Citation Nr: 0814220	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  06-12 501	)	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 
veteran's death.

2.  Entitlement to accrued benefits.

3.  Basic eligibility for nonservice-connected death pension 
benefits. 


ATTORNEY FOR THE BOARD

J. Meawad, Associate Counsel


INTRODUCTION

The veteran served in the Philippine Commonwealth Army from 
December 1941 to May 1942 and in the Regular Philippine Army 
from July 1945 to March 1946.  He died in September 1981.  
The appellant is his surviving spouse.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from an October 2005 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO), 
located in Manila, the Republic of the Philippines, which 
denied the above claims.

In April 2006, the appellant submitted a letter with her Form 
9, which included a request for burial benefits.  This claim 
is referred to the RO for appropriate action.  


FINDINGS OF FACT

1.  The veteran died in September 1981.  The Certificate of 
Death lists the cause of death as carcinoma of the lungs.

2.  At the time of the veteran's death, he was not service 
connected for any disability.

3.  There is no evidence of record showing that the cause of 
the veteran's death had its onset during active service or is 
related to any in-service disease or injury.

4.  The appellant's claim for accrued benefits was not filed 
within one year of the veteran's death; the veteran did not 
have any claims pending at the time of his death.

5.  The veteran had service in the Philippine Commonwealth 
Army from December 1941 to May 1942 and in the Regular 
Philippine Army from July 1945 to March 1946.


CONCLUSIONS OF LAW

1.  A service-connected disability did not cause, or 
contribute substantially or materially to cause, the 
veteran's death.  38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 
5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.312 
(2007).

2.  The basic legal criteria for establishing entitlement to 
accrued benefits are not met.  38 U.S.C.A. § 5121 (West 
2002); 38 C.F.R. § 3.1000 (2007).

3.  The appellant is not eligible for a nonservice-connected 
death pension based on the veteran's recognized military 
service.  38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Cause of Death

Dependency and Indemnity Compensation may be awarded to a 
surviving spouse upon the service-connected death of the 
veteran, with service connection determined according to the 
standards applicable to disability compensation.  38 U.S.C.A. 
§ 1310 (West 2002); 38 C.F.R. § 3.5(a) (2006); see 38 
U.S.C.A. Chapter 11. 

Generally, a veteran's death is service connected if it 
resulted from a disability incurred or aggravated in the line 
of duty in the active military, naval, or air service. 38 
U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303.  
Service connection may be demonstrated either by showing 
direct service incurrence or aggravation, or by use of 
applicable presumptions, if available.  38 C.F.R. § 3.303(a); 
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The service-connected disability may be either the principal 
or a contributory cause of death.  38 C.F.R. § 3.312(a).  A 
disability is the principal cause of death if it was the 
immediate or underlying cause of death, or was etiologically 
related to the death.  38 C.F.R. § 3.312(b).  A disability is 
a contributory cause of death if it contributed substantially 
or materially to the cause of death, combined to cause death, 
aided or lent assistance to producing death - e.g., when a 
causal (not just a casual) connection is shown.  38 C.F.R. § 
3.312(c).

Direct service connection generally requires evidence of a 
current disability with a relationship or connection to an 
injury or disease or some other manifestation of the 
disability during service.  Boyer v. West, 210 F.3d 1351, 
1353 (Fed. Cir. 2000).  Disorders diagnosed after discharge 
may still be service connected if all the evidence, including 
pertinent service records, establishes that the disorder was 
incurred in service.  38 C.F.R. § 3.303(d).  In such case, 
the physician must relate the current condition to the period 
of service.  Cosman v. Principi, 3 Vet. App. 503, 505 (1992).  

A layperson is generally not capable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 
183, 186 (1997).  Where the determinative issue involves 
medical causation or a medical diagnosis, there must be 
competent medical evidence to the effect that the claim is 
plausible; lay assertions of medical status generally do not 
constitute competent medical evidence.  Grottveit v. Brown, 5 
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 
492, 494 (1992).  

However, lay evidence can be competent and sufficient to 
establish a diagnosis of a condition when (1) a layperson is 
competent to identify the medical condition, (e.g., a broken 
leg), (2) the layperson is reporting a contemporaneous 
medical diagnosis, or (3) lay testimony describing symptoms 
at the time supports a later diagnosis by a medical 
professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. 
Cir. 2007).  In essence, lay testimony is competent when it 
regards the readily observable features or symptoms of injury 
or illness and "may provide sufficient support for a claim 
of service connection."  Layno v. Brown, 6 Vet. App. 465, 
469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  

In this case, the veteran died in September 1981.  The death 
certificate lists the cause of death as carcinoma of the 
lungs.

After a careful review of the record, the Board finds that 
there is no competent evidence which connects the veteran's 
death to his active service and that the available service 
and post-service records do not support this claim. 

During the veteran's lifetime, he was not service connected 
for any disability.  Service medical records are silent for 
any findings or treatment of lung cancer.  Separation 
examination reported no abnormalities with the veteran's 
physical condition, including lungs.  

Post-service private treatment records show that the veteran 
was diagnosed as having squamous cell carcinoma of the lungs 
in 1981, approximately 35 years after service.  The Board 
must note the lapse of many years between the veteran's 
separation from service and the first treatment for the 
claimed disorder that caused death.  The long time lapse 
between service and any documented evidence of treatment 
preponderates against a finding of carcinoma of the lungs 
during service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. 
Cir. 2000).  

The appellant contends that the veteran's carcinogenic cells 
may have already existed prior to, during or after the war, 
but were not manifested until an older age.  Neither the 
Board nor the veteran is competent to supplement the record 
with unsubstantiated medical conclusions.  Colvin v. 
Derwinski, 1 Vet. App. 171, 175 (1991); Espiritu, 2 Vet. App. 
at 494.  A June 1981 private medical record specifically 
states that the veteran was diagnosed as having squamous cell 
carcinoma of the lungs in 1981 and the medical evidence does 
not indicate that this disease existed prior to that year.  
The record does not contain a competent opinion linking the 
veteran's cause of death to service, and the medical evidence 
of record does not otherwise demonstrate it is related to 
service.  

Therefore, because the veteran's death was not caused by a 
disability for which service connection had been established 
at the time of death or for which service connection should 
have been established, the appellant's claim is denied.  The 
preponderance of the evidence is against the claim and the 
benefit of the doubt rule is not for application.  38 C.F.R. 
§§ 3.102, 4.3.  

Accrued Benefits

VA law provides that, upon the death of an individual 
receiving benefit payments, certain persons shall be paid 
periodic monetary benefits to which that individual was 
entitled at the time of death under existing ratings or 
decisions, or those based on evidence in the file at date of 
death, and due and unpaid for a period not to exceed 2 years 
prior to the last date of entitlement.  See 38 U.S.C.A. § 
5121; 38 C.F.R. § 3.1000(a).

Application for accrued benefits must be filed within 1 year 
after the date of death.  38 U.S.C.A. § 5121(c); 38 C.F.R. § 
3.1000(c); see Zevalkink v. Brown, 102 F.3d 1242 (Fed. Cir. 
1996) (noting that an accrued benefits claim is derivative of 
the veteran's claim).  There is no basis for an accrued 
benefits claim, unless the individual from whom the accrued 
benefits claim derives had a claim for VA benefits pending at 
the time of death.  See Jones v. West, 136 F.3d 1296, 1300 
(Fed. Cir. 1998).

The evidence shows that the veteran died in September 1981, 
and that the appellant's accrued benefits claim was received 
in July 2005.  There is no evidence indicating that she 
submitted a claim within one year of the veteran's alleged 
death, nor does she assert that any such claim was filed.  
Furthermore, the veteran did not have a pending claim with VA 
when he died.  Therefore, the threshold legal criteria for 
establishing entitlement to accrued benefits are not met, and 
the appeal must be denied because of the absence of legal 
merit.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(c); 
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Nonservice-connected Death Pension

Eligibility for VA benefits is governed by statutory and 
regulatory law, which defines an individual's legal status as 
a veteran of active military, naval or air service.  38 
U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.  Service 
in the Philippine Scouts and in the organized military forces 
of the Government of the Commonwealth of the Philippines, 
including recognized guerrilla service, is recognized service 
for certain VA purposes as authorized by 38 U.S.C.A. § 107 
and 38 C.F.R. § 3.40.

Section 107(a) contained in Title 38 of the United States 
Code provides that 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, shall 
not be deemed to have been active military, naval, or air 
service for the purposes of awarding nonservice-connected 
death pension benefits.  38 U.S.C.A. § 107(a).

Findings by the United States service department verifying a 
person's service "are binding on the VA for purposes of 
establishing service in the U.S. Armed Forces."  Duro v. 
Derwinski, 2 Vet. App. 530, 532 (1992); see also Dacoron v. 
Brown, 4 Vet. App. 115, 120 (1993).

In the present case, the U.S. Army confirmed that the veteran 
had active military service for VA purposes from December 
1941 to May 1942 and from July 1945 to March 1946.  The 
service department's determination that the veteran had 
recognized service is binding on VA.  38 C.F.R. § 3.203; see 
Duro, 2 Vet. App. at 532.

As noted above, the provisions of 38 U.S.C.A. § 107(a) render 
the survivors of those who served as members of the organized 
military forces of the Government of the Commonwealth of the 
Philippines prior to July 1, 1946, such as the appellant's 
deceased husband, ineligible for nonservice-connected death 
pension benefits.  Therefore, the appellant's claim for 
entitlement to VA death pension benefits must be denied as a 
matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994) (where the law and not the evidence is dispositive, 
the claim should be denied or the appeal to the Board 
terminated because of the absence of legal merit or the lack 
of entitlement under the law).

Notice and Assistance

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a).  VA must request that the 
claimant provide any evidence in the claimant's possession 
that pertains to a claim.  38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a 
service connection claim: 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).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006).  

The RO provided the appellant pre-adjudication notice by 
letters dated in August 2005 and September 2005.  An 
additional letter regarding assignment of disability ratings 
and effective dates was sent in January 2008.

The notification substantially complied with the specificity 
requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) 
identifying the five elements of a service connection claim; 
Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying 
the evidence necessary to substantiate a claim and the 
relative duties of VA and the claimant to obtain evidence; 
Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting 
the claimant to provide evidence in his or her possession 
that pertains to the claims; and Hupp v. Nicholson, 21 Vet. 
App. 342 (2007) regarding particularized notice obligations 
with respect to DIC claims.  Because service-connection was 
not in place for any disabilities suffered by the veteran, 
properly tailored notice need not have included a statement 
of the conditions, if any, for which a veteran was service 
connected at the time of his or her death and an explanation 
of the evidence and information required to substantiate a 
DIC claim based on a previously service-connected condition.

As the claim of service connection is denied herein, any 
error in the timing of the Dingess notice is harmless.  

VA has obtained service medical records and assisted the 
veteran in obtaining evidence.  Here, a medical opinion is 
not required because there is no competent evidence of record 
indicating that the veteran's cause of death may be 
associated with his active service.  McLendon v. Nicholson, 
20 Vet. App. 79 (2006).  All known and available records 
relevant to the issues on appeal have been obtained and 
associated with the veteran's claims file; and the veteran 
has not contended otherwise.  

VA has substantially complied with the notice and assistance 
requirements and the veteran is not prejudiced by a decision 
on the claim at this time.


ORDER

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

Entitlement to accrued benefits is denied.

Entitlement to a nonservice-connected death pension is 
denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs