Citation Nr: 1220140 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 08-00 575 ) 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. REPRESENTATION Appellant represented by: Philip Madlem WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had recognized guerilla service in the Philippines from April 1943 to August 1945. He died in March 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Manila, the Republic of the Philippines Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the case was remanded for clarification of representation and readjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in March 1981; the cause of his death was cardiorespiratory failure due to acute myocardial infraction. 2. At the time of the Veteran's death, service connection was not in effect for any disability; service connection for residuals of gunshot and bayonet wounds to both legs and the left lumbar area was denied by an October 1979 Board decision. 3. The cardiovascular disability causing the Veteran's death was not manifested in service or within the first year following the Veteran's discharge from active duty and is not shown to have been related to his service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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 VCAA notice 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim. While she did not receive complete notice prior to the initial rating decision, a September 2011 letter provided certain essential notice prior to the readjudication of her claim. See Mayfield, 444 F.3d at 1328. Specifically, the September 2011 letter provided notice that complied with Hupp and explained the evidence VA was responsible for providing and the evidence she was responsible for providing. This letter also informed the appellant of effective date criteria. A December 2011 supplemental statement of the case (SSOC) readjudicated the matter after the appellant's representative responded. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The VA hospital reports proximate to the Veteran's death referenced as possibly not being of record at the December 2011 hearing before a Decision Review Officer are of record, and the appellant has not otherwise identified any evidence that remains outstanding. The clarification as to the Veteran's representation and readjudication requested in the August 2010 Board remand has been accomplished, thereby insuring compliance with the instructions of the remand as mandated by Stegall v. West, 11 Vet. App. 268 (1998). Regarding any duty to secure a medical advisory opinion in the matter (see Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008; 38 U.S.C.A.§ 5103A(a)(1)), the Board finds that record is adequate to allow for informed appellate review, and that no useful purpose would be served by further delaying appellate review to obtain a medical advisory in this matter as the record does not show a disease or injury in service, and a medical opinion would not serve to establish such factor. There is no reasonable possibility that a medical opinion would assist to substantiate the claim. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis To establish service connection for the cause of a Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including cardiovascular-renal disease) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for cardiovascular-renal disease). 38 U.S.C.A. §§ 1112 , 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 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 Veteran 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). The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's death certificate shows that the listed cause of his death was cardiorespiratory failure due to acute myocardial infarction. Service connection was not in effect for any disability at the time of his death. Reports from VA hospitalization shortly before his death show diagnoses of arteriosclerotic heart disease, atrial fibrillation, old anteroseptal wall myocardial wall ischemia, left ventricular hypertrophy, and congestive heart failure. The only available STR is a report of a March 1946 separation examination that is silent for cardiovascular or any other disability. The Veteran denied sustaining any wounds or illnesses while in the military on an affidavit for Philippine Army personnel in March 1946. Consequently, service connection for any such disease/condition on the basis that it became manifest in service and persisted is not warranted. Inasmuch as there is no evidence that the Veteran had a cardiovascular disability within the first year following his discharge from active duty, service connection for such disease under the chronic disease presumptive provisions of 38 U.S.C.A. § 1112 likewise is not warranted. The appellant, to include in sworn testimony at the December 2011 hearing, has attributed the Veteran's death to debilitation resulting from injuries he sustained as a guerilla when he was shot and bayoneted by Japanese. During his lifetime the Veteran sought service connection for wounds to both legs and the lumbar area; his appeal of the denial of such claim was denied by a final Board decision in October 1979. In connection with such claim, he had submitted a medical certificate dated in January 1978 attesting to "[o]ne scar or bullet wound" in the right leg and five scars in the right knee and two in the left knee caused by a bayonet. Also submitted on behalf of the Veteran were March 1979 dated affidavits by two individuals attesting to personal knowledge that the Veteran was bayoneted by Japanese soldiers while in guerilla service in March 1943. Another affidavit dated in February 1979 from an individual self-identified as a Captain in an Infantry Division indicated that in January 1945, the Veteran approached his unit for duty and that he personally observed that the Veteran had a wound previously inflicted by the enemy. Evidence submitted later in connection with the appellant's claim for service connection for the cause of the Veteran's death includes a statement from V.B.C, M.D. dated in June 2003 that refers to 1954 treatment the Veteran received for basal pneumonia, with pulmonary tuberculosis not ruled out. A statement from another physician, A.A.M., dated in June 2004 indicates that the Veteran's "illness" (presumably that which caused his death) occurred during his guerilla service and provides a history of the Veteran being shot from a coconut tree during such service and sustaining a wound over the left thigh. He refers to the Veteran complaining about chest and back pain and "massive loss of weight" in August 1954, and that the appellant had indicated that the Veteran had a check up with Dr. V.B.C. for severe headaches, chest pain, and high blood pressure. He indicated that the basis for his "diagnosis" (again presumably the condition which in his view caused the Veteran's death) was chest pain and high blood pressure. Also submitted were July 2004 affidavits from individuals who attest that they heard that the Veteran sustained a gunshot wound while serving as a guerilla fighter and that after liberation they engaged in "war stories" that included the Veteran telling them about his wounds at the hands of the Japanese. Additional statements by another physician, J.N.M. dated in February and April 2007, attribute the Veteran's chronic hypertensive heart disease, pleurisy with effusion, "weakening of the body," and malnutrition to the bullet wound to the right thigh he sustained during the Japanese occupation. It was his opinion that these conditions contributed to cardiopulmonary disease and the death-causing myocardial infarction. While there is medical evidence that links the Veteran's death to various illnesses attributed to reported wounds he sustained in service, this medical evidence is based on history presented by the Veteran prior to his death which has been rejected by VA as not credible. A medical opinion based on an inaccurate history provided by the Veteran is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also LeShore v. Brown, 8 Vet. App. 409 (1995) (The filtering of the Veteran's account of his military service through his physician does not transform the Veteran's account into competent medical evidence, or an accurate account of those experiences, merely because the transcriber happens to be a medical professional.) The Board finds that this history provided by the Veteran prior to his death was not credible because it was self-serving (given in connection with a compensation claim) and inconsistent with contemporaneous clinical reports and official documents showing that he had denied sustaining any injuries during service in his March 1946 affidavit for Philippine Army personnel. Moreover, his service separation examination did reveal the bullet or bayonet injuries he described three decades later (in his original application for VA benefits filed in 1978). Contemporaneous documents by their very nature have a greater probative value than statements made three decades later. Here, their probative value is enhanced by the fact that the later statements by the Veteran were compensation-driven. Regarding the lay statements submitted on behalf of the Veteran, it is noteworthy that the March 1979 affidavits by two individuals attesting to personal knowledge that the Veteran was bayoneted by Japanese soldiers during his guerilla service place the attack in March 1943, i.e., prior to his entry to his recognized period of active duty guerrilla service in April 1943 (his service dates have not been placed in dispute). Consequently, they are not probative of the appellant's claim; if the injuries occurred as described it would not have been when the Veteran was in line of duty. Regarding the February 1979 affidavit by the Captain who said he observed that the Veteran had a wound previously inflicted by the enemy and the July 2004 affidavits to the effect that the providers heard about the Veteran's wounds while serving as guerilla fighters and listening to the Veteran describing how he received these wounds after service, none of these statements, (even if they are conceded to be credible) provides eyewitness account. They amount to hearsay evidence that is inconsistent with contemporaneous records, and lack probative value regarding the occurrence of the alleged combat injuries in service. As for the appellant's statements relating the Veteran's death to disabilities, generalized weakness, and malnutrition he suffered during his guerilla service, these assertions also lack probative value. There is no credible evidence that the Veteran suffered from disability such as malnutrition in service; if he had the appellant is not competent to relate his death-causing cardiovascular disease to any such malnutrition decades earlier, as the matter of such nexus is a complex medical question beyond the appellant's competence (because she is a layperson with no medical training). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's death is causally related to his recognized guerilla service. In such a situation, the benefit of the doubt doctrine does not apply; the appeal in the matter must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ___________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs