Citation NR: 9719697 Decision Date: 06/03/97 Archive Date: 06/13/97 DOCKET NO. 93-12 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the veteran’s death. 2. Whether the appellant’s child, [redacted], became permanently incapable of self-support prior to her 18th birthday in March 1977. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her daughter Luanne ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from January 1951 to December 1954. He died in May 1974. This matter comes before the Board of Veteran's Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in July 1991. When the case was remanded in July 1995 it was noted that although service connection for the cause of the veteran’s death had been denied in March 1975, because of an intervening change in the law the claim was properly readjudicated by the RO on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran’s fatal liver disease was due to radiation exposure during service and that alcoholism leading to liver disease was due to a psychiatric disability of service origin. It is further asserted that the veteran’s daughter, [redacted], was incapable of self-support at age 18. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 preponderance of the evidence is against the claim of entitlement to recognition of [redacted] as the helpless child of the veteran. It is also the decision of the Board that evidence sufficient to present a well grounded claim for the cause of the veteran’s death has not been presented. FINDINGS OF FACT 1. The veteran had active service from January 1951 to December 1954 and at his death in May 1974, of hepatic encephalopathy due to alcoholic liver cirrhosis, service connection was not in effect for any disability. 2. There is no competent evidence that the veteran ever had any form of cancer or psychiatric disability. 3. The veteran’s fatal liver cirrhosis is unrelated to military service; any incident of military service, including possible exposure to non-ionizing radiation from radar; and any psychiatric disorder alleged to be of service origin. 4. [redacted], who was born on March [redacted], 1959, is a daughter of the veteran. 5. [redacted] did not become permanently incapable of self- support prior to or upon attaining 18 years of age. CONCLUSIONS OF LAW 1. A well grounded claim for service connection for the cause of the veteran’s death has not been presented. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312 (1996). 2. The criteria for entitlement to recognition of [redacted] as a helpless child of the veteran have not been met. 38 U.S.C.A. § 101(4)(A) (West 1991); 38 C.F.R. §§ 3.57, 3.356 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION This case was remanded in 1995 to search for additional service medical records but, as reported in October 1995, none are available. The appellant’s assertion that because the veteran informed her of inservice psychiatric treatment in Japan, where he had been sent for rest and recuperation, such records must be missing, does not establish that (as she claims) such records are missing. Rather, it is not clear that any such records ever existed. Additionally, records of private treatment of the veteran in the early 1960’s for alleged psychiatric disability, and by her admission some pertained to treatment for alcoholism, are not attainable. Lastly, the evidence suggests that the veteran did not receive “three battle stars.” Rather, the information now on file indicates he was awarded Bronze Service Stars. I. Service Connection for the Cause of the Veteran’s Death Background The veteran’s service medical records are negative for intracranial or liver disease. The service discharge examination was negative but noted, as did an adjunct medical history questionnaire that the veteran had handled radioactive substances in the form of “T.R. & R.T. tubes” from 1952 to 1954. On file is information reflecting that, in part, members, such as the veteran, of the 19th Bombardment Group, were entitled to the Bronze Service Star, and not Battle Stars. The veteran was hospitalized at the Newark-Wayne Community Hospital in May 1974. At admission he was intermittently confused. Co-workers who were contacted stated that he had not missed any work in two years but was a heavy drinker of alcohol. His condition deteriorated and he died. The veteran’s death certificate reveals that he died on May [redacted], 1974, at the age of 42, and the immediate cause of his death was hepatic encephalopathy, the onset of which was approximately 2 days prior to death, due to alcoholic liver cirrhosis. No autopsy was performed. In November 1974 the appellant stated that the veteran had reported being hospitalized during service in Japan for his nerves and fatigue. She felt that he had a psychiatric disorder that had gone undetected during service but which caused his fatal alcoholism. He had received psychiatric outpatient treatment in 1962 and she had tried, unsuccessfully, to have the veteran hospitalized at a VA facility. In 1991 the appellant indicated that she felt the veteran had “post traumatic shock syndrome” which had been untreated in service and had led to his alcoholism. In April 1991 she stated that the veteran had once assaulted her while stating that she was the enemy and that he had had flashbacks but she did not describe the contents thereof. In statements in February 1992 the appellant stated that she felt that the gonorrhea that the veteran had had in 1952 and 1953 could have caused nervous problems and that his stomach problems during service may have been symptoms of a nervous problem. In a statement received in February 1992 Dr. Buxbaum stated that he had no recollection of dates, diagnosis or history of the veteran. On that statement, in a handwritten addendum, the appellant stated that a Dr. Lamberti, who had referred the veteran to Dr. Buxbaum, had no office records but that Dr. Lamberti had rendered a diagnosis of schizophrenia and that in 1961 and 1962 the veteran had taken Thorazine. The veteran had been hospitalized for alcoholism in 1967. In March 1992 the veteran’s brother stated that in 1961 and 1962 the veteran was treated by Dr. Buxbaum. The veteran had not been the same after military service and seemed very disturbed by events in Korea. Information from the Department of Defense in June 1996 indicates that the “TR” tube referred to in the veteran’s service medical records were part of switching devices in electronic systems, some of which were part of radar systems. Also on file are partial copies of material from the Defense Department reflecting the impact of nuclear radiation on electronic devices and the clinical effects of human exposure to ionizing radiation. Also within the record is a pamphlet from the Nuclear Regulatory Commission dealing with the health risks associated with nuclear radiation and radioactive materials. Attached to this medical literature, dated in January 1995, indicating that acute hepatic encephalopathy is a universal feature of acute liver failure but nothing in this literature refers to radiation of any kind. Law and Regulations Service connection for the cause of a veteran's death is warranted when the evidence demonstrates that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1996). 38 U.S.C.A. § 5107(a) (West 1991) requires that a claimant must meet an initial threshold of submitting a well grounded claim to obtain VA benefits, and to trigger the VA’s duty to assist. To be a well grounded claim a claimant must submit evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. A well grounded claim is a plausible claim, one which is meritorious on its own capable of substantiation; it need not be conclusive but only possible to satisfy 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). For a claim for service connection to be well grounded, there must be (1) competent evidence of current disability (a medical diagnosis) (Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992)); (2) of incurrence or aggravation of a disease or injury in service (lay or medical evidence) (Layno v. Brown, 6 Vet.App. 465, 469 (1994) and Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991)); and (3) of a nexus between the inservice injury or disease and the current disability (medical evidence) (Lathan v. Brown, 7 Vet.App. 359 366 (1995) and Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)). Caluza v. Brown, 7 Vet.App. 498, 506 (1995) and Johnson v. Brown, 8 Vet.App. 423, 426 (1995). Where medical evidence is required, it must be to the effect that the claim is plausible or possible. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Service connection for cancer or for death caused by cancer, which is claimed to be attributable to radiation exposure during service, can be accomplished in three different ways. First, there are 15 types of cancer which will be presumptively service-connected. 38 U.S.C.A. § 1112(c) (West 1991). Second, 38 C.F.R. § 3.311(b) (1996) provides a list of diseases which will be service-connected provided that certain conditions specified therein, pertaining to radiation exposure, are met. Third, direct service connection can be established by showing that the disease or cause of death was incurred during or aggravated by service, which includes the “difficult burden of tracing causation to a condition or event during service.” Ramey v. Brown, 9 Vet.App. 40, 44 (1996) (citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994)). Under 38 C.F.R. § 3.311(a)(4)(i) and (ii) (1995) neither the veteran nor the veteran’s survivors are required to produce evidence substantiating inservice radiation exposure if information in the service records is consistent with the claim of inservice exposure and if presence or absence at the site of radiation exposure is not established by service records, presence at the site will be conceded. A lay witness is not capable of offering credible evidence requiring medical knowledge. A layman may provide an eye- witness account of visible symptoms but because a lay person is untrained in medicine, a lay person cannot offer a diagnosis or medical conclusion that requires medical knowledge. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) and Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Analysis Radiation Under the statutory scheme only veterans exposed to radiation from nuclear weapons testing, the “radiation-risk activity” defined in 38 U.S.C.A. § 1112(c)(4)(B), may receive a life-time presumption for certain listed radiogenic diseases. Here, there is no allegation or evidence of such “radiation-risk activity.” Moreover, that statute forbids as to the listed primary liver cancer when cirrhosis is indicated. 38 U.S.C.A. § 1112(c)(2)(M). Here, there is virtually no clinical evidence that the veteran had liver cancer; rather, it is undisputed by the clinical evidence that he had fatal alcoholic liver cirrhosis. Similarly, liver cirrhosis is not contained in 38 C.F.R. § 3.311(b) (1996) which provides a list of disease which will be service-connected provided the conditions specified therein are met. However, 38 C.F.R. § 3.311(b)(b)(4) (1996) provides that diseases not listed will be considered if competent scientific or medical evidence is cited or submitted. In this case, no such evidence has been submitted. First, there is no evidence that the veteran participated in radiation-risk activity in the form of nuclear weapons testing. Also, it is now clear that he did not actually handle radioactive substances but, rather, may have been exposed to non-ionizing radar from the cited “TR” or ‘RT” tubes. While information has been submitted pertaining to the effects of ionizing radiation from nuclear blasts on electronic equipment, and radar equipment is electronic in nature, no information has been submitted as to the medical effects of non-ionizing radiation from radar. Thus, this case is distinguishable from Rucker v. Brown, 10 Vet.App. 67 (1997) in which there was a medical opinion from a treating physician as to the effects of non-ionizing radar emissions. Likewise, there is no competent medical evidence of a nexus between the veteran’s fatal alcoholic liver cirrhosis and his military service. Psychiatric Disorder There is virtually no competent evidence of a psychiatric disability. There is only lay evidence, in the form of the appellant’s recollections of a physician’s diagnosis of schizophrenia medicated with Thorazine in 1961 or 1962. There is no corroboration of this history by treating physicians or clinical records of medical facilities. Similarly, while the appellant has reported information related to her by the veteran as to alleged stressors during service, there has never been a diagnosis of post traumatic stress disorder from a competent medical source. Likewise, her allegation that the inservice gonorrhea may have cause psychiatric disability is also mere lay speculation, as is the inference that schizophrenia, alleged to have been first diagnosed in the early 1960’s, is of service origin. When the underlying medical nature of evidence has been significantly diluted, as in the connection between a lay account of past medical information, and filtered through lay person’s sensibilities, such evidence is deemed to be too attenuated and therefore, inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet.App. 69, 77 (1995). Even testimony under oath, as to what a physician stated about medical causation, is insufficient to render a claim well grounded. Kirwin v. Brown, 8 Vet.App. 148, 153 (1995). Because the appellant has not submitted any medical evidence supporting her claim that the veteran's death was related to service or a service-connected disability, it is concluded that she has failed in her duty to submit evidence which would "justify a belief by a fair and impartial individual," that her claim is plausible. See Tirpak, 2 Vet.App. at 611. The Court has held that lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. See Grottveit, 5 Vet.App. at 93 and Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Indeed, in Barfield v. Brown, 5 Vet.App. at 9, it was specifically held that because the veteran’s wife was “a lay witness .. she is not competent to opine as to the medical cause of her husband’s death.” Lastly, service connection is prohibited for drug abuse or alcohol abuse on a direct basis and secondary basis, as well as secondary aggravation, as to claims filed after Oct. 31, 1990, under Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388, 1388-351. VA. O.G.C. Prec. 02-97 (January 16, 1997) (62 Fed.Reg. 15565 (1997)). The Board notes that the appellant’s application to reopen was received in April 1991. Accordingly, in view of the above, the claim for service connection for the cause of the veteran’s death is not well grounded. II. Helpless child Background A notarized but uncertified Baptism Certificate indicates that [redacted], the daughter of the appellant and the veteran, was born on March [redacted], 1959 (as [redacted] stated in an August 1981 VA Form 21-674, Request for Approval of School Attendance, despite testimony that she was born on March [redacted], 1959). A November 1973 report of an initial clinical evaluation of [redacted], at the age of 14, reveals that she was taking medication for a seizure disorder. Her past illnesses included pneumonia, bronchitis, and a fracture of her right wrist at the age of 4. Her seizures started when she was between the ages of 1 and 2 when she had and ear infection with accompanying fever. A spinal tap at that time had been normal and an electroencephalogram (EEG) had also been normal. Thereafter, she had done well until about the age of 9 when she had episodes of unresponsive staring, followed by a period of several seconds of confusion. A physician had diagnosed epilepsy, shown by an EEG to be petit mal in type. She was prescribed Phenobarbital and continued to have infrequent spells, sometimes once every 3 weeks or so. In view of the continued spells, Dilantin was also prescribed. At age 11 she had no spells of staring but had episodes, several times a week, in which she fell limply to the floor and was unresponsive. At that time a physician had felt that she was over-medicated. For the next year, she continued on a combination of medications, had slurred speech, and had had to be walked to and from school. Also during that year, she had a variety of different types of seizures. An EEG was slightly abnormal. Medications were tried in different combinations and she again became over-medicated but her seizure status remained the same. At the age of 13, she was seen at a clinic and was reportedly very close to normal. Some medications were discontinued until she was only on Dilantin. She was then free of seizures for one year. At age 14, she again began having spells of staring but in April 1973 had a generalized seizure and was hospitalized for observation. She was again placed on a regimen of combined medications. Since April 1973 she had had no recurrence of convulsions but had had spells of staring and aimless movement of arms with confusion. She had done well in school until September 1973, when her school grades dropped. On physical examination her speech was slightly slow. X-rays revealed that she had a fairly prominent intracranial vascular pattern, which was probably within normal limits. An EEG was normal. It was difficult to determine how much of her slowness was due to over medication and how was much to her seizure disorder. It was therefore recommended that she be hospitalized for rapid drug withdrawal but this was refused. Thus, a slower withdrawal on an outpatient was to be done. She had a combination of major seizures, psychomotor seizures, and possible akinetic seizures. A June 1974 report from Lydia Pauli, M.D. states that after the original November 1973 work-up, [redacted] had been and was to continue to be seen at regular intervals. A January 1977 VA Form 21-6744C, Request for Approval of School Attendance reflects that [redacted] was expected to be enrolled in Marywood College beginning July 1977 (about 4 months after she turned 18) until June 1981. In an August 1981 VA-Form 21-674 [redacted] stated that she was expected to be enrolled in the University of Scranton from September 1978 to May 1982. On file is information documenting [redacted]’s continued use of the anti-seizure medications Dilantin and Clorazepate since 1989. In March 1991 the appellant stated that [redacted] had had epilepsy since age 9 but because they remained uncontrolled, even with medication, she had had brain surgery in 1980. She had done well post operatively but still had to take medication, Dilantin and Chlorazepate. She had graduated from the University of Scranton. Due to the local job market had worked for 3 1/2 years but not in the field in which she had been educated. She had worked in a convenience store. Reportedly, the Social Security Administration had determined that she could work. The appellant felt that [redacted] could work but if [redacted] did not have a job, she needed the support and medication. [redacted] would have a better chance of obtaining a job in her field if she had a Master’s Degree but could not afford it. In July 1991 the appellant stated that [redacted] was employed on a part-time basis at a minimum wage for that last 3 years at a convenience store. [redacted] was in good health, except for having epilepsy, but was slow due to medication; yet, was “not presently helpless.” In March 1994 Dr. Dhaduk, M.D. stated that he had treated [redacted] for the past 4 or 5 years. She had a history of an injury at birth which led to a multi-focal type seizure disorder and mild mental retardation. She was taking Dilantin and Tranxene. She was neurologically stable but partially disabled and dependent on her mother. In February 1996 John Freeman, M.D., stated that [redacted] had been hospitalized in 1980 for left temporal lobe epilepsy and a temporal lobectomy was performed in July 1980. Reference was made to the findings in the November 1973 clinical evaluation of [redacted]. Additionally, a psychological assessment when she was 18 revealed that she had an I.Q. of 101 and that there had been a statement that “[t]here does not appear to be any reason why the patient could not intellectually negotiate college level work at the rural Pennsylvania School that she is considering. The social transition however may prove difficult for her.” There was also a note in September 1977 that she was making good grades in her first year of college, although she was still having seizures. In June 1982 she was doing well post operatively . Just before college graduation she was no longer taking medication but had continued to have spells. There were no clinical notes since 1982. On file is information dated in March 1996 indicating that the appellant was receiving Social Security benefits but nothing in the award letter reflects that the award was based on any status pertaining to [redacted]. Law and Regulations 38 U.S.C.A. § 101(4)(A) (West 1991) and 38 C.F.R. § 3.57(a) (1996) provide that a child is a person under the age of 18 or who, before reaching the age of 18 years, became permanently incapable of self support. 38 C.F.R. § 3.356 (1996) provides the criteria for a determination of permanent incapacity for self-support. Under subsection (a), the basic rule is that “[a] child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years.” 38 C.F.R. § 3.356(b) provides that the rating criteria applicable to disabled veterans are not controlling and that the principal factors for consideration are: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. “[I]n Dobson [v. Brown, 4 Vet.App. 443 (1993)] the Court held that the statute required a two-part test. The first part of the test requires [] that only evidence regarding the child's condition as of the child's eighteenth birthday be considered; then, if the child is found to have been disabled as of his or her eighteenth birthday, the second part of the two-part test requires consideration of evidence as to the current condition of the child. Dobson, 4 Vet.App. at 445- 446." Golliday v. Brown, 7 Vet.App. 249, 255 (1994). Analysis It is not contended or shown that anything other than temporal lobe epilepsy, as well as the side-effects of necessary anti-seizures medication, is what caused the appellant’s daughter [redacted] to be incapable of self-support at the age of 18. Because [redacted] was born in March 1959, she turned 18 in March 1977. Prior to graduation from high school, [redacted]’s seizure disorder had a fluctuating course. Her seizures were somewhat controlled with medication which in turn caused some problems with respect to cognitive ability. It is clear that [redacted] graduated from high school with grades sufficient for entrance into college. Nevertheless, mere "[g]raduation from high school, however, does not by itself prove an ability to support oneself." Dobson v. Brown, 4 Vet.App. 443, 446 (1993). There is testimony that following the July 1980 lobectomy it took [redacted] 5 years to obtain a bachelor’s degree. On the other hand, when she was 18 her I.Q was 101 [slightly higher that normal]. Since birth she had lived at home with her mother, even when she attended college. She has at times been employed but has had difficulty maintaining employment in occupations less intellectually challenging than those for which she was prepared by college education. However, it was not until July 1980, more than three years after she turned 18, that she had the temporal lobectomy. While she has had some difficulty maintaining some jobs, she was able to hold one job for about two years (page 25 of the transcript). These employment difficulties are shown a number of years after she turned 18. While the Board appreciates the difficulty that [redacted] has had, her mother, the appellant, has repeatedly emphasized that [redacted] is not helpless. In fact, it appears that a primary reason for the initial filing of this claim was to provide the appellant with additional monies with which to purchase the necessary anti-seizure medication that [redacted] requires, and not money necessary for [redacted]’s support due to an inability to support herself. Accordingly, it is the judgment of the Board at the age of 18 [redacted] was not permanently incapable of self-support. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991). In this case, for the foregoing reasons and bases, the preponderance of the evidence is against the claim that [redacted] was incapable of self-support at age 18 and, thus, there is no doubt to be resolved in favor of the veteran. As to the claim for service connection for the cause of the veteran’s death which is found not to be well grounded, the doctrine of resolution of doubt does not apply in determinations of well groundedness because that would require a weighing of the evidence which is prohibited in view of the fact that evidence which is competent must be presumed to be credible. Martinez v. Brown, 6 Vet.App. 462, 464 (1994). ORDER Entitlement to service connection for the cause of the veteran’s death is denied. The claim that the appellant’s child, [redacted], became permanently incapable of self-support prior to her 18th birthday in March 1977 is denied. JAMES W. ENGLE Acting Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 -