Citation Nr: 1301988	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  09-01 632	)	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:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The appellant's recognized guardian, S.B.


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran had recognized guerilla service from January to May 1945.  He died in July 1964.  The appellant is his surviving daughter, claiming as a helpless child through her fiduciary and sister.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Manila RO.  

In August 2007, the fiduciary testified before a Veterans Law Judge (VLJ) who was subsequently designated to serve as Acting Chairman of the Board.  As such, he is no longer available to consider the appeal.  The Board sent her a letter advising her that the law requires that the VLJ who conducts a hearing on appeal must participate in any decision made regarding such appeal.  She indicated that she did not wish to have another hearing.  

This claim was previously before the Board in September 2009 and again in June 2010; on each occasion, it was remanded for further development of the evidence.  The required development has been completed and this case is appropriately before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).  

As explained previously in the Board's prior remands, the Board has concluded that the claim before it is appropriately characterized as an original claim of service connection for the cause of the Veteran's death, rather than as a claim to reopen a previously denied claim.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran died in July 1964.  The death certificate indicated that the cause of death was a cerebrovascular accident due to hypertension.  

2.  At the time of the Veteran's death, service connection was not established for any disability.  

3.  The disorders that resulted in the Veteran's death are unrelated to active duty service and are not shown to have manifested within a year of separation from service.  


CONCLUSION OF LAW

A disability incurred or aggravated in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the Veteran's death.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002).  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2012).  Continuity of symptoms is required, however, where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).  

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  

To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  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).  

A contributory cause of death is inherently one not related to the principal cause.  In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death.  It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c).  

Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  38 C.F.R. § 3.312(c)(3). 

There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).  

Further, where the veteran served continuously for ninety (90) or more days during a period of war, and if hypertension became manifest to a degree of 10 percent or more within one year from the date of his or her termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 , 3.309.  

Finally, review of the Veteran's service personnel records indicate he served as a recognized guerilla in the Philippines during World War II, and participated in combat actions against Japanese troops.  Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat veterans, 

[VA] shall accept as sufficient proof of service- connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  

See also 38 C.F.R. § 3.304(d).  

The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996).  38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service.  See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability").  

A veteran (or in this case, the appellant) must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events.  See Gregory v. Brown, 8 Vet. App. 563, 567 (1996).  

Service treatment records are not available for the Veteran.  Service personnel records confirm that he had recognized guerilla service from January to May 1945, to include combat against the Japanese.  Affidavits received in 1954 and 1955 from fellow veterans stated that he reported pain of the back and chest in 1942-43, and was eventually diagnosed with malaria and rheumatism.  His service from 1942-44 has not been confirmed.  

The Veteran died in July 1964.  The death certificate indicated that he died of a cerebrovascular accident due to or as a consequence of hypertension.  The appellant has consistently argued that the Veteran reported chronic headaches during and following service, indicative of the onset of hypertension during that time.  Additionally, the appellant has alleged that he suffered from posttraumatic stress disorder (PTSD) during service or as the result of stressors therein, and this disorder caused or aggravated his hypertension and subsequent cerebrovascular accident.  

In support of her contentions, the appellant has submitted numerous medical articles and treatises which discuss the prevalence of PTSD in members of the service branches, as well as a possible nexus between hypertension and cerebrovascular accidents.  These assertions were repeated by the fiduciary at the March 2009 Board hearing.  

Terminal hospital records are not available.  The private hospital at which the Veteran received treatment immediately prior to his death has stated that his clinical records were destroyed in a 1995 typhoon.  This hospital was only able to confirm that he was admitted in the days prior to his death for treatment for a cerebrovascular accident and hypertension.  No date of onset or other medical history or diagnoses were provided.  The appellant has alleged he was treated at a VA clinic and other private facilities prior to his death in 1964, but VA was unable to obtain records of any such treatment.  

The Board has considered the appellant's lay statements regarding a connection between the Veteran's cerebrovascular accident and hypertension, and his service.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

An appellant is competent to report symptoms that he or she experiences at any time because this requires only personal knowledge as it comes to him or her through their senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 309 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

In determining whether statements submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

While the appellant is competent to report her observations about the Veteran's illness, hypertension is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis.  The Board concedes her credibility and competency regarding her assertions that the Veteran complained of headaches for many years; however, she, as a lay person, lacks the competency to state that those headaches were indicative of hypertension or PTSD.  Thus, her written and oral assertions, though credible, lack probative weight regarding the etiology of the Veteran's cause of death.  

As well, the various studies and articles presented by the appellant lack probative weight.  Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses).  

Medical evidence, however, that is speculative, general, inconclusive in nature, or unaccompanied by the opinion of a competent professional cannot support a claim in and of itself.  See Sacks v. West, 11 Vet. App. 314 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships).  

Here, the articles and studies submitted by the appellant are general in nature and do not specifically relate to the facts and circumstances surrounding the Veteran's case.  As such, this evidence has limited probative value.  

Further, because neither hypertension nor a cerebrovascular accident are shown to have existed in the first year post-service, presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted, and service connection for the cause of the Veteran's death is not warranted on that basis.  The Board notes that the Veteran left active duty service in 1945, and was not diagnosed with hypertension and a cerebrovascular accident until 1964, a gap of nearly 20 years.  

No competent evidence has been presented establishing onset of his causes of death during service or within a year thereafter, or as a result of an incident of service.  The record also does not reflect a diagnosis or other competent evidence of PTSD, as alleged by the appellant.  The Board concludes that there is no basis to establish a link between the Veteran's fatal cerebrovascular accident due to hypertension and service, to include any combat participation therein.  

The Board has also considered the Veteran's recognized service in a tropical region.  For veterans with such service, service connection may be presumed for certain disorders which manifest to a compensable degree within a year of service separation.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  Neither hypertension nor a cerebrovascular accident are among the presumed disorders, however.  Accordingly, the preponderance of the evidence is against the claim; the benefit of the doubt provision does not apply and the appeal is denied. 

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

When VCAA notice is delinquent or erroneous, the rule of prejudicial error applies.  See 38 U.S.C.A. § 7261(b)(2).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Here, the VCAA duty to notify was satisfied by way of pre-adjudication letters sent to the appellant in September 2004, January 2005, with follow-up letters in August 2005, February 2006, March 2007, June 2007, August 2007, February 2010, July 2010, and August 2010, that fully addressed all three notice elements.  These letters informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  Furthermore, the service connection claim was readjudicated, and multiple supplemental statements of the case have been issued.  Consequently, the Board finds that the duty to notify has been satisfied.

In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 5103(a) notice 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 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, 352-53 (2007). 

While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice.  Notice consistent with the Court's mandates in Hupp was provided in July 2010.  

Therefore, adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist an appellant in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to an appellant's claim for benefits, in Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that VA's duty to obtain a medical opinion under 38 U.S.C.A. § 5103A(d) does not apply to a DIC claim, as the applicability of this provision is explicitly limited to claims for disability compensation. 

Moreover, the Board notes that 38 U.S.C.A. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination.  Under 38 U.S.C.A. § 5103A(a), VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit."  

Here, as already discussed, the weight of the evidence does not support a finding that the disorders that caused or contributed to the Veteran's death had their onset in service or establish a link between these disorders and his active service.  Consequently remanding for another opinion is not necessary.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has attempted to obtain the service treatment records and other cited VA and private treatment records, without success.  At this juncture, any further attempts would be futile.  The appellant has been afforded notice of VA's inability to locate this evidence, and has not provided such records herself.  She has, however, provided medical treatises and articles, which have been considered. 

She was provided an opportunity to set forth her contentions during a March 2009 Board hearing before a Veterans Law Judge.  No VA medical opinion was provided, but no such opinion need be provided herein, as discussed above. 

Finally, the appellant submitted new evidence to the Board following the most recent supplemental statement of the case issued by the agency of original jurisdiction (AOJ); however, this evidence was accompanied by a waiver of consideration by the AOJ.  Thus, this appeal need not be remanded for RO consideration of this evidence.  See 38 C.F.R. § 20.1304.  

Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  


ORDER

Service connection for the cause of the Veteran's death is denied.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs