Citation Nr: 0814337 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-30 011 ) 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 veteran's cause of death. 2. Entitlement to nonservice-connected death pension. 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran had service in the Philippine Commonwealth Army from December 1941 to November 1942 and from July 1945 to June 1946. He died on March [redacted], 2001. The veteran was a prisoner-of-war (POW) of the Japanese government from April 10, 1942 to November 29, 1942. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In June 2003, the appellant filed an application for dependency and indemnity compensation, death pension, and accrued benefits. The appellant alleged that the veteran's cause of death was due to service. In a February 2004 decision, the RO denied service connection for the cause of the veteran's death and in the notice letter, the RO indicated that it had also denied the appellant's claims for death pension and accrued benefits. In a written statement received at the RO in June 2004, the appellant disagreed with this decision. The RO provided a Statement of the Case (SOC) in June 2004. In September 2004, the appellant filed a timely substantive appeal (see VA Form 9) but only referred to her claim for entitlement to accrued benefits. The Board recognizes that the appellant did not refer to her claims for service connection for the cause of the veteran's death or death pension in her substantive appeal. However, the United States Court of Appeals for Veterans Claims (Court) has ruled that, unless the RO closes the appeal pursuant to 38 U.S.C.A. § 7105(d)(3) (West 2002) and 38 C.F.R. § 19.32 (2007), for failure to file a timely substantive appeal, that failure does not automatically deprive the Board of jurisdiction. Gonzales-Morales v. Principi, 16 Vet. App. 556 (2003). It is apparent from the appellant's June 2004 correspondence to the RO that she was confused as to the issues on appeal. It is also pertinent to note that the appellant's representative's February 2008 brief makes clear that the appellant wants to appeal all three issues. Congress has created the veterans' benefits system to be both "paternalistic" and "uniquely pro- claimant." See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). VA has a duty to fully and sympathetically develop a claimant's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). In view of the foregoing, the Board finds that the claims for service connection for the cause of the veteran's death and death pension are in appellate status. The appellant did not request a hearing on this matter. Additionally, the appellant submitted a request to advance her case on the Board's docket pursuant to 38 C.F.R. § 20.900(c), which was granted in April 2008. The claim for service connection for the cause of the veteran's death is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. A certificate of death of record shows that the veteran died in March 2001. 2. Based on the veteran's service, there is no legal entitlement to nonservice-connected death pension. 3. The veteran did not have a claim for VA benefits pending at the time of his death. CONCLUSIONS OF LAW 1. There is no legal entitlement to nonservice-connected death pension benefits. 38 U.S.C.A. §§ 101, 107, 1541 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.3, 3.40 (2007). 2. Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2007); 38 C.F.R. § 3.1000 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This fourth element of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). As to the death pension and accrued benefits claims, VA notified the claimant that establishing entitlement to these benefits requires, among other things, qualifying service and both a pending claim at the time of death and a timely filed claim for accrued benefits. To the extent that there is any content or timing deficiency with regard to this notice, the claims for pension and accrued benefits must be denied because the appellant does not meet the statutory threshold for entitlement to the benefits sought, i.e., qualifying service or a claim pending at the time of death. See 38 U.S.C.A. §§ 107(a), 5121(c). Therefore, because these decisions are mandated by the appellant's failure to meet basic prerequisites, the Board is entitled to go forward with adjudication of the appellant's claims. See 38 U.S.C.A. §§ 5103, 5103A; Mason v. Principi, 16 Vet. App. 129, 132 (2002). Further discussion of the VCAA is not required. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 541, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). And as these claims must be denied as a matter of law; there is no remaining question of an effective date or rating for the appellant's death pension and accrued benefits claims. Nonservice-Connected Death Pension Benefits The NPRC certified that the veteran had active duty with the Recognized Guerrillas and Regular Philippine Army from December 15, 1941 to November 19, 1942 and from July 16, 1945 to June 30, 1946. He was also a POW of the Japanese government from April 10, 1942 to November 29, 1942. 38 C.F.R. § 3.40 describes the benefits provided to veterans who served in the Philippine and Insular Forces during World War II. Service in the Commonwealth Army of the Philippines entitles a surviving spouse to eligibility for dependency and indemnity compensation and burial allowance. Under certain circumstances, service as a guerrilla is also is included. See 38 C.F.R. § 3.40(c)(d). Pension benefits are not provided for veterans with these forms of service. Under 38 C.F.R. § 3.40, pension benefits are only provided to veterans who serviced as a Regular Philippine Scout. See 38 C.F.R. § 3.40(a). 38 C.F.R. § 3.203, provides that, for the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation, or burial benefits, VA may accept evidence of service submitted by an appellant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department. A copy of an original document is acceptable if the copy was issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate. However, where the appellant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203, the VA shall request verification of service from the service department. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether the claimant has qualifying service under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The Board notes that there is an apparent conflict between 38 C.F.R. § 3.41, which states that, for Philippine service, "the period of active service will be from the date certified by the Armed Forces" and 38 C.F.R. § 3.203(a), which provides that a claimant may show service by submitting certain documents "without verification from the appropriate service department". However, the Court has since noted that VA may accept United States service department documents or seek certification of service, but once certification is received, VA is bound by that certification. See Palor v. Nicholson, 21 Vet. App. 235 (2007), reconsideration of 21 Vet. App. 202 (2007) (citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)). In a February 2002 letter, the RO notified the appellant that the NPRC had certified that the veteran had Philippine Commonwealth Army service from December 15, 1941 to November 29, 1942 and from July 16, 1945 to June 30, 1946. She was further informed that this was not deemed active service for pension purposes. The appellant was informed of the evidence she could submit to show qualifying service. She has not sent in such evidence. The appellant does not contend that the veteran had any other service than that which was certified. Based on the NPRC's certification, the Board must find that the veteran did not have the type of qualifying service that would confer upon the appellant basic eligibility for VA nonservice-connected death pension benefits. Accordingly, the appellant's appeal of this issue is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accrued Benefits The appellant has not made any specific contentions regarding entitlement to accrued benefits. Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran 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. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). There is no basis for an accrued benefits claim, unless the veteran 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). After review of the record, the Board finds that there was no pending claim at the time of the veteran's death. Thus, the appellant is not entitled to accrued benefits. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to nonservice-connected death pension benefits is denied. Entitlement to accrued benefits is denied. REMAND The Board observes that, in Hupp v. Nicholson, 21 Vet App 342 (2007), the Court expanded the VCAA notice requirements for a DIC claim. In Hupp, the Court held that VA is not relieved of providing section 5103(a) notice merely because the appellant had provided some evidence relevant to each element of his or her claim in his or her application for benefits. The Court noted in Hupp that 38 U.S.C.A. § 5103(a) required the Secretary to notify the claimant of any information not previously provided to the Secretary that is necessary to substantiate the claim. There is no preliminary obligation on the part of VA to perform a pre- decisional adjudication of the claim prior to providing section 5103(a) notice. However, section 5103(a) notice must be "responsive to the particular application submitted." The Court observed in Hupp that there was a "middle ground" between a pre-decisional adjudication and boilerplate notice addressing section 5103(a) compliance. Hupp requires that when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the Court found in Hupp that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. The July 2003 and December 2003 notification letters are deficient with respect to these requirements. The July 2003 letter does not discuss the VCAA, and neither letter is "tailored" to the information provided by the appellant when she filed her application for DIC benefits. On remand, the VCAA notice must include: (1) a statement of the conditions, if any, for which the veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. See Hupp, supra. The certificate of death shows that the veteran died in March 2001 of a cardiac arrest due to pulmonary aspiration. He was 82 years old. It was recorded that the veteran died at the J.R. Borja Memorial City Hospital in Carmen, Cag. De Oro City, Misamis Oriental. The terminal hospital records are not in the claims file. In fact, there are no post-service medical records in the claims folder. Effective October 7, 2004, VA amended 38 C.F.R. § 3.309(c), pertaining to presumptive service connection for diseases specific to former prisoners of war by adding atherosclerotic heart disease and its complications, including myocardial infarction, to the list of presumptive diseases. VA removed the note in the 1993 version of 38 C.F.R. § 3.309(c) that the statutory term "beriberi heart disease" included ischemic heart disease in former prisoners of war who had experienced localized edema during captivity. VA explained that atherosclerotic heart disease encompassed ischemic heart disease. 69 Fed. Reg. 60,083, 60,087 (Oct.7, 2004) (to be codified at 38 C.F.R. § 3.309(c)). In view of the foregoing, the RO must make another attempt to secure the veteran's terminal hospital records and contact the appellant for the purpose of obtaining any information regarding any evaluation or treatment the veteran received after service, particularly relating to any heart disease that he may have had. 38 C.F.R. § 3.159(c)(1) (2007). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA by issuing the appellant an additional notification letter. The notification letter should include an explanation under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as to the information or evidence needed to establish a claim for service connection for the cause of the veteran's death as outlined by the Court in Hupp v. Nicholson, 21 Vet App 342 (2007). Such notice must be tailored to the specific information provided in the appellant's June 2003 claim for benefits. Further, the AMC/RO should provide the appellant with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish disability ratings and effective dates for the benefit sought as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO must contact the appellant for the purpose of obtaining any information regarding any evaluation or treatment the veteran received after service, particularly relating to any heart disease that he may have had. After obtaining any consent that it needs, the RO must secure the medical records and associate them with the claims file. 3. The RO must contact the J.R. Borja Memorial City Hospital in Carmen, Cag. De Oro City, Misamis Oriental for the purpose of obtaining copies of any medical records of the veteran that may be there, to include relating to a hospitalization in March 2001. The RO must secure any medical records that are available and associate them with the claims file. 4. After completion of any other development indicated by the record, with consideration of all evidence added to the record subsequent to the SOC, the AMC/RO must readjudicate the appellant's claim for service connection for the cause of the veteran's death. If the claim remains denied, the AMC/RO should issue an appropriate SSOC and provide the appellant and her representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs