Citation Nr: 0812471 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-06 972 ) 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 cause of the veteran's death. 2. Whether the appellant is eligible for Department of Veterans Affairs nonservice-connected death pension benefits. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran served in the recognized guerrilla service and the Philippines Commonwealth Army from June 1944 to March 1946. The appellant is veteran's surviving spouse. This matter is before the Board of Veterans Appeals (Board) on appeal of a rating decision, dated in April 2005, of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines FINDINGS OF FACT 1. The veteran died in October 1985, at the age of 61. The immediate cause of death was listed as hepatoma, and the antecedent cause of death was identified hookworm infestation. 2. At the time of his death, the veteran did not have an adjudicated service-connected disability. 3. There is no medical evidence that the fatal hepatoma and hookworm infestation, first shown 40 years after service, had onset in service, or were otherwise caused by an injury or disease of service origin. 4. The veteran's recognized guerrilla service does not qualify as requisite service to confer eligibility to the appellant for VA nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause the veteran's death. 38 U.S.C.A. §§ 1110, 1310 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.312 (2007). 2. The veteran's period of service does not meet the basic service eligibility requirements to entitle the appellant to nonservice-connected death pension benefits. 38 U.S.C.A. §§ 107, 5107(b) (West 2002& Supp. 2007); 38 C.F.R. § 3.40 (2007). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claims. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet.App. 473 (2006). In a claim for the cause of the veteran's death, the VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in November 2004 and in November 2006. The notice included the type of evidence needed to substantiate the claim of service connection for the cause of the veteran's death, namely, evidence that the veteran died from a service-related injury or disease. The notice included the type of evidence needed to substantiate the claim for nonservice-connected death pension, namely, that the veteran had qualifying service to confer eligibility for death pension benefits. The appellant was informed that VA would obtain service records, VA records, and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any such records on her behalf. She was asked to submit evidence, which would include that in her possession, in support of her claims. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet.App. 473 (notice of the elements of the claim, except for the provision for the degree of disability assignable and for the effective date); and of Hupp v. Nicholson, 21 Vet. App. 342 (2007) (the evidence and information required to substantiate the claim based on a condition not yet service-connected). To the extent that the VCAA notice about nonservice-connected death pension was provided after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice the claim was readjudicated as evidenced by the statement of the case, dated in January 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). The extent that the VCAA notice did not include the provisions for the degree of disability assignable and for the effective date, the notice is deficient. As the claims are denied no disability rating or effective date can be awarded as a matter of law and therefore there is no possibility of any prejudice to the appellant with respect to the content error as to degree of disability assignable. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. In the absence of evidence of that the veteran's death was proximately due to or the result of his period of service, development for a VA medical opinion is not warranted. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). As the appellant has not identified any additional evidence pertinent to her claims, not already of record, and as there are no additional records to obtain, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cause of Death Claim According to the death certificate, the veteran died in October 1985 at the age of 61. The immediate cause of death was to hepatoma, and the antecedent cause of death was identified hookworm infestation. At the time of his death, the veteran did not have an adjudicated service-connected disability. The veteran's service medical records consist of a report of physical examination, dated in March 1946, which does not contain any finding, complaint, diagnosis, or treatment for hepatoma or hookworm. The veteran's service records consist of Affidavits for Philippine Army Personnel, dated in September 1945 and February 1946, in which the veteran stated that he did not incur any wound or illness from June 1944 to March 1946. After service, a private hospital record, dated in April 2004, shows that the veteran was treated from October 9, 1985, to October 18, 1985, for hepatoma and hookworm infestation. Law and Regulations 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. 38 U.S.C.A. § 1310. 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. For a service-connected disability to constitute a contributory cause, 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. Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Analysis The record shows that service connection was not in effect for any disability during the veteran's lifetime. Therefore there is no factual or legal basis on which to predicate an analysis of whether or not an adjudicated service-connected disability during the veteran's life time caused or contributed to the cause of veteran's death. 38 C.F.R. § 3.312(c). The factual and legal question that is presented is whether service connection is warranted for the fatal hepatoma and hookworm infestation, which were identified on the death certificate as having caused the veteran's death. Based on the available service medical record, neither hepatoma nor hookworm infestation was affirmatively shown to be present during service, and as the fatal conditions were noted during service, there is no factual or legal basis to consider service connection on the basis of continuity of symptomatology. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), (b). After service, the fatal conditions were first documented during the veteran's final hospitalization in October 1985, 40 years after service. The absence of documented complaints of hepatoma or hookworm infestation from 1945 to 1985 is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). As for service connection based on the initial documentation of fatal hepatoma and hookworm infestation after service under 38 C.F.R. § 3.303(d), there is no competent evidence that links the currently diagnosed fatal hepatoma and hookworm infestation to an injury, disease, or event of service origin. There is no competent evidence of record that in favor of the claim. To the extent that the appellant in her statements associates the veteran's fatal conditions to service, on a question of medical causation, competent medical evidence is required to substantiate the claim, that is, evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159(a). For this reason, the Board rejects the appellant's statements as competent evidence to substantiate the claim on the question of medical causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Board may consider only independent medical evidence to support its finding on a question involving medical causation, which the appellant as a lay person is not competent to provide, and as there is no favorable competent evidence to support the claim, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Nonservice-Connected Death Pension 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 shall not be deemed to have been active military service for the purposes of nonservice- connected death pension. 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.40. The service department verified that the veteran had recognized guerrilla service and service in the Philippines Commonwealth Army from June 1944 to March 1946. The law under 38 U.S.C.A. § 107(a) and the implementing regulation, 38 C.F.R. § 3.40, specifically exclude such service for purposes of entitlement to nonservice-connected death pension benefits. Cacalda v. Brown, 9 Vet. App. 261 (1996) (per curiam). Consequently, the Board finds that there is no legal basis for the appellant's claim for nonservice-connected death pension. As the law is dispositive, the claim is denied because of lack of legal entitlement. 38 U.S.C.A. §107(a); 38 C.F.R. § 3.40; Quiban v. Veterans Admin., 928 F.2d 1154, 1158 (D.C. Cir. 1991) reh'g denied (July 18, 1991) (upholding the constitutionality of 38 U.S.C.A. § 107(a)). ORDER Service connection for the cause of the veteran's death is denied. The appellant does not have basic eligibility for VA nonservice-connected death benefits, and the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs