Citation Nr: 1305271 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 11-04 688 ) 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: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had Recognized Guerilla and Regular Philippine Army service in the Philippines from September 1942 to March 1946. He died in April 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Manila, the Republic of the Philippines, Regional Office (RO). In her February 2011 Substantive Appeal, the appellant requested a Central Office hearing before the Board; she subsequently withdrew the hearing request. 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 April 1994; the cause of death listed on his death certificate was cardiopulmonary arrest secondary to septic shock; hypertensive cardiovascular disease with left (HCVD, S/S L) sided weakness was an underlying cause, and aspiration pneumonia was listed as a significant condition contributing to death. 2. During his lifetime, the Veteran had not established service connection for any disability. 3. The cardiovascular disability causing the Veteran's death was not manifested in service or within the first year following his 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. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. See 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 claim of service connection for the cause of the Veteran's death. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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; (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). 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 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 prior to its initial adjudication. An October 2008 letter explained the evidence necessary to substantiate her claim in accordance with Hupp, the evidence VA was responsible for providing, and the evidence she was responsible for providing. It also informed the appellant of disability rating and effective date criteria. The appellant has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service records and statements from private physicians have been secured, and the appellant has not otherwise identified any evidence that remains outstanding. 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 opinion 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. 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). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence 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. 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. 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 is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be: (1) medical evidence of such disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed disability and the disease or injury in service. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and 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 they become manifest to a compensable degree in a specified period of time postservice (one year for cardiovascular-renal disease, to include hypertension). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 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 appellant 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 Veteran's death certificate shows that the listed cause of his death was cardiopulmonary arrest secondary to septic shock; hypertensive cardiovascular disease with left sided weakness was an underlying cause, and aspiration pneumonia was listed as a significant condition contributing to death. Service connection was not in effect for any disability at the time of his death. A February 1946 Affidavit for Philippine Army Personnel shows that the Veteran denied sustaining any wounds or illnesses while in the military. 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. In support of her September 2008 claim, the appellant submitted certifications and affidavits attesting to the Veteran's military service and that she had been married to the Veteran. As these matters are not in dispute (the Veteran's service has been verified by the service department and he had listed the appellant as his spouse on his February 1946 Affidavit for Philippine Army Personnel), further discussion of these documents is not warranted. [Notably, the appellant also submitted a July 2008 statement from a private physician regarding her own medical treatment. This statement is not relevant to the present appeal.] In May 2009, the following medical statement and certifications were also received from the appellant in support of her claim: * A Medical Summary from A. O. E., M.D. (Dr. E) bearing the date June 1952 but received by VA in May 2009 notes that the Veteran had sought consultation for a 4 day history of "piercing chest pain with occasional fever especially in the early morning." Dr. E further stated that he recalled that the Veteran reported having experienced similar pains while serving in WWII and being diagnosed with angina pectoris with complications of chronic bronchial disorder when called for medical examination for discharge. * An Medical Certificate from J. F. F, M.D., (Dr. F) bearing the date August 1968 but received by VA in May 2009 notes that the Veteran was treated for chronic chest pain, cough, fever and associated body weakness. Dr. F stated that he recalled that the Veteran had reported suffering from this illness when he was still in the service in the Armed Forces of the Philippines during WWII. The doctor further reported that, based on chest X-ray, the diagnosis was "angina pectoris which nearly be develop to ischemic heart disease, and also have a complication of severe flu." The Veteran was prescribed "cardioactive drugs as well as a spectrum of antibiotics" and was advised to have his blood pressure checked twice per week. * A Medical Certification from F. G. C., M.D., dated May 1982 but received by VA in May 2009 states that the Veteran had been seen in September 1979 for hypertension secondary to ischemic heart disease secondary to decubitus ulcer and "septecaemia." It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the rationale for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). While there is medical evidence that links the Veteran's death to illnesses he allegedly experienced in service, this medical evidence is based on history presented by the Veteran prior to his death which is rejected by VA as not credible because it is contradicted by his contemporaneous statements at the time of discharge (he denied sustaining any injuries during service in his February 1946 Affidavit for Philippine Army Personnel) and the medical summary and certifications are not accompanied by the contemporaneous clinical records of treatment. Contemporaneous documents by their very nature have a greater probative value than statements made years later. 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.) Because the medical summery and certifications appear to be bare transcriptions of lay history, they are not competent medical evidence that the Veteran's cause of death was related to his service. Although the appellant has not specifically claimed a causal connection between the Veteran's fatal cardiovascular condition and his military service; it is noted that she is not competent to relate the Veteran's death-causing cardiovascular disease to his military service, 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 and Regular Philippine Army service in the Philippines. 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. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs