Citation Nr: 0813732	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  06-09 690	)	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.


ATTORNEY FOR THE BOARD

W. Preston, Associate Counsel


INTRODUCTION

The veteran had recognized active duty from December 1941 to 
August 1942.  He was a prisoner of war of the Japanese 
Government from April to August 1942.  The veteran died in 
April 1973; the appellant is his surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of an October 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Manila.  The Board notes that the RO has determined that the 
appellant has submitted a timely substantive appeal in 
response to a September 2006 Statement of the Case.  The 
Board will not question this determination.  See Gonzalez-
Morales, 16 Vet. App. 556 (2003).


FINDINGS OF FACT

1.  The veteran died in April 1973 due to chronic pulmonary 
tuberculosis.

2.  During the veteran's lifetime, service connection was not 
established for any disability.

3.  Pulmonary tuberculosis was not present in service or 
within three years after has last day of recognized active 
duty, and is not etiologically related to service.


CONCLUSION OF LAW

The cause of the veteran's death was not incurred in or 
aggravated by active duty, nor may such incurrence or 
aggravation be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 
1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 
(2007). 




REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2007), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.   
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  In addition, VA must also request 
that the veteran provide any evidence in the claimant's 
possession that pertains to the claim.  

The Board also notes that the United States Court of Appeals  
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time"  
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered  
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that, "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No.  
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n 
making the determinations under [section 7261(a)], the Court 
shall . . . take due account of the rule of prejudicial 
error")."  Id. at 121.  

The timing requirement enunciated in Pelegrini applies 
equally to the effective-date element of a service-connection 
claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the originating agency provided the 
appellant with the notice required under the VCAA, to include 
notice that she submit any pertinent evidence in her 
possession, by letter mailed in June 2004, prior to its 
initial adjudication of the claim.  Although notice of the 
type of evidence necessary to establish an effective date for 
service connection was not sent until December 2007, the 
Board finds that there is no prejudice to the appellant in 
proceeding with the issuance of a final decision.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  As explained 
below, the Board has determined that service connection is 
not warranted for the cause of the veteran's death.  
Consequently, no effective date will be assigned, so the 
failure to provide earlier notice with respect to that 
element of the claim was no more than harmless error.

The Board also notes that efforts were made to obtain service 
records for the veteran, as recorded in a May 1953 RO General 
Information Request that resulted in a finding that no 
service medical records had been found.  A February 1954 VA 
questionnaire indicates that no clinical records were 
available and that any entrance physical examination report, 
if made, was lost or destroyed as a result of war; and that a 
request for physical examinations at time of return to 
military control, discharge, and processing/reprocessing 
would inapplicable in the case of the veteran.  The Board 
notes that the veteran went AWOL following his last day of 
recognized active duty.  The Statement of the Case in the 
present appeal includes within its recitation of reasons and 
bases a formal finding of unavailability of service records.  

The appellant has not identified any outstanding evidence, to 
include medical records, that could be obtained to 
substantiate the claim.  The Board is also unaware of any 
such outstanding evidence.  Moreover, given the fact that the 
veteran's recognized active service, as certified by the 
National Personnel Records Center, consist entirely of 
beleaguered, missing (one day), and prisoner-of-war service, 
the inability of the appellant to identify any service 
medical records is eminently understandable.

The Board acknowledges that no VA medical opinion has been 
obtained in response to this claim, but has determined that 
VA has no obligation to provide such an opinion in this case.  
In this regard, the Board notes that the certificate of death 
provides adequate information concerning the cause of the 
veteran's death.  There is no medical evidence suggesting the 
presence of pulmonary disability in service or until beyond 
three years thereafter, and no medical opinion of record 
directly suggests that the veteran's pulmonary tuberculosis 
was related to service.  In the Board's opinion, any medical 
opinion linking the cause of the veteran's death to service 
would necessarily be speculative in nature and therefore 
would not support a grant of service connection.  

In sum, the Board is satisfied that any procedural errors in 
the RO's development and consideration of the claim were 
insignificant and non-prejudicial to the appellant.   
Accordingly, the Board will address the merits of the claim.   

Legal Criteria

Entitlement to service connection may be granted for 
disability resulting from disease or injury incurred in or 
aggravated by active duty.  38 U.S.C.A. § 1110.  
Additionally, service connection may be granted for any 
disease initially diagnosed after discharge, when all the 
evidence, including that pertinent to service, establishes 
that the disease or injury was incurred in service.  38 
C.F.R. § 3.303(d). 

Where a veteran served for at least 90 days during a period 
of war and manifests active pulmonary tuberculosis to a 
degree of 10 percent within three years from the date of 
termination of such service, such disease shall be presumed 
to have been incurred or aggravated in service, even though 
there is no evidence of such disease during the period of 
service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 
3.309.  

Service connection for the cause of the veteran's death is 
warranted if a disability incurred in or aggravated by active 
service either caused or contributed substantially or 
materially to the cause of 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 thereto.  38 U.S.C.A. § 1310; 38 
C.F.R. § 3.312.  

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see 
also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To 
deny a claim on its merits, the evidence must preponderate 
against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 
(1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

At the outset of its discussion, the Board notes that a claim 
of entitlement to service connection for pulmonary 
tuberculosis was filed by the veteran during his lifetime.  
Service connection for lung trouble, to include pulmonary 
tuberculosis, was denied in a February 1954 decision.  A 
January 1972 RO decision declined to reopen the veteran's 
claim for service connection for pulmonary tuberculosis.  
However, a claim for service connection for the cause of 
death is treated as a new claim, regardless of the status of 
adjudication of service-connected disability claims brought 
by the veteran before his death.  Lathan v. Brown, 7 Vet.  
App. 359 (1995); 38 C.F.R. § 20.1106 (2001).

It appears to be the appellant's contention for purposes of 
this appeal that the veteran incurred pulmonary tuberculosis 
in service or within three years thereafter.  

The record in fact contains no medical evidence suggesting 
pulmonary tuberculosis was present in service or until more 
than three years after the veteran's recognized active 
service concluded in August 1942.

The record includes an October 1953 lay statement from a 
friend of the veteran that reports that the veteran had been 
treated for tuberculosis in January 1948.  The veteran's 
account, or his friend's account, of what a physician 
purportedly said, filtered as it is through a layperson's 
sensibilities, is not competent medical evidence.  See 
Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  In any event, 
January 1948 was more than 5 years after the veteran's last 
date of recognized active duty.

The principal piece of medical evidence submitted in support 
of the appellant's claim is a medical certificate received in 
April 2007 from Dr. R.P.Y., who reported having treated the 
veteran for URI [upper respiratory infections] and other 
ailments for "the past 19 years that we have known each 
other."  In this document, pulmonary tuberculosis was 
neither mentioned nor, a fortiori, postulated as a cause of 
the veteran's death.  In addition, R.P.Y. did not otherwise 
refer to any specific lung disability.  While he opined 
generally that the veteran's "health condition" was 
acquired during World War II, he failed to state that he had 
ever diagnosed the veteran with pulmonary tuberculosis or 
that any specific diagnosis of pulmonary tuberculosis he knew 
of was related to service.

The Board attaches little probative weight to the opinion of 
R.P.Y. because it fails to state a diagnosis pertinent to the 
claim or posit a nexus between that diagnosis and service.  
R.P.Y.'s sympathetic opinion does not obviate the need for 
medical evidence of a nexus between a service injury or 
disease and a current disability.  Caluza v. Brown, 7 Vet. 
App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. 
Cir. 1996). 

Prior to the receipt of the medical certificate in April 
2007, there is no medical evidence whatsoever save for a 
September 1947 affidavit from Dr. S.G.F. referring to a 
history of hemoptysis.  No diagnosis of pulmonary 
tuberculosis or any other lung disorder was given in that 
1947 document.  In the Board's view, this extended period 
without evidence of symptoms or treatment outweighs both the 
statements of the appellant and the irrelevant opinions of 
R.P.Y.  Accordingly, the Board concludes that the 
preponderance of the evidence is against this claim. 


ORDER

Entitlement to service connection for the cause of the 
veteran's death is denied.


____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs