BVA9403845 DOCKET NO. 92-06 881 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to increased payment of burial benefits based on service-connected death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD V. Jordan, Counsel INTRODUCTION The veteran had active service from March 1943 to November 1945. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of November 1991 from the Reno, Nevada Regional Office (RO). The notice of disagreement was received in January 1992. The statement of the case was issued in January 1992. The substantive appeal was received in February 1992. A supplemental statement of the case was issued in February 1992. The appeal was received at the Board and docketed in May 1992. The appellant is represented by Veterans of Foreign Wars of the United States in this matter. Additional argument was presented in October 1992. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's service-connected disabilities may have been a factor in his death, in that they may have rendered him unable to seek prompt medical treatment or overwhelmed his immune system. It is also argued that fragments from his wounds could have been implanted in his groin or migrated there, resulting in the development of his prostatic cancer. It is suggested that his service-connected disabilities may have adversely affected his concern to look after his own health or masked the signs or symptoms of his cancer, thus preventing earlier treatment. It is further argued that the appellant is entitled to the additional burial benefits paid when the death is due to service-connected disability on the basis of the award of Dependency and Indemnity Compensation (DIC) benefits. 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 appellant'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 the appellant has not met the initial burden of submitting a well- grounded claim for payment of a higher rate of burial benefits. FINDINGS OF FACT 1. The veteran's death in August 1991, many years after service, at the age of 67, was due to prostatic cancer with metastasis to the bone. 2. At the time of the veteran's death, service connection was in effect for residuals of shell fragment wounds, including complete paralysis of the radial nerve, incomplete paralysis of the median nerve, injury to Muscle Groups V and VI, injury to Muscle Groups VII, VIII, and IX, injury to Muscle Group XIV, chronic otitis media with tinnitus, and multiple scars of the face, scalp, left arm, chest, abdomen, and left leg. The combined rating was 80 percent, with entitlement to individual unemployability from August 1974. 3. The veteran's prostatic cancer was first manifested many years after his separation from service. 4. The veteran's service-connected disabilities did not result in such debilitation or general impairment of health so as to render him less capable of resisting the disease which was the primary cause of his death. 5. The veteran's death was not the result of service-connected disability. CONCLUSIONS OF LAW 1. Prostatic cancer was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). 2. The veteran's service-connected disabilities did not contribute substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1993). 3. The appellant's claim for service-connected burial benefits is not well grounded. 38 U.S.C.A. §§ 2302, 2307, 5107(a) (West 1991); 38 C.F.R. § 3.1600 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that we have found that the appellant's claim for service connection for the cause of the veteran's death is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that she has presented a claim which is not implausible. Further, after reviewing the record, we are satisfied that all the relevant facts have been fully developed and that the case is properly in appellate status. The certificate of death shows that the veteran died in August 1991. The cause of death was prostatic cancer with metastasis to the bone. An autopsy was not performed. At the time of the veteran's death, service connection was in effect for residuals of shell fragment wounds, including complete paralysis of the radial nerve, minor, assigned a 40 percent evaluation; incomplete paralysis of the median nerve, minor, assigned a 40 percent evaluation; injury to Muscle Groups V and VI, minor, assigned a 20 percent evaluation; injury to Muscle Groups VII, VIII, and IX, minor, assigned a 20 percent evaluation; injury to Muscle Group XIV, moderately severe, left, assigned a 30 percent evaluation; chronic otitis media with tinnitus, assigned a 10 percent evaluation; and multiple scars of the face, scalp, left arm, chest, abdomen, and left leg, assigned a noncompensable evaluation. The combined evaluation was 80 percent. He was also in receipt of special monthly compensation under 38 U.S.C.A. § 1114 and VAR 1350(A) on account of loss of use of one hand, from August 1974. He was assigned a total rating based on individual unemployability from August 1974. By rating action of November 1991, the appellant was awarded DIC benefits on the basis that a total disability rating had been in effect for 10 continuous years immediately preceding the veteran's death. 38 U.S.C.A. § 1318 (West 1991). The appellant was also awarded burial benefits on the basis of a non-service connected death. The evidence shows that the veteran's death was due to prostatic cancer. The service medical records and the reports of examinations by the Department of Veterans Affairs (VA) after service are negative for prostate cancer. When the veteran was hospitalized by the VA from November to December 1990, it was reported that he had had weakness and diarrhea for almost two months, with a weight loss of about 20 pounds in the previous year. By way of history, it was noted that he had a long history of ethanol abuse, drinking at least 12 cans of beer per day for more than 45 or 50 years. A chest X-ray reportedly revealed infiltration of both lower lobes, which may have been metastases. A bone scan reportedly revealed metastasis to the ribs, hips, and shoulders. A bone marrow aspiration and biopsy was said to show poorly differentiated adenocarcinoma due to prostate cancer. Since it was felt that it would be difficult to care for the veteran, nursing home treatment was recommended; however, the veteran insisted on going home. When the veteran was hospitalized by the VA in August 1991, it was reported that he had had decreased appetite and progressive generalized weakness for the previous two weeks. He was admitted for comfort care. At the time of his death, the diagnoses were prostate carcinoma with extensive bone metastasis, status post hip fracture, history of alcohol abuse, coronary artery disease, and status post myocardial infarction. In order to establish service connection for the cause of the veteran's death it must be shown that a disability incurred in or aggravated by service either caused or contributed substantially to cause his death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1993). The evidence does not support a finding that the veteran's service-connected disabilities were a factor in his death. His service-connected disabilities were essentially shell fragment wound residuals which had been static for a number of years. They affected use of his left upper extremity and resulted in scarring and atrophy. The records of hospitalization at the time of his death do not reflect that these disabilities were contributing factors in his death. It is argued that the veteran's service-connected disabilities may have caused the development of carcinoma or have prevented the veteran from getting prompt treatment for his fatal disease process. The only evidence presented to support these claims are statements from the appellant and her representative. Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The medical records on file do not suggest that there is any causal relationship between the veteran's service-connected shell fragment wounds and prostatic carcinoma. Likewise, there is no evidence which reflects that his service- connected disabilities hindered him from getting appropriate or prompt treatment. He reported a fairly recent onset of symptoms prior to the initial diagnosis of cancer. The veteran's death was the result of prostate cancer with metastasis. At the time of his death, service connection was not in effect for prostate cancer. Service connection for a disability is in order when there is identifiable disability which was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted for certain chronic diseases, including carcinoma of the prostate, which are manifested to the requisite degree within one year following the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The evidence clearly shows that prostate cancer was not present during service or on examination by the VA in 1947. The first report of cancer was in 1990, more than 40 years after the veteran's discharge from service. Thus, service connection for the cause of death is not warranted on either a direct or presumptive basis. The appellant also seeks service-connected burial benefits. In order to show entitlement to this benefit, it must be established that the veteran died as a result of service-connected disability. 38 U.S.C.A. § 2307 (West 1991); 38 C.F.R. § 3.1600(a) (1993). Under the law, a person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The evidence does not show that the veteran's death resulted from service-connected disability, as we have discussed above. At this point, then, this is not a well grounded claim. It has been argued that the fact that the appellant has been awarded DIC benefits establishes that the veteran's death was service connected. It is contended that the provisions of M21-1, § 13.31, which provide that increased burial allowance is not payable for cases in which eligibility to DIC is established under 38 U.S.C.A. § 1318, is in conflict with the statutory and regulatory provisions. 38 U.S.C.A. § 1318 provides for benefits to be paid to a veteran's survivors if certain conditions are met "in the same manner as if the veteran's death were service connected." 38 C.F.R. § 3.22 provides for payment of benefits at DIC rates "when death is not service connected" in cases where an individual is continuously rated totally disabled for a period of 10 years or more immediately preceding death. Such payments are to be made as if the veteran's death were service connected. Neither the statutory nor regulatory provisions change the designation of whether the death is due to service- connected disability, but, rather, provide for an alternative payment of benefits to survivors in certain circumstances in an amount equal to DIC benefits. Since it is specifically required that the death be service connected for payment of the higher burial benefit award, the provisions M21-1 are consistent with the above-cited regulations. Moreover, the governing statutory provision expressly states that the increased burial allowance is payable in the case where "a veteran dies as the result of a service-connected disability or disabilities." 38 U.S.C.A. § 2307. Accordingly, we find that the appellant's claim for such benefit is not well grounded. ORDER Service connection for the cause of the veteran's death is denied. An increased burial benefit based on service-connected death is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 D. C. SPICKLER J. J. SCHULE N. R. ROBIN 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.