Citation Nr: 9913637 Decision Date: 05/19/99 Archive Date: 05/26/99 DOCKET NO. 97-20 314A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her son INTRODUCTION The veteran served on active duty from September 1936 to October 1945. He died on December [redacted], 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision by the RO. Service connection for the cause of the veteran's death and entitlement to Survivors' and Dependents' Educational Assistance under Chapter 35 of Title 38 of the Unites States Code were denied. However, the appellant has appealed the denial of service connection only. FINDINGS OF FACT 1. The veteran died in December 1996 of pneumonia due to amyotrophic lateral sclerosis (ALS). 2. No competent evidence has been presented that attributes the onset of the fatal disease process to military service, or to the one-year period following service. 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 pneumonia due to ALS which had begun 9 years prior to his death. Available medical records show that ALS was first diagnosed in 1986 when, after being followed for neurologic complaints, it was felt that the veteran had a motor neuron disease that was most likely ALS. An April 1997 letter from Eugene P. York, M.D., indicates that the veteran had died of ALS that he had had for over 10 years prior to his death. It was noted that the veteran had served during World War II in Panama and that it was a possibility that he had contracted ALS at an earlier time, such as when he was in a tropical region. In June 1998, a VA neurologist prepared an opinion as to whether the veteran's death was due to ALS as a result of serving in the tropics. Upon review of the file, it was felt that the veteran first began to have symptoms of ALS in the 1980's. It was also noted that an unusual neurologic disease had been seen in Shamoro natives on the island of Guam which was referred to as Parkinson's dementia ALS complex. The examiner indicated that there was no suggestion that the veteran had had this complex. Rather, it was opined that the veteran had had a classic form of ALS. The Board finds that the evidence described above does not include competent medical evidence of any link between the fatal disease process and the veteran's military service. The reference to a possibility of a link to the veteran's military service in a tropical region by Dr. York is too speculative to constitute the basis for a well-grounded claim. Dr. York's statement is not supported by any clinical data or other rationale to support such a conclusion. Indeed, nothing was said to give such a statement any substance. Dr. York did not cite to any authority for such a proposition; nor did he describe his own experience or reasoning for such an opinion. See Bloom v. West, 12 Vet. App. 185 (1999) (absent clinical data or other rationale, a statement that respiratory problems which contributed to a veteran's death "could" have been precipitated by time in a prisoner of war camp is too speculative to show the necessary medical nexus). Dr. York's opinion is, by its own terms, equivocal, and is no more helpful than an opinion that disability "may or may not" be due to service. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Additionally, no evidence has been presented to suggest that ALS began within one year of the veteran's separation from service. Therefore, the appellant is not aided by the provisions of 38 C.F.R. §§ 3.307, 3.309. Moreover, the veteran was not service connected for any disability which might have contributed to the fatal processes. When a well-grounded claim has not been presented, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet.App. 14 (1993). Therefore, the appeal for service connection for the cause of the veteran's death must be denied. 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, supra. 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 his 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 an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his 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