Citation Nr: 0814389 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-13 332 ) 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. Entitlement to nonservice-connected death pension benefits. 3. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to February 1946. On the DARC Form 632, the veteran was noted to be missing from January 1943 to March 1945, to have recognized guerilla service from March 1945 to May 1945, and to have regular Philippine Army service from May 1945 to February 1946. The veteran was not noted to be a POW. The veteran died in March 1985. The appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2004 and February 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which denied the benefits sought on appeal. The appellant was scheduled for a videoconference hearing on September 2007, to which she failed to appear. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. At the time of his death, the veteran had no service- connected disabilities. 3. The veteran's pulmonary tuberculosis (PTB) was not attributable to his period of active service, nor was he diagnosed as having PTB within three years of service discharge. 4. The veteran's death was neither caused, nor hastened, by a disability incurred as a result of honorable service during World War II. 5. The appellant filed her claim for accrued benefits in September 2003. CONCLUSIONS OF LAW 1. A service-connected disability did not cause or contribute substantially or materially to cause death, nor may it be so presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312, 3.374 (2007). 2. Criteria for basic eligibility to VA nonservice-connected death pension benefits have not been met. 38 U.S.C.A. §§ 101(2), 107, 1521, 1541, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40, 3.41 (2007). 3. The appellant is not entitled to payment of accrued benefits. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise an appellant of the evidence necessary to substantiate her claim for benefits and that VA shall make reasonable efforts to assist an appellant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in October 2003, VA notified the appellant of the information and evidence needed to substantiate and complete her claims, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the appellant to submit any additional information in support of her claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is typically required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in August 2007. Although there was no Statement of the Case issued following the August 2007 notice, the Board finds that the appellant is not prejudiced as service connection for the cause of the veteran's death is being denied. As such, the Board finds that VA met its duty to notify the appellant of her rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the October 2003 notice was given prior to the appealed AOJ decision, dated in April 2004. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the appellant in obtaining evidence and by affording the appellant an opportunity to give testimony before an RO hearing officer and/or the Board. The Board notes that the appellant was scheduled to appear for a videoconference hearing in September 2007 and she did not appear. There is no evidence of record to suggest that the appellant attempted to reschedule the hearing. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the appellant and that no further action is necessary to meet the requirements of the VCAA. Therefore, the Board now turns to the merits of the appellant's claim. Service connection The appellant contends that her husband's PTB was due to service and the symptoms had a late onset. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Upon a showing of service for ninety days or more during a period of war and evidence of chronic PTB becoming manifest to a degree of 10 percent within three years from the date of termination of service, service connection shall be presumed for PTB. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. A diagnosis of active PTB by a private physician showing that the disease was initially manifest after discharge from active service must be confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based on acceptable hospital observation or treatment. See 38 C.F.R. § 3.374(c). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(a). The veteran's personnel record, dated in May 1945, is devoid of any reference to a pulmonary condition. Upon examination of the veteran's lungs, there is a notation that they were "normal." Additionally, the veteran's discharge medical examination in February 1946 made no notation of a lung condition, including PTB. Again, the veteran's lungs were noted to be "normal." There are no post-service treatment records reflecting treatment for PTB following service. The death certificate, dated in March 1985, lists the veteran's cause of death as cardiopulmonary arrest due to far-advanced PTB. The veteran was alleged to have been hospitalized from February 1985 to March 1985 at Mayor Hilarion A. Ramiro, Sr. Regional Training and Teaching Hospital. Upon request for the veteran's treatment records, the hospital responded that they only kept medical records for 15 years and the records from the veteran's hospitalization were unavailable. The hospital did review their record of admission and death certificate and confirmed the veteran's admission in February 1985 death in March 1985 due to cardiopulmonary arrest caused by far-advanced PTB. In her NOD, dated in December 2005, the appellant stated that because PTB is a communicable disease, the veteran could have contracted it while in service. She additionally related that PTB is not necessarily discovered immediately and the veteran could have contracted it during service with symptoms becoming apparent following service discharge. In her substantive appeal, the appellant alleged that the veteran's PTB began in service due to the harshness and climate during his service. Further, she noted, that service members lacked proper nutrition, rest and medical treatment while on duty. There is no evidence of record linking the veteran's PTB to service, nor is there a diagnosis within three years of service discharge. The veteran was not awarded VA compensation benefits for a service-connected disability at any time during his life. The service medical records, consisting of a personnel record and a discharge medical examination record, make no reference to complaints or diagnoses of a pulmonary condition, including PTB. Furthermore, there is no post-service documentation as to treatment for the disability listed as the cause of death on the death certificate, other than the admission record from his February-March 1985 hospitalization. Given the evidence as outlined above, the Board finds that the veteran did not incur PTB or any other disability determined to be the cause of his death during his period of recognized service. There is no evidence of post-service treatment for PTB. The only evidence of record that the veteran sought treatment for his PTB was the March 1985 death certificate and hospital admission note-this is well over three years after discharge from service. As such, the Board finds that the there is no evidence to support the appellant's contentions. Because there is no evidence of the appellant having medical training, her statements, standing on their own, cannot establish a relationship between service in the 1940's and the veteran's death in the 1980s. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (Laypersons are not competent to offer medical opinions). Consequently, service connection for the cause of the veteran's death must be denied on a direct and on a presumptive basis. Nonservice-connected death pension benefits Death pension is a benefit payable to a veteran's surviving spouse because of the veteran's nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4). The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. See 38 U.S.C.A. § 101(2). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. See 38 C.F.R. § 3.6(a), (b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. See 38 C.F.R. § 3.1. Persons with service in the USAFFE, including the recognized guerrillas, or service with the New Philippine Scouts under Public Law 190, 79th Congress, shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to nonservice-connected disability pension. See 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(b), (c), (d). As discussed above, the veteran had recognized guerilla service and regular Philippine Army service. In February 1986, the service department certified that the recognized period of service was from January 1942 to February 1946, and that there was no service with USAFFE established. There is no evidence to contradict the findings of the service department, nor has the appellant contended otherwise. The Court has held that findings by a United States service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board has carefully reviewed the entire record and finds that there is no competent evidence to contradict the service department's determination with respect to the service of this veteran. Therefore, the Board must find that the veteran did not have qualifying service. As a result, the appellant's request for death pension benefits must be denied as a matter of law. Accrued benefits Benefits to which a veteran was entitled at his death, based on evidence on file at the date of death, will be paid to survivors, as provided by law. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Application for accrued benefits must be filed within one year after the date of death. See 38 U.S.C.A. § 5121(c). The death certificate shows that the veteran died in March 1985. The appellant submitted her application for benefits in September 2003. A review of the evidence shows that the appellant's claim was submitted well over one year after the veteran's death. Thus, her claim of entitlement to accrued benefits is untimely. As a result, the appellant has no legal entitlement to any accrued benefits that may exist. The Board points out that the veteran did not have a claim pending at the time of his death nor was he entitled to receive any compensation benefits at the time of his death so as to even bring about a claim of entitlement to accrued benefits. Nonetheless, where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, entitlement to accrued benefits under is denied as a matter of law. (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the veteran's death is denied. Entitlement to nonservice-connected death pension benefits is denied. Entitlement to accrued benefits is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs