Citation NR: 9637035 Decision Date: 12/31/96 Archive Date: 01/06/97 DOCKET NO. 94-40 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from August 1941 to September 1945, from June 1947 to June 1950, and from May 1952 to September 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for the cause of the veteran’s death. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran’s widow, contends, in essence, that she is entitled to service connection for the cause of the veteran’s death. She asserts that he was prescribed multiple medications to relieve symptoms of service connected disabilities. She maintains that over a period of 28 years the accumulative effective of the medications caused a heart condition which ultimately lead 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’s claim for service connection for the cause of the veteran’s death is not well grounded. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. The veteran died on June [redacted], 1993, at the age of 70. 3. According to the Certificate of Death, his immediate cause of death was cardiac arrest due to acute myocardial infarction. No other conditions were noted as a significant condition contributing to death. 4. At the time of the veteran's death, service connection had been established for duodenal ulcer rated as 10 percent disabling, and arthritis of the dorsal spine rated as 10 percent disabling, but had not been established for coronary artery disease or a cardiovascular disorder. 5. There is no competent evidence submitted that implicates the medications which the appellant’s was taking for his service connected disabilities with the disability that caused his death. 6. The disorders implicated in the veteran's death had their onset long after service and were unrelated to service or any incident thereof. 7. The appellant’s claim is not plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Neither a coronary artery disease nor a cardiovascular disorder was incurred in or aggravated by active service, nor may cardiovascular disease be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1995). 2. A service-connected disability did not cause or contribute substantially or materially to cause the veteran’s death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1995). 3. A well grounded claim for service connection for the cause of death has not been submitted. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered at the outset of the analysis of any case is whether the appellant’s claim is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim as such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1995). There are some disabilities, including cardiovascular disease, where service connection may be presumed if the disorder is manifested to a degree of 10 percent or more within one year of the veteran’s separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995). Service connection is also warranted for a disability which is aggravated by, proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1995); Allen v. Brown, 7 Vet.App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In order to establish entitlement to service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1995). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107 (a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions as to the claim for service connection for the cause of the veteran’s death are inherently incredible when viewed in the context of the total record. As noted in the Certificate of Death, the veteran died on June [redacted], 1993. The death certificate shows the immediate cause of death as cardiac arrest due to acute myocardial infarction. No significant conditions were noted as contributing to death. No autopsy was performed. At the time of death, service connection had been established for duodenal ulcer and arthritis of dorsal spine, but had not been established for a coronary artery disease or a cardiovascular disorder. A review of the veteran’s service medical records (SMRs) does not reveal the presence of any coronary artery disease, cardiovascular disorder, arteriosclerosis, or complaints thereof. The report of the separation physical examination conducted in July 1965 does not indicate any findings or diagnosis of coronary artery disease or a cardiovascular disorder. Moreover, electrocardiogram (EKG) reports dated in March 1959, November 1962, are April 1965 are reported as normal. The SMRs, therefore, show no complaints or findings of a cardiovascular disorder. Accordingly, there exists no credible or competent evidence of symptomatology attributable to coronary artery disease or a cardiovascular disorder during service. Post service medical records initially indicate the presence of a cardiovascular disorder in June 1983, nearly 20 years after separation from service, when the veteran was admitted with severe vertigo, etiology to be determined, possible labyrinthitis, diabetes mellitus, and peptic ulcer disease. The EKG showed sinus bradycardia with a rate of 53 beats per minutes, minimal nonspecific STT changes, and a QS pattern in Lead III. An X-ray report dated in June 1983 demonstrates the clinical impression of pulmonary hyperinflation and clear lungs. Calcified aorta, and moderate thoracic spondylosis. A Holter monitor report dated June 30, 1983, revealed basic sinus rhythm with marked rate variation between 50 to 125 beats per minute, occasional premature ventricular contractions were present, and some T-wave changes were noted. He was kept on bedrest and treated with Tagamet, Demerol, Centrax, and Darvocet for pain. The final diagnosis was vertigo, possibly secondary to labyrinthitis, diabetes mellitus, and peptic ulcer disease by history. An outpatient treatment (OPT) record dated in June 1983 showed that the veteran complained of dizziness, headaches, and numbness of the left leg. The impression was diabetes mellitus, peptic ulcer disease, and vertigo. An OPT note dated in July 1983 indicates that he was feeling better. In October 1984, he complained of fever and chills, general aches, and pain at the left chest. The clinical impression was possible pneumonia and diabetes. A hospital discharge summary for the period from October 19, 1984 to October 26, 1984 reveals that the chest X-ray report showed pneumonia of the left base. The final diagnosis was left lower lobe pneumonia, improved, diabetes mellitus, and essential hypertension, controlled. In November 1984, he complained of numbness of his left leg off and on. The clinical impression was diabetes mellitus. A follow-up record dated in February 1985 shows the same clinical impression. A discharge summary dated in August-September 1987 reveals that he was admitted to the hospital with abdominal pain, left side and a history of constipation. The discharge diagnosis was abdominal pain secondary to probable diverticular disease of the colon, diabetes mellitus under good control, and constipation secondary to diverticular disease of the colon. An OPT note dated in May 1988 shows that he complained of fever, hoarseness, and a productive cough. The impression was possible pneumonia. A hospital discharge summary report for the period of May 23, 1988 to May 27, 1988, reveals a final diagnosis of chronic obstructive pulmonary disease with pneumonia and pleurisy secondary to staph aureus coagulase positive, and diabetes mellitus, controlled. In April 1992, he was treated for gastroenteritis and diabetes. A CPR (cardiopulmonary resuscitation) report dated June [redacted], 1993, shows that the veteran was brought to the Emergency Room by ambulance after being found unresponsive at home. He did not have a pulse, respirations, or blood pressure when the ambulance arrived at the home. CPR was started immediately, he was intubated, defibrillated, and treated with cardiovascular drugs. After prolonged CPR effort, it was discontinued and he was pronounced dead. Based on the Board’s review of the record, the medical evidence does not establish that the disease giving rise to death was incurred during military service or manifested within the one year presumptive period. Moreover, the evidence does not support the conclusion that the medications the veteran took for his service-connected disabilities caused his death. The Board notes that his treating physician provided a list of the disorders he treated and a list of the medications the veteran was on but offered no opinion that the medications could cause heart disease or were in any way implicated in his death. The appellant has asserted that the cumulative effect of multiple medications caused a heart condition. However, her statement is speculative as to the cause of the veteran’s death. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, lay testimony, may constitute sufficient evidence to establish a well grounded claim; however, if the determinative issue is one of medical etiology, causation, or a medical diagnosis, like the case here, competent medical evidence must be submitted to make the claim well-grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Accordingly, the Board is unable to grant the benefit sought based on such an assertion, unsupported by any competent medical opinion of record, in view of the fact that there was no indication that the medications were implicated in the veteran’s death. In addition, while the veteran was rated 10 percent disabling for duodenal ulcer and 10 percent for arthritis of the dorsal spine for a combined rating of 20 percent at the time of death, there is no competent evidence on file that either disorder played any role in the veteran’s death. He had long been rated 20 percent disabling. There is no evidence on file to suggest regular treatment for duodenal ulcer or arthritic pathology prior to 1983. The appellant is not competent to make a medical nexus between the service connected disorders and the cause of death. Espiritu v Derwinski, 2 Vet.App. 492 (1992). Thus, there is nothing on the death certificate or in the other medical evidence on file that suggests that a duodenal ulcer or arthritis of the dorsal spine was implicated in the veteran’s death and no basis to find that the appellant is entitled to service connection for the cause of the veteran’s death. Her claim is not plausible. Although the RO did not specifically state that it denied the appellant’s claim on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, 8 Vet.App. 384 (1995) (deciding that the remedy for the Board’s deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection on the merits, the Board concludes that denying the claim because the claim is not well grounded is not prejudicial to the appellant, as the appellant’s arguments concerning the merits of the claim included, at least by inference, the argument that sufficient evidence to establish a well-grounded claim is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is well grounded. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993); VAOGPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. Where a claim is not well grounded it is incomplete, and VA is obligated under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his or her application. Robinette v. Brown, 8 Vet.App. 69, 77-80 (1995). In this case, the RO informed the appellant of the necessary evidence in the claims form she completed, in its notice of rating decision and the statement of the case. The discussion above informs the appellant of the types of evidence lacking, and which she should submit for well grounded claim. Unlike the situation in Robinette, the appellant has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, might make the claim well grounded. The Board has also considered the appellant’s contention that the case should be remanded on the ground that VA should extend the duty to assist to claims that are not well grounded. In support of that argument, the appellant refers to VA ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1), Part III, 1.03(a) (Feb. 3, 1996), Part VI, 2.10(f). The representative 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 appellant’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. VA sought to obtain the veteran’s service medical records, and also sought to obtain records of all private medical treatment specified by the appellant. 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 appellant has further asserted that the doctrine of benefit of the doubt requires that service connection be granted for the cause of the veteran’s death. That doctrine requires resolution of an issue in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter. 38 U.S.C.A. § 5107 (West 1991). However, in this case, there is no competent positive evidence that the veteran’s death was caused by his service- connected disability. Therefore, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (benefit of the doubt rule must be applied only when the evidence is in relative equipoise). ORDER Service connection for the cause of the veteran’s death is denied on the basis that the claim is not well grounded. JOAQUIN AGUAYO-PERELES 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 -