Citation Nr: 1033332 Decision Date: 09/03/10 Archive Date: 09/13/10 DOCKET NO. 09-44 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant; Appellant's son and daughter ATTORNEY FOR THE BOARD John Francis, 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). The Veteran served in Recognized Guerrilla Service from November 1943 to January 1946 and for seven days in the Regular Philippine Army Service in January 1946. The Veteran was not a prisoner of war and received an honorable discharge. The appellant seeks benefits as the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the Board sitting at the RO in April 2010. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran died in October 2007. The cause of death listed on the death certificate was cardiorespiratory arrest with an antecedent cause of bronchial asthma and a contributing cause of hypertension. 2. At the time of the Veteran's death, service connection was not established for any disorders. 3. The appellant is the Veteran's surviving spouse. 4. The Veteran's cardiorespiratory diseases including bronchial asthma and hypertension first manifested many years after service and are not related to any aspect of service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute to the Veteran's death. 38 U.S.C.A. §§ 101, 107, 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.7, 3.40, 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice from VA 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 and; (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, the notice must be tailored to the claim. The notice should 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 DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In February 2009, the RO provided a notice that did not expressly meet the requirements. The RO noted that the Veteran had not been granted service connection for two diseases noted on the death certificate but did not notify the appellant that the Veteran had no service-connected disorders and was not receiving any VA disability compensation at the time of his death. The notice did provide the general requirements for substantiating a claim for DIC based on a disorder not yet service connected and discussed the appellant's and VA's respective responsibility to obtain relevant evidence. The RO informed the appellant that the Veteran had no service connected disorders at the time of his death in the June 2009 rating decision. Although an adequate notice was not provided prior to the initial decision and although information in a decision may not substitute for adequate notice, the Board concludes that the error was not prejudicial to the appellant. In written statements in March 2009 and October 2009 and in testimony before the Board in April 2010, the appellant reported that she was aware that the Veteran had never applied for disability compensation, and she discussed the conditions of the Veteran's service and the symptoms that she observed during her marriage. The appellant also submitted a February 2007 letter from a primary care physician which noted the dates and treatment for illness from one month after service to the year of his death. Therefore the Board concludes that the appellant had actual knowledge that the Veteran was not service connected for any disorder and the requirements to substantiate service connection for a primary or contributing cause of death. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. 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. In addition, laws and regulations provide that certain individuals and groups are considered to have performed active military, naval, or air service for purposes of VA benefits. 38 C.F.R. § 3.7. Service in the organized military forces of the Government of the Commonwealth of the Philippines and 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. Records obtained from the National Personnel Records Center in September 2007 showed that the Veteran performed service in the Recognized Guerrilla Service from November 1943 to January 1946 and in the Regular Philippine Army for one week in January 1946. Therefore, the Board concludes that the appellant's spouse met the service requirements for eligibility for VA Dependency and Indemnity Compensation benefits. The appellant seeks benefits as the Veteran's surviving spouse. For VA purposes, a "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) except as provided in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b). For VA purposes, "marriage" means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). Although a November 1946 marriage certificate shows a first name different from the appellant's current first name, two residents of the appellant's locality provided a May 2008 affidavit testifying that the appellant was known by both names and was the Veteran's spouse. To establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. The evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 U.S.C.A. § 3.303(b). Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within a specified period after the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including bronchiectasis, tuberculosis, and cardiovascular-renal disease including hypertension). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet.App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran died in October 2007. The cause of death listed on the death certificate was cardiorespiratory arrest with an antecedent cause of bronchial asthma and a contributing cause of hypertension. The appellant contends that the Veteran incurred chronic respiratory and cardiovascular disease in service and experienced a continuity of symptoms since discharge from service. Service treatment records consist solely of a January 1946 discharge physical examination performed by a Philippine Army medical officer. The Board concludes that additional records of formal medical care do not likely exist because the Veteran served in a guerrilla unit in the field until the last week of his service. In the examinee's medical history section of the examination report, the Veteran denied any history or current symptoms of wounds, injury, or disease. The physician noted blood pressure as 114/82 mmHg, a negative chest X-ray, and normal lungs and cardiovascular system. A marriage certificate shows that the appellant married the Veteran in November 1946. In written statements in March 2009, May 2009, July 2009, and October 2009, the appellant and the Veteran's son noted that they observed that the Veteran was pale and weak at the time of discharge, that the Veteran experienced symptoms of chronic cough and hypertension from that time until his death, and that he was prescribed anti-biotic and anti- tuberculosis medication. The appellant acknowledged that the Veteran did not apply for VA disability benefits during his lifetime. The appellant submitted letters and clinical records of the Veteran's treatment by several private physicians. In a February 2007 letter, a primary care physician noted a history of the Veteran's care since service, in part provided by a now-deceased physician with his same family name. In February 1946, the Veteran was treated for a respiratory tract infection with antibiotic medication and cough syrup for one month. In July 1969, the Veteran was treated for chronic bronchitis with antibiotics and expectorant for one month. In September 1990, the Veteran was treated with antibiotic medication for pneumonia and in August 1998 for tuberculosis. The physician noted that in 2001, the Veteran's blood pressure was 190/100 mmHg, and he was prescribed continuous medication. The claims file contains three pages of clinical records that showed this treatment. In July 2006, the Veteran was hospitalized for ten days and diagnosed with unstable angina, community acquired pneumonia, renal insufficiency, and chronic obstructive pulmonary disease. The physician reported follow up treatment for chronic bronchitis in September 2006. At the time of his letter, the physician noted that the Veteran at age 88 experienced fatigue, shortness of breath, and chest and back pain. X-rays showed pulmonary fibrosis as a result of tuberculosis and marked chambered cardiomegaly. In an April 2009 medical certificate, a private physician noted that he treated the Veteran from 1958 to 1990 for bronchial asthma, asthmatic bronchitis, chronic bronchitis, pneumonia, and cardiovascular disease secondary to hypertension. The physician noted that the Veteran improved or recovered after each treatment. The physician noted that the clinical records of his care were no longer available. In a May 2009 letter, the local government rural health unit physician who signed the death certificate noted that he had seen the Veteran in August 2007 and observed symptoms of difficulty breathing, chest pain, and cough indicative of chronic bronchitis. He advised that the Veteran seek treatment at the nearest hospital but did not personally provide any further care. He determined the cause of death as bronchial asthma and hypertension based on medical history and the health condition of the Veteran at the time of death as reported by relatives. The Board concludes that service connection for cardiorespiratory disease including bronchial asthma and hypertension, the primary and contributing causes of death, is not warranted. The Board acknowledges the lay observations of the appellant and the Veteran's son that the Veteran displayed symptoms of chronic cough since service and that he was prescribed medication for respiratory illness and hypertension. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing the symptoms at the time support at later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). In this case, the appellant and son are competent to report on observed symptoms but they do not have the medical expertise to provide a competent diagnosis of the onset of chronic respiratory or cardiovascular disease that requires clinical measurements, imaging, and medical expertise. The symptoms described by the appellant and son were not diagnosed contemporaneously or for many years later. The Board places less probative weight on the lay evidence of the presence of chronic cardiorespiratory disease immediately after service and greater probative weight on the reports of the military medical officer who examined the Veteran at the time of discharge and the statements by the Veteran's physicians in February 2007 and April 2009. The Veteran reported no symptoms of disease in his January 1946 medical history. An X-ray in January 1946 was negative and the military medical officer noted normal blood pressure and no cardiovascular or lung abnormalities. The physician in February 2007 presumably noted from the records of a deceased physician that the Veteran was treated within one month of discharge for a respiratory infection. However, no chronic disease was noted and medication was prescribed for one month. There was no indication of follow- up for a chronic disorder. The next indication of treatment for chronic respiratory and cardiovascular disorders was not earlier than 1958 as generally noted by the physician in April 2009. Regrettably, the weight of the credible and probative evidence demonstrates that the Veteran's cardiorespiratory disease including bronchial asthma and hypertension first manifested many years after service and are not related to his active service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of death is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs