BVA9402569
DOCKET NO.  91-44 605     )       DATE
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THE ISSUES

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

2.  Whether the income of the veteran's spouse is excessive for the
receipt of death pension benefits.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United
States

ATTORNEY FOR THE BOARD

Michael E. Kilcoyne, Associate Counsel

INTRODUCTION

The veteran had active military service from November 1940 to July
1945.  The appellant is the veteran's widow.

The matter with respect to the issue concerning the cause of the
veteran's death came before the Board of Veterans' Appeals (Board) on
appeal from a March 1991 decision by the St. Petersburg, Florida
regional office (RO).  The matter concerning whether the appellant's
income is excessive for receipt of death pension benefits stems from
an April 1991 decision by the RO.  A notice of disagreement with
respect to these decisions was received in July 1991 and a statement
of the case regarding the issue of service connection for the cause
of the veteran's death was issued that same month.  A statement of
the case concerning the second issue on appeal was forwarded to the
appellant in August 1991.  A substantive appeal with respect to both
issues was received in September 1991 and the case was received and
docketed at the Board in October 1991.  In February 1992, the Board
Remanded the case to the RO for additional development.  A
supplemental statement of the case was issued in December 1992 and
the case was again received at the Board in May 1993.  Thereafter,
the case was referred to the Veterans of Foreign Wars of the United
States which is representing the appellant.  A representative from
that organization submitted additional written argument in July 1993.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant essentially contends that the veteran had a psychiatric
disorder as a result of his service which ultimately led to his
death.  She also argues that she should be entitled to a widow's
pension by virtue of the veteran's service and her current level of
income.  The appellant's representative has requested that the claims
folder be referred to a medical official for an opinion on whether
the veteran was suffering from a service connected psychiatric
disorder at the time of his death.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file.  The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim.  Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the claim for service
connection for the cause of the veteran's death and that with respect
to the pension claim, that the appellant has not met the initial
burden of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well grounded.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of
the appeal has been obtained by the RO.

2.  The veteran died in January 1991 by reason of tonsil, head/neck
squamous cell cancer and cardiopulmonary arrest.

3.  At the time of his death, the veteran was service connected for
residuals of a gunshot wound of the left shoulder and muscle group I,
rated 30 percent disabling; left brachial plexitis, rated 30 percent
disabling; and malaria rated noncompensably disabling.  His combined
service connected disability rating was 50 percent.

4.  Carcinoma was not shown until many years after the veteran's
separation from service.

5.  The veteran's service connected disorders played no significant
role in his death.

6.  The appellant's annual income was well in excess of $8,000 at the
time she filed her claim; medical expenses were less than $2,000.

CONCLUSIONS OF LAW

1.  Carcinoma was not incurred in or aggravated by service, nor may
it be presumed to have been incurred in service.  38 U.S.C.A.
§ § 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. § § 3.307,
3.309 (1993).

2.  A service-connected disorder did not cause or contribute
substantially or materially to cause the veteran's death.  38
U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.312 (1993).

3.  The appellant has not submitted evidence of a well-grounded claim
with respect to the question of entitlement to receipt of death
pension benefits.  38 U.S.C.A. § § 1541, 5107 (West 1991); 38 C.F.R.
§ 3.272 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Cause of Death

With respect to the appellant's claim for service connection for the
cause of the veteran's death, we find that it is well grounded.  It
is plausible that a service connected disorder caused or contributed
substantially and materially to cause the veteran's death.  In
addition, we are satisfied that all relevant facts have been properly
developed.

The record shows that the veteran died in January 1991 at a private
hospital.  The certificate of death reveals that the immediate cause
of death was tonsil head/neck squamous cell cancer and
cardiopulmonary arrest.  No autopsy was performed.  At the time of
his death, the veteran was service connected for residuals of a gun
shot wound of the left shoulder and muscle group I, rated 30 percent
disabling; left brachial plexitis, rated 30 percent disabling and
malaria rated noncompensably disabling.  His combined service
connected disability rating was 50 percent.

Under applicable law, service connection may be granted for
disability resulting from disease or injury which was incurred in or
aggravated by service.  38 U.S.C.A. § 1110.  Service connection for
cardiovascular disease or carcinoma may be presumed if it became
manifest to a degree of 10 percent disabling during the veteran's
first year after separation from service.  38 U.S.C.A. § § 1101,
1112, 1113 (West 1991); 38 C.F.R. § § 3.307, 3.309 (1993).  The death
of a veteran will be considered as having been due to a service-
connected disability when the evidence establishes that such a
disability was either the principal or a contributory cause of death.
In determining whether the service-connected disability contributed
to death, it must be shown that it contributed substantially and
materially; that it combined to cause death; that it aided or lent
assistance to the production of death.  It is not sufficient to show
that it casually shared in producing death, but rather, it must be
shown that there was a causal connection.  38 U.S.C.A. § 1310;
38 C.F.R. § 3.312.

With respect to the carcinoma which is listed as the cause of the
veteran's death on the death certificate, the veteran's service
medical records reveal no complaints or findings indicating any such
condition.  The report of the examination conducted at the time of
the veteran's enlistment in November 1940, revealed that his head,
skin and chest were considered normal.  The report of the service
separation examination dated in July 1945 revealed that there were no
abnormalities of the ear, nose or throat.  Similarly, the report of a
VA examination conducted in 1948, the first medical record in the
claims folder dated after service, shows that the veteran's throat
was clear.  We also note that in the initial claim for benefits
submitted by the veteran in January 1948, he did not mention
carcinoma.  The first piece of evidence which shows this condition is
a medical record dated in the 1980's, more that 30 years after the
veteran separated from service.  Medical records dated thereafter
show that the veteran received periodic treatment for various forms
of cancer including the one which eventually brought about his death.
Significantly, however, none of these records relate this condition
to service or to any of the veteran's service connected disabilities.
For example, VA outpatient treatment records dated in August 1988,
reveal a history of cancer of the head and neck with dissection, but
there is no mention of the etiology of this condition.  VA hospital
records from Miami, Florida, dated in September 1990, show that the
veteran had a history of squamous cell carcinoma of the floor of the
mouth, status post resection in 1985; a recurrence in 1988 and at the
time of the hospitalization, squamous cell carcinoma of the right
upper lung lobe.  However none of these conditions were attributed to
service or to a service connected disability.  The final hospital
summary from Holy Cross Hospital in Fort Lauderdale, Florida on which
is entered a diagnosis of right squamous cell carcinoma of the
tonsil, also fails to show that the cause of death was considered to
be in any way related to service or to a service connected
disability.  Accordingly, the evidence fails to present a basis upon
which service connection for tonsil head/neck squamous cell cancer
may be granted on a either a direct or presumptive basis.  In the
absence of a basis for granting service connection for carcinoma,
entitlement to service connection for the cause of the veteran's
death as due to a service connected disorder is not warranted.

Moreover, the record does not show that the disorders for which the
veteran was service connected, contributed in any to the veteran's
death.  His service connected disabilities were not mentioned in his
last medical records (other than by way of history, noting that the
veteran was shot during World War II), nor has it been shown that
they prevented any appropriate treatment for the veteran's fatal
conditions.  The presence of malaria had not been documented for many
years and there is no medical evidence on file to show that malaria
was involved in the veteran's death.  The remaining service connected
disabilities were of musculoskeletal or neurologic nature with
nothing in the record to suggest that they were involved in the
veteran's death.  Thus, we conclude that a service connected disorder
did not contribute to the veteran's death.

In reaching our conclusion, we have also considered the appellant's
contention that the veteran should have been service connected for a
psychiatric disorder and that this disorder contributed to his death.
We note however, that the veteran's service medical records do not
show any complaints or findings of a psychiatric disorder.  The
service entrance examination report showed that the results of a
neuro-psychiatric examination were normal and the service separation
examination report revealed a normal psychiatric diagnosis.  In
addition, the veteran's initial claim for benefits, submitted in
1948, does not set forth any psychiatric disability and the VA
examination report dated in that year did not include any abnormal
mentality findings.  Following a VA examination in 1961, the veteran
was diagnosed to have anxiety reaction, but this was many years after
service.  Similarly, the veteran was diagnosed to have a
psychoneurosis in 1971 and depressive reaction in 1980, (see Broward
General Medical Center records dated in those years) but this was
decades after he separated from service.  The veteran was never
diagnosed to have post traumatic stress disorder as a result of his
military service.  Moreover, in the years immediately preceding his
death, the records do not show treatment for any psychiatric disorder
and the final hospital discharge summary prepared at the time of the
veteran's death, makes no mention of any psychiatric disorder.  The
veteran was described in the final hospital discharge summary and
death summary as obtund and disoriented, but this was not attributed
to any psychiatric disorder and there were no psychiatric diagnoses
entered in the veteran's records at that time.  In view of this, we
conclude that a basis upon which to grant service connection for a
psychiatric disorder has not been presented.  Accordingly, the
appellant's contention that a service connected psychiatric disorder
caused disability which led to the veteran's death is unfounded.  The
only evidence supporting this conclusion is the appellant's opinion.
We note, however, that she is not a physician and therefore is not
competent to give a credible opinion on a medical question such as
this.  The United States Court of Veterans Appeals has held that lay
persons cannot provide testimony where an expert opinion is required.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).  Further, an opinion as
to whether the veteran was suffering from a psychiatric disorder at
the time of death would be of no probative value as to the ultimate
outcome is this case.  In view of that and the absence of any other
evidence showing that a service connected disorder played any role in
the veteran's death, service connection for the cause of the
veteran's death is not warranted in this case.

II. Pension

With respect to the issue regarding pension, the threshold question
to be answered is whether the appellant has presented a well-grounded
claim.  If she has not, her appeal must fail.  38 U.S.C.A. § 5107;
Murphy v. Derwinski, 1 Vet.App. 78 (1990).  We find that this claim
is not well grounded and there is, therefore, no further duty to
assist her in the development of that claim.

Pursuant to 38 U.S.C.A. § 1541, a surviving spouse of a veteran of a
period of war or who at the time of death was receiving compensation
for a service-connected disability, (as is the case of the
appellant), shall be paid a pension at a prescribed rate.   At the
time the appellant submitted her claim in February 1991, the rate at
which pension could be paid was at a maximum annual rate of $4,780.
See 38 C.F.R. § 3.23(a)(5) and M21-1, appendix B.  However, this law
also provides that the amount of payment shall be reduced by the
amount of the surviving spouse's annual income.  Therefore, if the
appellant's annual income is in excess of the maximum annual rate at
which pension could be paid, she would not be entitled to pension
benefits.

In connection with her claim, the appellant initially advised the RO
that her monthly income was $419 from Social Security, or $5,028 per
year.  This information was revised in April 1991, when the appellant
informed the RO that her monthly income was $434 from Social Security
and $307 from civil service retirement.  This resulted in an annual
income of $8,892.  She revised this information again in August 1991
when she submitted a VA Form 21-0518-1 (Improved Pension Eligibility
Verification Report).  At that time she reported her monthly income
from Social Security was $432 and that her monthly civil service
retirement pay was $344.  This results in annual income of $9,312.
As this amount is in excess of the maximum annual rate at which
pension could be paid, entitlement to pension benefits is not
warranted.

However, in considering entitlement to pension, there are regulatory
provisions which permit certain exclusions from the calculation of
income.  Pursuant to 38 C.F.R. § 3.272(g)(2), the surviving spouse's
unreimbursed medical expenses well be excluded from income if they
were or will be in excess of 5 percent of the applicable maximum
annual pension rate for the spouse.  Under 38 C.F.R. § 3.272(h),
amounts paid by a surviving spouse of a veteran for the veteran's
last illness and burial which are paid during the calendar year
following that in which death occurred may be deducted from annual
income for the 12 month annualization period in which they were paid
or from annual income for any 12 month annualization period which
begins during the calendar year of death, which ever is to the
claimant's advantage.  Otherwise, such expenses are deductible only
for the 12 month annualization period in which they were paid.

On VA Form 21-8049, (Request for Details of Expenses), signed by the
appellant in April 1991, it was indicated that she had $100 recurring
monthly medical expenses.  On the VA Form 21-0518-1 that she signed
in July 1991, it was indicated that she had $239.62 of unreimbursed
medical expenses.  The total of these expenses on an annual basis is
$1,439.62.  This amount is in excess of 5 percent of the maximum
annual pension rate at the time the appellant submitted her claim in
1991, by $1,200.62.  (4780 x .05 = 239; 1439.62 - 239 = 1200.62.)
Therefore, she may deduct $1,200.62 from her annual income amount of
$9,312 leaving $8,111.38.  The total amount of the expense of the
veteran's last illness and burial as reported by the appellant on VA
Form 21-8049 dated in April 1991 was $957.60.  Subtracting this
amount from the $8,111.38 leaves $7,153.78.  This is clearly in
excess of the maximum annual rate at which pension may be paid.

Because the evidence as submitted by the appellant shows that her
income was excessive for the receipt of pension as the surviving
spouse of a veteran of a period of war, we conclude that she has
failed to submit evidence of a well-grounded claim.  Although we
acknowledge the appellant's contentions that she believes she should
be entitled to this pension, her income exceeds the limitations
prescribed by the law which we are bound to apply.

ORDER

Service connection for the cause of the veteran's death is denied.

The appellant's income is excessive for receipt of death pension and
her appeal is denied.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

          D. W. DATLOW, M. D.                 I. S. SHERMAN

          *
          (Member Temporarily Absent)

*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel.  The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988.  Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.