Citation Nr: 1032919 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 09-12 617 ) 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 hypertension. 2. Entitlement to service connection for arthritis. 3. Entitlement to service connection for cataracts, both eyes. 4. Entitlement to service connection for gout. 5. Entitlement to nonservice-connected pension benefits. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION 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 & Supp. 2009). The Veteran had Recognized Guerilla service from January 1945 to January 1946, and served in the Philippine Commonwealth Army in the service of the Armed Forces of the United States from June 1946 to May 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, denying entitlement to the benefits sought. A November 2008 hearing was held before a Decision Review Officer (DRO). In April 2010, the Veteran testified during a Travel Board hearing at the RO before the undersigned Veterans Law Judge; transcripts of both proceedings are of record. In Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2009) requires that the DRO or Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the DRO and VLJ noted the basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claims for benefits. In addition, the DRO and VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the DRO and VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In June 2010 , the Veteran provided additional evidence consisting of statements from private treating physicians, along with a waiver of RO initial consideration of this evidence. 38 C.F.R. §§ 20.800, 20.1304(c) (2009). FINDINGS OF FACT 1. The claimed conditions of hypertension, arthritis, cataracts and gout were not incurred or aggravated during military service. 2. The Veteran's service as a Recognized Guerilla, and thereafter in the Philippine Commonwealth Army in the service of the U. S. Armed Forces as a matter of law does not qualify for an award of nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for hypertension. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. The criteria are not met for service connection for arthritis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 3. The criteria are not met for service connection for cataracts, both eyes. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 4. The criteria are not met for service connection for gout. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 5. The criteria for basic eligibility for nonservice-connected pension benefits are not met. 38 U.S.C.A. § 101, 1521 (West 2002 & Supp. 2009); 38 C.F.R. § 3.40 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2009), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). The Court has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 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, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through VCAA notice correspondence dated from January and February 2008, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Furthermore, supplemental June 2010 notice correspondence provided information concerning both the disability rating and effective date elements of a pending claim for benefits. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice preceded issuance of the August 2008 rating decision on appeal, and thus met the standard for timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran through obtaining relevant private treatment records he has identified. As regarding service medical history, the service treatment records (STRs) are missing from the file because they are presumed destroyed from a 1973 fire at the National Personnel Records Center (NPRC). Accordingly, the RO attempted to reconstruct STRs through permitting the Veteran to complete NA Form 13055, however, he did not list specific occasions of in-service treatment when completing this form for further inquiry into medical history. In furtherance of this matter, the Veteran has provided numerous personal statements, and testimony during a DRO and Travel Board hearings. There is no objective indication of any further information or evidence that must be associated with the record. The record as it stands includes sufficient competent evidence to decide the claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303(a) (2009). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). In addition, certain disorders involving what are recognized as diseases of a chronic nature, such as hypertension and arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board has conducted a comprehensive review of the evidentiary record, and finds that there is no competent basis upon which to establish service connection for the medical conditions claimed. As mentioned, there are no STRs of record because these are presumed destroyed, and under the circumstances there is a heightened duty to assist the Veteran in developing his claims. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Keeping this added responsibility in mind, and closely evaluating the record, there is still no indication of a current disability with a likely association to the Veteran's military service. There is to this point medical evidence which at minimum identifies the current existence of many of the disabilities claimed in this case. For instance, a January 2008 medical certificate from a hospital in the Philippines indicates diagnosis and treatment for hypertension, and osteoarthritis of both knees and ankles. A contemporaneous report from an otolaryngologist certifies that the Veteran had been treated for cataracts involving both eyes. There are additional physicians' statements offered in the capacity of medical certificates which continue to attest to the same. While none of these issuances specifically mention gout, the Board finds it plausible given the Veteran's subjective complaints and general arthritis that this too is a current condition he experiences. What the foregoing demonstrates is current medical evidence of the claimed disabilities. This is one of the elements required to establish service connection. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998). The presence of one of more current disabilities shown, to then in turn establish service connection a disability must also have a medical nexus to the claimant's military service. This is the essential element of causation. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The determination of causation is to be made based upon whether there was already disability present on or around service, as well as any continuity of symptomatology over time from service up until recently. See 38 C.F.R. § 3.303(d) (addressing the continuity of symptomatology requirement to demonstrate causal relationship to service, where an in-service condition is not "chronic" in nature). See also Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Upon consideration of the evidence bearing upon the etiology of the Veteran's claimed medical conditions, there is no substantial likelihood shown of a connection between military service and these presently treated conditions. Initially, there is no documentation of either arthritis, or hypertension within one year of service discharge to warrant presumptive service connection. See 38 C.F.R. §§ 3.307, 3.309. Moreover, the first medical documentation of diagnosis and treatment of such disorders is from the aforementioned records dated January 2008. So there are no medical records therefore to demonstrate precipitating illness or injury during or shortly following service, or for that matter for several years thereafter. The Board recognizes that a claimant may also give competent lay testimony regarding in-service injury and/or continuity of symptomatology since service, where founded in his or her own observations. Here, there is some indication from the Veteran regarding continuity of symptomatology. In hearing testimony, he describes the initial onset of general arthritis as being in 1962 more than 10 years post-service, and the onset of gout in 1952, still well after service discharge. He describes having hypertension in the 1950s. Unfortunately, there is no description of any ailment that dates back to a time period contemporaneous with the Veteran's service, which concluded in 1949. Meanwhile, he states directly that cataracts were diagnosed in 2008, suggesting that this condition had no proximal relationship at all with a period of military service. Effectively, there are no grounds either from documentation or competent lay testimony to associate within a reasonable likelihood a current injury or disease with an incident of the Veteran's service. There is also no medical opinion proffered in the records from the treating physicians regarding the etiology of a claimed disability, and whether it is service-related. A VA medical examination and opinion in this regard also is not warranted, given that there is no reasonable indication that a current disability may be associated with service. See 38 C.F.R. § 3.159(c)(4). See also McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In summary, the competent and probative evidence weighs against the presence of an etiological relationship between each of the disorders claimed, and the Veteran's military service. The Veteran's own assertions also have been afforded appropriate weight however, as he is a layperson, he cannot opine on the causation of any of these disorders as matters not within the purview of lay observation, given particularly the absence of an obvious precipitating injury, and the extensive delay since claimed incurrence in service. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For these reasons, the Board is denying the claims for service connection for hypertension, arthritis, cataracts, and gout. The preponderance of the evidence is against these claims, and under these circumstances the benefit-of-the- doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Nonservice-connected Pension Pension is a benefit payable by VA to veterans of a period of war who meets the service requirements prescribed in 38 U.S.C.A. 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C.A. § 1541 (a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.3 (b)(4) (2009). A veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service- connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a). Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. 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. 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. 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. 38 C.F.R. § 3.1. Additionally, service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Service of persons enlisted under section 14 of Public Law No. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation, but not for pension benefits. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law No. 190, as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190. 38 C.F.R. § 3.40(b). Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for compensation benefits, but not for pension benefits. 38 C.F.R. § 3.40(b), (c), and (d). Where a claim is based upon Philippine service, active service will be the period certified by the service department. 38 C.F.R. § 3.41(a). When there is a question as to whether qualifying service is verified or adequately documented, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993). In this case, there is documentation from the United States Army Reserve Personnel Center certifying that the Veteran had Recognized Guerilla service from January 1945 to January 1946. There is further documentation verifying the Veteran had additional Philippine Commonwealth Army service in the service of the Armed Forces of the United States from June 1946 to May 1949. In view of this type of service, there is authorization to receive service-connected disability compensation, but not nonservice-connected pension. See 38 C.F.R. § 3.40(c), (d). There is no other documentation indicating or suggesting to the contrary, nor does the Veteran dispute the above characterization of his service. Furthermore, relevant documents obtained from the Philippine government corroborate the fact that that he served in support of the United States Army as a member of the Philippine Commonwealth Army. In any event, the service department verification from the United States Army is sufficient to establish the circumstances underlying the Veteran's service, which per applicable law does not qualify the Veteran for basic eligibility for nonservice-connected pension. While the Board is sympathetic to the Veteran's position in this case, the governing regulations on basic eligibility to receive nonservice-connected pension benefits are binding. See 38 U.S.C.A. 7104(c). Accordingly, the preliminary requirement of qualifying Philippine service under applicable regulations to warrant entitlement to a pension has not been met. Where, as here, the law and not the evidence is dispositive, the claim should be denied because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for hypertension is denied. Service connection for arthritis is denied. Service connection for cataracts, both eyes, is denied. Service connection for gout is denied. The claim for nonservice-connected pension benefits is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs