Citation Nr: 9836851 Decision Date: 12/17/98 Archive Date: 12/30/98 DOCKET NO. 95-25 563 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active military duty from June 1943 to February 1944. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 1995 rating decision by the RO. (Previously, this case was before the Board in April 1998 when it was remanded for additional action by the RO.) CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran died of lung cancer that was caused by cigarette smoking that is traceable to the veteran’s period of military service. In the alternative, it is maintained that the veteran’s service-connected bronchial asthma was either a predisposing factor in the development of the fatal disease process, or contributed to the veteran’s death by otherwise significantly affecting his health. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 presented a well-grounded claim of service connection for the cause of the veteran’s death. FINDINGS OF FACT 1. The veteran died in March 1995 as a result of lung cancer; brain metastases contributed to his demise. 2. Service connection was in effect for bronchial asthma at the time of the veteran’s death. 3. No competent evidence has been presented that attributes the onset of the fatal disease process to military service, event(s) coincident with service, to the one-year period following service, or to the veteran's service-connected disability. 4. No competent evidence has been presented to show that the veteran's service-connected disability played any role in his death. CONCLUSION OF LAW The appellant's claim of 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 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered is whether the appellant has presented a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Section 5107 provides that the claimant's submission of a well-grounded claim gives rise to VA's duty to assist and to adjudicate the claim. Id. A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In short, VA is not required to adjudicate a claim until after the appellant has met her initial burden of submitting a well-grounded one. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection for the cause of the veteran's death, this means that evidence must be presented which in some fashion links the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310, 3.312 (1994). In short, evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. § 3.312. A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." § 3.312. A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. The veteran's death certificate shows that he died of lung cancer; metastatic cancer to the brain was a significant condition that contributed to his death. The appellant contends that this fatal process was brought about either by the veteran’s service-connected asthma or by smoking which in turn can be linked to the veteran’s period of military service. It is argued in the alternative that the service- connected asthma ought to be considered a contributory cause of death because it so adversely affected the veteran’s health throughout his lifetime. With respect to these various contentions, the Board initially notes that the appellant’s allegations alone are not enough to make her claim well grounded. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran’s service medical records, as well as records for many years following his military service reflect problems with asthma, but do not suggest that asthma caused the fatal lung cancer or otherwise had an effect on the veteran’s health so as to make him less able to resist the effects of the terminal cancer. Additionally, no competent medical evidence has been presented to link the cancer to smoking, or for that matter to any specific etiologic factor. Moreover, no medical evidence has been presented to suggest that cancer was manifest within a year of the veteran’s separation from military service so as to allow for a presumption of service incurrence. §§ 3.307, 3.309. Although a long history of smoking and asthma have been noted, absent the presentation of competent medical evidence linking asthma to death as a primary or contributing factor, or linking the fatal cancer to military service, the appellant’s claim of service connection may not be considered well grounded. See Caluza v. Brown, 7 Vet.App. 498 (1995) (medical evidence is required to provide diagnosis or to link current diagnosis to disease or injury in service.) It has also been contended on the appellant’s behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that “the duty to assist will prevail while development is undertaken.” A careful reading of this provision clearly shows the initiation of this “development” is predicated on the claim being “potentially plausible on a factual basis.” Essentially, “potentially plausible on a factual basis” means the claim is well grounded. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to her case. M21-1 Part III, 1.03(a) provides that “[b]efore a decision is made about a claim being well-grounded, it will be fully developed.” However, only when a claim is well grounded does VA have an obligation to assist the claimant in “developing the facts pertinent to the claim.” Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim – as compared to development of the evidence underlying the claim – merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts “concerning a well-grounded claim”); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if “a claim” is incomplete and requires “further development”). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in which the Court stated that, “[i]f the claim is not well grounded, the claimant cannot invoke the VA’s duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim.” Grottveit at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a claimant has submitted a well-grounded claim, VA is under no duty to assist the claimant in establishing the evidentiary elements of her claim. In other words, the requirement to “fully develop” a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears to merely reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is “fully developed” under M21-1 Part III, 1.03(a) means that, where the appellant’s application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant’s application is incomplete, or that she is aware of evidence which would render her claim well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for the cause of the veteran’s death is denied. MARK F. HALSEY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -