Citation Nr: 1007407 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-36 446 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had recognized active service with the Philippine Commonwealth Army and Regular Philippine Army from October 1941 to July 1942 and from March 1945 to June 1946. The Veteran was a prisoner of war (POW) from April 10, 1942 to July 2, 1942. He died in August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Manila RO. The appellant submitted additional evidence with a waiver of initial Agency of Jurisdiction consideration in August 2009. Also in August 2009, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in August 1968; acute pulmonary edema due to rheumatic heart disease, mitral stenosis, and mitral insufficiency, were listed on his death certificate as the diseases or conditions directly leading to death. 2. During his lifetime the Veteran had not established service connection for any disability. 3. An unappealed October 1970 rating decision denied service connection for the cause of the Veteran's death essentially because no evidence had been submitted to show that any of his death-causing disabilities, acute pulmonary edema, rheumatic heart disease, mitral stenosis, and mitral insufficiency, manifested in service or were otherwise related to his service; subsequent unappealed rating decisions/decisional letters, most recently in August 2004, continued the denial. 4. Evidence received since the April 2004 decisional letter raises questions about the nature and etiology of one of the Veteran's death-causing disabilities, rheumatic heart disease, relates to previously unestablished elements necessary to substantiate the claim seeking service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating the claim. 5. It is reasonably shown that the Veteran's rheumatic heart disease, one of his underlying death-causing disabilities, had its onset in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for the cause of the Veteran's death may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 2. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1154, 1310, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 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. Inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice or omission in duty to assist is harmless. Regarding VA's duty to assist, the Board notes that because of changes in governing regulations in the interim period between prior final decisions and the instant appeal, clarification of medical evidence was sought (in the form of an August 2009 VHA advisory medical opinion) to determine whether any of the changes in the governing regulations were applicable in this case. In essence, what was produced was an opinion that while a presumptive disability did not cause and/or contribute to the Veteran's death, the Veteran's death-causing disability was directly related to his service. This will be discussed in greater detail below. B. Factual Background An unappealed August 2004 decisional letter continued the denial of service connection for the cause of the Veteran's death. Such claim was initially denied by an unappealed October 1970 rating decision which found that there was no medical evidence showing that the Veteran's death-causing disabilities, acute pulmonary edema, rheumatic heart disease, mitral stenosis, and/or mitral insufficiency, manifested in service or were otherwise related to his service. The August 2004 decisional letter found, in essence, that the appellant had not submitted any new and material evidence to reopen her claim. The evidence of record in August 2004 consisted of the Veteran's death certificate showing that he died on August [redacted], 1968; acute pulmonary edema due to rheumatic heart disease, mitral stenosis, and mitral insufficiency, were listed on his death certificate as the diseases or conditions directly leading to death * The Veteran's STRs which are silent for any complaints, findings, treatment, or diagnosis relating to heart disease. On June 1946 service separation physical examination, the cardiovascular system was normal. A chest X-ray revealed a very enlarged hilus with calcification. * An ARCEN Form 632 that certifies the Veteran served in the Armed Forces of the United States from October 1941 to June 1946. Specifically, his military history was as follows: Pre-war service from October 1941 to December 1941; Beleaguered from December 1941 to April 1942; Missing in April 1942; Prisoner of War from April 1942 to July 1942; Missing from July 1942 to May 1943; No casualty status from June 1943 to March 1945; and Regular Philippine Army service from March 1945 to June 1946. He was entitled to receive pay during these aforementioned periods except from June 1943 to March 1945 because he was engaged in civilian pursuit, not military activities, and because his alleged guerilla service was not supported. It was also noted that the Veteran was still a member of the Philippine Commonwealth Army when he was released from the service of the Armed Forces of the United States in June 1946. * A February 1948 chest X-ray that revealed marked accentuation of the lung with markings on both sides, particularly around the hilar regions. The heart shadows revealed moderate global enlargement with a mitral configuration. The pulmonary conus was enlarged, but the aorta, pleura, and diaphragm were normal. Mitral disease with bilateral pulmonary congestion was diagnosed. * Copies of May 1963 and August 1963 letters from the Philippine Veterans Administration advising the Veteran that he was entitled to monthly pension for his service-connected disabilities of inactive rheumatic valvulitis, chronic atrial fibrillation due to unknown cause, passive congestion of the heart, and cardiac functional capacity, Class III. * August 1968 treatment records from the Veterans Memorial Hospital showing that the Veteran was hospitalized for one week prior to his passing on August [redacted], 1968. He was admitted for fever, cough, dyspnea, and leg edema. A chest X-ray revealed cardiomegaly and pulmonary congestion with edema. An EKG was also performed; it was abnormal, with atrial fibrillation and possible right ventricular hypertrophy. The Veteran did not improve while in the hospital and, six days after his hospital admission, he expired and was pronounced dead. His final diagnoses were rheumatic heart disease; mitral stenosis, mitral insufficiency; aortic stenosis; congestive heart failure; cardiomegaly; acute pulmonary edema; passive congestion, liver; and trichuriasis, intestinal. * An October 2000 certification from the General Headquarters of the Armed Forces of the Philippines, Office of the Adjutant General (Form AGNR2) which includes the following information: the Veteran was a POW from April 10, 1942 to July 2, 1942, and was sick with malaria from July 3, 1942 to May 31, 1943. Evidence received subsequent to the August 2004 decisional letter consists of: * Re-submitted copies of the Veteran's February 1948 chest X- ray report, August 1968 Veterans Memorial Hospital treatment records, August 1963 letter from the Philippine Veterans Administration, and death certificate. * A September 2006 letter from the San Lazaro Hospital certifying that the Veteran was admitted from July 6, 1942 to July 21, 1942 for the treatment of malaria. * An August 2009 VHA advisory opinion in which the VHA consultant stated that the Veteran's cause of death was valvular heart disease secondary to rheumatic heart disease with mitral stenosis and mitral insufficiency. He explained that as postservice treatment records show that the Veteran was treated for mitral stenosis and pulmonary edema approximately two years after service, it is "highly likely" that he had some degree of rheumatic valvular disease in service, as it generally takes several years after a bout of rheumatic fever to develop rheumatic valvular disease. However, he also noted that there was no record to corroborate this finding as STRs are silent for rheumatic fever in service and a chest X-ray performed upon separation from service showed only a prominent hilum with calcifications and no other abnormalities. The VHA consultant then opined that at the time of the Veteran's death he did not have a diagnosis for any of the diseases listed under 38 C.F.R. § 3.307 as being specific to former POWs, and noted specifically that rheumatic heart/valvular disease was not one of the listed diseases. C. Legal Criteria As noted above, the appellant's claim of service connection for the cause of the Veteran's death was denied initially in October 1970. She was properly notified of the decision and of her appellate rights; she did not appeal this decision and it became final. 38 U.S.C.A. § 7105. The August 2004 decisional letter is the most recent final decision in the matter of service connection for the cause of the Veteran's death. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). 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 may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a former POW, any of the anxiety states; dysthymic disorder (or depressive neurosis); organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite; post-traumatic osteoarthritis; atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia); and stroke and its complications shall be service connected if manifest to a degree of disability of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service. In addition, for a former POW who was interned or detained for not less than 30 days, avitaminosis; beriberi (including beriberi heart disease); chronic dysentery; helminthiasis; malnutrition (including optic atrophy associated with malnutrition); pellagra; any other nutritional deficiency; irritable bowel syndrome; peptic ulcer disease; peripheral neuropathy except where directly related to infectious causes; and cirrhosis of the liver shall be service connected if manifest to a degree of disability of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service. See 38 C.F.R. §§ 3.307, 3.309(c). 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). D. Analysis New and Material Evidence to Reopen The August 2004 decisional letter that continued the denial of the appellant's claim of service connection for the cause of the Veteran's death was based on findings that she had not submitted any new and material evidence to show that any of the Veteran's death-causing disabilities, acute pulmonary edema, rheumatic heart disease, mitral stenosis, and/or mitral insufficiency, manifested in service or were otherwise related to his service. Consequently, for evidence to be found new and material, it must be evidence not of record in August 2004 that addresses such findings. The evidence received since August 2004 suggests that the Veteran's underlying cause of death, rheumatic heart disease, had its onset in service. See August 2009 VHA medical advisory opinion. Consequently, it is new, relates to a fact necessary to substantiate the appellant's claim of service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating the claim. Accordingly, it is new and material evidence, and the claim of service connection for the cause of the Veteran's death may (and must) be reopened. De Novo Review At the outset, the Board notes that the appellant is not prejudiced by the Board's proceeding with de novo review of this claim without returning it to the RO for their initial de novo consideration upon the Board's reopening of the claim because this decision grants the benefit sought. In August 2009, the VHA consultant provided an opinion that indicated, in essence, that while none of the Veteran's death-causing disabilities are associated with any of the diseases that may (under 38 C.F.R. §§ 3.307, 3.309) be presumptively service-connected if found in former POWs, given the facts of the case, it is "highly likely" that his underlying death-causing disability, rheumatic heart disease, had its onset in service. The VHA consultant noted that although the Veteran's STRs are silent for rheumatic fever in service and a chest X-ray performed upon separation from service showed only a prominent hilum with calcifications and no other abnormalities, his postservice treatment records show that he was treated for mitral stenosis and pulmonary edema only two years after service. This, he explained, was highly suggestive evidence that the Veteran had suffered from some degree of rheumatic valvular disease in service, as it generally takes several years after a bout of rheumatic fever to develop rheumatic valvular disease. The Board finds no reason to question the opinion of the VHA consultant given his expertise as a board-certified cardiologist, and the fact that his opinion was based on an extensive review of the claims file and was accompanied by an explanation of the rationale for the opinion. To the extent that the VHA consultant provided an opinion that the Veteran's death-causing disabilities were not related to his service because they were not associated with any of the diseases listed under 38 C.F.R. § 3.309(c) as being specific to former POWs, the Board notes that a finding of that a disability is not among those warranting presumptive service connection does not preclude a finding that a disability it may warrant service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service.). The VHA opinion links the Veteran's cause of death directly to his service. Accordingly, the Board concludes that the competent evidence of record supports the appellant's claim, and that service connection for the cause of the Veteran's death is warranted. ORDER The claim of entitlement to service connection for the cause of the Veteran's death is reopened, and service connection for the cause of the Veteran's death is granted on de novo review. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs