Citation NR: 9635873 Decision Date: 12/16/96 Archive Date: 12/24/96 DOCKET NO. 94-21 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Beach, Associate Counsel INTRODUCTION The veteran served on active duty from September 1952 to December 1956. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a July 1993 decision of the St. Petersburg, Florida, Regional Office (RO) which denied service connection for the cause of the veteran’s death. In November 1993, the case was transferred to the Columbia, South Carolina, RO. The appellant testified before a hearing officer at the RO in June 1994. This case was previously before the Board in May 1996 when it was remanded for further development. The appellant is represented in her appeal by The American Legion. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran’s service-connected disabilities stemmed from an automobile accident, and that the veteran suffered a cardiac arrest at the time of the automobile accident because his heart was dislodged and dislocated from his normal position, and that an artery was damaged. She asserts that the fact that the veteran’s heart was dislodged and dislocated from his normal position and an artery damaged was discovered in 1979 during a later operation, and that the accident and damage to his heart and arteries contributed to his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that her claim of entitlement to service connection for the cause of the veteran’s death is well-grounded. FINDINGS OF FACT 1. The veteran died in April 1993. The cause of death was certified as acute myocardial infarction due to coronary artery disease. 2. At the time of the veteran’s death, service connection was in effect for right peroneal nerve neuropathy; postoperative status, Austin Moore right hip replacement; lumbosacral strain; brain concussion; simple fracture of the maxillary; and simple fracture of the right zygoma and nasal bone. 3. The record contains no competent evidence showing that any of the veteran’s service-connected disabilities caused or contributed to his demise. 4. There is no competent evidence of record establishing a relationship between the veteran’s service and death. 5. The appellant's appeal does not hinge upon a medical question of a complex or controversial nature which would render it appropriate to obtain the opinion of an independent medical expert. CONCLUSIONS OF LAW 1. The 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). 2. The opinion of an independent medical expert is not warranted. 38 U.S.C.A. § 7109 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the threshold question to be answered is whether the appellant has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107 (West 1991). A veteran claiming entitlement to Department of Veterans Affairs (VA) benefits has 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). See Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992). Because a claim is neither defined by the statute nor by the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The United States Court of Veterans Appeals (Court) has further held that “[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is ordinarily required to fulfill the well- grounded-claim requirement of section 5107(a).” Edenfield v. Brown, 8 Vet.App. 384, 388 (1995) (en banc) (emphasis added). When a claim is determined to be not well-grounded, the VA may be obligated under the provisions of 38 U.S.C.A. § 5103(a) (West 1991) to advise the appellant of the evidence needed to complete her application. This obligation is dependent upon the particular facts of the claim and the extent to which the Secretary of the VA has advised the appellant of the evidence necessary to support a claim for VA benefits. Robinette v. Brown, 8 Vet.App. 69 (1995). The Board acknowledges that there are potential records and attempted to obtain the records. The record clearly establishes that the appellant was informed that additional evidence was needed in support of her claim in the Board’s prior Remand as well as a July 1996 letter from the RO. However, the appellant did not respond and the additional evidence has not been submitted. Thus, the Board’s request to obtain greater rationale, reasoning and records was frustrated. In order to trigger the duty to assist, the appellant must do more than passively wait for assistance when he has information essential to his claim. The duty to assist is not always a one-way street; nor is it a blind alley. Olson v. Principi, 3 Vet.App. 480, 483 (1992). All duties, actual and implied, have been met. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1995). A grant of service connection for the cause of the veteran's death is appropriate when a disability incurred in or aggravated by service or a disability proximately due to or the result of a service-connected disability, caused or contributed substantially or materially to death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. The service-connected disability will be considered as the principal cause of death when such disability was the immediate or underlying cause of death. The service-connected disability will be considered as a contributory cause of death when such disability contributed substantially or materially to the death. 38 U.S.C.A. §§ 1110, 1310 (West 1991); 38 C.F.R. §§ 3.310, 3.312 (1995). The veteran had active service from September 1952 to December 1956, and he died in April 1993 at the age of 57. A the time of his death, the veteran was service-connected for right peroneal nerve neuropathy, evaluated as 40 percent disabling; postoperative status, Austin Moore right hip replacement, evaluated as 30 percent disabling; lumbosacral strain, evaluated as 10 percent disabling; and brain concussion, simple fracture of the maxillary, and simple fracture of the right zygoma and nasal bone, each evaluated as noncompensable. The veteran’s combined disability evaluation was 60 percent. He was entitled to special monthly compensation on account of loss of use of one foot from January 1984. The certificate of death indicates that the veteran died of acute myocardial infarction due to coronary artery disease. An autopsy was not conducted. The appellant contends that the veteran was in an automobile accident in service, that he suffered a cardiac arrest at the time of the automobile accident because his heart was dislodged and dislocated from his normal position, and that an artery was damaged. She asserts that the fact that the veteran’s heart was dislodged and dislocated from his normal position and an artery damaged was discovered in 1979 during a later operation, and that the accident and damage to his heart and arteries contributed to his death. The service medical records contain a Report of Medical Treatment, Hospitalization, and Allied Services which indicates that on August 13, 1955, the veteran was involved in an automobile accident and sustained multiple injuries of the head, chest and extremities. A Report of Board of Medical Survey contains further information that the veteran was a passenger in an automobile which struck a tree, that he was take to a civilian hospital where emergency treatment was rendered and then transferred to the U.S. Naval Hospital in Corona, California. It relates that he was rendered unconscious and had no memory of the events immediately preceding or following the accident. It was noted that the veteran sustained lacerations of the face, shoulders, upper extremities, upper lip, with bony deformity of the right and left frontal areas, flattening of the nasal bridge and slight depression of the left zygoma. There was evidence of a simple fracture of the maxilla with slight disturbance in occlusion. The right thigh was shortened, flexed and adducted. The femoral head was palpable posteriorly in the buttock and the dorsiflexors of the right foot were paretic. Medical records from North Trident Regional Hospital, in Charleston, South Carolina, indicate that in February 1979, the veteran was involved in a motorcycle accident and sustained facial abrasions, contusions and a sprain of the left shoulder. A chest X-ray revealed an apparent aneurysm of the descending aorta just distal to the take off of the subclavian. An electrocardiogram was normal. An aortography was conducted confirming both the thoracic aneurysm and position. The veteran subsequently underwent a left thoracotomy with trans-sternal extension, and a graft was used to replace the thoracic aneurysm. The final diagnosis was facial contusions and lacerations and aneurysm of descending thoracic aorta. An October 1979 hospitalization record from North Trident Regional Hospital indicates that, following his previous discharge, the veteran complained of recurrent pain in the vicinity of the incision of the resection of the thoracic aortic aneurysm and was treated on multiple occasions with intercostal blocks. He subsequently began to have episodes of severe dyspnea and pain over the precordial area. There were no changes on chest film or electrocardiogram to suggest cardiovascular disease. Examination of the heart revealed regular cardiac rhythm without murmurs and auscultation of the posterior thorax revealed no bruits. A treadmill examination revealed minimal chest tightness. The final diagnosis was depression and anxiety, hyperventilation syndrome secondary to depression and anxiety, mechanical low back pain, etiology unknown, and post-thoracotomy pain syndrome following resection of thoracic aneurysm. A discharge summary from Baker Hospital in North Charleston, South Carolina, dated in November 1983, pertinent to a hospitalization for syncopal episode notes a past medical history of right hip prosthesis and aortic aneurysm subsequent to an automobile accident. A medical statement from William B. Sheldon, M.D., dated in May 1984, relates that the veteran had coronary bypass surgery in 1979. A letter from H. B. Gregorie, Jr., M.D., dated in June 1994, states: This is to indicate that I evaluated x- rays in 1979 on [the veteran] and found calcium deposits of an arterio-sclerotic nature thought to be post-traumatic steming (sic) from an accident suffered in the 1950’s (probably about 1954) near the point of take-off of the arch vessels of his thoracic aorta. In the following year, he had aneurysm repair at Trident hospital (sic) and heart problems and other problems that had been taking him slowly down up to that time seemed to improve following this surgery in 1979. It appeared to us in retrospective review that the problems relating to this accident which engendered a tear that slowly broke down and allowed this to form and fully become manifest in 1979 or close thereto. The appellant testified before a hearing officer at the RO in June 1994. She testified that: the veteran was in an automobile accident on August 13, pronounced dead and was laid aside to be taken to the morgue when he moved a limb and the corpsman brought him back to life; she was told that he was unconscious, did not know her for several months, and that the doctor told him that there was no hope for him because so much was wrong with him from the head to the toes; the veteran was hurt from his head, heart, had damaged kidneys, dislocated hip and was paralyzed and had to undergo surgery; about 15 years later, he fell on her son’s motorbike, broke his front teeth, and doctors found the aneurysm ready to burst; the doctors felt the aneurysm had been there for some length of time; the veteran had stomach surgery under Dr. Gregorie the year before and he told her that there was too much wrong with the veteran, that he was not going to live; she called Dr. Gregorie and asked if he had found anything the prior year relating to the veteran’s heart; that he reviewed the X-rays and explained to her that the aneurysm had hid behind a calcium deposit due to the heart being dislodged at the time of the accident which was why the aneurysm had not shown until he fell on the motor bike and it popped out; the veteran was placed on medication for hypertension or a heart condition after the surgery; and that he first realized that he had a heart problem in 1979. She clarified that the veteran had been seeing Dr. Gregorie for ulcers and his stomach for about two years, that Dr. Gregorie was a general doctor, and that doctors first noticed that his heartbeat was irregular after the aneurysm. In this case, the appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that her claim is well-grounded. It is apparent that the disorders noted on the certificate of death, acute myocardial infarction and coronary artery disease, began long after the veteran’s active service ended. The Board notes the appellant’s contention that the veteran went into cardiac arrest at the time of the automobile accident in service and that the initial medical record shows an indication of chest injury; however, detailed medical records pertinent to the veteran’s hospitalization and treatment for the 1955 automobile accident do not mention cardiac arrest or coronary artery disease. The Board has considered the statements and testimony of the appellant on appeal, including the opinion of Dr. Gregorie who states that he believes there was a relationship between the veteran’s automobile accident and subsequent development of coronary artery disease via the veteran’s thoracic aneurysm. The Board also notes the Baker Hospital discharge summary which noted a past medical history of aortic aneurysm subsequent to an automobile accident. However, neither the appellant’s statements nor medical records meet the requirement of competent medical evidence. The Court has stated: Evidence which is similarly information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute “competent medical evidence” satisfying the Grottveit [v. Brown, 5 Vet.App. 91, 93 (1993)] requirement. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette (as to determination of well groundedness) . . . because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into “competent medical evidence” merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet.App. 406 (1995). There is no indication that Dr. Gregorie had personal knowledge of the inservice automobile accident or access to the veteran’s service medical records. Although he states that the veteran’s heart was dislodged, this is not corroborated by the service medical records. His statements are speculative, unsupported, and outside the scope of his personal knowledge. With respect to the Baker Hospital discharge summary, the notation of an aortic aneurysm subsequent to an automobile accident was noted in the past medical history of the veteran, and there is nothing in the notation to “suggest[] that the . . . examiner[]had filtered, enhanced or added medico-evidentiary value to the lay history through [his] medical expertise.” Ibid. Therefore, as the Court held in LeShore, supra, these medical professionals’ references to a relationship between the veteran’s thoracic aneurysm and automobile accident in service and to the subsequent development of coronary artery disease are insufficient to render the claim well-grounded as there is no competent evidence attributing the veteran’s fatal disease to service. Regardless of whether the medical statement raised the unlikely specter of a well grounded claim, the Board’s attempt to obtain additional evidence was rejected by the appellant. A mere statement of opinion, without more, does not provide an opportunity to explore the basis of the opinion. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Board doubts the Court would find that a well grounded claim may be established by dangling a slender part of a record and then refusing to release all facts pertinent to the claim. The Board must emphasize that the evidence that determines whether there is a well grounded claim rests in the possession of the appellant and such records are not obtainable without her consent. The appellant’s lay testimony as to what happened to the veteran’s heart during the automobile accident and what physicians told her is also insufficient to render her claim well grounded. The Court has held that “the connection between what a physician said and the layman’s account of what he purportedly said . . . is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette, 8 Vet.App. at 77; see also Kirwin v. Brown, 8 Vet.App. 148, 153 (1995) (a layperson’s account of statements made by a physician could not render a claim well grounded). Furthermore, it has not been indicated that the appellant possesses the requisite medical knowledge or expertise to render an opinion on a matter involving medical causation or diagnosis, such as an etiological relationship between an automobile accident, development of a thoracic aneurysm, and development of coronary artery disease. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). The Board observes that the claims file is devoid of any competent evidence establishing that a service-connected disability either caused or contributed substantially or materially to the veteran’s demise and the appellant does not assert otherwise. The Board acknowledges that it has decided the appeal on a different basis than did the RO. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). The Board concludes that the veteran has not been prejudiced by the decision on the above issue. The issue was denied by the RO. The Board considered the same law and regulations. The Board merely concludes that the veteran did not meet the initial threshold evidentiary requirements of a well grounded claim. The result is the same. The Board specifically makes a determination that the claim is not well-grounded at this time, so the appellant has an easier threshold to reopen the claim if it is eventually determined to submit the additional evidence. As to the request advanced that the opinion of an independent medical expert be obtained, such action is authorized only when the claimant has presented a well grounded claim and the duty to assist has attached. Since the claim is not well grounded, further development is not warranted. Furthermore, the appellant has refused to turn over records so there is nothing to be reviewed. The Board rejects the premise that VA can be supplied with a weak, unsupported opinion; be refused access to the information upon which the opinion was based, and then be expected to undertake additional development or conclude that the evidence supports the claim. In addition, there is no other matter sufficiently complex or controversial in character as to warrant obtaining such an opinion. The Board has also considered the representative’s contention that the case should be remanded on the ground that VA has extended the duty to assist to claims that are not well grounded. In support of that argument, the representative refers to VA ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1), Part III, 1.03(a) (Feb. 3, 1996), Part VI, 2.10(f). She argues that, to the extent the relevant provisions in M21-1 have limited administrative action, those provisions are the equivalent of VA regulations and are applicable to this claim. See Hayes v. Brown, 5 Vet.App. 60, 67 (1993); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990). First, the Board notes that it is bound by the applicable statutes and regulations pertaining to VA and precedential opinions of the Office of the General Counsel of VA. 38 C.F.R. § 19.5 (1995). However, the Board is specifically not bound by VA manuals, circulars, or other administrative issues. Ibid. Moreover, the cited provisions of M21-1 have not been promulgated pursuant to the regulatory requirements of 38 C.F.R. § 1.12 (1995). See also 61 Fed. Reg. 11309 (1996) (deleting 38 C.F.R. § 1.551 (1995)). Second, the cited provisions of M21-1 that require full development of a claim during the pendency of a determination on the threshold issue of well-groundedness do not stand for the proposition that the duty to assist extends to claims that are not well grounded. Third, the representative’s arguments are moot because VA has complied with any policy implicit or explicit in M21-1 regarding development of non-well-grounded claims by attempting to obtain the evidence relied upon by the appellant and by informing her of the evidence needed. Both the Board and VA notified the appellant of the need for further medical records. However, the appellant did not respond to the request. The Board finds that the RO’s development of the evidence in this case was as full and thorough as possible, under the circumstances, and that the RO has sought all available avenues of obtaining evidence on the appellant’s behalf. The representative implied in her November 1996 brief that VA has volunteered assistance to establish well groundedness which raises grave questions of disparate treatment between veterans. Brief at 5 (citing Vitarelli v. Seaton, 359 U.S. 535, 539 (1959) and Grivois v. Brown, 6 Vet.App. 136, 140 (1994)). The Court has also stated that “the Board is free to express an opinion on a constitutional claim.” Suttmann v. Brown, 5 Vet.App. 127, 139 (1993); see also Saunders v. Brown, 4 Vet.App. 320, 326 (1993). However, the Board rejects the premise that it has the power of adjudication of the constitutionality of the pertinent laws or regulations or administrative issues because such is beyond the jurisdiction of this administrative branch. Johnson v. Robinson, 415 U.S. 316, 94 S.Ct. 1160. In this case, however, the representative has not presented evidence of actual disparate treatment. Moreover, her argument is predicated on the erroneous interpretation of M21-1 provisions that do not, in fact, alter the requirement that a well-grounded claim must be submitted prior to the triggering of the duty to assist. Therefore, the representative’s “disparate” treatment argument is unsupported in law or in fact. The representative also contends that it is unfair to deny a claim as not well grounded without first informing the claimant of the need to submit competent medical evidence. The Board reiterates that the RO undertook all possible efforts to inform the veteran of what evidence was needed to complete his application. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette, 8 Vet.App. at 80. Therefore, the Board finds that the appellant’s claim for service connection for the cause of the veteran’s death is not well grounded. ORDER Entitlement to service connection for the cause of the veteran’s death is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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 -