Citation Nr: 1314013 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 07-16 095 ) 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. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran provided service in support of the United States Armed Forces in the Far East (USAFFE) as a recognized guerilla from July 1945 to December 1945. The Veteran died in November 1988. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which denied entitlement to service connection for the cause of the Veteran's death. The appellant did not request a hearing on this matter. On appeal in August 2008, the Board reopened the appellant's claim for service connection for the cause of the Veteran's death and remanded the case for additional development. In April 2010, the Board again remanded the case. FINDINGS OF FACT 1. The Veteran died in November 1988 at the age of 65. The cause of death listed on the death certificate is illegible. An August 1998 Death Registry indicates that the cause of death was "Score Malnutrition." A private physician indicated that the Veteran's death was related to pulmonary tuberculosis (PTB). 2. At the time of his death, the Veteran was not service-connected for any disability. 3. There is no credible evidence of record linking the Veteran's death to active military service, and the record does not contain a confirmed diagnosis of PTB. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Letters dated in October 2006 and November 2008 satisfied the duty to notify provisions, and the claim was readjudicated in a November 2012 supplemental statement of the case. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of the Veteran's death (DIC benefits), section 5103(a) 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). The November 2008 letter satisfied these requirements. VA has obtained available service treatment records; service personnel records; a copy of the Veteran's death certificate, assisted the appellant in obtaining evidence; and, afforded her the opportunity to present statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and she has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The case has twice been remanded in order to obtain additional records, however, negative replies have been received regarding any records at the Matatalaib Government Medical Center in Tarlac, and Tarlac Government Health Center, in Tarlac City, Tarlac. In a November 2008 letter, the RO requested Pasay City, Philippines, VA medical records from January 1972 to November 1988. No response was received. In January 2009, the appellant submitted a consent form that indicates the Veteran was treated for PTB at the VA facility in 1972. A statement received in November 2011 from the release of information clerk at the Pasay facility noted that no treatment records were kept at the facility and that the Veteran had not established any clinic visits there. The RO did not obtain a medical opinion as to the etiology of the Veteran's death; however, the Board finds that the RO was not required to do so pursuant to its duty to assist in this case. The general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. In the absence of any medical evidence documenting a diagnosis of PTB or malnutrition in service or for many years thereafter, remanding the claim to obtain a VA medical opinion has no reasonable possibility of substantiating the claim. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Accordingly, the appellant is not prejudiced by a decision at this time. Service Connection for Cause of Death Service connection for the cause of the 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). 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). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). The appellant contends that the Veteran died of PTB, and that the Veteran's service during World War II caused his PTB. The Veteran died in November 1988 at the age of 65. The cause of death listed on the death certificate is illegible. In a January 2009 letter, the appellant stated that no final hospital records existed because the Veteran died at home due to financial constraints. A November 1988 Philippines Local Civil Registrar Death Registry document listed the cause of death as "Inanition-Starvation." A later, August 1998, Death Registry document listed the cause of death as "Score Malnutrition." In letters dated in November and December 2006, Dr. Paz Sison indicated that the Veteran was enrolled in the National Tuberculosis Program in Matatalaib, Tarlac City. Dr. Sison opined in the November 2006 letter that the Veteran died of "severe malnutrition due to PTB, far advanced, [illegible]"; he based his opinion on the appellant's statement that the Veteran's health condition never improved "(November 1946- 1981)." The doctor further opined that "the illness could be precipitated from the nature of [the Veteran's] job as a Veteran." In the December 2006 letter, Dr. Sison noted that, per history, the Veteran "was in active service when he started having symptoms of afternoon fever cough and weight loss. Sometime in 1981, he was enrolled at our National Tuberculosis Program Matatalaib Tarlac City...As claimed by the wife, his health condition did not improve, hence the diagnosis of PTB and Malnutrition." Below his signature, Dr. Sison noted that the "basis of herein physician is as per history claimed by wife." A physician's registry document of record indicates that Dr. Sison was registered in May 1966. A marriage registry document indicates that the appellant and the Veteran were married in June 1971. The Veteran was not service connected for any disabilities during his lifetime. In deciding the claim for service connection for the cause of the Veteran's death, the Board must also consider whether any of the disabilities that caused or contributed to the Veteran's death may be service-connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Tuberculosis may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within three years after termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Evidence of activity on comparative study of x-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by section 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods. 38 C.F.R. § 3.371(a). A diagnosis of pulmonary tuberculosis will be acceptable only when provided in (1) service department records; (2) VA medical records of examination, observation or treatment; or (3) private physician records on the basis of that physician's examination, observation or treatment of the Veteran and where the diagnosis is confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. 38 C.F.R. § 3.374; Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992). On a VA Form 21-526 filed in August 1971 the Veteran indicated that he had been told in 1943 that he was suffering from PTB. He reported that he continued to suffer from PTB. On a November 1961 X-ray record, a check mark is shown next to "Non TBC path." A February 1974 VA medical consultation sheet listed multiple diagnoses for the Veteran; PTB was not listed. An October 1974 VA medical certificate did not note PTB. The official documents of record list the cause of the Veteran's death as inanition, starvation, or score malnutrition. Despite the appellant's contention that PTB caused the Veteran's death, the record contains neither a confirmed diagnosis of PTB nor any credible evidence that PTB caused the Veteran's death. With regard to the medical opinions of Dr. Sison, the Board notes that, while professional medical opinions must be considered and the Board may not disregard a favorable medical opinion based solely on the rationale that it was based on a history given by the claimant (Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Board is not bound to accept the opinions of physicians whose diagnoses or opinions are based on a medical history provided by a veteran or claimant. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere transcription of a claimant's statements regarding medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). There is no indication in Dr. Sison's statements that he ever reviewed the Veteran's medical records, death certificate, or Death Registry documents, nor is there any indication that he had any firsthand knowledge of the Veteran's medical condition other than that reported by the appellant. Dr. Sison specifically noted that his statements were based upon the history as provided by the appellant. Given the lack of definitive evidence showing either that the Veteran was diagnosed with PTB or that PTB caused his death, the Board finds Dr. Sison's statements to be of no probative value. In addition to the medical evidence, the Board has also considered the statements of the appellant, as well as the evidence she presented in support of her claim. The appellant is competent to offer evidence as to facts within her personal knowledge, such as observable symptoms of the Veteran's disability prior to his death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is not competent to offer an opinion on a matter clearly requiring medical expertise, such as determining a diagnosis of PTB (which requires specific clinical or diagnostic findings). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Additionally, while the appellant contends that the Veteran suffered from PTB since service, there is no indication that she knew the Veteran at that time; the record shows that she married the Veteran in 1971. This is not a case in which the appellant's lay beliefs alone can serve to establish any association between the Veteran's death and his period of service. The preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs