Citation Nr: 1307969 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-07 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to non-service connected death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty with the recognized guerillas from June 1945 to September 1945. The Veteran died in 1999. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant failed to report for a video conference hearing which was scheduled in November 2012. 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's death certificate reveals that the immediate cause of death was cardio-respiratory arrest. The antecedent cause of death was pulmonary edema and an underlying cause of death was global infarction. 2. At the time of the Veteran's death in November 1999, service connection was not in effect for any disabilities. 3. Cardio-respiratory arrest, pulmonary edema and global infarction were all first manifested following the Veteran's separation from service, and there is no persuasive medical evidence or opinion of a medical relationship, or nexus, between cardio-respiratory arrest, pulmonary edema and/or global infarction and either service or service-connected disability. 4. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. 5. The Veteran did not have qualifying active service for purposes of VA nonservice-connected pension benefits; thus, the appellant is not entitled to the receipt of nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2012). 2. The criteria for basic eligibility for nonservice-connected disability death pension benefits have not been met. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In a claim for DIC benefits, VA's notice requirements 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). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. With regard to the claim of entitlement to service connection for the cause of the Veteran's death, VA provided notification which complies with the requirements of Hupp, supra, in September 2009. While this letter was sent subsequent to the February 2009 decision denying service connection for the cause of the Veteran's death, the claim was readjudicated thereafter as documented by the October 2009 statement of the case. Hence, the appellant is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Regarding the claim of entitlement to service connection for the cause of the Veteran's death, the Board finds the record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. The appellant has not identified any pertinent outstanding evidence which has not been obtained. A VA examination was not conducted in connection with this claim. This is due to the fact that the records from the Veteran's military service are completely devoid of any evidence of any medical abnormalities. The separation examination did not include any findings of any problems. Furthermore, the Veteran denied receiving wounds or incurring illness during the pertinent time period on an Affidavit he completed in 1946. As there is no evidence of any medical problems from the Veteran's active duty service, any attempt to determine if the current causes of the Veteran's death were etiologically linked to his active duty service would only be based on speculation. A finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102 The Board finds that no additional RO action to further develop the record is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. The appellant has been notified and made aware of the evidence needed to substantiate the claim death pension claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. In a September 2009 statement, the appellant reported that she did not have any further information or evidence to submit in support of her claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). With regard to the claim of entitlement to non-service connected death pension benefits, the Board finds as set out below, the law, and not the evidence, is dispositive as to this issue. The Court has held that when the law, and not the underlying facts or development of the facts are dispositive in a matter, the VCAA can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); see also VAOPGCPREC 5-2004. Therefore, the Board finds that no further action is necessary under the VCAA as to this issue. Competency The appellant can attest to factual matters of which she had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant as a lay person has not been shown to be capable of making medical conclusions; thus, her statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the appellant is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." The Court found the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the appellant is not competent to provide evidence as to more complex medical questions and is not competent to provide an opinion as to the cause of the Veteran's death which the Board determines is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Entitlement to service connection for the cause of the Veteran's death. In November 2008, the appellant submitted a claim of entitlement to service connection for the cause of the Veteran's death. The only service treatment record associated with the claims file is the report of a separation examination which was conducted in August 1946. The examination report was normal including, specifically, the cardiovascular system and lungs, which were determined to be okay. In August 1946, an Affidavit for Philippine Army Personnel was prepared. The document indicates that the Veteran did not report any wounds or illnesses from December 8, 1941 to the date of return to military control. The Veteran's signature on the document indicates that he had read the affidavit and swore that the information included in it was true to the best of his knowledge, information and belief. Associated with the claims file is a Death Certificate which demonstrates that the Veteran died in November 1999. The immediate cause of death listed was cardio-respiratory arrest. The antecedent cause of death was pulmonary edema and an underlying cause of death was reported as global infarction. At the time of the Veteran's death, service connection was not in effect for any disabilities. In February 2010, the appellant wrote that she believed the Veteran died of a chronic illness related to tropical disease and malnutrition while he was serving with the recognized guerillas. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Board finds that service connection is not warranted for the cause of the Veteran's death. The service treatment records were silent as to complaints of, diagnosis of, or treatment for, any of the disorders listed on the Veteran's Death Certificate. Furthermore, the Veteran denied having any illnesses or wounds on the Affidavit he executed in 1946. There is no competent, persuasive evidence of record linking the cause of the Veteran's death to his active duty service. The only evidence of record which indicates that there is such an etiologic link is the appellant's allegations. As set out above, the Board has determined that the appellant is a lay person without specialized medical training. Her opinion as to the etiology of the cause of the Veteran's death is without probative value. There is no competent probative evidence created by any health care professionals which indicates, in any way, that the cause of the Veteran's death in 1999 was etiologically linked to his active duty service in the 1940's. The appellant has argued that service connection is warranted based on the presence of a presumptive chronic illness related to tropical diseases and malnutrition during the Veteran's active duty service. The law provides that certain tropical diseases listed in 38 C.F.R. § 3.309(b), may be presumed to have been incurred during service if manifested to a degree of 10 percent or more within 1 year from date of separation from service, or at a time when standard accepted treatises indicate that the incubation period commenced during such service; the resultant disorders or diseases originating because of therapy administered in connection with a tropical disease or as a preventative may also be service connected. 38 C.F.R. § 3.307(a)(4). The Board finds the appellant's argument alleging that the Veteran had a chronic tropical disease is without merit. None of the disorders enumerated on the Veteran's Death Certificate are included in the list of presumptive tropical diseases subject to service connection under 38 C.F.R. § 3.309(b). Furthermore, the appellant has not submitted any competent evidence demonstrating that one of the disorders listed on the Death Certificate was etiologically linked to a tropical disease the Veteran had. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for the cause of the Veteran's death is not warranted on a presumptive basis. In summary, the competent probative evidence does not show that the Veteran's cause of death is related to his military service in any way, and the Board therefore finds that the claim of entitlement to service connection for the cause of the Veteran's death must be denied. Entitlement to non-service connected death pension benefits In November 2008, the appellant submitted a claim of entitlement to non-service connected death pension benefits based on her husband's military service. Applicable law and regulations provide that VA "shall pay to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in section 1521(j) of this title, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, pension at the rate prescribed by this section." 38 U.S.C.A. § 1541(a). Under 38 U.S.C.A. § 1521(j), "[a] veteran meets the service requirements of this section if such veteran served in the active military, naval or air service" for a period of at least 90 days. See 38 U.S.C.A. § 1521(j). Philippine eligibility for nonservice-connected pension is covered by 38 C.F.R. § 3.40(a) as follows: Service in the Regular Philippine Scouts, the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance. Persons who served in the Commonwealth Army of the Philippines, by contrast, are not entitled to nonservice-connected disability pension as governed by 38 C.F.R. § 3.40(c): Service is included, for compensation, dependency and indemnity compensation, and burial allowance, from and after the dates and hours, respectively, when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to Military Order of the President of the United States dated July 26, 1941. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows the following: (1) service of four months or more; (2) discharge for disability incurred in the line of duty; or (3) ninety days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). Findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Venturella v. Gober, 10 Vet. App. 340 (1997). The claims file includes a certificate from the "Commonwealth of the Philippines, Philippine Army." It reflects that the Veteran served in the Philippine Army from August 1942 to September 1945. A document from the Philippine Veterans Affairs Office indicates the Veteran served as a guerilla from January 1945 to June 1945. Significantly, the service department has certified that the Veteran served with the recognized guerillas from June 1945 to September 1945. In this case, while the Veteran served during wartime, his service in the Philippine Commonwealth Army and recognized Guerillas from June 1945 to September 1945 does not qualify the appellant for nonservice-connected pension benefits. See 38 C.F.R. §§ 3.40, 3.41. Service before July 1, 1946 in the organized military forces of the Government of the Commonwealth of the Philippines, despite that 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 guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except for specified benefits including disability compensation benefits authorized by Chapter 11, Title 38, United States Code. 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.40. The specified benefits exception does not include VA nonservice-connected pension benefits, which are, as noted above, authorized by Chapter 15, Title 38, United States Code. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the Veteran's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for nonservice-connected death pension, and the claim must be denied based upon a lack of entitlement under the law. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to non-service connected death pension benefits is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs