Citation Nr: 1316335 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 08-15 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served in the Philippine Commonwealth Army from November 1941 to August 1942, and in the Regular Philippine Army from April to May 1945. He was a Prisoner of War (POW) from April to August 1942. He died in December 1981; the appellant claims as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. When this case was last before the Board in December 2009, it was decided in part and remanded in part for additional development. As fully explained in that decision, the Board determined that the RO's April 1999 rating decision denying the appellant's original application for service connection for the cause of the Veteran's death (filed in June 1998) did not become final and remained pending; thus, that initial claim was the one before the Board on appeal. In addition, the December 2009 decision denied the claim for entitlement to nonservice-connected death pension benefits. The case has since been returned to the Board for further appellate action. A hearing before RO personnel was scheduled for January 2008. However, the appellant instead participated in an informal conference with a Decision Review Officer (DRO), and indicated in a January 2008 written statement that she was satisfied with the informal conference. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran died in December 1981, and the death certificate lists the immediate cause of death as cardiorespiratory failure due to chronic glomerulonephritis. Other evidence reflects that the most possible cause of death was cardiorespiratory failure secondary to urinary bladder carcinoma with complications such as severe anemia and cystitis, with doubt as to the diagnosis of chronic glomerulonephritis based on consideration of the entire record. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran's cardiorespiratory failure, chronic glomerulonephritis, and urinary bladder growth/carcinoma did not manifest in service or within one year of separation or for many years thereafter, and are unrelated to service, to include the Veteran's POW experience. CONCLUSION OF LAW A disability incurred in or aggravated by service, or a disability that may be presumed to have been so incurred did not cause or contribute substantially or materially to the Veteran's cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and medical or lay 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for dependency and indemnity compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). The appellant's claim was first adjudicated in April 1999, prior to enactment of the VCAA. Thereafter, the appellant was provided with VCAA notice in March 2007 and February 2009 letters; the February 2009 letter also satisfied the complete Hupp notice requirements outlined above. Contrary to VCAA requirements, the VCAA-compliant notice in this case was provided after the initial adjudication of the claim, which preceded enactment of the VCAA. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claims in multiple supplemental statements of the case (SSOCs), most recently in November 2012. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). To the extent that the Dingess notice requirements regarding disability rating and effective date apply to cause of death claims, the Board notes that the appellant was not provided complete notice in this regard. However, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. As explained in greater detail below, the Board has determined that entitlement to service connection for the cause of the Veteran's death is not warranted. Consequently, no effective date (or disability rating) will be assigned, so failure to provide notice with respect to those elements of the claim is no more than harmless error. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the appellant have been obtained. In accordance with the Board's December 2009 remand instructions, the RO also undertook appropriate development to recertify information regarding a period of civilian time between service dates as listed on the AGUZ Form 632. The appellant's written statements are also of record. In addition, the appellant appeared before a DRO in an informal conference. The appellant has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Based on circumstances raised by the record, a medical opinion was obtained in May 2010, in which the physician reviewed the claims file and the requested portion of VA's regulations regarding former POW presumptive diseases and provided an opinion as to the Veteran's cause of death. Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008) (38 U.S.C.A. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion whenever such an opinion is necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim). The Board has reviewed the report and finds that this opinion substantially complies with the requirements articulated in the remand request. See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles and Analysis DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal cause of death when such disability, 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 contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it 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). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease (including nephritis) or malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a Veteran is a former POW and was interned or detained for not less than 30 days, certain enumerated diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after discharge or release from active service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112(b); 38 C.F.R. §§ 3.309(c)(1), (2). In such circumstances, service connection may be granted on a presumptive basis for these listed diseases, even though there is no evidence of such disease during the period of service. Such diseases include atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease and their complications (including myocardial infarction, congestive heart failure and arrhythmia)) and beriberi heart disease. See 38 C.F.R. 3.309(c)(1); see also 38 U.S.C.A. § 101(32); 38 C.F.R. § 3.1(y) (definition of "former prisoner of war"). VA shall accept the findings of the appropriate service department that a person was a POW during a period of war unless a reasonable basis exists for questioning it. Such findings shall be accepted only when detention or internment is by an enemy government or its agents. 38 C.F.R. § 3.1(y)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The December 1981 death certificate lists the immediate cause of death as cardiorespiratory failure due to chronic glomerulonephritis. As discussed in greater detail below, the May 2010 VA opinion reflects that the most possible cause of death was cardiorespiratory failure secondary to urinary bladder carcinoma with complications, with doubt as to the diagnosis of chronic glomerulonephritis based on the entire record. The appellant contends that the causes of the Veteran's death were the result of his time as a POW. Specifically, she contends that his death due to respiratory failure was a result of the inhuman treatment and forced labor he suffered as a POW. See April 1982 written statement. She has also consistently contended that she is entitled to DIC benefits as the widow of a former POW, to include consideration that they led a difficult life after the Veteran's service. As an initial matter, as noted above, the record reflects that the Veteran was a POW from April to August 1942; there is no reasonable basis for questioning the service department's finding in this regard. Therefore, the remaining consideration before the Board is whether the disorders that resulted in the Veteran's death were related to active service, either on a direct or presumptive basis. A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis for problems related to cardiorespiratory failure, chronic glomerulonephritis, or a urinary bladder growth or cancer. The Veteran died in December 1981, and the immediate cause of death was recorded on the death certificate as cardiorespiratory failure due to chronic glomerulonephritis. The section noting whether an autopsy was performed was left blank, but there are no recorded findings on the back of the death certificate of record (based on the instructions on the form for inclusion of such findings), and no autopsy is otherwise of record. At the time of his death, the Veteran was not service-connected for any disabilities. A review of the post-service medical evidence of record shows that the Veteran sought treatment at Northern Antique Emergency Hospital (NAEH) in March 1981 for complaints of frequent urination with blood. A urinalysis performed at that time revealed many bacteria and bloody urine; the diagnosis was UTI (urinary tract infection); diabetes mellitus. The following week, he was admitted to NAEH for complaints of difficulty with urination, with blood in the urine. On physical examination, a notation was made of bladder distended (?). The admitting diagnosis was acute cystitis, rule out bladder cancer. The final diagnosis on discharge one month later, also confirmed in a November 1998 certification from the hospital, was new growth, urinary bladder. This treatment beginning several months before the Veteran's death is the only post-service medical treatment evidence of record, aside from the death certificate that did not have an accompanying report. In an April 2007 written VCAA notice response, the appellant indicated that she had no other information to submit to VA to substantiate her claim; she attached the returned POW Questionnaire form signed, but without any completed additional information. A January 2008 report of contact following the appellant's informal conference at the RO shows that the DRO explained the reasons for the denial of her appeal. At that time, the appellant indicated that she had no additional evidence to submit. In response to the Board's December 2009 remand, a VA medical opinion was obtained in May 2010 to address whether the Veteran's death from cardiorespiratory failure due to glomerulonephritis was related to his POW experience. As explained in that decision, the determination to obtain a medical opinion in this regard was based on the Veteran's former POW status, the appellant's allegation that the Veteran's causes of death were the result of his POW experience, that the cause of death was partially heart-related, and that heart disease and its complications are on the list of diseases presumptively service-connected for POWs. The physician reviewed the claims file and the requested portion of VA's regulations as to presumptive service-connected diseases for POWs in 38 C.F.R. § 3.309 and thereafter opined that the Veteran's POW experience and diseases listed as attributable to this is less likely as not the cause of the Veteran's death. In so finding, the physician noted portions of the NAEH treatment records, determining that the results of the Veteran's urinalysis upon admission were consistent with the findings of a possible urinary bladder carcinoma causing outflow tract obstruction, resulting in his difficult and painful urination; he was treated with a catheter and antibiotics to control this superimposed urinary bacterial infection. The physician noted that the diagnosis on the death certificate of chronic glomerulonephritis was in doubt, based on the course of treatment and findings (as well as lack of certain findings) reviewed and notated in the opinion, as well as the consideration that the physician that signed the death certificate was not the Veteran's attending physician. The physician further noted that the term "cardiorespiratory arrest" is considered the final cause of every death, of any etiology, in the context of the situation where the heart and respiration stop and death follows; this does not mean that the Veteran had a heart ailment at that time or one since his POW experience resulting in cardiorespiratory arrest. Finally, the physician determined that the most possible cause of death was cardiorespiratory arrest secondary to the Veteran's urinary bladder carcinoma with complications such as severe anemia and cystitis, but not chronic glomerulonephritis as stated in the death certificate. In a December 2012 written response, the appellant indicated that she had no additional evidence to submit. Upon careful review of the record, the Board finds that service connection for the cause of the Veteran's death is not warranted. The Board certainly acknowledges the Veteran's POW experiences and service, as well as the appellant's sincere contentions. However, the weight of the evidence is against a finding linking the Veteran's causes of death to service on either a direct or presumptive basis. With regard to the medical evidence of record, there is one competent opinion addressing the etiology of the Veteran's causes of death in relation to his POW experience. The May 2010 VA physician determined that it was less likely than not that there was a link between the Veteran's POW experience and his causes of death, indicating that the listing of "cardiorespiratory arrest" as the final cause of death did not mean that the Veteran had a heart ailment at the time of death or one since his POW experience resulting in cardiorespiratory arrest. This opinion also did not otherwise provide a link between the Veteran's urinary bladder growth and service. Moreover, the VA physician questioned the diagnosis of chronic glomerulonephritis, determining that this notation on the death certificate was unsupported by the medical evidence of record and recorded by a physician other than the Veteran's attending physician. In sum, this opinion is against the appellant's claim that the recorded causes of death are service-related. Parenthetically, the Board notes that the record does not suggest that the Veteran's urinary bladder growth/cancer are related to service, and as such, there is no reasonable possibility that an additional opinion in this regard would aid in substantiating the claim. Thus, remand to obtain such an opinion is not necessary at this time. See Wood, 520 F.3d at 1347-48; 38 U.S.C.A. § 5103A(a). As the VA physician gave a detailed reasons for the opinion, an opinion based on an accurate characterization of the evidence of record and a review of the supporting VA regulation listing all eligible presumptive diseases, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The death certificate lists the immediate cause of death as cardiorespiratory failure due to chronic glomerulonephritis; a corresponding medical report is not of record. However, neither the death certificate nor the medical treatment records in evidence suggest that either of these diseases or the urinary bladder growth were related to the Veteran's active service, to include his POW experiences. The Board has also considered the appellant's lay statements of record, to include her firm belief that the Veteran's death due to respiratory failure was due to the conditions of his time as a POW. Laypersons are certainly competent to report as to observable symptoms and experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competence must be distinguished from probative weight. In regard to the appellant's statement that the Veteran's respiratory failure and subsequent death were a result of the inhumane treatment and forced labor he suffered as a POW, the Board finds that there is no evidence of record, competent or otherwise, to support this general statements. The appellant was provided multiple opportunities to provide additional evidence to support her claim but failed to do so. In addition, the question of whether the Veteran's death from cardiorespiratory failure was related to the Veteran's POW experience is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 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); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). As such, while the Board again acknowledges the appellant's contentions, her statements are in conflict with the VA examiner's opinion afforded significant probative weight, as discussed above, and there is no other competent evidence to support such a finding. In regard to service connection on a presumptive basis for a disease specific to former POWs, while the immediate cause of death was at least partly heart-related, the VA physician's opinion determined that this did not indicate that the Veteran suffered from a heart disorder at the time of death or since his time as POW to that time. There is no other competent evidence of record, lay or medical, that indicates that the Veteran suffered from a heart disorder prior to or at the time of his death at all, to include such a disorder related to his cardiorespiratory failure. The other causes of death as indicated by the record (chronic glomerulonephritis and urinary bladder growth/carcinoma) are not included in the enumerated diseases of 38 C.F.R. § 3.309(c). Accordingly, while the presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid, the record in this case does not show that the Veteran's death was related to one of the diseases so enumerated for POWs, to include the listed heart disorders, that would allow for service connection on this basis. 38 C.F.R. §§ 3.303(d); 3.307(d); 3.309(c). In regard to service connection on a presumptive basis for a malignant tumor or nephritis, the record does not reflect, and the appellant does not contend that there was manifestation of either disease within one year of separation from service. In fact, as noted above, the medical evidence reveals that the Veteran was not diagnosed with a new growth of the urinary bladder until 1981 - nearly 36 years following service. Even when we accept a diagnosis of chronic glomerulonephritis, there is no proof of either disease process during service or within one year of separation or otherwise linking the fatal disease processes to service. As such, service connection is not warranted on this basis. In reaching this determination, the Board has considered the provisions of 38 U.S.C.A. § 1154(b). However, there is no lay or medical evidence linking either disease process to an element of service. Furthermore, when the Veteran had an opportunity to report his medical history during service, he reported that he had a shell fragment of the left thumb and malaria. He did not report either urinary tract carcinoma or nephritis. We conclude that section 1154 does not assist in this case. Considering the record in sum, the Board finds that the criteria for service connection for the cause of the Veteran's death are not met. While the Board is sympathetic to the appellant's claim, the weight of the evidence as discussed above is against the claim. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs