Citation Nr: 0813755 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-08 842 ) 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 D. M. Casula, Counsel INTRODUCTION Service department records show that the veteran had the following service during World War II: beleagered status from December 1941 to May 1942; missing status from May 6, 1942, to May 11, 1942; no casualty status from May 12, 1942, to August 1945; AWOL status from August 1945 to September 1945, and regular Philippine Army service from September 1945 to May 1946. The veteran died in September 1991. The appellant claims benefits as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating actions by the above Department of Veterans' Affairs (VA) Regional Office (RO), which denied service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran's military service has been certified as beleagered status from December 1941 to May 1942; missing status from May 6, 1942, to May 11, 1942; no casualty status from May 12, 1942, to August 1945; AWOL status from August 1945 to September 1945, and regular Philippine Army service from September 1945 to May 1946. 2. The veteran died in September 1971; the cause of death listed on his death certificate was hemorrhage due to appendicitis. 3. Neither a hemorrhage nor appendicitis was manifested during the veteran's period of recognized military service, nor are any such disorders otherwise related to service. 4. At the time of the veteran's death, service connection was not in effect for any disabilities. CONCLUSION OF LAW The veteran's death was not caused by, or substantially or materially contributed to by, a disability incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In December 2003, the RO sent the appellant a letter informing her of the types of evidence needed to substantiate her claim and its duty to assist her in substantiating her claim under the VCAA. These letters informed the appellant that VA would assist her in obtaining evidence necessary to support her claim, such as records in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. She was also specifically asked to provide to provide any evidence in her possession that pertained to her claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the December 2003 letter provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. She was advised of opportunities to submit additional evidence, and a January 2006 SOC provided her with additional time to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. In addition, it appears that all obtainable evidence identified by the veteran relative to her claim has been obtained and associated with the claims file, and that she has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Moreover, she has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. The Board notes that a VA medical opinion has not been obtained in this matter. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). Here, while there is competent medical evidence that the veteran died of hemorrhage due to appendicitis, there is no evidence of record (other than the appellant's lay assertions) showing that the veteran had an illness in service that caused or contributed to his death. Her lay statements alone are not competent evidence to support a finding on a medical question (such as diagnosis or etiology) requiring special experience or special knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board notes that the service medical records show possible appendicitis, however, once the veteran was hospitalized it was determined that he had hookworm. There were no other complaints or findings pertaining to or suggestive of a hemorrhage or appendicitis during service. While a post- service document produced by a record custodian purports to show that the veteran was treated for appendicitis within one month after his discharge from service, the Board notes that it does not show that the veteran had any such disability during service. Thus, the appellant's contentions alone are an insufficient basis for a medical opinion to be obtained, under the pertinent VA regulation. Accordingly, we find that VA has satisfied its duty to assist the appellant in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. The appellant was notified of the information required by the Dingess decision by letter dated in May 2007. Moreover, since the claim herein is being denied, such matters are moot. II. Factual Background The service medical records (SMRs) show that in December 1945 the veteran was seen in the dispensary for possible acute appendicitis, and was transported to the 90th Field Hospital and treated for a moderately severe hookworm infection. A few days later he was discharged back to duty. A September 1945 physical examination was unremarkable and showed no defects. Service department records (AGUZ Form 632) reflect that the veteran was in beleagered status from December 1941 to May 1942; missing status from May 6, 1942, to May 11, 1942; no casualty status from May 12, 1942, to August 1945; AWOL status from August 1945 to September 1945, and regular Philippine Army service from September 1945 to May 1946. Review of the veteran's PA AGO Form 23 (Affidavit for Philippine Army Personnel), sworn and executed by the veteran in April 1946, shows that the entry in his chronological listing of all wounds and illnesses incurred from December 1941 to his return to military control was "none". The official Certificate of Death shows that the veteran died in September 1971, and that the cause of his death was hemorrhage due to appendicitis. In a letter dated in September 2004, Dr. J.M.C. reported that the veteran had been his patient since February 14, 1946, and that at that time the veteran complained of chronic productive cough, weight loss, occasional shortness of breath, dysentery, heart disease, and peptic ulcer disease. showed Private treatment records, including reports of chest X-rays, dated from 1987 through 1996, show that the veteran had far advanced PTB (pulmonary tuberculosis) with cavitation. In a November 2004 document titled "Medical Certificate" from D.R., listed as the records custodian of the "outpatient department, V. Luna General Hospital, Armed Forces of the Philippines Medical Center", it was noted that the veteran had been admitted on June 11, 1946, at "AFP Medical Center now V. Luna Gen. Hospital . . . complaining of stomach pain", and that "the doctor found out that [the veteran] was suffering from appendicitis and pneumonia and advised to be admitted to the hospital for treatment". It was noted that the veteran was then treated for two weeks and released in July 1946. III. Analysis In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disability caused the veteran's death, or substantially or materially contributed to it. 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). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly 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, combined to cause death, or 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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical conclusions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, supra. However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The veteran died in September 1971, and the cause of death was listed as hemorrhage due to appendicitis. The appellant, the veteran's widow, essentially contends that the veteran incurred illness during service which either caused or contributed substantially to the cause of his death. The appellant has not clearly stated the nature of the illness which the veteran incurred in service, however, it appears that she is alleging that the veteran developed appendicitis just after his period of active service, which was later related to the appendicitis which caused a hemorrhage, which then caused the veteran's death. A review of available evidence is devoid of any records showing that the veteran was treated for his cause of death (hemorrhage due to appendicitis) during service. While the SMRs deflect that he was thought to possibly have acute appendicitis in December 1945, they further show that after he was admitted to the hospital for treatment he was found to have hookworm. Additionally, the appellant has submitted two documents in support of her claim. One document, titled "Medical Certificate", is purportedly from the records custodian at V. Luna General Hospital Armed Forces of the Philippines, and states that the veteran was hospitalized in June 1946 for treatment for appendicitis and pneumonia. The other document, a medical certificate from a Dr. J.M.C., reports treating the veteran since February 1946. The RO initially questioned the authenticity of these documents, however, the Board notes that even if these documents are accepted to be accurate and authentic, neither document provides any competent evidence linking any in-service problem to the cause of the veteran's death. In addition, neither document shows that the veteran had an illness in service which might be related to the cause of his death. Finally, as more fully explained above neither document provides additional evidence, such that the a VA medical opinion should be obtained. Although the Medical Certificate from the records custodian at V. Luna General Hospital Armed Forces of the Philippines reflects that the veteran was apparently treated for appendicitis and pneumonia in June 1946, approximately one month after he separated from the Regular Philippine Army, the Board does not find that post-service manifestation to be sufficient medical evidence to show that the veteran incurred appendicitis in service, and there is no competent medical evidence to indicate that it was present in service. Moreover, appendicitis is not a chronic disease for which service connection can be granted if manifested for the first time within the first year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With regard to the second document, the medical certificate from a Dr. J.M.C., who reports treating the veteran since February 1946, the Board notes that this document does not mention or link any in-service disease or injury to the cause of the veteran's death. While the document does mention some diseases specific to former prisoners of war (POWs), which are considered to have been incurred in service under the circumstances outlined in 38 C.F.R. § 3.309(c), the Board notes that the record does not show that the veteran was a POW, nor has the appellant alleged that he was a POW. Thus, the September 2004 letter from Dr. J.M.C. does not provide a basis for granting service connection in this matter. The record reflects that the appellant has expressed her belief that the veteran's death was related to an illness contracted in service. A layperson, however, is not qualified to opine on matters requiring medical knowledge, such as the diagnosis or cause of a current disability. See Robinette v. Brown, 8 Vet. App. 69 (1995); Espiritu v. Derwinski, supra. It is true that the claimant's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a); 3.159; see Jandreau, supra; Buchanan, supra. Here, however, the Board does not believe that the cause of the veteran's death, reported as hemorrhage due to appendicitis, or the issue of whether any such terminal disability was causally or etiologically related to a disease contracted during service, are matters subject to lay diagnosis or lay opinion. That is to say, the Board finds no basis for concluding that a lay person would be capable of discerning whether the veteran had an illness in service that led to his death, some 26 years after service, in the absence of specialized training. The appellant has not established that she has any specialized training for such qualifications. The Board therefore finds that a service-connected disability did not cause or materially contribute to the cause of the veteran's death. The Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the preponderance of the evidence is against finding that a service-connected disability caused or contributed to the veteran's death, and the claim for service connection for the cause of the veteran's death must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303, Gilbert, supra. ORDER Service connection for the cause of the veteran's death is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs