Citation Nr: 0006944 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 96-51 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from January 1944 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision. FINDINGS OF FACT 1. The immediate cause of the veteran's death in January 1996 was gram negative sepsis; conditions leading to the immediate cause of his death were acute respiratory distress syndrome, chronic lymphocytic leukemia, and atrial fibrillation; and bronchitis was a significant conditions contributing to his death. 2. The appellant has presented competent evidence that the cause of the veteran's death was related to the service- connected chronic prostatitis and urethritis. 3. The service-connected chronic prostatitis and urethritis contributed substantially or materially to cause the veteran's death. CONCLUSIONS OF LAW 1. The claim for service connection for the cause of the veteran's death is well grounded. 38 U.S.C.A. § 5107(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303 (1999). 2. Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of the veteran's death, the evidence must show that 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, but, rather, a causal connection must be shown. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The veteran died in January 1996 of gram negative sepsis. The conditions leading to his death listed on the death certificate were acute respiratory distress syndrome, chronic lymphocytic leukemia, and atrial fibrillation. Bronchitis was listed as another condition contributing to the veteran's death but not resulting in the underlying cause of his death. The veteran's death, and the disability listed as its cause, satisfy the first element of a well-grounded claim, as listed above. The United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) has specified that where the claim at issue is service connection for the cause of death, the first element--competent medical evidence of a current disability-- will always be met, as the current disability is by definition the condition that caused the veteran's death. Ramey v. Brown, 9 Vet. App. 40, 46 (1996). The record shows that at the time of the veteran's death, service connection was in effect for chronic prostatitis and urethritis. The appellant contends that the veteran's death was related to his chronic urinary tract infections, renal failure, urinary stricture and prostate surgery. However, the appellant is advised that where the determinative issues involve questions of medical causation or medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Consequently, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 95 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Hence, the appellant's unsubstantiated allegations alone are an insufficient basis on which to establish a well-grounded claim for service connection for the cause of death. In this regard, I note that the appellant has submitted medical statements that satisfy the nexus requirement for establishing a well-grounded claim. For example, an October 1996 statement from J. F. Hensleigh, M.D. is to the effect that veteran's chronic urinary tract infections may have contributed to the veteran's death. Also, a statement from R. G. Patel, M.D. is to the effect that the cause of he veteran's death was sepsis and that the veteran was noted to have urosepsis during the time of his terminal hospitalization. Dr., Patel concluded that the veteran's renal failure and urinary tract infections contributed to the development of sepsis syndrome that resulted in the veteran's death. Accordingly, in the instant case, the appellant has presented a well-grounded claim. Merits. The appellant also prevails on the merits of her claim, as the positive and negative evidence of record is in relative equipoise. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The veteran's death certificate and the terminal hospital records indicate that the veteran died from complications involving multiple systems of his body. The final diagnosis was gram negative sepsis, adult respiratory distress syndrome secondary to bilateral pneumonia and chronic lymphocytic leukemia. In addition the certificate of death lists atrial fibrillation and bronchitis. None of the conditions was present during the veteran's active service. However, the appellant argues that service-connected prostatitis and urethritis contributed substantially and materially to the veteran's death. Statements throughout the claims folder indicate that the veteran had been treated repeatedly for urinary tract infections and prostatitis. For instance, a March 1996 statement from Dr. Hensleigh shows that the veteran had been by treated by him since 1975 for his prostate gland, bladder and kidneys. Moreover, the terminal hospital report shows that the veteran was afforded treatment for a urinary tract infection during his hospital course. Furthermore, the appellant submitted additional evidence after the claim was certified to the Board. The evidence was submitted with a motion for good cause and a waiver of initial review by the RO. The reported "good cause" was that the evidence had not been available previously. 38 C.F.R. § 20.1304 (1999). This additional evidence is a February 2000 medical report from C. N. Bash, M.D. As this opinion was not issued until February 2000, the Board concludes that good cause has been shown for its late submission. Dr. Bash indicated that he had reviewed the veteran's claims folder for the purpose of making a medical opinion as to the cause of the veteran's death. He determined that the veteran's death was likely a direct result of the service- connected prostatitis and urethritis which likely caused his fatal gram-negative sepsis. In reaching this conclusion, the physician noted that: This patient's sepsis very likely came from his prostate or urethra (urinary tract) because he had a chronic history of these infections. I note however, the veteran's terminal hospital records as well as his death certificate indicate that the veteran had some type of respiratory infection that contributed to his death. In response to evidence of other infectious processes, Dr. Bash states: Additionally, this patient had two normal chest x-rays...there fore (sic) his chest was not the likely source of his infection which caused his sepsis. Furthermore, '...Urinary tract infection is the most common source of bacteremia produced by gram negative bacilli...' (Mandell page 669), therefore is very likely that this patient's sepsis was caused by his chronic prostatitis because his chest was clear on two occasions, no other source for the infections was identified and his sepsis was of the gram negative type. With respect to the role of lymphocytic leukemia that was also indicated as one of the conditions causing death, Dr. Bash states: The treatment of his sepsis was complicated and difficult due to his chronic lymphocytic leukemia, but had he not had the infectious source (prostate and or urethra) the leukemia would not likely have caused his demise during his last admission. This concept is supported by the literature which states, '...infections [urinary tract infections] can occasionally accelerate the progression of the primary underlining (sic) disease...' (Mandell page 673). On these bases, Dr. Bash concluded: It is my opinion that this patient's likely urinary tract infection caused his demise by acceleration of his primary underlining (sic) disease. Dr. Bash's statement is credible and was based on a review of the veteran's clinical record. In addition, it stands unrefuted by any other medical opinion. Despite the fact that terminal hospital records and the certificate of death indicate that other body systems were identified as the cause of the veteran's death, I note that with respect to the matter of service-connected disability being a contributory cause of the veteran's death, the evidence is in relative equipoise. In view of the foregoing, the appellant is afforded the benefit of the doubt and service connection is established for the cause of the veteran's death. ORDER Service connection for the cause of the veteran's death is granted. MARY GALLAGHER Member, Board of Veterans' Appeals