Citation Nr: 0811118 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-00 461 ) 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: Mark R. Lippman, Attorney ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who had recognized active service from November 1944 until February 1946. The veteran died in August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Manila Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2005, the Board issued a decision that denied, in pertinent part, the appellant's claim for service connection for the cause of the veteran's death. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). On February 9, 2007, the Court issued an order that, in pertinent part, granted a Joint Motion for Partial Remand (Joint Motion) filed by counsel for both parties, vacated the Board's June 2005 decision with respect to the issue at hand, and remanded the matter on appeal to the Board for action in compliance with the Joint Motion. This matter was before the Board in July 2007 when it was remanded for additional development. FINDINGS OF FACT 1. The veteran died in August 2002 at the age of 78; hypostatic pneumonia was certified as the immediate cause of death with pulmonary tuberculosis (PTB) as the underlying cause. 2. Neither pneumonia nor PTB was manifested in service; active PTB has not been confirmed manifested within three years thereafter by acceptable clinical, X-ray or laboratory studies, or by findings based upon acceptable hospital observation or treatment; and the veteran's death-causing diseases are not shown to have been related to service. 3. The veteran had not established service connection for any disability, and a service-connected disability is not shown to have contributed to cause his death. 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, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312, 3.374 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the matters being addressed. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant has been advised of VA's duties to notify and assist in the development of her claim. October 2002, September 2003 and September 2007 letters from the RO explained what the evidence needed to show to substantiate the claim. They also explained that VA was responsible for obtaining relevant records from any federal agency, and that VA would make reasonable efforts to obtain records not held by a federal agency, but that it was the appellant's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. The September 2007 letter also advised the appellant to submit any pertinent evidence in her possession. By letter in January 2008, the appellant was also advised of the criteria governing effective dates of awards. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)). While complete VCAA notice was not given prior to the April 2003 rating on appeal, the appellant had ample opportunity to respond to the October 2002, September 2003 and September 2007 notice letters. Thereafter, the claim was readjudicated. See October 2007 Supplemental Statement of the Case (SSOC). She was advised of the bases for the denial of service connection for the cause of the veteran's death and has had ample opportunity to respond and participate in the adjudicatory/appeal process. She is not prejudiced by any technical notice deficiency (including in timing) that may have occurred along the way. Regarding the duty to assist, VA has obtained the veteran's service medical records, records of pertinent medical treatment, the veteran's death certificate and a letter from the Municipal Health Officer responsible for certifying the immediate and underlying causes of the veteran's death that stated the bases upon which the health officer made the certification. The appellant has not identified any additional evidence (not already of record) pertinent to her claim and has affirmatively indicated (most recently in November 2007) that she has no further evidence to submit. (In response to the Board's July 2007 remand request to submit or provide the information and any necessary authorization to enable the RO to obtain any other medical evidence, not already of record, pertaining to the veteran's treatment or evaluation for PTB, the appellant submitted a release for treatment records from Dr. F dated in 1996 and 2001. However, the Board notes that these records were previously obtained by the RO in 2003.) The Board further finds that no additional development, as for medical opinions is indicated. In Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that 38 C.F.R. § 3.159(c)(4)(i) requires that a claimant establish that he or she has suffered an event, injury, or disease in service in order to trigger VA's obligation to provide a VA medical examination or obtain a medical opinion. Here, as further explained below, there is no medical evidence of active PTB (by acceptable clinical, X-ray or laboratory studies, or by findings based upon acceptable hospital observation or treatment) until more than three years after the veteran's discharge from service. A medical opinion is not necessary to decide this claim, as such opinion could not establish disease or injury in service or within the applicable presumptive period of three years. See also Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (the Board is not required to accept a medical opinion that is based on the appellant's recitation of medical history). The Board points out that the facts of this case are different than the facts in Garcia v. Principi, 3 Vet. App. 382 (1992), in which the Court held that where the veteran's PTB was initially diagnosed in service, there was no requirement that a private physician's medical opinion be substantiated by radiographic or hospitalization records. Significantly, as discussed in further detail below, in this case there is no evidence of a diagnosis of PTB during the veteran's military service. Therefore, the requirement that a private physician's medical opinion be substantiated by radiographic or hospitalization records still stands. Consequently, a remand for a medical opinion would serve no useful purpose. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. II. Factual Background, Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service medical records do not show any diagnosis, treatment or symptoms of PTB. They do reveal that the veteran suffered from acute malaria, which appeared to begin in April 1945. The veteran's service personnel records consist of a January 1946 processing affidavit, which, under the heading wounds or illnesses incurred in service lists none. Records from a hospital in Manila show that the veteran was treated for PTB in April/May 1974, March/April 1976 and November/December 1977. The diagnosis was moderately advanced PTB. A January 1975 letter from Dr. C indicates that page 12 of his record file, documenting the treatment he provided from 1946 to 1947, shows that the veteran came to his office with complaints of severe cough with bloody sputum, afternoon fever, chest pain, and appeared weak, pale and anemic. The veteran reported that these symptoms had been going on for half a year. Dr. C treated the veteran for minimal tuberculosis from October to December 1947 and January to March 1951 and for moderately advanced PTB from February 1974 to March 1974. In October 1974, Dr. C recommended that the veteran seek admission to the Veteran's Memorial Hospital for proper management of his condition. An October 1975 letter from Dr. G indicated that the veteran's illness started in 1945 as a chronic persistent cough that was associated with chest and back pain, occasional difficulty breathing, afternoon fever, weakness and loss of weight. The letter reiterated that the veteran was treated for PTB by Dr. C in 1947 and also indicated that he was given a chest X-ray by Dr. S in December 1947 and was diagnosed as having minimal PTB. Dr. G conducted his own chest X ray in January 1961 and diagnosed the veteran with far advanced pulmonary tuberculosis. Since that time, the veteran had returned for treatment from Dr. G about once every two months. In October 1975, Dr. G's diagnosis was PTB, far advanced, both lungs. In a May 1977 letter, Dr. G re-stated his previous October 1975 opinion that the veteran's illness started in 1945 as a chronic persistent cough that was productive of thick mucoid expectoration and was accompanied by gradual loss of weight, chest and back pain, and, later, difficulty breathing. The letter reiterated that the veteran was treated for hemoptysis by Dr. C in 1947. In July 1978, the veteran submitted two chest X rays for review. One was alleged to be his most recent chest X-ray and was undated, and one was alleged to have been taken soon after he was discharged from service and was dated June 1949. In August 1978 a VA physician reviewed the two X rays and determined that the undated X-ray showed the chest of a different individual than an X ray taken of the veteran by VA in November 1977. The examiner found that the alleged June 1949 X-ray (on Fuji film) showed pulmonary infiltrations in both upper lungs of an undetermined etiology along with left medial basal pneumonitis. A 1987 letter from the veteran indicated that the chest X ray taken by Dr. S in 1947 was destroyed by fire in 1956. A March 1992 letter from the veteran indicated that Dr.C's medical records were taken from his clinic by local people after the clinic was destroyed by an earthquake in July 1990. A March 1992 VA evaluation of X rays submitted by the veteran from January 1984 and March 1987 show probable localized pneumothorax or emphysema and localized emphysema or pneumothorax respectively. Additional private medical evidence of record indicates that the veteran received treatment for PTB from various providers (including Dr. F) from April 1972 to January 1974 and in June 1974, November 1979, September to October 1981, January 1984, April 1986, May 1987, March 1996, October 1998 and June 1999. Chronic obstructive lung disease secondary to Koch's infection with atelectasis was diagnosed in December 2001. During the veteran's lifetime, service connection for PTB was denied in various rating decisions, beginning in March 1975 and most recently in March 2002. The veteran's August 2002 death certificate shows that the immediate cause of death was hypostatic pneumonia and the underlying cause of death was pulmonary tuberculosis. A November 2002 letter from the municipal health officer who certified the cause of death for the veteran indicated that the legal bases for certification were hospital, clinical and laboratory records and information given to him by persons familiar with the veteran's condition. The appellant claims that the PTB that caused the veteran's death began during his military service. To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service- connected disability casually shared in producing death; rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection for PTB may be established on a presumptive basis if such disease is shown to have been manifested to a compensable degree within three years following the veteran's discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Diagnosis of active PTB by private physicians on the basis of their examination, observation, or treatment will not be accepted to show the disease was initially manifested after discharge from active service unless confirmed by acceptable clinical, X-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. 38 C.F.R. § 3.374(c). Tubianosa v. Derwinski, 3 Vet. App. 181 (1992). The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. During his lifetime, the veteran was not service connected for any disability. As stated above, the veteran's immediate cause of death was hypostatic pneumonia and the underlying cause of death was pulmonary tuberculosis. Service medical records do not show any diagnosis of, or treatment for, pneumonia or tuberculosis. (They show treatment for malaria, but the record contains no indication of any connection between the malaria the veteran suffered in service and the cause of his death.) While the January 1975 letter from Dr. C specifically indicated that he diagnosed the veteran with minimal PTB as of October 1947, a time well within the three year presumptive period for PTB, Dr. C's statement was not supported by with any of clinical, X-ray or laboratory studies or records of acceptable hospital observation or treatment necessary to confirm this private diagnosis. See 38 C.F.R. § 3.374. The Board once again points out that the facts of this case are different than the facts in Garcia, supra, in which the Court held that where the veteran's PTB was initially diagnosed in service, there was no requirement that a private physician's medical opinion be substantiated by radiographic or hospitalization records. Here, as noted above, there is no evidence of a diagnosis of PTB during the veteran's military service. Therefore, the requirement that a private physician's medical opinion be substantiated by radiographic or hospitalization records still stands. Other physician's letters of record (including letters from Dr. G) reference Dr. C's diagnosis; one letter references a diagnosis of minimal PTB by a Dr. S in December 1947 based on chest X-ray. However, these additional statements also are not supported by any actual chest X-rays or other necessary types of required confirmatory data from the presumptive period. As mentioned above, by regulation (38 C.F.R. § 3.374) a private diagnosis of PTB by itself may not be accepted to establish that the disease was initially manifested after discharge from active service. Consequently, the diagnoses of Dr. C and Dr. S cannot be accepted to show that the veteran had active PTB during the presumptive period. Moreover, the account of the veteran's incurrence of PTB in service (or within the three-year presumptive period) does not gain in probative value by virtue of being repeated by a physician who otherwise has no knowledge of the history in the matter. LeShore v. Brown, 8 Vet. App. 405 (1995). As for the appellant's own opinion that the veteran's PTB was incurred in service (or within the three-year presumptive period), that opinion is not competent evidence, as she is a layperson and has no training or expertise to offer a medical opinion regarding etiology of a disability. Espiritu v. Derwinski, 2 Vet, App. 492 (1992). Regarding the chest X-ray alleged to be from June 1949, June 1949 is 4 months beyond the 3-year presumptive period. Furthermore a VA analysis did not conclude that the X-ray showed pulmonary tuberculosis. The analysis concluded that there were pulmonary infiltrations in both upper lungs of undetermined etiology, along with left medial basal pneumonitis. The analysis also appeared to question whether the X-ray was actually from June 1949. (Notably, the X-ray was on Fuji film.) Given as the X-ray is not determinative in this matter, the Board finds that a technical analysis of the film to determine whether it is indeed from 1949 is not indicated. The evidence does not demonstrate that the veteran suffered from hypostatic pneumonia or PTB during service or from PTB within the three-year presumptive period, and it is not shown that either disability was related to his military service. Thus, it is not shown that the disease that caused the veteran's death was service connected. As the veteran had no service connected disabilities, there is no basis for finding that service connected disability contributed to cause his death. Service connection for the cause of the veteran's death is not warranted. The Board has considered the applicability of the benefit-of- the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1991). ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs