Citation Nr: 1127632 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 10-13 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. 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. 2. Whether the appellant is eligible for VA nonservice- connected death pension benefits. 3. Entitlement to recognition of the Veteran's child as helpless on the basis of permanent incapacity for self-support. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION Service records show that the Veteran was in beleaguered status from December 1941 to April 1942; had recognized guerrilla service from October 1943 to May 1945; and had Regular Philippine Army service from September 1945 to December 1945. The Veteran died in March 1983. The appellant is the widow of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2008 and March 2009 rating actions, and an October 2008 decision letter, by the Department of Veterans Affairs (VA) Regional Office (RO) located in Manila, the Republic of the Philippines. The decision set out below grants the application to reopen the claim for service connection for the cause of the Veteran's death. The underlying issue for service connection for the cause of the Veteran's death, and the issue of entitlement to recognition of the Veteran's child as helpless on the basis of permanent incapacity for self-support, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By an August 1984 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 2. In July 2008, the appellant filed an application to reopen her claim for service connection for the cause of the Veteran's death. 3. Additional evidence received since the August 1984 Board decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. 4. The Veteran's Philippine service does not qualify as requisite service to provide eligibility to the appellant for VA nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The August 1984 decision, in which the Board denied the appellant's claim for service connection for the cause of the Veteran's death, is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.160(d), 20.1103 (2010). 2. The evidence received since the August 1984 decision is new and material, and the claim of entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). 3. The Veteran's period of service does not meet the basic service eligibility requirements to entitle the appellant to nonservice-connected death pension benefits. 38 U.S.C.A. §§ 107, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.40 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of these claims. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the appellant with the claim. With respect to the new and material claim, as the disposition herein reached is favorable to the appellant to the extent indicated, the need to discuss VA's efforts to comply with the VCAA, its implementing regulations, and the interpretive jurisprudence, is at this juncture obviated. In regard to the appellant's claim for VA nonservice-connected death pension benefits, the VCAA does not apply. As explained below, this claim must be denied as a matter of law because undisputed facts, when applied to the controlling law and regulations, render the appellant ineligible for the claimed benefits. The United States Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the questions are limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (1999); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000). II. New and Material Claim A. Legal Criteria Service Connection - General Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Moreover, service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Presumptive Service Connection - Cancer Certain chronic disabilities, to include malignant tumor (cancer), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service Connection - Cause of Death To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). New and Material Evidence When the Board disallows a claim, the disallowance is final unless the Chairman determines that reconsideration is warranted, or another exception to finality applies. 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. § 20.1100. However, 38 U.S.C.A. § 5108 provides an exception to the rule of finality by requiring the Secretary to reopen a claim that has been finally decided and previously disallowed "[i]f new and material evidence is presented or secured" with respect to the claim. Fortuck v. Principi, 17 Vet. App. 173, 178 (2003) ("The Secretary must reopen a previously and finally disallowed claim when 'new and material evidence' is presented or secured"); accord 38 C.F.R. § 3.156(a) ("A claimant may reopen a finally adjudicated claim by submitting new and material evidence"). For claims filed on or after August 29, 2001, such as this claim, 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). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Analysis The appellant's original claim for service connection for the cause of the Veteran's death was denied by the Board in an August 1984 decision. In the decision, the Board stated that during the Veteran's service, he received a gunshot wound of the back and face. The bullet entered the Veteran's back and passed through his neck and out through his upper jaw, knocking out four teeth. He was also shot through the right upper quadrant. At the time of the Veteran's death, service connection was in effect for disfiguring scars, residual of gunshot wound to the left cheek, rated as 30 percent disabling; residuals of bullet wound, through and through the right side of the abdomen with injury to Muscle Group XIX, rated as 10 percent disabling; residuals of gunshot wound to the right shoulder region, with injury to Muscle Group XXII, rated as 10 percent disabling; and loss of teeth, numbers 8, 9, 10, and 11, rated at a noncompensable level. The combined rating was 40 percent and it had been in effect for many years. The Board indicated that the Veteran died in March 1983. According to the Death Certificate, the Veteran died of gastric carcinoma. It was the appellant's contention that the Veteran's service-connected gunshot wounds damaged his mouth and pharynx, which in turn hindered mastication and his ability to swallow, which led to the weakening of his physical condition and decreased his resistance to disease. The appellant further maintained that as a result, a peptic ulcer formed which led to the development of his fatal gastric carcinoma. The Board noted that the available service records were negative for any complaints or findings of gastric carcinoma. In addition, there was no post-service medical evidence relating any of the Veteran's service-connected disabiities to his fatal gastric carcinoma. Thus, in light of the above, the Board denied entitlement to service connection for the cause of the Veteran's death. The August 1984 decision is final. 38 U.S.C.A. § 7104. Once a decision becomes final, new and material evidence is required to reopen the claim which was denied. 38 U.S.C.A. § 5108. Because the August 1984 Board decision was the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the appellant's claim for service connection for the cause of the Veteran's death should be reopened and readjudicated on a de novo basis. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). The evidence of record at the time of the August 1984 decision consisted of the Veteran's service records, a copy of a letter from the Veteran, dated in January 1961, the Certificate of Death, records from a private hospital, dated in October 1982, and April and May 1984, a private medical statement from A.C.A., M.D., dated in December 1983, and a private medical statement from P.T.L., M.D., dated in March 1984. The Veteran's service records are sparse and essentially consist of records and Affidavits confirming the Veteran's in-service gunshot wounds to the back, face, and abdomen. In a copy of a letter from the Veteran, dated in January 1961, the Veteran requested hospitalization at the Veterans Memorial Hospital. In this regard, he noted that he was experiencing pain around the neck and stomach due to his in-service gunshot wounds. In a Certificate of Death, it was noted that the Veteran died in March 1983. The cause of the Veteran's death was listed as gastric carcinoma. Records from a private hospital show that in October 1982, the Veteran was diagnosed with stomach cancer and underwent a gastrectomy with gastro-jejunostomy. The Veteran had experienced a sudden onset of generalized body malaise, anorexia, and epigastric pain a month prior to the surgery. The initial impression was peptic ulcer. However, ultimately the diagnosis was gastric cancer. In a private medical statement from Dr. A.C.A., dated in December 1983, Dr. A. stated that he had been the Veteran's attending physician since January 1974. Dr. A. indicated that the Veteran had numerous complaints, including complaints related to the gastrointestinal tract such as dyspepsia, epigastric discomfort, anorexia, and pain over the epigastrium which was relieved by taking antacid preparations. Dr. A. noted that according to the Veteran, he had experienced his first symptoms of epigastric discomfort following his in-service gunshot injuries. Specifically, because his tongue, throat, and pharyngeal area were hit by a bullet, he could not eat well due to the pain over that area and he had problems with mastication and swallowing. At first the symptoms were occasional; however, in 1982, the symptoms were aggravated when he ate "kinilaw." The symptoms became more severe and were accompanied by vomiting, loose bowel movements, and severe abdominal pain. Ultimately, the Veteran was hospitalized and was diagnosed with a gastric malignancy. He underwent surgery and was later sent home to recover. At home, the Veteran's condition worsened and his abdomen rapidly became distended and boardlike, and his lower extremities were edematous. The Veteran became very emaciated because any form of food could not enter through the usual route. The Veteran died in March 1983. In a private medical statement from Dr. P.T.L., dated in March 1984, Dr. L. stated that he had treated the Veteran for complaints of epigastric pain, nausea, vomiting, and a 10-pound weight loss with dark colored stools. An endoscopy showed esophagitis in the middle and distal third, with partial gastric outlet obstruction. The biopsy was reported to show gastric carcinoma. The Veteran underwent surgery and in a post-operative evaluation one month after the surgery, he still had weight loss and vomiting. An upper gastrointestinal (GI) series was performed and was reported to show recurrence of organic obstruction. According to Dr. L., the Veteran did not come back for a follow-up evaluation. Evidence received subsequent to the August 1984 decision consists of private medical statements from Dr. A.C.A., dated in September 1982, March 1983, and June 1985, and records from a private hospital, dated in February 1983. Records from a private hospital show that in February 1983, the Veteran was hospitalized for complaints of abdominal distress over the past month. While he was hospitalized, he was diagnosed with gastric cancer. In a private medical statement from Dr. A.C.A., dated in September 1982, Dr. A. stated that he had treated the Veteran for dyspnea, nausea, epigastric discomfort, anorexia, and generalized abdominal pain. According to the Veteran, over the last few months, the aforementioned symptoms became severe. The impression was of new growths in the stomach and the head of the pancreas. In a private medical statement (Physician's Report) from Dr. A.C.A., dated in March 1983, Dr. A. stated that the immediate cause of the Veteran's death was gastric carcinoma and that the duration of his illness was six months. Dr. A. further noted that a contributory cause of death was the Veteran's inability to take anything into the gastro-intestinal tract because of obstruction. Dr. A. reported that the Veteran had suffered a gunshot wound during World War II. In another private medical statement from Dr. A.C.A., dated in June 1985, Dr. A. stated that he was the Veteran's attending physician. Dr. A. indicated that in light of the Veteran's history of past illnesses, it was his impression that the Veteran developed chronic peptic ulcer after his tongue was wounded because he had inadequate food intake while his tongue was healing. According to Dr. A., it took approximately four months for the Veteran's tongue to heal following the gunshot wound. Dr. A. reported that during that four-month period, there was a great possibility for the ulcer to develop. Under normal conditions, the ulcer would have healed by self medication. However, the area degenerated into a carcinomatous or malignant new growth. Dr. A. stated that if there was a great possibility for some peptic ulcer to degenerate into a cancerous one, then it was his belief that the case of the Veteran's sickness would be service-connected. The Board has reviewed the evidence since the August 1984 decision and has determined that the June 1985 private medical statement from Dr. A.C.A. is new and material because it was not previously of record and it relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death. In the statement, Dr. A. essentially supports the appellant's contention that due to the Veteran's service-connected residuals of gunshot wounds to the cheek, teeth, and abdomen, his mouth was damaged and hindered mastication and his ability to swallow, which led to the formation of peptic ulcer disease, which ultimately led to the development of his fatal gastric carcinoma. Thus, in essence, Dr. A. relates the Veteran's service-connected disabiities to his fatal gastric cancer. A supportive nexus opinion was not previously of record; such evidence raises a possibility of substantiating the service connection claim for the cause of the Veteran's death. As such, the statement is new and material and serves to reopen the claim of entitlement to service connection for the cause of the Veteran's death. III. Nonservice-Connected Death Pension At the outset, the Board notes that in an August 1984 decision, the Board denied the appellant's claim of entitlement to nonservice-connected death pension benefits. The Board concluded that the Veteran's military service in the Philippine Army, including his recognized guerrilla service, did not constitute active military service meeting the basic entitlement requirement for nonservice-connected death pension benefits. Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces, organized guerilla forces, shall not be deemed to have been active military service for the purposes of nonservice-connected death pension. 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.40. The service department verified that the Veteran was in beleaguered status from December 1941 to April 1942; had recognized guerrilla service from October 1943 to May 1945; and had Regular Philippine Army service from September 1945 to December 1945. The service department decision on such a matter is conclusive and binding upon VA. VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The law under 38 U.S.C.A. § 107(a) and the implementing regulation, 38 C.F.R. § 3.40, specifically excludes service such as the Veteran's for purposes of entitlement to nonservice-connected death pension benefits. Cacalda v. Brown, 9 Vet. App. 261, 265 (1996). Consequently, the Board finds that there is no legal basis for the appellant's claim for nonservice-connected death pension. As the law is dispositive, the claim is denied because of lack of legal entitlement. 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.40; Quiban v. Veterans Administration, 928 F.2d 1154, 1158 (D.C. Cir. 1991) rehearing denied (July 18, 1991) (upholding the constitutionality of 38 U.S.C.A. § 107(a)); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), ORDER New and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death, and to this extent only, the claim is granted. The appellant does not have basic eligibility for VA nonservice-connected death benefits, and the appeal is denied. REMAND In view of the Board's decision above, the appellant's claim for service connection for the cause of the Veteran's death must be adjudicated on a de novo basis without regard to the finality of the August 1984 decision. In this case, the appellant has submitted private medical statements from Dr. A.C.A. which essentially support her contention that due to the Veteran's service-connected residuals of gunshot wounds to the cheek, teeth, and abdomen, his mouth was damaged and hindered mastication and his ability to swallow, which led to the formation of peptic ulcer disease, which ultimately led to the development of his fatal gastric carcinoma. Thus, given that a supportive nexus opinion is of record, the Board finds that a VA medical opinion should be obtained in order to determine whether any of the Veteran's service-connected disabilities caused or contributed substantially or materially to the cause of the Veteran's death. With respect to the appellant's claim of entitlement to recognition of the Veteran's child as helpless on the basis of permanent incapacity for self-support, the Board notes that since the aforementioned issue is inextricably intertwined with consideration of the claim of service connection for the cause of the Veteran's death (see Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue)), it will be deferred pending final disposition of the cause of death claim. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should arrange for the claims folder and a copy of this remand to be reviewed by a VA gastroenterologist, and any other appropriate physician, if necessary. The examiner should specifically review the private medical statements from Dr. A.C.A., dated in September 1982, March 1983, December 1983, and June 1985. The examiner must also review the September 1965 VA examination report which provides descriptions of the Veteran's service-connected scars. Following the review of the claims folder, the examiner should respond to the following: The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disfiguring scars, residual of gunshot wound to the left cheek; residuals of bullet wound, through and through the right side of the abdomen with injury to Muscle Group XIX; residuals of gunshot wound to the right shoulder region, with injury to Muscle Group XXII; and/or loss of teeth, numbers 8, 9, 10, and 11, directly caused the Veteran's death or contributed substantially or materially to the cause of his death? The examiner must also specifically comment on the appellant's contention that due to the Veteran's service-connected residuals of gunshot wounds to the cheek, teeth, and abdomen, his mouth was damaged and hindered mastication and his ability to swallow, which led to the formation of peptic ulcer disease, which ultimately led to the development of his fatal gastric carcinoma. The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. All opinions and conclusions expressed must be supported by a rationale. 3. The RO must then review and re- adjudicate the issues on appeal. If any such action does not resolve each claim to the appellant's satisfaction, the RO must provide the appellant and her representative, if any, a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs