Decision Date: 08/07/95 Archive Date: 08/04/95 DOCKET NO. 93-18 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD A. Balbach, Associate Counsel INTRODUCTION The appellant had active military service with the United States Navy from December 1941 to December 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a February 1993 rating decision by the Department of Veterans Affairs (VA) Phoenix, Arizona Regional Office (RO), which denied the appellant's claim for service connection for the cause of the veteran's death due to exposure to asbestos . CONTENTIONS OF APPELLANT ON APPEAL The appellant avers that the RO erred when it denied service connection for the cause of her husband's death. She claims that the veteran was exposed to asbestos while serving in the Navy on ships during World War II. She further contends that the claimed asbestos exposure caused the veteran's multiple myeloma that in turn contributed to 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. 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 claim for service connection for the cause of the veteran's death is not well-grounded. FINDINGS OF FACT 1. The veteran died on January [redacted], 1990 due to a myocardial infarction. 2. The veteran had no service-connected disabilities during his lifetime. 3. Multiple myeloma was first demonstrated many years after service. 4. There are no findings of, or treatment for, a disability related to or caused by exposure to asbestos. 5. There is no medical evidence of record establishing a nexus between the veteran's death and active military service. CONCLUSION OF LAW 1. The claim for entitlement to service connection for the cause of the veteran's death is not well-grounded. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1310, 5107(a) (West 1991); 38 C.F.R. § 3.307, 3.309, 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant appeals a rating decision of February 1993, which denied service connection for the cause of the veteran's death. In essence, the RO stated that the veteran's death due to myocardial infarction and the veteran's contributing factors to his death were not due to or caused by his military service. Yet, before the topic of service connection may be discussed, the initial question for resolution in this case whether the appellant has submitted a well-grounded claim in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Upon review of the claims file, we find that this requirement has not been satisfied. Per 38 U.S.C.A. § 5107(a) (West 1991), and subsequently Tirpak v. Derwinski, 2 Vet.App. 609 (1992), and Grivois v. Brown, 6 Vet.App. 136 (1994), a well-grounded claim requires more than just a mere allegation. The veteran died in January 1990 from a myocardial infarction with multiple myeloma and pneumonia as contributing factors. In order to file a well-grounded claim, the appellant must submit supporting evidence that would justify the belief that the veteran's cause of death or contributing factors to death were etiologically related to or caused by military service. To establish service connection for the cause of the veteran's death, the evidence must show that the disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). If the disability is multiple myeloma or heart disease, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101, 1112, 1113 (West 1991); 38 C.F.R. § 3.307, 3.309 (1994). The record does not contain any objective evidence supporting the appellant's claim. There is no medical evidence or record linking the veteran's cause of death to his period of service. The veteran had no service-connected disabilities during his lifetime. A review of his service medical records revealed no evidence of multiple myeloma, cardiovascular disease or pneumonia during service The veteran was admitted to St. Luke's Hospital in October 1984 after a several month history of back pain which had been progressively increasing in severity. An evaluation of the back pain was conducted. Private medical records from October 1984 indicate a diagnosis of multiple myeloma with compression fractures of T/4 and 5, rib involvement of 9 and 10, and severe osteoporosis. Progress notes from Allen Ginn, M.D. on November 1984 note myeloma in the back with mild chemotherapy as a treatment. A letter dated September 1992 from Stephen W. Dahn, M.D. noted that the veteran had a septomyocardial infarction and right upper lobe infiltrate prior to death. It is contended that the veteran was exposed to asbestos in service, which resulted in his multiple myeloma that in turn contributed to his death. The appellant has submitted no evidence in support of this contention. Nonetheless, even if the appellant proffered evidence in support of her contention that the veteran had been exposed to asbestos during service, multiple myeloma could not be service- connected on this ground. Multiple myeloma is not a disability generally considered to be related to asbestos exposure. The clinical diagnosis of asbestosis requires a history of exposure as well as radiographic evidence of parenchymal lung disease. VA Adjudication Procedure Manual, M21-1, Part VI, 7.69(c) (Change 3, Sept. 21, 1992) (Hereinafter, M21-1). The radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, or pleural plaques. M21-1, 7.68(a). The medical evidence does not show any of these abnormalities characteristic of asbestos exposure. The appellant offers no evidence except a statement that her husband's multiple myeloma, which contributed to his death, was due to asbestos exposure in service. The appellant's assertions of medical causation are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Hence, there is no support for this aspect of the appellant's claim. It has not been contended nor otherwise shown that any of the other contributory causes of death, or final cause of death, were due to service. Consequently, we find that the appellant has not submitted a well-grounded claim in accordance with the 38 U.S.C.A. § 5107 (West 1991). The United States Court of Veterans Appeals (Court) has expressed its concern that, in a situation in which the claim is not well-grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decision of February 1993. ORDER A well-grounded claim for service connection for the cause of the veteran's death, not having been submitted, the claim is dismissed, and the rating decision of February 1993 is vacated. JACK W. BLASINGAME Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. 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 -