Citation Nr: 1308100 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 04-16 458A ) 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. ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The appellant's spouse had recognized guerrilla service on July 22, 1942, and from January 1943 to January 1946. He served in the Regular Philippine Army from January to February 1946. He died in February 1985, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. Although the appellant initially requested a Board hearing in her May 2004 substantive appeal (VA Form 9), she withdrew this request September 2004. See 38 C.F.R. § 20.704(e) (2012). In April 2006, the Board remanded the issue of whether the previously denied claim for service connection for the cause of the Veteran's death should be reopened to the agency of original jurisdiction. In July 2007, the Board reopened the matter, and denied service connection for the cause of the Veteran's death on the merits. The appellant appealed from the July 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2009 Memorandum Decision, the Court vacated the July 2007 decision in its entirety and remanded the matter to the Board. As the Court did not affirm the Board's prior determination that the issue should be reopened, the Board again addressed this question and reopened the previously denied claim in May 2010. The Board also remanded the question of the merits of the claim to the agency of original jurisdiction. As noted in May 2010, after the case was returned by the Court, it initially appeared that the appellant was represented in this appeal by a particular attorney. The referenced attorney, however, made clear that she does not represent the appellant. In response, VA notified the appellant of this fact, and the appellant has acknowledged several times that the particular attorney had refused to represent her in this claim before the Board. The appellant has been offered the opportunity to appoint a representative in her appeal, including the various Veterans Service Organizations (VSOs), but she has not made such an appointment. The Board notes that the appellant recently indicated that her son-in-law was her representative. Although he is not authorized to act as such in an official capacity, the appellant's son-in-law can and has been assisting her informally with her claim. FINDINGS OF FACT 1. The Veteran's service treatment records are silent for any incurred disease or injury, and according to certifications regarding the Veteran's death in 1985, the cause of death was pneumonia due to influenza. 2. A service-connected disease or injury did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for service connection of the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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, 186 (2002). These notice requirements 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In the context of a claim for dependency and indemnity compensation (DIC), to include service connection for cause of death, proper notice must include a statement of any conditions for which the veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate a claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, the Veteran was not service-connected for any disabilities at the time of his death. The appellant has been notified on several occasions of the evidence and information necessary to substantiate a claim of service connection for the cause of death (i.e., evidence that the Veteran died from a service-related injury or disease, and the requirements to establish service connection), and the responsibilities of the appellant and VA in obtaining such evidence. As directed in the prior Board remand, the appellant was again notified of these requirements, as well as of the requirements to establish an effective date, in a May 2010 letter. The Board notes that the May 2010 letter states that the Veteran was service-connected for tuberculosis at the time of his death, which is incorrect. Nevertheless, there is no resulting prejudice. Rather, the appellant has shown actual knowledge that the Veteran was not service-connected for tuberculosis, and her arguments primarily focus on establishing that this condition should be subject to service connection and that it led to or contributed to the Veteran's death. Further, the timing defect as to the notice sent after the initial denial of the appellant's claim was cured by the subsequent readjudication of the merits of the appellant's claim, including in a May 2012 supplemental statement of the case. See Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). Moreover, no prejudice has been identified as a result of any notice deficiencies, and the appellant has had a meaningful opportunity to participate in the adjudication of her claim. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The notice is sufficient. Concerning the duty to assist, the Veteran's service treatment records, death certificates, and all identified, available post-service records have been obtained and considered. All pertinent records contained in the Virtual VA paperless claims file (a highly secured electronic storage system) are also associated with the claims file. The appellant has submitted several non-VA medical documents. Dr. Victorio (who treated the Veteran at the time of his death) stated that she had no other records for the Veteran, and the appellant reported that Dr. Reyes was no longer located in the Philippines and such records are not available. There is no indication that any pertinent, available records remain outstanding. Moreover, the appellant has not authorized VA to obtain any further non-VA records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the appellant has a responsibility to cooperate in such development). As directed in the May 2010 remand, VA also obtained a medical opinion in August 2010 as to whether the Veteran had tuberculosis during service or within one year after discharge from service, whether tuberculosis was active at the time of the Veteran's death, whether any active tuberculosis or residuals caused or contributed to cause the Veteran's death, and whether the Veteran's death was otherwise related to service. Thereafter, VA initiated an investigation as to the authenticity of documents that were suspected to be fraudulent, and an investigative report was received in April 2012. There is no argument or indication that any further development is necessary for a fair adjudication of the appellant's claim. For the foregoing reasons, the Board finds that no further development is necessary, and the RO substantially complied with the prior remand instructions. Another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the appellant will not be prejudiced by a decision. II. Analysis As a preliminary matter, the Board notes the appellant's claims of entitlement to accrued benefits and death pension benefits were previously denied in an April 2005 Board decision. The appellant did not appeal from those determinations. As such, only service connection for the cause of the Veteran's death is on appeal. 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. 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 thereto. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disease 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 that, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. Nevertheless, even in such cases, it must be considered whether a reasonable basis may exist for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), 3.304. Service connection may be granted for any disease diagnosed after discharge, when 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). Further, service incurrence of tuberculosis may be presumed as a chronic disability if the condition manifested to a compensable degree within three years after discharge from active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the in-service disease or injury and the present disability. 38 C.F.R. § 3.304; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), the nexus element for a chronic disability may be established based on medical or lay evidence where there is competent evidence of continuity of symptomatology. Barr, 21 Vet. App. at 307; Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The appellant filed her initial claim for VA death benefits in October 1997. An initial death certificate showed that the Veteran died in February 1985 from an immediate cause of pleurisy and an antecedent cause of Kochs, as certified by Dr. Rosalina Victorio. A subsequent death certificate, also certified by Dr. Victorio, recorded an immediate cause of death of pneumonia and an antecedent cause of influenza, with an interval of 7 days between onset and death. This certificate was received in June 1985 at the civil registrar and, thus, evidently supplanted the first certificate of death. Indeed, a June 1985 document from the Office of the Local Civil Register listed the cause of death as pneumonia and influenza. Further, a September 1989 document from Dr. Victorio certified that the Veteran died from pneumonia due to influenza, and was under her treatment at the time of death. In 2011, VA received a certified copy of the Veteran's death certificate of record from the Republic of Philippines National Statistics Office, which again indicates that he died in February 1985 of pneumonia and influenza. The evidence also includes the Veteran's service treatment records, including the report of a service discharge examination in January 1946. These are silent for any significant diseases, wounds, or injuries; and the Veteran was clinically normal on examination at discharge. In a January 1946 Affidavit, the Veteran described the circumstances of his service and attested that he had suffered no wounds or illnesses during such service. An authenticated copy of this affidavit was received in 2011. A January 1985 radiology report from the Armed Forces of the Philippines Medical Center noted that the Veteran had had a sudden onset of difficulty breathing four days earlier. Persistence prompted admission. The impression was pneumonia, right middle lobe. The appellant has reported that the Veteran was confined for two weeks at this facility before his death. This would be generally consistent with his admission for treatment at the time of this January 1985 x-ray study. In a March 2004 notice of disagreement, the appellant asserted that the Veteran's service showed that he fought heavily against the Japanese by conducting ambush and foot patrol without food and logistics, which made him sick in the late 1950s. Subsequently, the appellant submitted an original and several copies of a Medical Certificate dated in December 1947. In that certificate, Dr. Alfredo Ramirez stated that the Veteran had come for consultation when he experienced a prolonged period of colds followed by cough. In mid-January 1947, the Veteran had experienced severe coughing and spitting up blood, and Dr. Ramirez advised him to rest in bed for a week while taking prescribed medication. Over a month later, in late February 1947, the Veteran returned with complaints of high fever, pain, coughing, and difficulty breathing. Dr. Ramirez gave him regular injections of streptomycin-sulfate for 5 months, and the Veteran lost weight but was getting well. Dr. Ramirez told him to follow-up every four months and take calcium Gluconate injection for several months. At the end of the year, the Veteran stopped coming for injections. In a June 2003 letter, Dr. Digna Reyes stated that the Veteran had been a patient for almost 30 years prior to his death (or since approximately 1955). During those years, the Veteran's complaint was epigastric pain diagnosed as hyperacidity and as gastric ulcer. The condition worsened when the Veteran had vomited blood and passed blackish stool. The Veteran also had recurrent fever accompanied by productive cough and loss of appetite and weight. Chest x-ray studies revealed Koch's infection in 1960, moderately advanced, which was treated for six months. No follow-up x-ray was performed. In another June 2003 letter, Dr. Victorio (who was listed on the Veteran's certificate of death) certified that the Veteran had died due to influenza complicated by pneumonia. Another statement from Dr. Victorio, submitted on a VA Form 21-4142 dated in August 2003, indicated that the Veteran had had on and off fever and cough, accompanied by body pains, headache, difficulty breathing, and weakness. In June 2006, the appellant submitted a radiography report dated September 1949, which found "minimal T.B." in the right and left lower lobes. It is not clear from the document whether it concerned the Veteran because his name is not visible. In its September 2009 Memorandum Decision, the Court stated that after a "cursory review" of the evidence, the Veteran may have had tuberculosis within a year of his discharge from service. The Court went on to state that the Veteran "likely" manifested tuberculosis within a year after service, and that it was necessary to consider whether the Veteran had tuberculosis presumptively originating in service, which in some manner contributed to the Veteran's death as a disease involving active processes affecting vital organs resulting in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. In response to the Court's discussion, the Board remanded the case for further development in May 2010, to include obtaining a VA medical opinion, which was provided in an August 2010 report. Based on the available evidence at that time, as summarized above, the examiner opined that the Veteran at least as likely as not had tuberculosis within one year of his discharge from service, but that it was less likely as not that the Veteran had active tuberculosis at the time of his death. Nevertheless, the examiner opined that it was at least as likely as not that residuals of tuberculosis contributed substantially or materially to the Veteran's death. The examiner explained that the Veteran's cause of death was listed as secondary to pneumonia and influenza. Both conditions involve the respiratory tract and are considered fatal if not treated adequately with antibiotics and an impairment in pulmonary airway clearance is present. The examiner stated that there was no diagnosis of pulmonary tuberculosis (PTB) on the Veteran's death certificate, which made this condition less likely as not active at the time of death. The examiner noted, however, that the Veteran was treated for cough, fever, and blood tinged sputum a year after his discharge from service, and that treatment with streptomycin in 1947 was considered a form of treatment for pulmonary tuberculosis because no other drug was available at that time. The examiner stated that, although the Veteran's chest x-ray was normal upon discharge from service, it was abnormal in 1960, and chest x-ray results were not available from the January 1947 consult. The examiner further stated that the progression of symptoms including cough and hemoptysis (spitting up blood) was at least as likely as not due to pulmonary tuberculosis because the presentation is insidious and improvement was noted after treatment with streptomycin for 5 months. The Veteran was again treated for pulmonary tuberculosis in 1960 based on symptoms of cough, fever, and chest x-ray findings of moderately advanced pulmonary tuberculosis. The examiner stated that, because the Veteran died from pneumonia and influenza, the presence of moderately advanced pulmonary tuberculosis on chest x-ray, whether active or not, was the equivalent of a sizable anatomic involvement of the lung tissue that, in its normal state, would be capable of expelling microbes and clearing the air passages of phlegm and bacteria. As such, the examiner concluded that the Veteran at least as likely as not developed tuberculosis within one year after his discharge from active service, and the abnormal findings and residuals of pulmonary tuberculosis at least as likely as not materially contributed to his death. After receiving the VA examiner's report, the RO observed that the purported Medical Certificate dated in December 1947 from Dr. Ramirez appeared to be the product of fraud based on the condition of the font and the document itself, as well as the fact that the appellant and the Veteran were not married until January 1951. The purported Medical Certificate dated December 1947 and signed in the name of Dr. Ramirez was forwarded to the Office of the Inspector General (OIG) for investigation. In an April 2012 forensic laboratory report, the OIG found that it was highly probable that the document was not authentic as to date. The OIG noted that optical whiteners that were present in the paper were not commercially available until 1950. Further, the paper did not exhibit genuine aging features, and there was evidence to indicate that it may have been subjected to artificial aging methods using easily available materials such as coffee, tea, milk, or lemon juice. Notably, the appellant does not argue that the document in question is not fraudulent, or provide any circumstances as to the Veteran's supposed treatment in 1947. Instead, she argues that the Court had already made its determination that the Board's July 2007 denial of her claim was in error due to failure to consider whether the Veteran had tuberculosis within one year after discharge based on that document. The appellant further argues that the fact that VA did not suspect or investigate whether the purported medical record dated in December 1947 was fraudulent prior to the Court proceedings means that VA could not thereafter investigate the document. See, e.g., June 2012 letter from appellant. This is simply not true. First, the Court did not decide the appellant's claim on the merits but, rather, remanded the case to the Board for adjudication of the claim, including consideration of the evidence and theories summarized by the Court. This is not a final decision or a grant of an award by the Court. Second, VA may continue to develop a claim after it is remanded from the Court and, indeed, has a duty to do so when pertinent evidence or arguments are raised that have not yet been addressed. The appellant was notified in a February 2012 letter that VA was aware of the existence of "claims fixers," who often submit fraudulent evidence in an attempt to substantiate a claim for benefits by a Veteran or survivors, and that VA would investigate where fraud is suspected. Further, the Board must consider all evidence of record in deciding the merits of the appellant's claim. The Board finds the April 2012 forensic laboratory report to be highly probative, as it is the result of scientific testing and is supported by clear and logical reasoning. With respect to possibly artificial aging, the Board notes that the appellant has also submitted several copies of the purported December 1947 document that appear to have different levels of "aging" and stains in different locations on that page. Moreover, the Board finds the wording of the document itself to be suspicious as to authenticity. First, the letter closes with a very similar statement as a June 2003 letter from Dr. Reyes that was submitted at the same time in connection with the appellant's application to reopen her previously denied claim. In particular, the June 2003 letter closed with a statement that "[t]his certification is issued for whatever legal purpose this may serve the family of the late [Veteran]." Similarly, the document dated in December 1947 in the name of Dr. Ramirez states that "[t]his certification is issued upon the request of [the Veteran] for whatever legal purposes." Second, there is no indication that the Veteran had any claim pending in or around 1947, so as to support the inclusion of such a sentence at that time. Additionally, there is some evidence that the drug referred to in the document dated December 1947, injectable streptomycin sulfate, was discontinued from the market in February 1946. See internet summary of FDA approval history obtained by the RO. The Board notes, however, that the VA examiner indicated in August 2010 that streptomycin was used to treat tuberculosis in 1947, so this may be inaccurate. For all of the foregoing reasons, the Board finds that the Medical Certificate from Dr. Ramirez dated in December 1947 is fraudulent. Therefore, it has no probative value, and it does not establish treatment for the symptoms referenced therein. Furthermore, the August 2010 VA examiner's opinion that the Veteran at least as likely as not had tuberculosis within one year of his discharge from service, and that residuals from such tuberculosis contributed to his death from pneumonia and influenza, holds very little probative value. This is because such opinions were based primarily on the evidence contained in the document dated in December 1947 and in the name of Dr. Ramirez that the Board finds herein to be fraudulent. There is no other evidence of record to suggest that the Veteran had symptoms or a diagnosis of tuberculosis within one year after his discharge from service. As noted by the VA examiner, the Veteran's lungs and chest x-ray were clinically negative upon discharge from service in January 1946, and the Veteran denied any illness during service. He did not submit any evidence of symptoms in the lungs or of tuberculosis continuously since service, or within one year after discharge, during his lifetime. Additionally, the probative evidence received after the Veteran's death does not show any such continuity of symptomatology. In this regard, although a September 1949 radiology report indicates "minimal T.B." in the right and left lower lobes, the Veteran's name is not included anywhere on this report. Notably, this evidence was first submitted in June 2006, after the appellant's initial and subsequent claims for VA death benefits had been denied. In any event, these tests are dated more than three years after the Veteran's discharge from service. Further, the appellant and the Veteran were not married until 1951, and the evidence establishes that the Veteran was married to another woman at the time of his discharge from service. Similarly, Dr. Reyes's indications in a June 2003 letter that she had treated the Veteran since approximately 1955, and that he had symptoms that were diagnosed in 1960 as moderately advanced Koch's infection (which the VA examiner noted to be tuberculosis), also concern his condition several years after service. Moreover, there is no medical evidence as to the Veteran's symptoms from 1960 until his death in 1985. The January 1985 x-ray, however, indicates that the Veteran's symptoms of difficulty breathing and chest pain were of sudden onset, which appears to indicate that he did not have such symptoms on a regular basis. The Board notes that the appellant did not suggest of her own accord that tuberculosis may have been related to the Veteran's death. Rather, the Court raised this theory. In sum, although the Veteran may have had similar symptoms and a diagnosis of tuberculosis at times over the years, the evidence does not establish that the tuberculosis was present or manifested to a compensable degree during service or within three years after his discharge from service. Disregarding the August 2010 VA examiner's opinion for the reasons stated above, there is no other competent evidence that the cause of the Veteran's death is related to service, or to any disease or injury during service. The Board notes that the appellant points to a 1956 claim by the Veteran in support of her assertion that his death is related to service or to disease incurred during service. In June 1956, the Veteran filed a claim for service connection for a backache from typhoid fever, which was denied. The Veteran did not complain of any lung condition or symptoms that may be related to tuberculosis at that time. As such, this does not help to substantiate the appellant's claim. Further, there were no other claims for service connection during the Veteran's lifetime. The Board has considered the appellant's assertions that the Veteran's death from pneumonia and influenza is related to military service, to include tuberculosis diagnosed and manifested to a compensable degree within one year after discharge. This includes her contention that the Veteran's hardships during military service caused him to get sick thereafter and precipitated his death. The appellant, however, is not competent (as a lay person) to testify as to this question. Rather, this question requires specialized knowledge, training, or experience due to the complex nature of the Veteran's cause of death, given his medical history and the involved bodily system. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr, 21 Vet. App. at 308. As such, the appellant's testimony as to the cause of the Veteran's death is not probative or persuasive. In sum, the evidence of record does not establish that the Veteran's cause of death from pneumonia and influenza, as certified by the treating physician, had any etiological relationship to his military service on a direct or presumptive basis. There is also no indication that a service-related disease or injury contributed to cause his death, to include by impairing his health to such an extent that he was materially less capable of resisting the effects of pneumonia or influenza. See 38 C.F.R. § 3.312. As the preponderance of the evidence is against service connection for the cause of the Veteran's death, the benefit-of-the-doubt doctrine does not apply and the appellant's claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs