Citation Nr: 1008570 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-32 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty in the New Philippine Scouts from May 1946 to March 1949. The appellant appears to be the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which, in pertinent part, denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. The appellant requested a hearing before the Board and was scheduled for a July 2009 hearing at the RO. The record indicates that the appellant did not appear for the scheduled hearing. She did not present good cause for her failure to appear, nor did she request that the hearing be rescheduled. Therefore, the appeal will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702(d) (2009). The Board notes several discrepancies involving records in this file. For example, the Board notes that, during his lifetime, the Veteran was known by two very dissimilar names. According to a sworn affidavit dated June 1993, the Veteran was noted to have been born with one name. It was explained that, at the time of service, the Veteran used the second name, in honor of his uncle who took care of him. After his discharge from service and the death of his uncle, he apparently resumed the use of the first name. Moreover, the Veteran's death certificate lists his death as being in January 2000. In an affidavit, however, the appellant indicated that she was his widow, and stated that her husband was listed in the Social Security system under the first name. She also indicated that his date of death occurred in January 2006. Moreover, the appellant was unable to submit a copy of the Veteran's official birth certificate, because, according to an affidavit submitted by the parish priest, all the records for his parish were destroyed in a fire. Also, throughout the record, the appellant's name is spelled in various ways. The Board will proceed as if the appellant is the surviving spouse of the Veteran and that the Veteran is the same individual whose records are in the claims file. FINDINGS OF FACT 1. The certificate of death shows that the Veteran died in January 2000 at the age of 76; the cause of death was recorded as cardiorespiratory arrest. 2. The preponderance of the evidence weighs against a link between the Veteran's cardiorespiratory arrest and any disease or injury in service. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to cause the decedent's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) 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 & Supp. 2009). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. The 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, 3.326(a) (2009). 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 the VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. a. Duty to Notify. The VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 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 necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) the Veteran's status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require the VA to review the information and the evidence presented with the claim, and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). This notice must also inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service-connection is granted. Id. The Court held in Hupp v. Nicholson, 21 Vet. App. 342 (2007) that, when adjudicating a claim for dependency and indemnity compensation (DIC) (to include service connection for the cause of the Veteran's death), the 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 claim for service connection for the cause of the Veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service- connected. The Board finds that a February 2009 VCAA letter substantially satisfied the provisions of 38 U.S.C.A. § 5103(a) and Hupp. The appellant was informed about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that the VA would seek to provide; the information and evidence the claimant was expected to provide; and to provide any evidence in his possession that pertained to his claim. However, this notice was not issued to the Veteran prior to the initial April 2008 rating decision. In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. As such, the timing error with respect to the notice requirements noted above raises the issue of prejudicial error regarding the claim, but such error is rebutted by the record. Subsequent to the issuance of this notice, the RO re-adjudicated the Veteran's claim, as demonstrated by the April 2009 Supplemental Statement of the Case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing a fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Board notes that the February 2009 VCAA notice did not provide the information required by Dingess. However, the Board finds that to there is no prejudice in issuing a final decision at this time because the preponderance of the evidence is against the claim for service connection. Accordingly, any questions as to the appropriate disability rating or effective date to be assigned are moot. b. Duty to Assist. The Board also finds that all necessary assistance has been provided to the appellant. The evidence of record indicates that the VA acquired the Veteran's service treatment records to assist the appellant with this claim. There is no indication of any additional relevant evidence that has not been obtained. A VA opinion is not warranted because, as discussed below, there is no credible evidence establishing that an event, injury, or disease occurred in service or during an applicable presumptive period for which the claimant qualifies, or a credible indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In view of the foregoing, the Board finds that the VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Service Connection for Cause of Death a. Factual Background. The appellant essentially claims that a disorder incurred during the Veteran's service contributed to his death. The Veteran's death certificate indicates that he died in January 2000 from cardiorespiratory failure. At the time of his death, the Veteran was not service connected for any disease or disability. In a May 1946 service treatment record, the Veteran reported having pain in his right chest. Subsequent testing showed pneumonia of the right lung. Service treatment records also indicate treatment for malaria. The Veteran's March 1949 service discharge examination noted no current abnormalities, except for a perforation of the left ear drum. In an October 1998 VA treatment record, the examiners diagnosed the Veteran as having pneumonia of the right hilar area, old pulmonary tuberculosis, and arteriosclerotic heart disease. In a July 1999 private treatment record, the examiner noted that the Veteran had been healthy most of his adult life. He indicated that the Veteran had smoked until 1974, then stopped. He diagnosed the Veteran as having small cancer of the lung in the right lower lung area with hilar node involvement; multiple liver metastases; and chronic obstructive pulmonary disease. During the Veteran's lifetime, he filed several claims for service connection, all of which were denied. In a November 1959 Board decision, the VA denied the Veteran's claims for entitlement to service connection for pneumonia, claimed pulmonary tuberculosis, numbness of the left arm, headaches, recurrent chills, fever, and defective hearing. In May 2000 and July 2002, the RO denied the Veteran's claims for entitlement to service connection for typhoid, cholera, smallpox, tetanus, and pulmonary tuberculosis. After the Veteran's death, Jose Ignatius S. Quismorio, M.D., wrote a November 2006 opinion, indicating that the Veteran's death should be service-connected. In reviewing the July 1999 private treatment record, Dr. Quismorio noted that the Veteran was diagnosed as having arteriosclerotic heart disease; and that the death certificate indicated that death was due to cardiorespiratory arrest. He further stated that the Veteran's arteriosclerotic heart disease may have led to a myocardial infarction which led to cardiac arrest. Dr. Quismorio stated that that arteriosclerosis was a disease that would be presumed to have been incurred in service if manifested to a compensable degree at any time after service under 38 C.F.R. §§ 3.307 and 3.309. He concluded by stating his belief that arteriosclerotic heart disease led to the Veteran's death. In a May 2008 statement, the appellant reported that the Veteran complained of chest pains while on the front line. She argued that this was a symptom of heart disease failure, and therefore he died of a heart disorder incurred during service. b. Law and Regulations. 38 C.F.R. § 3.312 sets forth the provisions governing benefits relating to a Veteran's cause of death. 38 C.F.R. § 3.312. Specifically, it states that "[t]he 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." 38 C.F.R. § 3.312(a); accord Timberlake v. Gober, 14 Vet. App. 122, 127 (2000). A service-connected disability "will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). In contrast, a contributory cause of death is a service-connected disability that is shown to have "contributed substantially or materially [to death]; that is combined to cause death; that is aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). Thus, "[i]t is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection," and a contributory cause of death is not related to the principal cause. 38 C.F.R. § 3.312(c)(1). Determining the Veteran's cause of death requires the "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." 38 C.F.R. § 3.312(a). In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be established for disease diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for certain chronic diseases, to include a arteriosclerosis, when they are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 38 U.S.C.A. § 5107 sets forth the standard of proof applied in decisions on claims for Veterans' benefits. An appellant will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when an appellant seeks benefits and the evidence is in relative equipoise, the appellant prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). c. Analysis. Having reviewed the evidence of record, the Board finds that preponderance of evidence is against the appellant's claim of service connection for the cause of the Veteran's death. Specifically, the evidence does not establish that a service-connected disability was either the principal or a contributory cause of death. The only objective evidence submitted regarding the Veteran's cause of death is the January 2000 death certificate, indicating that he died of cardiorespiratory arrest. Service connection was not in effect for any disability during the Veteran's lifetime. In her May 2008 statement, the appellant reported that the Veteran experienced chest pains on the front line and that such pains were evidence of the heart disease from which he died. The Board notes that a May 1946 service treatment record indicated that the Veteran experienced right chest pain during service; however, this was diagnosed as pneumonia. The Veteran was found to be normal upon discharge examination in March 1949. There was no diagnosis of any heart disorder until October 1998, nearly fifty years after the Veteran's discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding that the passage of time between the Veteran's discharge and an initial diagnosis would weigh against the claim). In his November 2006 opinion, Dr. Quismorio stated that, in his opinion, the Veteran died of arteriosclerotic heart disease. Therefore, he believed that the Veteran should be service connected because arteriosclerotic disease was a disease that would be presumed to have been incurred in service if manifested to a compensable degree at any time after service under 38 C.F.R. § 3.307 and 3.309. The Board notes that service connection may be granted for chronic arteriosclerosis if it were to become manifest to a compensable degree within one year of separation from service under C.F.R. §§ 3.307, 3.309. As the objective medical evidence does not indicate that the disorder became manifest to such a degree within the required time frame, the disorder cannot be presumed to be related to service. See 38 C.F.R. §§ 3.307, 3.309. Moreover, the Board notes that the Veteran filed several claims for service connection, filing one such claim in June 1999, seven months after the initial diagnosis of arteriosclerotic heart disease. As such, even with knowledge of this disorder, the Veteran did not attempt to claim that it was related to service. In view of the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the claim must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs