Decision Date: 08/25/95 Archive Date: 08/25/95 DOCKET NO. 91-18 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a prior claim for entitlement to service connection for postoperative residuals of lumbar disc disease and, if so, whether all of the evidence, old and new, warrants a grant of that benefit for accrued benefit purposes. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and D. C. E. ATTORNEY FOR THE BOARD Alan S. Peevy, Counsel INTRODUCTION The veteran had active military service from November 1944 to July 1946. He died on August [redacted], 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from decisions of the Winston-Salem, North Carolina, Regional Office (RO). By rating decision dated in September 1990, the RO denied the appellant's claim for entitlement to service connection for the cause of the veteran's death. A notice of disagreement was received in October 1990, and a statement of the case was issued in November 1990. The appellant's substantive appeal was received in December 1990. In February 1991, the appellant and a witness testified at a personal hearing at the RO. The appellant also appeared at a personal hearing before a member of the Board in January 1992. The case was remanded to the RO for additional development by Board decision in November 1992. By rating decision dated in November 1993, the RO determined that new and material evidence had not been received to reopen a prior claim for entitlement to service connection for postoperative residuals of lumbar disc disease and denied the appellant's claim to that benefit for accrued benefit purposes. A notice of disagreement was received in February 1994, and a supplemental statement of the case was issued in March 1994. A statement from the appellant received in April 1994 has been accepted as a substantive appeal on the accrued benefits issue. The appellant is represented by The American Legion. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the appellant that the evidence warrants a finding that the veteran's lumbar disc disease was related to an injury suffered during his period of military service. It is maintained that the veteran developed disability of the lumbar spine either as a direct result of the inservice injury to his coccyx or as a secondary result of his service-connected residuals of a pilonidal cystectomy with partial removal of the coccyx. The Board's attention is directed to the medical statements of record which support a relationship between the injury aboard a ship during World War II and the subsequent development of disability of the lumbar spine with resulting surgeries. The appellant and her representative also contend that the veteran's death was due to the long-term effects of his back disability. Specifically, it is asserted that the veteran's back problems and related surgical procedures caused stress to the nervous system which led to the development of hypertension and heart disease. It is therefore maintained that the veteran's death due to vascular disease and coronary disease was related to the low back injury suffered during service. 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 claims file. 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 new and material evidence has not been received to reopen a prior claim for entitlement to service connection for postoperative residuals of lumbar disc disease, and that a grant of that benefit for accrued benefits purposes is therefore not warranted. It is the further decision of the Board that the appellant's claim for entitlement to service connection for the cause of the veteran's death is not well-grounded. FINDINGS OF FACT 1. A claim by the veteran for entitlement to service connection for postoperative residuals of lumbar disc surgery was denied by Board decision dated in May 1983. 2. The veteran died on August [redacted], 1990, of a cerebral vascular accident due to or as a consequence of generalized vascular disease, including coronary disease, renal vascular disease and peripheral vascular disease. 3. At the time of the veteran's death, the only disability for which service connection had been established was residuals of a pilonidal cystectomy and partial removal of the coccyx, rated as 10 percent disabling. 4. Evidence received since May 1983 and of record as of the August [redacted], 1990, does not raise a reasonable possibility that a review of the entire record would result in a different outcome than that reached by the Board in its May 1983 decision. 5. No medical evidence has been received showing that a service-connected disability was the principal or contributory cause of the veteran's death. CONCLUSIONS OF LAW 1. Evidence received since the Board's May 1983 decision and of record as of August [redacted], 1990, is not new and material, and the prior claim for entitlement to service connection for postoperative residuals of lumbar disc surgery has not been reopened for the purpose of establishing the appellant's entitlement to that benefit for accrued benefit purposes. 38 U.S.C.A. §§ 5108, 7103(a), 7104(b) (West 1991); 38 C.F.R. §§ 3.156, 3.1000 (1994). 2. The appellant's claim of entitlement to service connection for the cause of the veteran's death is not well- grounded. 38 U.S.C.A. §5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for Postoperative Residuals of Lumbar Disc Disease for Accrued Benefit Purposes. The first issue before the Board concerns the appellant's claim of entitlement to service connection for postoperative residuals of lumbar disc disease for accrued benefit purposes. The record reflects that the veteran filed a claim during his lifetime for entitlement to service connection for postoperative residuals of lumbar disc surgery. His claim was subsequently denied by the RO, and he appealed to the Board. However, the Board denied the veteran's appeal by decision dated in May 1983. The veteran died on August [redacted], 1990, and the appellant is pursuing an accrued benefits claim which is, in effect, a claim limited to certain benefits to which the veteran was otherwise entitled at the time of his death based on his service connection claim. 38 C.F.R. § 3.1000 (1994). The United States Court of Veterans Appeals (Court) has held that a survivor's accrued benefits claim asserting that the veteran's disorder was service-connected is derivative in nature and necessarily incorporates any prior adjudications of the service-connection issue in claims brought by the veteran. Zevalkink v. Brown, 6 Vet.App. 483, 492 (1994). As noted above, the service connection claim advanced by the veteran during his lifetime is the subject of a prior Board decision, and by statute, that decision is final. 38 U.S.C.A. § 7103(a) (West 1991). However, during his lifetime the veteran could have reopened the 1983 final Board decision by submitting new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). Therefore, since the appellant's accrued benefit claim incorporates the prior 1983 Board decision, she also must clear the hurdle of presenting new and material evidence before her accrued benefits claim may be considered. Zevalkink, at 492. Moreover, the new and material evidence to reopen the 1983 Board decision for purposes of the appellant's accrued benefits claim must have been in the veteran's file at the time of his death. 38 C.F.R. § 3.1000(a) (1994); Zevalkink at 493. The Court has noted that certain items of evidence may be considered as being in the file at date of death even though actually put into the file after the date of death. Hayes v. Brown, 4 Vet.App. 353 (1993). Specifically, VA Manual M21-1, paragraph 5.25 lists certain types of evidence which may be considered to be in the claims file as of the date of death, even if not reduced to writing or not physically placed in the file until after death. Such types of evidence include service department records, Department of Veterans Affairs (VA) hospital, treatment, examination and outpatient reports, other such reports of hospitalization, treatment or examinations authorized by the VA, and reports of autopsy made by the VA on the date of death. In other words, the 1983 Board decision which stands as an obstacle to the appellant's accrued benefits claim can only be reopened if it is determined that evidence received since May 1983 and of record as of the date of the veteran's death (August [redacted], 1990) includes evidence which is new and material. Evidence not of record as of August [redacted], 1990, may not be considered in determining whether new and material evidence has been received to reopen the 1983 Board decision. A determination as to whether new and material evidence has been presented is the first step in a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140 (1991). If it is determined that new and material evidence has been received, then the second step, involving a de novo review of all of the evidence, both old and new, is undertaken to determine if there is a basis for granting the claim. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). Moreover, to be "material evidence" the evidence must not only be relevant to and probative of the issue at hand, but also present "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). Looking to the record, evidence before the Board at the time of its May 1983 decision included the veteran's service medical records, a December 1955 VA hospital report, a January 1982 VA examination report, various statements from friends and family members, private medical reports and statements from several private physicians, and the transcript of an August 1982 personal hearing at the RO at which the veteran and a fellow serviceman who witnessed the inservice injury offered testimony. Based on a review of this evidence, the Board determined in its May 1983 decision that the veteran's lumbar disc symptomatology was not manifested during service or for many years thereafter and that there was no etiological relationship between the postoperative residuals of the veteran's lumbar laminectomy and the service-connected residuals of a pilonidal cystectomy with partial removal of the coccyx. Evidence received since May 1983 and of record as of August [redacted], 1990, the date of the veteran's death, includes numerous medical reports documenting treatment, including several surgical procedures, for various disorders, including the veteran's vascular and coronary problems as well as neuropathy. Some reports and statements received since May 1983 and of record as of August [redacted], 1990, are duplicates of evidence already of record in May 1983, and thus are clearly not new. Many of the medical reports received since May 1983 which were not of record at the time of the prior Board decision merely cite the veteran's low back problems as part of his medical history. However, there is nothing contained in these reports which tends to show any relationship between the veteran's lumbar disc symptomatology and his service-connected disability or to the same inservice incident which resulted in the service-connected disability, and they do not raise a reasonable possibility that a review of the entire record would result in an outcome different from that reached by the Board in May 1983. In fact, the Board observes here that several private physician statements which were before the Board in May 1983 expressed specific opinions to the effect that a relationship did exist between the veteran's lumbar disc disease and the injury to his coccyx suffered during service. However, after weighing those statements, the Board in May 1983 found that those opinions were not supported by the other evidence of record. The Board recognizes that the record now also contains several clear opinions from private physicians that a relationship did exist between the veteran's lumbar disc disease and his inservice injury with resulting service- connected disability. Included in this new evidence are statements from George J. Miller, M.D., and from Peter R. Lichstein, M.D. However, these statements were received into the record after the date of the veteran's death (and may not be deemed to be of record pursuant to VA Manual M21- 1, paragraph 5.25) and therefore may not be considered in determining whether new and material evidence has been received. Likewise, various lay statements received after August [redacted], 1990, and testimony offered after the date of the veteran's death are not for consideration in determining whether new and material evidence has been received to reopen the May 1993 decision. For the reasons set forth above, after comparing the evidence before the Board in May 1983 with the evidence received after May 1983 which was of record as of August [redacted], 1990, the Board is compelled to find that no new and material evidence has been received to reopen the May 1983 Board decision. Accordingly, the appellant's claim for this benefit in connection with her accrued benefits claim must be denied. II. Service Connection for the Cause of the Veteran's Death. The second issue before the Board involves the appellant's claim of entitlement to service connection for the cause of the veteran's death. Such a claim by the appellant is a claim for benefits in her own right, unlike the previously discussed accrued benefits claim which is merely a claim for benefits which were otherwise payable to the veteran at the time of his death. Therefore, the service connection for cause of death claim is not a derivative claim; the appellant is not bound by any prior final decisions based on claims made by the veteran during his lifetime. 38 C.F.R. § 20.1106 (1994). Moreover, evidence received after the date of the veteran's death is also for consideration with regard to this issue. Nevertheless, the appellant, as a claimant for VA benefits, is still charged with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). This threshold requirement is critical since the Court has held that if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well-grounded claim has been defined by the Court as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). Where, as in the present case, the determinative issue involves medical causation, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a) (West 1991). Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). A claim for entitlement to service connection for the cause of the veteran's death will be granted when the evidence establishes that service-connected disability was either the principal or a contributory cause of the veteran's death. 38 C.F.R. § 3.312(a) (1994). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b) (1994). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or 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 C.F.R. § 3.312(c)(1) (1994). The veteran's death certificate lists the cause of his death as cerebral vascular accident due to or as a consequence of generalized vascular disease, including coronary disease, renal vascular disease and peripheral vascular disease. The death certificate further reflects that no autopsy was performed. A review of the veteran's service medical records reveals no evidence of any vascular or coronary disease. The report of separation examination in July 1946 shows that the veteran's heart was described as normal, as was the condition of his arteries and veins. Blood pressure readings of 124/72 and 126/74 were reported. The first reference in the claims file to any vascular or coronary problems is the report of the veteran's December 1955 hospitalization at a VA facility (for surgery related to his service-connected pilonidal cyst) which includes questionable essential hypertension among the clinical diagnoses. Subsequent medical records document numerous hospitalizations and treatment from the early 1980's on for cardiovascular problems, including several myocardial infarctions. The Board is therefore presented with a record which shows no evidence of any chronic vascular or coronary disease in service or for many years thereafter. Even if the Board assumes that the veteran did in fact have essential hypertension as of December 1955, there is still a gap of some nine years between the veteran's service and this first evidence of the existence of hypertension. In sum, the evidence does not show that vascular or coronary disease was manifested during service, within the one-year presumptive period, or for many years after service so as to establish entitlement to service connection under the provisions of 38 U.S.C.A. §§ 1101, 1110, 1112 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). Significantly, the appellant and her representative do not appear to contend that the veteran's vascular disease and coronary disease were directly related to his period of service. Instead, the underlying theme of the contentions advanced in this case is that the veteran developed his vascular and coronary disease as a secondary result of the pain and stress associated with residuals of the inservice injury to his coccyx and low back. The Board again notes here that service connection was established during the veteran's lifetime for residuals of a pilonidal cystectomy and partial removal of the coccyx, and applicable law does allow for establishment of service connection for disability which is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a) (1994). Nevertheless, the Board again emphasizes that while the appellant is free to make such contentions as she wishes, questions of medical causation require diagnostic skills and must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, and of critical importance in the present case, lay assertions of medical causation are not sufficient for purposes of presenting a well-grounded claim; there must be competent supporting medical evidence. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Numerous letters and statements from medical personnel are of record documenting the veteran's condition over the years. However, the Board is unable to find any clear medical opinion expressed in any of these documents to the effect that the veteran's death due to vascular and coronary disease proximately due to or the result of any service- connected disability. Certain statements, such as a January 1992 letter from George J. Miller, M.D. contain medical opinions relating the veteran's disc disease to his inservice injury to the coccyx, but such statements contain no language which can be construed as relating the veteran's vascular and coronary disease to service or to any inservice-injury. Others, such as a November 1990 letter from Peter R. Lichstein, M.D., contain general opinions to the effect that the injury suffered in service significantly affected the course of the veteran's other illnesses and future care. However, these statements do not contain any unequivocal language stating that the veteran's vascular and coronary diseases were proximately due to or the result of any inservice injury. 38 C.F.R. § 3.310 (1994). As noted earlier, a casual relationship between the veteran's death and his service-connected disability is not sufficient. 38 C.F.R. § 3.312(c)(1) (1994). In fact, an April 1982 letter from Charles G. Rob, M.D. is to the effect that it was Dr. Rob's opinion that the veteran's problems with an aneurysm of the abdominal aorta and popliteal arteries were not directly caused by the inservice injury. The closest thing to a medical opinion in support of a causal relationship between the veteran's death and his service-connected disability is an August 1992 letter from Thomas L. Thornton, D.C. which was apparently generated in response to a request by the appellant for an opinion of what can happen to the spine if an injury occurs and goes untreated. In this letter, Dr. Thornton reported that he had reviewed several of the statements from the veteran's physicians. He then stated that: The severity of the spinal injury determines the level of dysfunction and the level of disability. If the injury does not receive proper chiropractic attention, this delay promotes the body into adaptive phases. These adaptive phases continually reduce the quality of life in the individuals body, ultimately causing early death. For purposes of determining whether the appellant's claim is well-grounded, the Board assumes Dr. Thornton's opinion to be true. King v. Brown, 5 Vet.App. 19, 21 (1993). However, the Board is nevertheless unable to find that this statement from a medical professional is sufficient to support a finding that the appellant's claim is plausible. It is a very general opinion, at best, and contains no detailed rationale or specific references to any of the particulars of the veteran's medical condition. Rather, it appears to the Board to be mere medical speculation of the most general kind. Such a speculative opinion, unsupported by any clear rationale or discussion based on and citing the particulars of the veteran's condition, does not constitute a competent opinion of medical causation to render the appellant's claim plausible. It is not enough, in the Board's opinion, to enter into the record a general medical opinion that an untreated back injury may result in eventual death. What is needed for purposes of establishing a well-grounded claim is a medical opinion to the effect that the particular claimant's assertions of a causal relationship between a particular injury and death are plausible when the particular facts of the case are considered. After carefully considering the evidence in its entirety, the Board is compelled to conclude that there is not competent evidence of medical causation, and the appellant's claim for entitlement to service connection for the cause of the veteran's death is therefore not well-grounded. ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for postoperative residuals of lumbar disc disease, and the appellant's appeal based on her claim of entitlement to service connection for postoperative residuals of lumbar disc disease for accrued benefit purposes is therefore denied. The appellant's appeal based on her claim of entitlement to service connection for the cause of the veteran's death is dismissed. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) 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. - 2 -