Citation Nr: 1311264 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 05-19 583 ) 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 dependency and indemnity compensation (DIC) at the aid and attendance (A&A) rate. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who had recognized active service from September 1941 to April 1942, and from July 1945 to February 1946. He died in January 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2005 letter and April and June 2005 rating decisions of the Manila RO. The case was before the Board in April 2007, when the Board reopened the service connection for cause of death claim, and remanded these matters for additional development. In April 2010 the case was remanded once again (to rebuild the Veteran's claims file as it had been lost). It appears the requested development was completed to the extent possible; thus, the case is once again before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in January 1995; the cause of his death was respiratory failure and septicemia with an antecedent cause of subdiaphragmatic abscess. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The respiratory failure and septicemia and subdiaphragmatic abscess causing the Veteran's death were not manifested in service and are not shown to have been related to his service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted; a threshold legal requirement for DIC at the A&A rate is not met. 38 U.S.C.A. §§ 1101, 1110, 1310, 1311(c)(d), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim. While she did not receive complete notice prior to the initial rating decision, an October 2011 letter provided essential notice prior to the readjudication of her claim. See Mayfield, 444 F.3d at 1328. Specifically, the October 2011 letter provided notice that complied with Hupp and explained the evidence VA was responsible for providing and the evidence she was responsible for providing. This letter also informed the appellant of effective date criteria. A January 2013 supplemental statement of the case (SSOC) readjudicated the matter. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). As for the duty to assist, the Board notes that the Veteran's STRs, post-service treatment records and other important documents are unavailable, although an exhauastive search has been made by the RO to obtain these records. In July 2010 and October 2011 correspondence, the appellant was advised to submit an authorization and consent to release information form so that the RO could attempt to obtain treatment information. She was requested to send complete records from Dr. T.B.L. and/or an authorization to release information for this physician so that the RO could also attempt to obtain the records. She did not respond. In letters in November 2010 and January 2011 the RO sought information to try to reconstruct the Veteran's records. It appears these requests were unsuccessful. April 2010 RO correspondence notes the Board's specific remand directive regarding rebuilding the claims file and the efforts to comply with the directive. The Board observes that the appellant's cooperation is critical to any further development, and that she has not responded. Regarding any duty to secure a medical advisory opinion in the matter (see Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008; 38 U.S.C.A. § 5103A(a)(1)), the Board notes that an opinion was requested and received in January 2010. The consulting provider was unable to offer a substantive opinion because there was no evidentiary record on which to base such opinion. Given that attempts at further development of the evidentiary background for an opinion have been fruitless, the Board finds that further development for an advisory medical opinion is not indicated. The Board recognizes the "heightened" duty to assist in the development of the claim when records in the custody of VA have been lost. See Washington v. Nicholson, 19 Vet. App. 362, 269-70 (2005). However, given the exhaustive (under the circumstances) attempts at further development by the RO (including pursuant to the Board's directives), the Board finds that any further attempts at development of the record would be pointless, and that VA's heightened duty to assist in this case has been met. See generally 38 C.F.R. § 3.159(c). Legal Criteria, Factual Background, and Analysis To establish service connection for the cause of a Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. (Virtual VA, VA's electronic data storage system does not include an electronic file for this Veteran.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to service connection for the cause of the Veteran's death According to a prior Board decision, the Veteran's death certificate shows that the listed cause of his death was respiratory failure and septicemia with an antecedent cause of subdiaphragmatic abscess. Service connection was not in effect for any disability at the time of his death (See RO correspondence dated October 2011). The only available STR is a February 1946 Affidavit for Philippine Army Personnel, completed by the Veteran, which contains no mention of pertinent complaints or references to any disease. The Veteran did note a he sustained a left leg shrapnel wound in April 1942, but indicated there was no resulting permanent disability. Additionally, the Board notes that the April 2007 Board decision considered a February 1946 service separation physical examination which was apparently available at the time of that decision. It was noted that the separation examination report showed all body systems were normal, and no abnormality of any kind was identified. Consequently, service connection for any such disease/condition on the basis that it became manifest in service and persisted is not warranted. As was noted above, the Board attempted to obtain a VA opinion regarding the Veteran's cause of death in January 2010. The consulting provider indicated, in essence, that there were no available medical data or medical records from service. He noted that there was a statement from a Doctor T.B.L., who mentioned the Veteran experienced abdominal pain in service, but noted that such "was only his opinion" (i.e., without any documentary support). The consulting physician stated that he did not have the medical statement available for review, or any confirmation regarding the finding (i.e., that the Veteran had abdominal pain in service). The consulting physician also noted a statement from a Doctor N.R.L., but again stated that he did not have records from this doctor (on which to base an opinion regarding a nexus between the cause of the Veteran's death and his service. The consulting physician indicated, in essence, that because there was insufficient factual background, the opinion sought could not be offered. Given the circumstances, the Board is satisfied with this explanation. The Board notes that the statements from the above-mentioned private providers are unavailable for review, and cannot be sought (because the appellant has not co-operated with such development). Conceding (strictly for purposes of this decision) that the Veteran did have abdominal pains in service, an opinion regarding a nexus between the causes of the Veteran's death (identified as respiratory failure and septicemia as well as subdiaphragmatic abscess) and complaints of abdominal pain in service would not be possible without any records of treatment for the death-causing disabilities (given the remoteness of his death from his period of active service). The Board stresses that the appellant's lack of co-operation has frustrated VA's attempts to develop the record in furtherance of her claim. In May and June 2007 statements the appellant appears to attribute the Veteran's death to the gunshot wound he sustained in service. There is no credible evidence that the Veteran sustained any chronic disability from a gunshot or shrapnel wound in service. Contemporaneous records reflect that he sustained only a left leg shrapnel wound, which by his own account left no residual disability. To the extent that the appellant now seeks to establish otherwise by her own unsupported allegation the Board finds such allegation to be self-serving and not credible. In summary, there is no probative evidence that the immediate or underlying causes of the Veteran's death (respiratory failure and septicemia with underlying subdiaphragmatic abscess) were in any way related to his service. He had not established service connection for any disability during his lifetime (which could be considered to have contributed to his death). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. In such a situation, the benefit of the doubt doctrine does not apply; the appeal in the matter must be denied. Entitlement to DIC at the A&A rate A higher rate of DIC based on the surviving spouse's need for A&A is payable when a surviving spouse has been awarded DIC and also is shown to be in a nursing home or to be bedridden or helpless so as to require the regular assistance of another person. 38 U.S.C.A. § 1311 (West 2002). Because the appellant has been denied DIC (as service connection for the cause of the Veteran's death has been denied), she does not meet a threshold legal requirement for the higher rate of DIC at the A&A rate. Accordingly, this claim must be denied as lacking legal merit. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC at the A&A rate is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs