Citation Nr: 0814932 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-19 349 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for cause of the veteran's death. ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who had Philippine Recognized Guerilla Service from April 1945 to August 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Manila RO. In April 2008, the Board granted the appellant's motion to advance the case on the Board's docket due to the appellant's advanced age. FINDINGS OF FACT 1. A June 2005 affidavit establishes that the veteran died in September 1947; the affidavit states the veteran died from a heart illness, malnutrition, and beri-beri. 2. A heart illness, beri-beri, and malnutrition were not manifested in service; a heart disability was not manifested in the first postservice year; and the veteran's death- causing diseases are not shown to have been related to his service. CONCLUSION OF LAW Service connection for cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.212, 3.303, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Recently, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a 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 claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of her claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A July 2005 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, the evidence she was responsible for providing, and advised her to submit any evidence or provide any information she had regarding her claim. The July 2005 letter also provided a detailed explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. [As the veteran did not have any service- connected disabilities, the question of how she could establish service connection based on an already service- connected disability is moot.] She has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. While she was not advised of the criteria for establishing an effective date of an award, she is not prejudiced by lack of such notice (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)), as effective date criteria have no significance unless the claim is allowed, and this decision does not do so. All pertinent and available records have been secured. The appellant has not identified any evidence that remains outstanding. The Board has also considered whether a VA opinion is necessary. As there is no evidence that the conditions that are alleged to have caused the veteran's death may be associated with his military service, securing an opinion as to a possible relationship between the claimed disabilities and the veteran's service is not necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet App 79 (2006). VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service- connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection is warranted for disability resulting from disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Where a veteran served 90 days or more of continuous, active military service during a period of war and arteriosclerosis, cardiovascular-renal disease (including hypertension), endocarditis (which includes all forms of valvular heart disease), or myocarditis became manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where death cannot be established by a public record of the community where the death occurred, a coroner's report, a death certificate or clinical summary signed by a medical officer, the reason the foregoing evidence cannot be furnished must be stated. The fact of death can then be established by the affidavits of people who have personal knowledge of the fact of death, have viewed the body of the deceased, know it to be the body of the person whose death is being established; the affidavits should set forth all the facts and circumstances concerning the death, place, date, time, and cause thereof. 38 C.F.R. § 3.212. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA 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). A January 1947 service separation examination report notes that the veteran did not have any significant diseases, wounds, or injuries. Physical examination revealed no cardiovascular disabilities. In his Affidavit for Philippine Army Personnel, the veteran reported that he did not incur any wounds or illnesses during service. The veteran had unrecognized service from September 1942 to April 1945 and from August 1945 to January 1947. A June 2005 affidavit from C. A. and N. D. C. certifies that they personally knew the veteran and were close friends with him and the appellant, who was the veteran's wife. They attest that the veteran died on September [redacted], 1947 in Barangay, Pundakit, San Antonio, Zambales, due to heart illness, malnutrition, and beri-beri, according to the physician who attended the veteran prior to his death and who related such to the affiants since they were helping his family at the time. They stated they knew he was buried in the Municipal Cemetery in San Antonio, Zambales because they were present at his interment. A July 2005 notarized certificate from the Office of the Municipal Civil Register of the Municipality of San Antonio, Zambales certifies that the Office has no record of the death of [redacted] who is alleged to have died on September [redacted], 1947 in the municipality. The document also certifies that the records of death for the year 1947 were totally destroyed in the Office archives. An August 2005 certification from the National Personnel Records Center (NPRC) certifies the veteran had recognized guerrilla service from April 7, 1945 to August 25, 1945. In an August 2005 statement, the appellant alleged that the veteran was discharged from service in June 1946 and that he died in September 1947. She argues that the diseases that caused his death occurred within a three year regulatory period. Since the veteran's death was so long ago, she could not remember the physician who treated the veteran and stated that the physician who signed his death certificate was now deceased. In her VA Form 9, Substantive Appeal, received in June 2006, the appellant stated that the veteran was discharged from service in 1947, and that he died almost immediately after his discharge. As a result, she believed the diseases that caused his death must have been incurred in service. The preponderance of the evidence is against the appellant's claim that the cause of the veteran's death was related to a disability incurred in or aggravated by his military service. The July 2005 certification from the Office of the Municipal Civil Register states that all death certificates from 1947, the alleged year of the veteran's death, had been destroyed. Hence, the appellant submitted an affidavit from two lay witnesses who attested that they were friends of the veteran and the appellant and that they were with the veteran upon his death and were there for his burial. The Board finds this affidavit satisfies the requirements of 38 C.F.R. § 3.212 for evidence establishing that the veteran's death occurred. However, this death certificate does not establish that the veteran's death occurred as a result of a service-connected disability. The June 2005 affidavit states that the veteran's physician told the lay witnesses in 1947 that he died from heart illness, malnutrition, and beri-beri. The Court has held that a lay person's account of what a physician purportedly said is too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Even resolving all reasonable doubt in the appellant's favor and finding that the veteran's cause of death was heart illness, malnutrition, and beri-beri, there is no indication that these conditions were incurred in or aggravated by his service. The appellant's own statements that the cause of the veteran's death was incurred in or aggravated by service are not competent evidence, as she is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board recognizes the appellant's argument that the disabilities that caused the veteran's death were incurred within the presumptive period allowed for some chronic disabilities. 38 U.S.C.A. § 1112, 1113; 38 C.F.R. § 3.307, 3.309. However, even if the veteran's death were caused by any of the heart conditions entitled to presumptive service connection as outlined above [significantly, the heart disabilities have a one (not three alleged by the appellant) presumptive period], the evidence does not show that the veteran incurred such disability within a year of his discharge from service. The appellant has alleged that the veteran was discharged in 1946 or 1947; while the veteran's Affidavit for Philippine Army Personnel shows that service with the Philippine civilian guerilla ended in January 1947, his recognized service with the United States Armed Forces ended in August 1945, more than two years prior to his death. There is no evidence that any heart disorder implicated in the veteran's death was manifested within a year of his discharge from his recognized service. As the evidence does not show that the cause of the veteran's death was related to a disability incurred in or aggravated by service, the preponderance of the evidence is against the appellant's claim, and the reasonable doubt doctrine is not for application. Hence, the claim must be denied. ORDER Service connection for cause of the veteran's death is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs