Citation Nr: 9920417 Decision Date: 07/23/99 Archive Date: 07/28/99 DOCKET NO. 97-25 195 ) DATE ) ) Received 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 Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from September 1956 to February 1961. He died on March [redacted], 1996. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1996 decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. By a statement, dated in May 1997, the appellant notified the Winston-Salem, North Carolina, RO that she wanted the claims file transferred to the Columbia, South Carolina RO. Her claims file was subsequently transferred. FINDING OF FACT No competent evidence has been presented that tends to link the veteran's suicide with military service or an already service-connected disability. 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. §§ 1131, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.302, 3.303, 3.312 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that the veteran was suicidal while in military service. Specifically, it is maintained that he frequently overdosed on Valium provided by VA and intentionally drove his car into trees. Additionally, it is asserted that he continued to be suicidal after military service, attempting suicide approximately once a month, and had frequent psychiatric hospitalizations. The Board notes that a person who submits a claim for 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. Only if the claimant meets this burden does VA have the duty to assist her in developing the facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). Therefore, 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). 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 process to a period of military service or an already service-connected disability. See 38 U.S.C.A § 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310, 3.312 (1998). In short, evidence must be presented showing that disability which has been linked to military service is either a 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. In addition, service connection may be granted for the cause of death by suicide where it is established that at the time of death there was mental unsoundness due to or as the proximate result of a service-connected disease or injury. Where the evidence shows no reasonable adequate motive for suicide, it will be considered to have resulted from mental unsoundness and the act itself considered to be evidence of mental unsoundness. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational man to self- destruction. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.302(b)(2) (1998). The veteran's death certificate shows that he died of asphyxia due to ligature strangulation by hanging. No other conditions were listed as contributing to the veteran's death. The manner of death was suicide. The appellant contends that the veteran should have been service connected during his lifetime for a psychiatric disorder which in turn played a role in the cause of his death. However, she has not submitted any medical evidence supporting this assertion. (Her allegation alone is not enough to make her claim well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).) The veteran's service records include reports that the veteran lost his left eye and fractured the first and second toes of his left foot. See service medical records dated in July 1957 and February 1961. The veteran was awarded service connection for both of the foregoing disabilities. See RO decision entered in September 1970. However, the record on appeal is devoid of any medical evidence that associates any of the foregoing service-connected disabilities with any process leading to or contributing to the veteran's demise. Additionally, a May 1997 letter reported that the veteran was hospitalized at the Edward J. Memorial Hospital psychiatric unit for two days in August 1961. This hospitalization took place approximately six months after his separation from military service. However, VA was not provided with an admitting diagnosis. The letter also reports that the treatment records for this period of hospitalization were no longer available. The appellant testified at a June 1998 personal hearing that the veteran's post-service psychiatric hospitalization treatment records at Meyer Memorial Hospital and Victory Hospital, as well as police reports from times the police were called due to the veteran's suicidal behavior, were no longer available. Years after service, the veteran apparently also had problems associated with depression, atypical personality disorder, passive-aggressive personality disorder, and heart disease. See VA treatment records for periods of hospitalization dated September 1991 to October 1991 and January 1996; Also see VA contact reports dated January 1996 to March 1996. In fact, the veteran was hospitalized at VA from September 1991 to October 1991 because of what was described as a suicide gesture. Moreover, while hospitalized, he reported having attempted suicide on numerous earlier occasions. In addition, a February 1996 VA contact report shows that the veteran's psychiatric condition was worrisome enough that police were contacted and asked to go to the veteran's home. Ways to have the veteran committed were discussed. The record on appeal contains no motive for suicide except for references to the veteran's general statements that he "[j]ust wanted it to be over" as noted in a contact report. Consequently, the Board will concede that mental unsoundness led to the veteran's act of self destruction. 38 C.F.R. § 3.302(b)(2) (1998). However, no medical opinion has been presented linking any of the foregoing problems, including psychiatric debility, to his period of military service or to previously service-connected disability. Moreover, no medical evidence has been presented to show that his mentally unsound state was manifested within a year of service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). (While the record on appeal shows he was admitted to a psychiatric unit approximately six months after his separation from military service, no evidence has been presented to show his psychiatric diagnosis at that time was a psychosis for which a presumption of service incurrence applies.) The record on appeal only shows that the veteran was diagnosed with depression in September 1991, over 30 years after his separation from military service. See September 1991 to October 1991 VA hospitalization records. The record on appeal contains voluminous VA treatment records. It also contains the appellant's testimony at a personal hearing. However, absent the presentation of competent medical evidence linking a principal or contributory cause of death (mental instability leading to suicide) to military service or to service-connected disability, or without competent evidence showing that an already service-connected disability contributed in any way to the fatal process, the Board finds that the appellant has not met the burden of submitting a well-grounded claim. Espiritu, supra. Although the appellant believes that, among other things, the depression the veteran was diagnosed with in 1991 existed since military service and led to the veteran taking his own life, no medical opinion of this nature has been presented. Id. 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 of 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. Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999). 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); Morton, supra. 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 in establishing the evidentiary elements of a 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 the 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