during his lifetime. 3. The appellant has presented no competent medical evidence linking the cause of the veteran's death to alleged improper care provided by VA for his hypertensive disorder, including the administering of Norvasc in 1994-95. CONCLUSION OF LAW The claim for DIC benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991), based on alleged improper care for a hypertensive disorder, is not well grounded and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5107(a), a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim of entitlement to service connection is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Establishing a well-grounded claim for service connection generally requires (1) medical evidence of a current disability, which in a cause of death case is always met (the current disability being the condition that caused the veteran to die, see Ramey v. Brown, 9 Vet. App. 40, 46 (1996)), (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence of a nexus between the asserted in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is generally required for the claim to be well grounded. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). However, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. 78, 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit, 5 Vet. App. 91, 92-93. For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. 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 (1999). 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). 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). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. With respect to claim on appeal for DIC benefits based on improper medical care, it is noted that 38 U.S.C.A. § 1151 was amended with the passage of Public Law 104-204, the VA and Housing and Urban Development, and Independent Agencies Appropriations Act of 1997, 110 Stat. 2874, 2926 (Sep. 26, 1996). Section 422(a) of that act amended section 1151 to provide, in effect, that compensation on the basis of disability as a result of VA medical treatment would be payable only where disability was due to fault on the part of VA or an event not reasonably foreseeable. However, the amended provisions of section 1151 are not for application in this case because this claim was filed before October 1, 1997. See VAOPGCPREC 40-97, 63 Fed. Reg. 31623 (1998). Thus, the old version of section 1151 will control the disposition of this appeal. In pertinent part, the version of 38 U.S.C.A. § 1151 that is applicable here provides that in the absence of a veteran's own willful misconduct, additional disability resulting from VA hospitalization, medical or surgical treatment causing injury, or aggravation thereof, shall be compensated as if service connected. With regard to the criteria for "additional disability," the regulatory authority for section 1151 provides the following: (b) Additional disability. In determining that additional disability exits, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. . . . (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under [section 1151] for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b)(1), (2). As to the criteria needed to establish causation, the Board notes that clause (1) of 38 C.F.R. § 3.358(c) provides that it is necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. The United States Court of Appeals for Veterans Claims (the Court) has recently held that the requirements for a well- grounded claim under section 1151 requires (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 hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, U.S.C.A.; and (3) medical evidence of a nexus between the asserted injury or disease and the current disability (or, as in this case, the condition that caused or contributed to the veteran's death within the meaning of 38 C.F.R. § 3.312). See Jones (James) v. West, 12 Vet. App. 460 (1999). The veteran expired on August [redacted], 1995, at the age of 72; the cause of death listed on the death certificate was cerebrovascular infarction with an approximate 5-day interval between onset and death. Hypertension was listed as a significant condition contributing to death but which did not result in the underlying cause. Medical records in the file reflect that he died while an inpatient at the American Legion Hospital after a 5-day period of hospitalization. He had been admitted with left paralysis at which time a computerized tomography (CT) scan showed the possibility of an early infarction in the right middle cerebral artery territory with no evidence of bleed or mass effect or sinusitis. It was also reported at admission that he was a known hypertensive. Follow-up CT scan showed a large infarct involving the right middle cerebral artery with subfascial herniation, not seen on the previous scan. He was transferred to the intensive care unit after this second stroke where his overall condition declined, resulting in his death. The veteran served on active duty during World War II and he was service connected during his lifetime for a shell fragment wound to his right thigh. He was not, however, service connected for any other condition, including hypertension or the cerebral infarction condition that caused his death in August 1995. Further, the record reflects that service connection for the cause of the veteran's death was denied in February 1996. That decision was not appealed and, therefore, is final. Hence, only the section 1151 claim for DIC benefits is presently before the Board for consideration. VA medical records in the file reflect that the veteran had a history of hypertension with treatment provided for same by VA in the 1994-95 time period. Outpatient records corresponding to this treatment reflect that he was initially prescribed Norvasc MGM V (amlodipine besylate 5 mg tab) in October 1994, but that it was increased to a 10 mg tab in April 1995. However, VA discontinued this course of treatment in July 1995 secondary to edema in his right ankle which increased after he started taking the Norvasc. On appeal, the appellant contends that her husband's death in August 1995 was caused by the aforementioned VA-ordered Norvasc medication treatment. Citing a news story seen on television, she stated that the Norvasc medication her husband started taking for his hypertension in October 1994 was possibly linked to strokes and therefore, since he died so soon after taking the Norvasc medication, she felt that his death was caused by this medication. In December 1996, in response to the RO's request for same, a board-certified VA physician in internal medicine reviewed the pertinent records and offered the following medical opinion: The veteran, age 72, was a known hypertensive who has been treated for hypertension with Norvasc MGM V and on 4/19/95 was increased to MGM X daily. On 8/20/95 the veteran's blood pressure responded well to this medication. On August 22, 1995 veteran developed left hemiplegia. C.T. scan showed infarct rt. middle cerebral artery. Appropriate efforts to stabilize condition of veteran were unsuccessful and patient expired 5:30pm 8/[redacted]/95. Norvasc was an appropriate medication for treatment of hypertension and was not a factor in death of veteran. At the appellant's Travel Board hearing in November 1999, she alleged that VA changed the anti-hypertensive medication he had been taking for the past 2-3 years to the Norvasc in 1994 because they didn't have the type of medication he had been taking. She further testified that the veteran's private physician could provide a statement to back up her claim, but the record reflects that notwithstanding a 30-day abeyance to hold the record open for submission of additional evidence or argument, no statement from this physician or any other evidence of argument was submitted by the appellant or her representative. On the basis of the relevant facts in this case, the Board concludes the appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is not well grounded on the basis that there is no medical nexus- evidence showing a relationship between the cause of the veteran's death and treatment provided by VA for his hypertension. Jones (James) v. West, 12 Vet. App. 460 (1999). As detailed above, there is no competent medical evidence of record which supports an etiological relationship between the medication treatment provided the veteran during his lifetime for his hypertension and the cerebral infarctions that led to his death in August 1995. Indeed, the only medical-nexus type evidence of record is against this claim, as reflected by the above-cited VA medical opinion of December 1996. Moreover, as the medical treatment records themselves provide no nexus-type evidence, the claim of service connection for the cause of the veteran's death under the auspices of 38 U.S.C.A. § 1151 is not well grounded. In summary, no medical evidence of record links the veteran's cerebral infarction that caused his death in August 1995 to hypertension or medical treatment provided for same during his lifetime. The appellant was provided an opportunity to submit medical-nexus evidence, but has not done so. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996) (with respect to medical nexus for well groundedness, the claimant must supply objective medical evidence to support claim); cf. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (presentation of well-grounded claim triggers necessity to seek medical evidence to verify or not verify claim provided, medical evidence already of record supports claim on the nexus question). In this regard, the Board further finds that her reference to the news story on the link between certain anti-hypertensive medications and strokes is entirely too general to constitute medical evidence for purposes of this claim. See e.g. Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (medical treatise citation or equivalent evidence that contains only a generic information regarding a "possible link" between two medical conditions does not satisfy the nexus element of a well-grounded claim). The Board does not wish to imply that the appellant's contentions are not credible, but reliance on her contentions alone could only be done by the Board's acceptance of (1) mere conjecture as to the actual relationship between the cerebral infarctions that caused the veteran's death in August 1995 and the medications he was taking for his hypertension through July 1995 and (2) a layperson's opinion to provide the necessary link between alleged improper care for his hypertension by use of the Norvasc prescribed by VA and the cause of his death. As detailed above, the relevant caselaw requires that the "link" must be satisfied by competent medical evidence. In this case, unfortunately for the appellant, there is none. The Board would like to reiterate that it has carefully and compassionately considered the appellant's contentions, hearing testimony and statements on appeal; however, as previously stated, her lay contentions alone cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) with respect to evidence of a nexus between the asserted injury or disease and the condition that caused or contributed to the veteran's death within the meaning of 38 C.F.R. § 3.312. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). With respect to these contentions, it is not shown by the evidence that the appellant has the requisite medical expertise or training to render a competent medical opinion on the cause of the veteran's death. On the basis of the above findings, the Board can identify no basis in the record that would make this claim plausible or possible. 38 U.S.C.A. § 5107(a) (West 1991); see Grottveit at 92, Tirpak, at 610-11; and Murphy at 81. Where the appellant has not met this burden, the VA has no further duty to assist her in developing facts pertinent to her claim, including no duty to solicit a medical opinion. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his or her application. This obligation depends on the particular facts of the case and the extent to which the claimant has been advised of the evidence necessary to well ground a claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the Board finds that VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete her application for VA benefits. Nothing in the record suggests the existence of evidence that is available which might well ground this claim. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained) and Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). Accordingly, the Board must deny the appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991), based on alleged improper care for a hypertensive disorder, as not well grounded. The Board acknowledges that it has decided the present appeal as to this issue on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the appellant has not been prejudiced by the decision herein. The Board has considered the same law and regulations. The Board merely concludes that the appellant did not meet the initial threshold evidentiary requirements of a well-grounded claim under the standards set forth in Jones, 12 Vet. App. 460 (1999). The result is the same. ORDER The appellant having failed to submit a well-grounded claim, the claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991), based on alleged improper care for a hypertensive disorder, is denied. A. BRYANT Member, Board of Veterans' Appeals