Citation Nr: 1310428 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-47 396 ) 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. Legal entitlement to nonservice-connected death pension benefits. 3. Legal entitlement to accrued benefits. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had service in the United States Army Philippine Scouts from June 17, 1946, to May 21, 1949. The Veteran died in May 2008. The appellant is his surviving spouse. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 determination rendered by the Manila, Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran had service in the United States Army Philippine Scouts from June 17, 1946, to May 21, 1949. 2. The Veteran died in May 2008. The cause of death was shown to be coronary artery disease. No antecedent cause, underlying cause, or significant condition contributing to death was identified. 3. At the time of death, the Veteran was not service connected for any disability. 4. Coronary artery disease first manifested many years following separation from service, and the evidence of record does not suggest that there is a medical relationship between the Veteran's coronary artery disease and service. 5. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. 6. The Veteran did not possess the requisite service to allow his surviving spouse to qualify for VA nonservice-connected death pension benefits. 7. There were no benefits due and unpaid to the Veteran under existing ratings or decisions or based on evidence of record at the date of his death. 8. The Veteran had no claims for VA benefits pending at the time of his death. 9. The appellant filed a claim of entitlement to accrued benefits more than one year after the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). 2. The criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met. 38 U.S.C.A. §§ 101, 107, 1501, 1521, 1541 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40, 3.40, 3.41 (2012). 3. The requirements for payment of accrued benefits have not been met. 38 U.S.C.A. §§ 5101, 5121 (West 2002); 38 C.F.R. §§ 3.151, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, VCAA notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, in a March 2010 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate her claims for service connection for the cause of the Veteran's death, death pension, and accrued benefits, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant to submit medical evidence showing a reasonable probability that the condition that contributed to the Veteran's death was caused by injury or disease that began in service. The letter further advised the appellant that the Veteran was not service connected for any disabilities at the time of his death. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include verification of the Veteran's service dates, private treatment records, and lay statements. The appellant also participated in an informal conference at the RO in October 2012, at which time she indicated that she had no further evidence to submit in support of her claims. The RO attempted to obtain the Veteran's service treatment records but such records are not available, as they were likely lost in the 1973 fire at the National Personnel Records Center. A March 2010 letter advised the appellant of information needed to reconstruct medical records and advised her to submit any service treatment records in her possession. The Board notes that a VA opinion has not been obtained to address whether the service-connected disabilities caused the Veteran's death or whether the cause of death was related to service. As discussed below, no competent evidence suggests that the Veteran's death was in any way related to his service or service-connected disabilities, nor does the appellant contend such. As a result, there is no reasonable possibility that such assistance would aid in substantiating her claim. Indeed, the appellant reported that the Veteran's illness began after he turned 70 years old (i.e. 2000). Thus, VA is under no duty to obtain a medical opinion. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (VA may decline to provide DIC claimants with a medical opinion only upon finding that there is "no reasonable possibility" that such assistance would aid in substantiating the claim). The appellant was an active participant in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the appellant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Cause of Death Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (2012). A current disability must be related to service or to an incident of service origin. An appellant seeking disability benefits must establish the existence of a disability and a connection between that disability and the Veteran's service. Boyer v. West, 210 F.3d 1322 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). If a chronic disorder, including certain heart conditions, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. At the outset, the Board acknowledges that the Veteran's service treatment records and separation documents remain outstanding. While the RO requested his complete service records in support of the appellant's February 2010 claim, the service department responded that the Veteran's service records were fire-related. When service medical records are lost or missing, VA has a heightened duty to search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Here, the RO attempted to secure the Veteran's outstanding service treatment records, including any in the possession of his surviving spouse. Indeed, in March 2010, the RO sent his surviving spouse a letter requesting that she submit any service or post-service records that supported her claim for death benefits, and provide information so that the service treatment records could be reconstructed. In response to that request for information, the appellant submitted a completed Request for Information Needed to Reconstruct Medical Data form. Significantly, however, she did not identify any in-service treatment, but instead only post-service treatment in May 2008. She was duly informed of the unavailability of additional records. No other sources of records have been identified. In April 2010, the RO issued a formal finding that the Veteran's aforementioned service treatment records were unavailable. In light of the RO's formal finding, the Board concludes that any additional efforts to locate the Veteran's outstanding service records would be futile. Further, any additional delay in adjudication by the Board would not benefit the appellant and would unnecessarily delay and burden agency resources. Sondel v. West, 13 Vet. App. 213 (1999). After a careful review of the evidence, the Board finds that service connection for cause of death is not warranted here. At the time of his death, the Veteran was not service connected for any disability. As such, the Board finds that a service-connected disability was not the principal or contributory cause of the Veteran's death. Nor does the evidence show that the Veteran's cause of death was otherwise related to his service. The Veteran died on May [redacted], 2008, nearly 60 years after his military service. The medical evidence, namely the death certificate, attributes the Veteran's death to coronary artery disease. No antecedent, underlying, or contributory cause of death was identified. The first evidence of record any disability is in May 2008, when the Veteran was treated for pulmonary tuberculosis with pleural effusion and chronic obstructive pulmonary disease. It also appears that he was suffering from lung cancer. A May 2008 hospital discharge form does not reference coronary artery disease. In a May 2010 written statement, the appellant reported that the Veteran first "started his sickness" when he was 70 years old, or, sometime around 2001. The appellant does not specify the nature of the Veteran's sickness, nor does she otherwise attribute any sickness to the Veteran's service. Coronary artery disease is not shown during service or for many years thereafter, which is evidence against a claim that it is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Indeed, the appellant has made no specific allegation relating the coronary artery disease that caused the Veteran's death to his service and no medical evidence suggests such a connection. In summary, coronary artery disease manifested many years following separation from service, and there is no evidence suggesting a medical relationship, or nexus, between coronary artery disease and the Veteran's service. Nor was the Veteran service connected for any disability at the time of his death. Thus, the preponderance of the evidence indicates that a disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. Moreover, to the extent the appellant's submissions reflect her belief that the Veteran's death was somehow attributable to his service, as a layperson, the appellant simply does not have the necessary medical training and/or expertise to make this determination herself. The medical issues presented are not so obvious as to lend themselves to lay interpretation; the issue of the cause of the Veteran's death and its relationship to service or a service-connected disability is complex and not one that the appellant is competent to provide. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Death Pension Death pension is a benefit payable in certain circumstances to a veteran's surviving spouse because of the Veteran's nonservice-connected death. Basic entitlement exists if (i) the Veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.3(b)(4); 3.23(a)(5), (d)(5) (2012). In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the individual with respect to whom pension is claimed be a Veteran who had active military, naval, or air service. See 38 U.S.C.A. §§ 101(2), (24), 1521(a), (j) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012). "Veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. A "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 1501(4) (West 2002); 38 C.F.R. § 3.2 (2012). Generally, persons with service in the U.S. Army Forces in the Far East (USAFFE), including service with the Recognized Guerrillas, the Commonwealth Army of the Philippines (Regular Philippine Army), or service with the "New" or "Special" 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 nonservice-connected disability pension benefits. See 38 U.S.C.A. § 107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.40(b), (c), (d) (2012). That is, 38 C.F.R. § 3.40(b) provides that "Other Philippine Scouts," which includes all those who served during the period from October 6, 1945 to June 30, 1947 (i.e., New or Special Philippine Scouts), are eligible for compensation and DIC benefits, but does not provide for eligibility for nonservice-connected pension benefits. See 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(b); Manlincon v. West, 12 Vet. App. 238, 240 (1999) (widow of Veteran of New Philippine Scouts not entitled to nonservice-connected death pension because veteran's service is not considered qualifying active service for VA pension benefits). By contrast, to establish entitlement to nonservice-connected pension benefits, the evidence must show that the Veteran had service in a "regular" component of the United States Armed Forces, also referred to as the "Old Philippine Scouts" or the "Regular Philippine Scouts." See 38 C.F.R. § 3.40(a) (emphasis added) ("Regular Philippine Scouts" are eligible for pension, compensation, dependency and indemnity compensation, and burial benefits). With regard to Philippine service, certifications by the service department will be accepted as establishing periods of recognized service as a Philippine Scout, a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, or as a guerrilla. 38 C.F.R. §§ 3.40, 3.41; Duro v. Derwinski, 2 Vet. App. 530 (1992). Generally, a service department determination as to an individual's service shall be binding upon VA unless a reasonable basis exists for questioning it. See 38 C.F.R. § 3.1(y); Manibog v. Brown, 8 Vet. App. 465 (1996); Young v. Brown, 4 Vet. App. 106 (1993); Duro v. Derwinski, 2 Vet. App. 530 (1992). Here, the RO determined that death pension was not payable based on the Veteran's type of service in the Philippines. The RO concluded the Veteran's service did not constitute "active" military service to meet the basic entitlement requirement for nonservice-connected death pension benefits. The Veteran's service records, including separation documents, have been determined to be fire-related. However, the National Personnel Records Center has verified the Veteran's service with the Army of the United States Philippine Scouts from June 17, 1946 to May 21, 1949. The appellant does not allege and the service record does not establish service as an "Old Philippine Scout" or a "Regular Philippine Scout" before October 6, 1945. The Veteran's period of service is not in dispute, and no other period of service has been alleged. By law, unlike service in the "Old Philippine Scouts" or the "Regular Philippine Scouts," the Veteran's particular service is not deemed to be qualifying service for death pension benefits. See 38 C.F.R. § 3.40(a). The service department decision on such a matter is conclusive and binding upon VA. VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board has carefully reviewed the entire record and finds that there is no competent evidence to contradict the service department's determination with respect to the Veteran's service. Therefore, the Board must find that the Veteran did not have qualifying service for the purposes of nonservice-connected death pension benefits. The law under 38 U.S.C.A. § 107(a), and the implementing regulation, 38 C.F.R. § 3.40, specifically excludes service such as the Veteran's for purposes of entitlement to nonservice-connected death pension benefits. Cacalda v. Brown, 9 Vet. App. 261, 265 (1996). Consequently, the Board finds that there is no legal basis for the appellant's claim for nonservice-connected death pension. As the law is dispositive, the claim is denied because of lack of legal entitlement. 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.4; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accrued Benefits The appellant has appealed the denial of entitlement to accrued benefits. As will be explained below, the Board finds against the appellant's claim. An accrued benefits claim arises after a Veteran has died. Although a Veteran's claim does not survive his death, see Vda de Landicho v. Brown, 7 Vet. App. 42, 47 (1994), certain individuals may be entitled to accrued benefits under certain conditions. Applicable law provides that an individual entitled to accrued benefits may be paid periodic monetary benefits to which a veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. A requirement for accrued benefits is that a claim must be filed within the year after a veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (2012). The Federal Circuit Court has also made it clear that, in order to support a claim for accrued benefits, the 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. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (1998). In light of applicable laws and regulations, there is no basis upon which the appellant's claim for accrued benefits may be granted. Initially, the appellant submitted a claim for accrued benefits in February 2010, more than one year after the Veteran's death in May 2008. Furthermore, there was no claim pending at the time of the Veteran's death. See Jones, supra. The record is devoid of any pending claims and the appellant has not indicated that a claim was pending at the time of the Veteran's death. Under these circumstances, the appellant's claim must be denied as a matter of law. ORDER Service connection for cause of the Veteran's death is denied. Entitlement to nonservice-connected death pension benefits is denied. Entitlement to accrued benefits is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs