Citation Nr: 0405238 Decision Date: 02/25/04 Archive Date: 02/27/04 DOCKET NO. 03-15 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the veteran's cause of death. 2. Entitlement to accrued benefits. 3. Entitlement to non-service connected death pension benefits. ATTORNEY FOR THE BOARD T. Francesca Craft, Associate Counsel INTRODUCTION The veteran served in the Commonwealth Army of the Philippines from October 1941 to June 1946. His status during military service is as follows: pre-war service from October 1941 to December 1941; beleaguered from December 1941 to May 1942; missing in May 1942; prisoner of war from May 1942 to January 1943; no casualty status from January 1943 to June 1945; missing from June 1945 to August 1945; no casualty status in August 1945; and Regular Philippine Army from August 1945 to June 1946. The appellant is the veteran's surviving widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in August 2001 and August 2002 from the Department of Veterans Affairs (VA) regional office (RO) in Manila, Philippines. FINDINGS OF FACT 1. The veteran has been adequately notified of all pertinent laws and regulations and of the evidence necessary to establish his claim; all reasonable development necessary for the disposition of the instant case has been completed. 2. The veteran served in the Commonwealth Army of the Philippines from October 1941 to June 1946. 3. The veteran died in February 1982 at age 66; cause of death was bilateral tonsillar herniation due to massive cerebral hemorrhage, left traumatic. 4. The medical evidence does not demonstrate that the veteran had any disability at the time of his death, which was causally or etiologically related to the veteran's military service. 5. Service connection was not in effect for any disability during the veteran's lifetime. CONCLUSIONS OF LAW 1. The illness or injury that caused the veteran's death was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2003). 2. The appellant's claim for non-service connected death pension benefits is without legal merit. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2003). 3. The appellant's claim for accrued benefits is without legal merit. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background As a preliminary matter, the Board notes the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The new legislation provides for, among other things, notice and assistance to claimants under certain circumstances. VA has issued final rules to implement the provisions of the VCAA. See 66 Fed. Reg. 45,620 (August 29, 2001), codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). These regulations state that the provisions merely implement the VCAA and do not provide any additional rights. 66 Fed. Reg. at 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. Review of the claims folder reveals compliance with the statutory and regulatory provisions sufficient to proceed on the claims currently before the Board. That is, by way of the August 2001 and August 2002 rating decisions and the March 2003 Statement of the Case, the RO provided the appellant with the applicable law and regulations and gave notice as to the evidence generally needed to substantiate her claim. The RO sent a letter to the appellant dated in April 2001 that advised her of what the responsibilities of the VA and the claimant are in developing the record. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In regard to processing deadlines, the RO advised the appellant to send all requested information or evidence in support of her claim within a 60-day period and further advised that if the information or evidence was not received within that time, the claim would be decided based only on the evidence already in the claims file and any VA examinations or medical opinions. The RO also explained that if information or evidence was received within one year from the date of the letter and benefits were granted, VA might be able to pay benefits from the date the claim was received, but if received after one year, VA could only pay from the date the evidence was received. These advisements are in compliance with current statutes. See Veterans Benefits Act of 2003, P.L. 108- 183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § ____) (permits VA to adjudicate a claim within a year of receipt.) This provision is retroactive to November 9, 2000, the effective date of the VCAA. The Board also notes that the appellant's claims were adjudicated months after the appellant received the development letter. See Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. Jan. 13, 2004)(ruling that a development letter must be sent prior to the initial adjudication of the claim). The RO has obtained all evidence the appellant identified as available. Accordingly, the Board finds that VA has fulfilled its duties to notify and assist the appellant in this matter. Under the basic law, service connection may be established for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). In order to show a chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2003). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2003). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. There are primary causes of death which by their 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); Lathan v. Brown, 7 Vet. App. 359 (1995). Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces except benefits under­­ (1) contracts of National Service Life Insurance entered into before February 18, 1946; (2) chapter 10 of title 37; and (3) chapters 11, 13 (except section 412 (a)), and 23 of title 38. 38 U.S.C.A. § 107 (a) (West 2002). Service medical records show the veteran signed an Affidavit for Philippine Army Personnel in January 1946. The affidavit reflects the veteran swore in the presence of a Summary Court Officer that he incurred malaria in January and February 1942. He indicated that no permanent disabilities were incurred. In June 1946, the veteran underwent a separation physical examination. The Record of Physical Examination shows the cardiovascular system was normal and blood pressure was 118/70. No defects are noted. A Certificate of Death from the Republic of Philippines, Deputy Local Civil Registrar in Misamis Oriental Province shows the veteran died in February 1982 at age 66. The Postmortem Certificate of death reveals the cause of death was bilateral tonsillar herniation due to massive cerebral hemorrhage, left traumatic. A certificate from the Office of the City Civil Registry, Cagayan de Oro City, dated in April 1997, reiterates the information concerning the veteran's death. The appellant filed claims for service connection of the veteran's death, accrued benefits, and non-service connected death pension in February 2001. A medical certificate from A.B.E., M.D., dated in February 2001, indicates he diagnosed and treated the veteran for malaria, rheumatoid arthritis, numbness in both lower and upper extremities, swelling of joints, beriberi, edema, and lumbar pain. Dr. E. observed recurrent relapses of malaria, rheumatoid, and beriberi in previous years, including 1982. Dr. E. submitted an undated statement, which the RO received in September 2001. Dr. E. indicates the following: The first time Dr. E. saw the veteran, the veteran was suffering from a high fever and body ache. Dr. E. diagnosed malaria and treated the veteran with malaria medicine. A few months later the veteran returned with complaints of pain in his knee and hip joints; Dr. E. treated the veteran for rheumatoid arthritis. The veteran was unable to purchase medicines and became malnourished; Dr. E. gave the veteran "injectible" vitamins in the form of neurobion ampoule. After a while, the veteran returned with complaints of "heart ache" and lumbar pain. Dr. E. felt the veteran had a kidney problem and he treated him with Rowatenex. He treated the veteran's aching heart with an ampoule of apresoline. He prescribed lasix to treat edema. II. Analysis The Court of Appeals for Veterans Claims has held that in order to prevail on the issue of service connection, the medical evidence must reflect a (1) current disability; (2) medical, or in certain circumstances, lay evidence of a service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In cases of service connection for the cause of death of the veteran, the first requirement of a current disability will always be met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service-connected claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). Review of the record reveals only one disorder, malaria, during the veteran's period of service or within one year of service. There is no indication from the post-service records and postmortem certificate that malaria contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of the veteran's death. The record clearly shows that the veteran's cause of death was bilateral tonsillar herniation due to massive cerebral hemorrhage, left traumatic. The description of the veteran's massive cerebral hemorrhage as "left traumatic" reflects that the process that lead to the veteran's death was not a disease; rather, it resulted from trauma. Consequently, the Board finds that service connection for the veteran's cause of death is not warranted because the evidence is overwhelmingly against the appellant's claim. The Board considered the necessity of obtaining a medical opinion to make a decision regarding service connection of the veteran's cause of death. As noted earlier, his death is considered a current disability. But, a medical opinion was determined to be unnecessary because nothing in service medical records, post-service medical records, or the postmortem certificate indicates the veteran's death may be associated with an injury, event, or disease in service. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c). In regard to the appellant's claim for non-service connected death pension benefits, there is no controversy over the pertinent facts. The appellant objects to the laws, which govern her claim. The service department has verified the veteran had honorable service in the Commonwealth Army of the Philippines while in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941; the record shows no other military service and these facts are not disputed. The veteran's surviving widow is eligible to receive benefits dictated by the circumstances of his military service. The veteran's service is not deemed to have been active military, naval, or air service for the purposes conferring eligibility to non- service connected compensation or pension benefits. 38 U.S.C.A. § 107 (a). Where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Board finds the appellant has no legal entitlement to non- service connected death pension benefits. The Board likewise finds the appellant has no legal entitlement to accrued benefits. Accrued benefits are awarded based on compensation that has already been established prior to death or compensation determined to be payable for a pending claim based solely on the evidence already on file at the date of the veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In this case, the veteran had never filed a claim for periodic monetary benefits and consequently, did not have a VA file prior to the appellant filing her claims now before the Board. Thus, there were no ratings or decisions or evidence on file at the date of the veteran's death upon which, entitlement to periodic monetary benefits would or could be based. Moreover, the appellant failed to meet basic eligibility in that she did not file her claim for accrued benefits until nearly 20 years had passed since the veteran's death. An application for accrued benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(c). Consequently, the Board must find the appellant has no legal entitlement to accrued benefits. ORDER Service connection for the veteran's cause of death is denied. Accrued benefits are denied. Non-service connected death pension benefits are denied. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2