Citation Nr: 0810024 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-38 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The veteran had recognized guerrilla service from February 1945 to June 1945 and regular service with the Philippine Army from June 1945 to March 1946. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2007, but was remanded in order to afford the veteran a hearing. The veteran appeared at a video conference hearing with the undersigned Veterans Law Judge in July 2007. FINDINGS OF FACT 1. The veteran was not a prisoner of war. 2. The veteran died in August 2000; the death certificate lists the immediate cause of death as cardiorespiratory arrest, bronchopneumonia as an antecedent cause of death, and hypertension as an underlying cause of death. 3. At the time of the veteran's death, service connection was not in effect for a cardiorespiratory disorder, bronchopneumonia, or hypertension. 4. The disability that caused the veteran's death was not manifested during the veteran's military service or for many years thereafter, nor was it otherwise related to the veteran's service. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. After reviewing the claims folder, the Board finds that the claimant has been adequately notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. The May 2001 and September 2004 VCAA letters effectively notified the appellant of the evidence needed to substantiate her claim as well as the duties of VA and the appellant in furnishing evidence. The Board also notes that these letters implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. She was advised to submit information describing the additional evidence or the evidence itself. The Board believes that a reasonable inference from such communication was that the appellant must also furnish any pertinent evidence that she may have. Further, the May 2001 and September 2004 letters were sent to the appellant prior to the March 2005 rating decision from which this appeal originates. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Although the present appeal involves an issue of service connection for the veteran's cause of death, VA believes that the Dingess/Hartman analysis must be analogously applied. To the extent that such notice may be deficient in any respect, such as with regard to an effective date, the matter is effectively moot in light of the following decision which finds that the preponderance of the evidence is against the appellant's claim. The Board further notes that the status of the appellant's husband as a veteran has not been contested. VA has adjudicated the appellant's claim based on her husband's status as a veteran as defined by 38 C.F.R. § 3.1. The VCAA places an enhanced duty on VA to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the RO has obtained all existing medical records identified by the appellant. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). As to any duty to provide a medical opinion on the cause of the veteran's death or whether it was linked to service, the Board notes that the record clearly shows that the veteran died of cardiorespiratory disorder, bronchopneumonia, and hypertension and there is no indication of these disorders until decades post-service, nor is there any competent evidence that suggests a link between the veteran's fatal disorders and service. Under these circumstances, there is no duty to obtain a medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the appellant. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Analysis In a claim of service connection for the cause of the veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease (including hypertension and organic heart disease) disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). If a veteran is (1) a former prisoner of war and; (2) as such was interned or detained for not less than 30 days, certain diseases shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service, even though there is no record of such disease during service. 38 C.F.R. § 3.309(c). The term "former prisoner of war" means a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force. 38 C.F.R. § 3.1(y). VA shall accept the findings of the appropriate service department that a person was a prisoner of war during a period of war unless a reasonable basis exists for questioning it. Such findings shall be accepted only when detention or internment is by an enemy government or its agents. 38 C.F.R. § 3.1(y)(1). A July 2006 Administrative Decision in the claims file includes the decision that the veteran may not be recognized as a former POW. Specifically, this decision notes that the evidence of record is insufficient to support a finding that the veteran meets the criteria of a former POW in accordance with 38 C.F.R. § 3.1y. It is further noted that, other than the surviving spouse's allegation, there are no official records and/or corroborating evidence submitted to support alleged POW status. The RO considered the veteran's processing affidavit and application form (VA Forms 21-526, Veteran's Application for Compensation and/or Pension, received on August 2, 1995, in which the veteran indicated that he had never been a prisoner of war) as more credible evidence compared to the appellant's unsupported allegations. The RO concluded that the appellant had not established eligibility to presumptive provisions under Former Prisoners of War Benefits Act of 1981 and the Veterans Benefits and Services Act of 1988. Former Prisoners of War Benefits Act of 1981, Pub. L. No. 97-37, 95 Stat. 935 (1981); Veterans Benefits and Services Act of 1988, Pub. L. 100-322, 102 Stat. 487 (1988). In addition, it is noted that the July 1968 service department certification of the veteran's service did not indicate any POW status for the veteran. As such, the Board also finds that the presumptive provisions pertinent to former POWs are not applicable in this case. As noted above, the veteran died in August 2000. His death certificate lists the immediate cause of death as cardiorespiratory arrest, bronchopneumonia as an antecedent cause of death, and hypertension as an underlying cause of death. At the time of the veteran's death in August 2000, the veteran was not service-connected for these disorders or any other disabilities. The Board notes that the service medical records are negative for complaints of cardiorespiratory arrest, bronchopneumonia, or hypertension. There is also no post-service medical record pertaining to these disorders until many years after discharge. The veteran's August 1946 Affidavit for Military Personnel, Other than Philippine Army, reflects that he reported that he had no wounds or illnesses. A December 1991 treatment report from the Veterans Memorial Medical Center reflects that the veteran complained of hypertension and was diagnosed with HCVD (hypertensive cardiovascular disease). The treatment record also includes a problem list which notes that the approximate date of onset of hypertension was 1984, approximately 38 years after the his discharge from active duty service. Accordingly, the veteran was denied service connection for hypertension by a December 1995 rating decision. Similarly, an April 1996 statement from a private physician reflects that the veteran was suffering from disorders including myocardial ischemia (a heart disorder). However, this statement is approximately 40 years after the veteran's discharge from active duty service. Accordingly, by a June 1996 rating, the veteran's claim for myocardial ischemia was denied on the basis that it was not manifested within the one year presumptive period for such disorders. There is no competent evidence in the record suggesting a causal link between the veteran's cardiorespiratory arrest, bronchopneumonia, or hypertension and his service. The Board is thus presented with an evidentiary record which does not show that the cause of death manifested in service, or within the presumptive period. Therefore, based on the medical evidence of record, the Board finds that service connection for the veteran's cause of death is not warranted. There is no evidence of a cardiorespiratory disorder, bronchopneumonia, or hypertension in service and the service incurrence cannot be presumed because there is no competent medical evidence of these disorders within one year after service. The Board sympathizes with the appellant for her loss. However, the preponderance of the evidence is against a finding of a link between the veteran's cause of death and his service. Thus, the appellant's claim must be denied. See Ruiz v. Gober, 10 Vet. App. 352 (1997). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs