Citation Nr: 1308137 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-40 782A ) 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 accrued benefits. 3. Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran has been certified as having had recognized guerilla service and regular Philippine Army service from February 1943 to April 1946. The Appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 service department records show that the Veteran's service was from February 1943 to April 1946 with the Philippine Commonwealth Army, including recognized guerrilla service, in service of the United States Armed Forces in the Far East (USAFFE). 2. The Veteran died on January [redacted], 2009; the death certificate lists the immediate cause of death as hypovolemic shock, secondary to upper gastrointestinal bleed, due to ruptured esophageal varices due to liver cirrhosis and hepatic encephalopathy due to liver cirrhosis. 3. At the time of his death, service connection was not in effect for any disabilities. 4. The competent evidence does not establish that service-connected disability was either the principal or a contributory cause of the Veteran's death. 5. A February 2006 decision by the Board denied service connection for diabetes mellitus. 6. No additional evidence which raises a reasonable possibility of substantiating the claim for service connection of diabetes mellitus has been received since February 2006. 7. Coronary artery disease was not first manifested during service or within the first post-service year, and the preponderance of the evidence is against a finding that such is related to military service. 8. A left great toe disorder was not first manifested during service or within the first post-service year, and the preponderance of the evidence is against a finding that such is related to military service. 9. Service in the Philippine Commonwealth Army, including the recognized guerrillas, is not qualifying service for VA pension benefits. 10. Service in the Philippine Commonwealth Army, including the recognized guerrillas, is not qualifying service for nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The Veteran's death was not caused, or substantially or materially contributed to, by a disability incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1310, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). 2. The requirements for payment of accrued benefits have not been met. 38 U.S.C.A. §§ 5101, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.1000 (2012). 3. The criteria for entitlement to nonservice-connected death pension benefits are not met. 38 U.S.C.A. §§ 1541, 1543 (West 2002); 38 C.F.R. §§ 3.23, 3.158, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in June 2010, to the Appellant. This letter explained the evidence necessary to substantiate the Appellant's claims, as well as the legal criteria for entitlement to such benefits. The letter also informed her of her and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). To the extent that the letter did not include the criteria for assigning a disability rating, there is no prejudice to the Appellant as the claims on appeal are denied and no disability rating will be assigned. Nonetheless, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also 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). Indeed, that is the case with regard to the Appellant's claims for nonservice-connected pension benefits on an accrued basis and nonservice-connected death pension benefits, although the Board notes that adequate notice was provided, sufficient evidence was developed in this appeal, and no further development is required. VA also has a duty to assist the Appellant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains reports of the Veteran's private post-service treatment, as well as the Appellant's statements in support of her claims. The Veteran's complete service treatment records are unavailable; however, the Veteran's service separation examination report is of record. In appeals where a Veteran's service treatment records are unavailable, there is a heightened obligation to assist an appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). The Board notes that the Veteran was not examined by VA in connection with his claims for service connection before he died, but, as will be explained below, the evidence demonstrates no in-service injury or disease; thus, as there is no in-service injury or disease to which a current disability could be related, no nexus opinion is required, and any opinion would be speculative. Additionally, as the evidence demonstrates no chronic symptoms in service or continuous symptoms since service, there is also no factual basis for such a nexus opinion based on symptoms in service or continuous symptoms since service. For this reason, a remand to obtain a medical opinion is not required with respect to the claims for service connection for accrued purposes. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Board has reviewed the Appellant's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Appellant's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection for Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities 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 was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either 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 co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis 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). Service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Analysis of Service Connection for Cause of Death The Veteran died on January [redacted], 2009; the death certificate lists the immediate cause of death as hypovolemic shock, secondary to upper gastrointestinal bleed, due to ruptured esophageal varices due to liver cirrhosis; another significant condition contributing to death was hepatic encephalopathy due to liver cirrhosis. At the time of his death, service connection was not in effect for any disabilities. The Board, in fact, had specifically denied service connection for cirrhosis of the liver in February 2006. The Appellant contends that the Veteran died due to his service as a recognized guerrilla during World War II. In statements in support of her claim for service connection for the cause of the Veteran's death, the Appellant asserts that, since the Veteran was eligible for service-connected disability benefits, his death should be service-connected. As previously noted by the Board in its February 2006 decision, the Veteran underwent a physical examination on service discharge in March 1946. No abnormalities were noted. The abdominal wall, viscera, and genitourinary system were normal. An examination conducted in January 1989 disclosed that the Veteran's abdomen, viscera, endocrine system and genitourinary system were normal. An October 2001 private ultrasound report indicates that the Veteran's liver was slightly contracted with diffuse parenchymal disease. A September 2003 medical certificate indicates a diagnosis of hepatic liver cirrhosis. Testing in March 2004 revealed diffuse parenchymal disease of the liver, with features suggestive of schistosomiasis. A medical certificate dated in March 2004 indicates liver cirrhosis. An August 2004 statement by the Veteran's private physician indicates that the Veteran had experienced recurrent clinical symptoms suggestive of liver problems. He noted that the Veteran had diffuse parenchymal disease, most likely secondary to chronic schistosomiasis. He indicated that the condition raised the possibility or could point out a previous history of exposure in the distant past, specifically during World War II. He noted that schistosoma was endemic in the area where the Veteran served. On review of the evidence pertaining to this claim, the Board determined that service connection for cirrhosis of the liver was not warranted. In this regard the Board observed that the Veteran's service records show no cirrhosis or other problem with the Veteran's liver. The record establishes that the Veteran did not have a diagnosis of cirrhosis of the liver within one year of his discharge. Rather, the first indication of liver disease dates to October 2001, many years after the Veteran's service ended in August 1945. The Board acknowledged that the Veteran's private physician had suggested that the veteran's parenchymal disease is secondary to schistosoma exposure during World War II. Specifically, he indicated that it was likely that the Veteran's liver disease was secondary to chronic schistosomiasis, which raised the possibility of exposure in the distant past. However, this physician's statement fails to account for an absence of evidence showing such exposure during service, or for many years thereafter. As such, the Board found the physician's statement to be speculative and insufficient to support a finding of a relationship between a remote diagnosis of cirrhosis of the liver and the Veteran's military service. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Appellant is not entitled to service connection for the cause of the Veteran's death. The Board finds that the weight of the evidence demonstrates that the Veteran did not sustain liver cirrhosis during service, that the Veteran did not have chronic symptoms of liver cirrhosis in service, and that the Veteran did not have continuous symptoms of liver cirrhosis after service. In this case, although the complete service treatment records are unavailable, the Veteran's separation examination report was normal. See 38 C.F.R. § 3.303(a), (b). When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.309(a). Walker v. Shinseki, __ F.3d __ , No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Cirrhosis of the liver is a chronic disease listed under 38 C.F.R. § 3.309(a). However, the Board also finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of liver cirrhosis after service. Medical records submitted after the Veteran's death in January 2009 do not show that the Veteran's hypovolemic shock secondary to massive upper gastrointestinal bleeding, secondary to ruptured esophageal varices due to liver cirrhosis was related to his service as a recognized guerilla. Likewise, the report did not indicate that the Veteran had any related complaints or treatment during service, or chronic symptoms during service, or continuous symptoms since service separation. The first assertions that the Veteran's cirrhosis is related to service is when the Appellant filed her current VA claim for compensation in 2009. Although the Board does not doubt the sincerity of the Appellant's beliefs that the Veteran's death was somehow aggravated or caused by his service, the competent medical evidence of record contradicts her contentions. The Appellant's contentions regarding the Veteran's cause of death are inconsistent with the service treatment record evidence, the absence of complaints or treatment after service, and the Veteran's own histories made for treatment purposes prior to filing his death. Prior to the Veteran's death and the Appellant's claim for benefits, it is significant that the Veteran did not make any assertions of chronic symptoms in service or continuous symptoms since service regarding the Veteran's liver cirrhosis. Although the Veteran had a claim of entitlement to service connection for cirrhosis denied by the RO in 2004, there was no indication at that time that he had been treated during or within one year of service; the Veteran also did not allege continuous symptomatology. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); 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"). Such evidence weighs against findings of chronic symptoms of cirrhosis in service or continuous symptoms since service. For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's cause of death is related to service; therefore, the claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Legal Criteria for Accrued Benefits Although a veteran's claims terminate with his death, certain survivors of a deceased veteran are eligible to receive payments from VA of accrued benefits based upon the deceased veteran's statutory entitlement to such benefits. Accrued benefits are defined as periodic monetary benefits payable under laws administered by VA to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). There are various threshold requirements that an appellant must meet in order to pursue an accrued benefits claim. One such requirement is that applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). Another requirement is that a veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236, 1241-42 (Fed. Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at the time of death, the surviving spouse has no claim upon which to derive his or her own application). The provisions of 38 C.F.R. § 3.1000(d)(5) define a claim for VA benefits pending on the date of death as a claim "filed" with VA that had not been finally adjudicated by VA on or before the date of death. In addition, accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Analysis of Accrued Benefits Preliminarily, the Board notes at the time of the Veteran's death, he had four claims pending before the RO; at the time of his death, the Veteran had a claim to reopen service connection for diabetes mellitus, claims of entitlement to service connection for coronary artery disease and amputation of the left great toe, and entitlement to nonservice-connected pension benefits. As a matter of law, Veterans' claims do not survive their deaths. Zevalkink at 1243-44; Smith v. Brown, 10 Vet. App. 330, 333-34 (1997). As authorized by law, however, the Appellant has filed a claim for accrued benefits deriving from the Veteran's pending claims. See Jones v. West. Accordingly, the issues are as listed above and addressed below. New and Material Evidence In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creates a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The RO and the Board previously denied the Veteran's claim of entitlement to service connection for diabetes mellitus. The Board last did so in a decision dated February 2006. The Board denied the Veteran's claim on the basis that the evidence did not demonstrate that the Veteran's diabetes mellitus began during or as a result of his service; the Veteran's diabetes mellitus was diagnosed many years after service and his genitourinary system was normal at his separation examination. The Board notified the Veteran of the February 2006 decision and of his appellate rights with regard to the decision. In this case, the Veteran did not appeal the Board's decision or file a Motion for Reconsideration; thus, the Board's February 2006 decision is thus final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2012). In November 2007, the Veteran filed an application to reopen service connection for diabetes mellitus. Generally, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). The medical evidence added to the record since February 2006 is new because it had not previously been submitted; however, it is not material because the evidence could not reasonably substantiate the claim were it to be reopened as the new medical evidence does not indicate that the Veteran's diabetes mellitus is etiologically related to service. Private treatment records dated January 2006 through October 2008 indicate that the Veteran was treated for diabetes mellitus, but does not demonstrate that it began during or as a result of his service, or within an applicable presumptive period; the clinical evidence also does not indicate that the Veteran's diabetes mellitus is causally or etiologically related to his military service, or the events therein. A diagnosis of diabetes mellitus was previously established at the time of the Board's last denial in February 2006. Therefore, evidence of a continued diagnosis of diabetes mellitus is essentially cumulative. The Veteran's statements prior to his death reiterated his previous contention of entitlement to service connection and thus also constitute cumulative evidence. The Veteran's most recent claim involving diabetes mellitus is grounded upon the same factual bases as his prior claim, which was previously denied by the Board in the February 2006 decision. The Board has considered the Veteran's statements asserting a nexus between his service and his diabetes mellitus; however, lay assertions of medical status do not constitute competent medical evidence for these purposes. While the Veteran is competent to report experiencing symptoms of diabetes mellitus while in service or at any time, he is not competent to diagnosis a current disability or relate his current disability to such complaints. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). As such, the Veteran's own statements concerning his claim are cumulative of those that were before the Board in February 2006. In conclusion, the additional evidence considered in conjunction with the record as a whole does not raise a reasonable possibility of substantiating the claim for service connection for diabetes mellitus. In short, the treatment records and statements are essentially redundant of evidence of record at the February 2006 Board decision, and do not show the Veteran's diabetes mellitus is related to his service, nor do these records otherwise verify the circumstances of his service. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996). Therefore, new and material evidence to reopen the Veteran's previously denied claim for service connection diabetes mellitus has not been received subsequent to the last final decision in February 2006. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As such, the Veteran's claim is not reopened. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 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, supra, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). To establish service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b), the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, __ F.3d __ , No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 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) (West 2002); 38 C.F.R. § 3.303(d). Coronary artery disease is a chronic condition listed under 38 C.F.R. § 3.309(a). Thus, service connection can be established by demonstrating continued symptomatology since service. Coronary artery disease also shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year after service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of § 3.307 are also satisfied. See 38 C.F.R. §§ 3.307, 3.309(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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 v. Brown, 6 Vet. App. 465, 469 (1994); 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"). The Veteran contended that he was entitled to service connection for coronary artery disease and amputation of the left great toe due to his service. After a review of all the evidence, the Board finds that the Veteran did not sustain coronary artery disease and amputation of the left great toe during service, and did not experience chronic symptoms of coronary artery disease and amputation of the left great toe during service. The service separation examination shows that the Veteran's cardiovascular system and extremities were normal upon examination. See 38 C.F.R. § 3.303(a), (b). In addition to no diagnosis in service or direct inservice incurrence, none of the medical evidence of record after service establishes that the Veteran's post-service diagnoses of coronary artery disease and amputation of the left great toe are related to military service under 38 C.F.R. § 3.303(d). The Veteran submitted private medical records dated January 2006 through October 2008, which indicated that the Veteran was treated in 2006 for coronary artery disease and that he underwent an amputation of the left great toe due to complications of his nonservice-connected diabetes mellitus; but there is no indication that the coronary artery disease and amputation of the left great toe are due to the Veteran's military service. The Board also finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of coronary artery disease after service. The private medical records dated January 2006 through October 2008, which indicated that the Veteran was treated in 2006 for coronary artery disease do not objectively demonstrate continuous symptomatology. Although the Veteran is competent to report certain symptoms related to his coronary artery disease, the Board finds that his reports of continuous symptoms since service are not credible. The Veteran did not assert that he had coronary artery disease related to his service until he filed his claim for benefits. Moreover, the Board notes that the Veteran made no complaints of such disorder until his claim for benefits, in November 2007. VA treatment records do not show that he reported any history of in-service coronary artery disease and amputation of the left great toe; the Veteran did not allege that he had any disabilities related to his service until his claim for VA benefits. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); 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"). Furthermore, the Veteran's more recent contentions regarding coronary artery disease and amputation of the left great toe are not credible because his report is inconsistent with the contemporaneous service treatment record evidence and the absence of complaints or treatment for decades after service. Until he filed the claim for VA compensation, he did not assert an association or make any complaints related to his coronary artery disease and amputation of the left great toe, nor did he suggest such complaints were related to his service. The Board notes that the Veteran sought service connection over the years, and was previously provided VA examinations, for disorders not currently before the Board; nonetheless, it is significant that he did not make any assertions of chronic symptoms in service or continuous symptoms since service regarding his claimed disabilities. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran had coronary artery disease and an amputation of the left great toe due to his service; therefore, the claims for service connection of these disabilities must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Nonservice-Connected Pension Benefits The law authorizes the payment of a pension to a Veteran of wartime who has the requisite service and who is permanently and totally disabled from one or more nonservice-connected disabilities not due to the Veteran's own willful misconduct. 38 U.S.C.A. §§ 1502, 1521. "Veteran" means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). "Veteran of any war" means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). A Philippine Veteran is limited by law to the award of a narrowly defined set of benefits. Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(a), (b). Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States, also referred to as United States Armed Forces in the Far East (USAFFE) and includes recognized guerilla service, is qualifying service for compensation, DIC, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947 are also not included for pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b) and (d), 3.203. Importantly, only service department records can establish if and when a claimant has qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The Veteran had recognized guerrilla service. He did not assert, and the record does not reflect, that he had any other qualifying service such that the eligibility requirements delineated above would be satisfied. 38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41. Accordingly, nonservice-connected pension benefits pursuant to Title 38, Chapter 15 of the United State Code, are not warranted as a matter of law. Legal Criteria for Death Pension Benefits Death pension benefits are generally available for surviving spouses, as a result of a veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a) (West 2002). An appellant is entitled to these benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if a veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). As previously indicated, service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when 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 the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for compensation benefits, but not for pension benefits. 38 C.F.R. § 3.40(b), (c), and (d). Analysis of Death Pension Benefits Persons with service in the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East), including the recognized guerrillas, or service with the New Philippine Scouts under Public Law 190, 79th Congress shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA non-service-connected death pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. In this case, 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 death benefits, and the claim must be denied based upon a lack of entitlement under the law. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs