Citation Nr: 9925513 Decision Date: 09/08/99 Archive Date: 09/21/99 DOCKET NO. 95-05 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a seizure disorder for accrued benefits purposes. 2. Entitlement to service connection for the cause of the veteran's death. 3. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran, who served on active duty from March 1943 to October 1945, died in September 1990. The appellant is his widow. The Board of Veterans' Appeals (Board) notes that the issues on appeal stem from Department of Veterans' Affairs (VA) Regional Office (RO) rating decisions. This case was previously remanded by the Board in August 1997 in order to obtain additional clarifying data and afford the appellant due process. That development having been completed the case is once more before the Board for appellate consideration. The Board recognizes that while this case was in remand status, the certified issues of entitlement to disability compensation benefits for degenerative joint disease of the lumbar spine with right lower extremity weakness and spastic bladder under the provisions of 38 U.S.C.A. § 1151 (West 1991), for accrued benefits purposes were determined moot following the rating decision of June 1999 in which the RO granted service-connection for both degenerative joint disease of the lumbar spine with right lower extremity weakness and spastic bladder for accrued benefits purposes. The Board notes that the issue of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 was noted in a hearing officer's decision in November 1991, and included in a supplemental statement of the case in June 1999. FINDINGS OF FACT 1. The claim for entitlement to service connection for a seizure disorder for accrued benefits purposes is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation for the purposes of accrued benefits. 2. The claim for service connection for the cause of the veteran's death is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim for service connection for a seizure disorder for accrued benefits purposes is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for the cause of the veteran's death is not well-grounded. 38 U.S.C.A. § 5107(a). 3. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is not well-grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's COD shows that he died on September [redacted], 1990 at a VAMC. The immediate cause of death was respiratory arrest due to overwhelming tumor burden (adenocarcinoma of the colon). Other significant conditions contributing to death but not related to the immediate cause was noted as acute renal failure. No autopsy was performed. Service-connection had been granted for residuals of GSW of the right anterior chest, muscle group XX with foreign body at L-1, degenerative joint disease of the lumbar spine and right lower extremity weakness evaluated as 60 percent disabling; residuals of GSW of the right posterior chest with pleural cavity injury evaluated as 20 percent disabling; spastic bladder evaluated as 20 percent disabling and residuals of SFW of the right hand evaluated as noncompensable. The combined schedular evaluation was 70 percent. A historical review of the record shows that the veteran's service medical records are negative for any finding of carcinoma, renal disease or seizure disorder. In February 1945, while taking a pill box, the veteran was hit by an enemy bullet. The wound of entrance was in the right lower chest, along the posterior axillary line. There was no wound of exit. Also noted was moderate right hemithorax and blast injury to the right kidney. He was not unconscious. He was evacuated for treatment. There was no indication of a head injury. On a report of a physical examination in October 1945, for purposes of separation from active duty, all pertinent clinical evaluations were silent for carcinoma, a seizure disorder (head injury) or renal disease. On a report of an initial postservice VA general medical examination in May 1948, pertinent evaluations were silent for carcinoma, seizures and renal disease. On reports of VA general medical and special surgical examinations in July 1957 there was no evidence of carcinoma, seizures and renal disease. The surgical examination noted no residuals of any genitourinary pathology. He was questioned in reference to any possible kidney trouble and his history was completely negative for any kidney symptoms. Voluminous subsequent postservice VA medical records date from between approximately October 1983 and September 1990. In November 1983 there was noted a two year history of a seizure. During the years of treatment for seizures the veteran related the onset of seizures to a head injury in service when he was wounded and lost consciousness. He subsequently attributed the onset of seizures to being hit in the head with beer bottles in approximately 1980. A prostate needle biopsy of a nodule in October 1983 was reported as negative but the nodule persisted. A report of a biopsy of a prostate nodule in early August 1988 revealed adenocarcinoma, Gleason Grade III/III, left prostate lobe (core biopsy). A VA hospital summary reflects a period of hospitalization from September 30, 1988 to October 21, 1988 primarily for radical retropubic prostatectomy and bilateral lymph node dissection. The veteran's pathology showed a Gleason's 3/4 adenocarcinoma of the prostate diffusely involving the entire gland. The veteran was hospitalized from June 28, 1990 to July 6, 1990 for treatment of metastatic colon adenocarcinoma, liver metastases and possible lung metastases. Medical history at hospital admission revealed the veteran as a 65-year-old individual with a history of adenocarcinoma of the prostate, Stage B-2 and Gleason III-IV. He was reported as status post radical prostatectomy in October 1989, presently at the hospital for increased alkaline phosphatase, liver masses and fever. Biopsies were returned with colonic adenocarcinoma. It was noted to be high grade and invasive throughout the bowel wall. The veteran was hospitalized from August 9, 1990 to August 14, 1990 for treatment of metastatic colon adenocarcinoma, liver metastases and possible lung metastases. Medical history at hospital admission revealed the veteran as a 65- year-old individual with a history of prostatic carcinoma, status post resection two years earlier with a normal PSA in 06/90, who recently had known metastatic colon carcinoma with metastasis to the liver and probable metastasis to the lung, and presented with increasing lower back pain and right lower extremity weakness with gait instability times a few weeks. The veteran first had a history of low back pain approximately one year earlier. A myelogram done then revealed an L3-4 herniated disc and on examination he was found to have a decreased patellar reflex on the right and weakness of his right quadriceps and iliopsoas. His wife described a history of gait instability three months previously. During that episode he was found to have a Dilantin level in the high 20's and his dose of Dilantin was decreased with resolution of his gait instability. Past medical history revealed post-traumatic seizures. His last seizure was over a year before. He had a history of hypertension and diabetes, Type 2. Hospital course description noted that because the veteran had known metastatic carcinoma and presented with low back pain and right proximal upper extremity weakness, an emergent magnetic resonance imaging (MRI) scan was obtained. However, because of an old bullet wound, his MRI was uninterpretable secondary to artifact from the bullet. A computerized tomography (CT) myelogram was then obtained which revealed right L2 root compression secondary to degenerative disc disease, mild L3-4 central stenosis and severe L4-5 central stenosis, thought secondary to herniated discs. There was no evidence of metastasis or cancer in the spine or vertebral column. From the patient's physical examination, he was thought to be Dilantin toxic. The veteran was hospitalized from September 26, 1990 to September [redacted], 1990, when he expired. He was hospitalized for adenocarcinoma of the rectosigmoid junction, renal failure and liver failure. He was initially seen by the Surgical Service which felt that no resection of the tumor was needed. He was then referred to the Oncology Clinic where he underwent chemotherapy. It was noted that he had been doing well up until the week prior to admission performing all activities of daily living. Approximately one week prior to admission he had the onset of severe right upper quadrant pain as well as high spiking fevers to 103 with shaking chills. He presented to the Oncology Clinic a week after the symptoms began and was admitted to the Surgical Service. At the time of admission he was also noted to have a new onset of renal failure. He had not urinated in three of four days prior to admission. He was transferred to the Medical Service after being started on broad spectrum antibiotics for further care. Hospital course reflected that he was felt to have end stage adenocarcinoma with heavy liver metastasis by examination and by laboratory findings. The veteran was felt to have acute onset of renal failure. The veteran' s renal failure was felt to be multi-factorial, a likely component of acute tubular necrosis precipitated by the patient's sepsis and long standing pre-renal azotemia. The veteran's condition on discharge was expired. In September 1991, the appellant and her son attended a hearing before a hearing officer at the RO. A copy of the hearing transcript is on file. She essentially stated it was her belief that the negligent effects of surgery by VA in October 1988 for treatment of prostate cancer substantially contributed to the cause of the veteran's death. She noted that following surgery in October 1988 there was an immediate deterioration of his overall physical health. She noted that by her observation she could tell that the surgery was negligent as he went down hill physically. Her son agreed. She also noted that colon cancer was found only approximately one month before he died. She noted that he was not checked in the hospital until a month before he died. Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1998). Service connection may be granted for malignant tumor, renal failure or seizure disorder, when manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1998). The provisions of 38 C.F.R. § 3.310(a) provide that disability which is proximately due to or the result of a service-connected disease or injury, shall be service connected. The Board observes that 38 U.S.C.A. § 5121 (West 1991): 38 C.F.R. § 3.1000(a) (1998) for accrued benefits provides, in pertinent part: Basic Entitlement. Except as provided in §§ 3.1001 and 3.1008, where death occurred and periodic monetary benefits (other than insurance and servicemen's indemnity) authorized under laws administered by the VA, to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not to exceed 2 years prior to the last date of entitlement will, upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a widow or remarried widow, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. For the purpose of determining entitlement of benefits, the term child of the veteran means an unmarried person who is a legitimate child who is under the age of 18 years, or who, before reaching the age of 18 years, became permanently incapable of self-support, or who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a)(1)(i)(ii)(iii). The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If she has not, her appeal fails as to that claim, and the Department of Veterans Affairs (VA) is under no duty to assist her in any further development of that claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992). Further, in a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought, in order for the claim to be well grounded. See Jones (Wayne L) v. Brown, 7 Vet. App. 134 (1994). In addition, where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. For a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and competent evidence of a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). In order for service connection to be warranted, there must be evidence of present disability which is attributable to a disease or injury incurred in or aggravated by service. See Brammer v. Derwinski, 2 Vet. App. 23 (1992); Rabideau v. Derwinski, 2 Vet. App 141, 143 (1992). In LeShore v. Brown, 8 Vet. App. 406 (1995), the United States Court of Appeals for Veterans Claims (Court) held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by the examiner, does not constitute "competent medical evidence" satisfying the Grottveit v. Brown, 5 Vet. App. 91 (1993), requirement. Such evidence cannot enjoy the presumption of truthfulness recorded by Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995) (as to the determination of well-groundedness), and Justus v. Principi, 3 Vet. App. 510, 512 (1992) (as to determination of whether there is new and material evidence for purposes of reopening a claim), because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). I. Entitlement to service connection for a seizure disorder for accrued benefits purposes. Analysis With respect to the appellant's claim of entitlement to service connection for a seizure disorder on an accrued basis, the Board notes that following a comprehensive review of the record, the Board recognizes that the veteran's service medical records are completely silent for any finding of seizures or of an alleged etiologically related head injury with loss of consciousness. Pertinent examination finding at separation from service were normal. Significantly, the voluminous post service medical evidence including early reports of VA examinations is nonrevealing for any pertinent seizure process until approximately the 1980's. While the veteran was first shown to have related his seizure disorder to an unfounded head injury with loss of consciousness in service, the Board may not overlook the fact that he later associated his seizure disorder with being hit in the head with beer bottles in 1980. In any event, the record does not presently contain competent medical evidence linking the post service reported seizure disorder with active service. See Caluza v. Brown, 7 Vet. App. 498 (1995). Moreover, the record is without medical evidence of a nature to support the alleged causal relationship between a service-connected disability and a seizure disorder for which secondary service connection is sought, in order for the claim to be well grounded. See Jones (Wayne L) v. Brown, 7 Vet. App. 134 (1994). The record shows the veteran maintained he developed a seizure disorder which began in service or developed as a consequence of a service-connected disability; however, the Board notes the Court has held that while a lay person is competent to testify as to facts within his own observation and recollection, such as visible symptoms, a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical education, training or experience, such as matters relating to a diagnosis or medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Overall, there is no competent medical evidence of a pertinent seizure disorder which is linked to active duty or a service-connected disability. See Caluza v. Brown, 7 Vet. App. 498 (1995); Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). As competent medical evidence of a seizure disability with a nexus to the veteran's recognized active service or a service-connected disability has not been presented, the present claim on an accrued basis is not well grounded. If the claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). Accordingly, the claim for entitlement to service connection for a seizure disorder for accrued benefits purposes is denied. Edenfield v. Brown, 6 Vet. App. 432 (1994). The Board further finds that the RO had advised the appellant of the evidence necessary to establish a well grounded claim, and she had not indicated the existence of any post service medical evidence that had not already been obtained that would well ground the claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1997), aff'd sub nom Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997). As the appellant's claim for service connection for a seizure disorder for accrued benefits purposes is not well grounded, the doctrine of reasonable doubt has no application to her claim. The Court has held that if the appellant fails to submit a well grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1998). The appellant's representative contends that, subsequent to the Court's decisions pertaining to this issue, VA expanded its duty to assist her in developing evidence to include the situation in which the appellant has not submitted a well- grounded claim. Veterans Benefits Administration Manual M21- 1, Part III, Chapter 1, 1.03(a), and Part VI, Chapter 2, 2.10(f) (1996). The appellant's representative further contends that the M21- 1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. The Board, however, is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269; see also Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1998), prior to determining that a claim is not well-grounded. In Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999), the Court held that the Manual M21-1 provisions pertaining to the development of claims prior to a finding of well groundedness are interpretive, in that they do not relate to whether a benefit will be allowed or denied, nor do they impinge on a benefit or right provided by statute or regulation. The Court found that the M21-1 provisions constituted "administrative directions to the field containing guidance as to the procedures to be used in the adjudication process," and that the policy declarations did not create enforceable rights. The Court also found that interpretive provisions that are contrary to statutes are not entitled to deference, and that in the absence of a well grounded claim VA could not undertake to assist an appellant in developing the facts pertinent to the claim. The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well-grounded claim determination are quite clear. See Bernard v Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5. The Board has determined, therefore, that, in the absence of a well-grounded claim, VA has no duty to assist the appellant in developing her case. II. Entitlement to service connection for the cause of the veteran's death. Criteria To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly, or with some other condition be the immediate or underlying cause, or be etiologically related. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1998). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. Service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3) (1998). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). Analysis The Board notes that the veteran's COD shows that he died on September [redacted], 1990 at a VAMC. The immediate cause of death was respiratory arrest due to overwhelming tumor burden (adenocarcinoma of the colon). Other significant conditions contributing to death but not related was noted as acute renal failure. No autopsy was performed. Service-connection had been granted for residuals of gunshot wound (GSW) of the right anterior chest, Muscle Group XX with foreign body of L-1, degenerative joint disease of the lumbar spine and right lower extremity weakness evaluated as 60 percent disabling; residuals of GSW of the right posterior chest with pleural cavity injury evaluated as 20 percent disabling; spastic bladder evaluated as 20 percent disabling and residuals of shell fragment wounds (SFW) of the right hand evaluated as noncompensable. The combined schedular evaluation was 70 percent. Importantly, there was no evidence of carcinoma or renal disease during active service. The first evidence of carcinoma with renal failure dates from many years following separation and there is no competent medical evidence of a nexus demonstrated with service. See Caluza v. Brown, 7 Vet. App. 498 (1995). The blast injury to the right kidney noted in service was not shown to be more than a temporary event without significant symptoms as no chronic kidney disorder was noted at separation from active service. In that regard, the Board notes the Court has held that a claim based on chronicity may be well grounded if (1) the chronic condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 497 (1997); A lay person is competent to testify only as to observable symptoms. See Savage v. Gober, 10 Vet. App. 488, 497 (1997); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Id. In this case, there is no competent medical evidence of a nexus between the renal failure as first noted many years postservice and the right kidney injury noted in the veteran's remote service. None of the veteran's service-connected disabilities was mentioned on the veteran's death certificate, and competent medical evidence of an etiologic link with overwhelming tumor burden (adenocarcinoma of the colon) and acute renal failure has not been demonstrated. Significantly, there is no competent medical evidence showing that the service-connected disabilities both materially affected a vital organ and were themselves of a progressive or debilitating nature. Clearly, the primary cause of death was so overwhelming that eventual death was anticipated irrespective of coexisting conditions. See 38 C.F.R. § 3.312(c)(4) (1998). Unfortunately, the appellant's claim for service connection for the cause of the veteran's death is supported solely by her contentions. Her assertions involve questions of medical causation or diagnosis, and thus cannot constitute evidence to render the claim well grounded, because lay witnesses are not competent to offer such medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The appellant's claim of entitlement to service connection for the cause of the veteran's death is not well grounded. If the claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). Accordingly, the claim for service connection for the cause of the veteran's death is denied. See Edenfield v. Brown, 6 Vet. App. 432 (1994). Although the Board considered and denied the appellant's claim on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than her claim, in fact, warranted under the circumstances. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In light of the implausibility of the appellant's claim and the failure to meet her initial burden in the adjudication process, the Board concludes that she has not been prejudiced by the decision to deny her appeal for service connection for the cause of the veteran's death. The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well grounded claim, and she has not indicated the existence of any post service medical evidence that has not already been obtained that would well ground her claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1997), aff'd sub nom Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997). As the appellant's claim for service connection for the cause of the veteran's death is not well grounded, the doctrine of reasonable doubt has no application to her claim. The Court has held that if the appellant fails to submit a well grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1998). The appellant's representative contends that, subsequent to the Court's decisions pertaining to this issue, VA expanded its duty to assist her in developing evidence to include the situation in which the appellant has not submitted a well- grounded claim. Veterans Benefits Administration Manual M21- 1, Part III, Chapter 1, 1.03(a), and Part VI, Chapter 2, 2.10(f) (1996). The appellant's representative further contends that the M21- 1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. The Board, however, is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269; see also Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1998), prior to determining that a claim is not well-grounded. In Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999), the Court held that the Manual M21-1 provisions pertaining to the development of claims prior to a finding of well groundedness are interpretive, in that they do not relate to whether a benefit will be allowed or denied, nor do they impinge on a benefit or right provided by statute or regulation. The Court found that the M21-1 provisions constituted "administrative directions to the field containing guidance as to the procedures to be used in the adjudication process," and that the policy declarations did not create enforceable rights. The Court also found that interpretive provisions that are contrary to statutes are not entitled to deference, and that in the absence of a well grounded claim VA could not undertake to assist an appellant in developing the facts pertinent to the claim. The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well-grounded claim determination are quite clear. See Bernard v Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5. The Board has determined, therefore, that, in the absence of a well-grounded claim, VA has no duty to assist the appellant in developing her case. III. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 (West 1991). Criteria Pursuant to 38 U.S.C.A. § 1151 (West 1991), VA is required to pay disability compensation for disability, aggravation of disability or death, to a veteran "in the same manner as if such disability, aggravation or death were service- connected," under the following circumstances: Where any veteran shall have suffered an injury, or aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation awarded under any of the laws administered by the VA, or as the result of having submitted to an examination under any such law, and not the result of the veteran's own willful misconduct, and any such injury or aggravation results in additional disability to or the death of the veteran. In Gardner v. Derwinski, the Court declared invalid the provisions of 38 C.F.R. § 3.358(c)(3) (1994), requiring VA fault or accident prior to recovery under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), Aff'd Sub Nom., Gardner v. Brown, 5 F.3d. 1456 (Fed. Cir. 1993), Brown v. Gardner, 115 S. Ct. 552 (1994). In December 1994, the United States Supreme Court held that VA is not authorized by § 1151 to exclude from compensation the "contemplated or foreseeable" results of non negligent medical treatment, as was provided by 38 C.F.R. § 3.358(c)(3). Subsequently, the VA Secretary sought an opinion from the Attorney General as to the scope of the exclusion from § 1151 coverage contemplated by the Supreme Court's decision. In a memorandum to the Secretary dated January 20, 1995, the Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, indicated that the Supreme Court's holding is read most accurately as excluding from coverage under § 1151 only those injuries that are certain, or perhaps the very nearly certain, result of proper medical treatment." In March 1995, amended regulations were published deleting the fault or accident requirement of 38 C.F.R. § 3.358, in order to conform the regulations to the Supreme Court's decision. Section (c)(3) of 38 C.F.R. § 3.358 was amended to remove the "fault" requirement which was struck down by the Supreme Court. 38 C.F.R. § 3.358(c)(1) provided that "[i]t will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith." Further, 38 C.F.R. § 3.358(b)(2) provided that compensation will not be payable for the continuance or natural progress of disease or injuries. 38 C.F.R. § 3.358(c)(3) now provides that "[c]ompensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered." Under the new 38 C.F.R. § 3.358(c)(3), compensation was precluded where disability (1) is not causally related to VA hospitalization or medical or surgical treatment, or (2) is merely coincidental with the VA hospitalization or medical or surgical treatment, or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized, or (4) is the certain or near certain result of the VA hospitalization or medical or surgical treatment. Where a causal connection exists, there is no willful misconduct, and the additional disability does not fall into one of the above-listed exceptions, the additional disability will be compensated as if service connected. However, effective October 1, 1997, 38 U.S.C.A. § 1151, relating to benefits for persons disabled by treatment or vocational rehabilitation, was amended by Congress. See section 422(a) of PL 104-204. The present claim for compensation benefits under 38 U.S.C.A. § 1151 was filed prior to October 1, 1997. All claims for benefits under 38 U.S.C.A. § 1151, which govern benefits for persons disabled by treatment or vocational rehabilitation, filed before October 1, 1997, must be adjudicated under the provisions of section 1151 as they existed prior to that date. VAOPGCPREC 40-97. The Court has repeatedly held that, for a service connection claim to be well grounded, there must be medical evidence of current disability, lay or medical evidence of incurrence or aggravation of a disease or injury in service, and medical evidence of a nexus (i.e., a link or a connection) between the injury or disease in service and the current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Similarly, a claim for 38 U.S.C.A. § 1151 benefits must be supported by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Opinions of the VA General Counsel have noted that, although claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection, there are similarities in their adjudication, including the requirement for a well-grounded claim. VAOGCPREC 7-97; VAOGCPREC 8-97. See also Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993), holding that a veteran must submit evidence sufficient to well ground a claim for benefits under 38 U.S.C.A. § 1151. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). Analysis As to the claim for compensation benefits for the cause of the veteran's death pursuant to the criteria under 38 U.S.C.A. § 1151, the Board notes that under the law, in the context of this issue on appeal, where it is determined that there is death resulting from VA treatment, DIC will be payable in the same manner as if such death were service- connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. The veteran's COD shows that he died on September [redacted], 1990 at a VAMC. The immediate cause of death was respiratory arrest due to overwhelming tumor burden (adenocarcinoma of the colon). Another significant condition contributing to death but not related to the immediate cause was noted as acute renal failure. Clearly, the record lacks competent medical evidence linking the veteran's death to VA hospitalization or medical or surgical treatment and additional disability pursuant to the criteria under 38 U.S.C.A. § 1151. The contentions raised in the context of this appeal are not supported by the evidence of record, nor has any competent medical evidence in support of these contentions been offered. As the appellant is a lay person, her contentions are not probative since they are not competent to provide an opinion on medical causation. See, King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu, 2 Vet. App. 492 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The opinion of qualified medical personnel is required to establish medical causation. Grottveit v. Brown, 5 Vet. App. 91 (1993). Consequently, the appellant's lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107. Id. Accordingly, the appellant's claim of entitlement to DIC benefits pursuant to the criteria of 38 U.S.C.A. § 1151, is not well grounded, and her claim must be denied. Although the Board considered and denied the appellant's claim on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than her claim, in fact, warranted under the circumstances. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In light of the implausibility of the appellant's claim and the failure to meet her initial burden in the adjudication process, the Board concludes that she has not been prejudiced by the decision to deny her appeal for DIC under the provisions of 38 U.S.C.A. § 1151. The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well grounded claim, and she has not indicated the existence of any post service medical evidence that has not already been obtained that would well ground her claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1997), aff'd sub nom Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997). As the appellant's claim for DIC under the provisions of 38 U.S.C.A. § 1151 is not well grounded, the doctrine of reasonable doubt has no application to her claim. The Court has held that if the appellant fails to submit a well grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1998). The appellant's representative contends that, subsequent to the Court's decisions pertaining to this issue, VA expanded its duty to assist her in developing evidence to include the situation in which the appellant has not submitted a well- grounded claim. Veterans Benefits Administration Manual M21- 1, Part III, Chapter 1, 1.03(a), and Part VI, Chapter 2, 2.10(f) (1996). The appellant's representative further contends that the M21- 1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. The Board, however, is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269; see also Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1998), prior to determining that a claim is not well-grounded. In Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999), the Court held that the Manual M21-1 provisions pertaining to the development of claims prior to a finding of well groundedness are interpretive, in that they do not relate to whether a benefit will be allowed or denied, nor do they impinge on a benefit or right provided by statute or regulation. The Court found that the M21-1 provisions constituted "administrative directions to the field containing guidance as to the procedures to be used in the adjudication process," and that the policy declarations did not create enforceable rights. The Court also found that interpretive provisions that are contrary to statutes are not entitled to deference, and that in the absence of a well grounded claim VA could not undertake to assist an appellant in developing the facts pertinent to the claim. The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well-grounded claim determination are quite clear. See Bernard v Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5. The Board has determined, therefore, that, in the absence of a well-grounded claim, VA has no duty to assist the appellant in developing her case. ORDER The appellant not having submitted a well grounded claim of entitlement to service connection for a seizure disorder for accrued benefits purposes, the appeal is denied. The appellant not having submitted a well grounded claim of entitlement to service connection for the cause of the veteran's death, the appeal is denied. The appellant not having submitted a well grounded claim for DIC benefits under the provisions of 38 U.S.C.A. § 1151, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals