Citation Nr: 1317933 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 11-29 115 ) 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 non-service connected death pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran had service in the United States Army Philippine Scouts from August 1946 to April 1949. He died in May 2000. The appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. The appellant provided testimony before the undersigned at a Travel Board hearing in Manila, the Republic of the Philippines, in February 2013; a transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had service in the United States Army Philippine Scouts from August 1946 to April 1949. 2. The Veteran died in May 2000. The cause of death is listed on the death certificate as cardiopulmonary arrest, with underlying causes of tuberculosis (PTB) and pneumonia. Other significant condition contributing to death was noted as status post cystolithectomy. 3. At the time of his death, service connection was not in effect for any disability. 4. 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. 5. In January 2009, the National Personnel Records Center (NPRC) verified that during World War II, the decedent did not serve as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the United States Armed Forces. CONCLUSIONS OF LAW 1. 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). 2. The criteria for basic eligibility for VA death pension benefits have not been met. 38 U.S.C.A. §§ 101(2), 101(24), 107, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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 August 2008 and December 2009 satisfied the duty to notify provisions, and the claim was readjudicated in a September 2011 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 December 2009 letter satisfied these requirements. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not note the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying how the Veteran died and why the appellant felt that the cause of the Veteran's death was related to service. The VLJ also asked the appellant to discuss the symptoms the Veteran exhibited post service and to identify available pertinent medical reports, e.g., the types of evidence that would help substantiate the claim and pertinent evidence not currently associated with the claims file. Accordingly, the appellant is not shown to be prejudiced on this basis. Finally, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In a February 2009 Formal Finding, the RO determined that the Veteran's service treatment records are unavailable. VA has obtained a copy of the Veteran's death certificate, assisted the appellant in obtaining evidence; and, afforded her the opportunity to present statements, evidence, and hearing testimony. The appellant has indicated that records from private physicians who treated the Veteran are no longer available. 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 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 pneumonia in service or for many years thereafter (or of a confirmed diagnosis of PTB under 38 C.F.R. § 3.374 at any time), 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). Additionally, with regard to the appellant's claim for non-service connected pension benefits, the claim is denied as a matter of law. Accordingly, the appellant is not prejudiced by a decision at this time. Service Connection for Cause of Death Pursuant to38 U.S.C.A. § 1310, DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Dyment v. Principi, 13 Vet. App. 141 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002). "Service" in the active U.S. Armed Forces, for purposes of DIC claims, includes service in the organized military forces of the United States Army Philippine Scouts. See 38 U.S.C.A. § 101(10), 101(21)(C), 107; 38 C.F.R. § 3.7, 3.40(c) (d) (2012). The Veteran had service in the United States Army Philippine Scouts from August 1946 to April 1949. 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, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). The appellant contends that the Veteran had PTB that was incurred in service or within the first three years following separation from service and that this disability caused his death. The Veteran died in May 2000 as a result of cardiopulmonary arrest, with underlying causes of tuberculosis and pneumonia. Other significant condition contributing to death was noted as status post cystolithectomy. A statement from the assistance chief for hospital administration of M.V. Gallego Cabanatuan City General Hospital provided a statement that the Veteran was treated in May 1999 for jaundice and cholecystitis, and underwent cholecystojejunostomy. In a statement dated in May 2009, two men who reported having served in the Philippine Scouts recalled attending a veterans' conference with the Veteran in December 1949 at which the Veteran became ill, spitting up blood and feeling dizzy. They recall that the Veteran was taken to a medical clinic of Dr. Calica, where he was prescribed "medicines for his illness, suffering PTB and pneumonia." A July 2008 statement from E.G., M.D., noted that the Veteran had been treated in March 2000 for pneumonia. In a September 2008 statement, L.C.D., M.D., noted that the Veteran had been his patient since 1974 and had "on and off body weakness, cough with afternoon rises of temperature. The said condition might be occurred during his service as Guerilla during World War II." He also stated that the cause of the Veteran's death was advanced PTB and pneumonia. 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). The death certificate lists tuberculosis as an underlying cause of the Veteran's death. However, there is no medical evidence demonstrating a confirmed diagnosis of pulmonary tuberculosis as contemplated by 38 C.F.R. § 3.374. With regard to the statement of Dr. D., 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). Dr. D.'s statement that "the said condition might . . . [have] occurred during his service as Guerilla during World War II" is equivocal at best and provides no basis for its conclusion. Further, the objective record does not demonstrate that the Veteran had recognized Guerilla service. There is no indication in Dr. D.'s statement that he ever reviewed the Veteran's medical records dating to his period of service, nor is there any indication that he had any firsthand knowledge of the Veteran's medical condition prior to his treating him in 1974, other than that reported by the Veteran or the appellant. As previously noted, the Veteran separated from service in 1949. See generally, 38 C.F.R. § 3.374(c). Given the lack of definitive evidence showing either that the Veteran was diagnosed with PTB in service or within the first three years after his separation therefrom, the Board finds Dr. D.'s statement to be of no probative value. In addition to the medical evidence, the Board has also considered the statements and testimony of the appellant, as well as the evidence she presented in support of her claim, including the statement of the two former Philippine Scouts. 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). Similarly, the former acquaintances of the Veteran are competent to offer their recollections of his symptoms and treatment in 1949. Nonetheless, given the medical complexity of the disease at issue in this case, 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) and establishing its etiology. 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). 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. Accordingly, the lay statements and assertions are of no probative value. While the Board is cognizant of the appellant's assertions as well as the fact that this case is a fire-related case and the Veteran's service treatment records were destroyed in the fire of 1973, the evidence remains against the appellant's claim. The evidence of record fails to demonstrate that the Veteran had a confirmed diagnosis of PTB in service or at any time thereafter. It also fails to show that pneumonia or cardiopulmonary arrest were related to his period of service more than fifty years prior to his death. 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. Service connection is not warranted. Death Pension It is acknowledged that VA shall pay pension for nonservice-connected disability or death to the surviving spouse of the veteran of a war who has the requisite wartime service or who was receiving (or entitled to receive) compensation or retirement pay for his service-connected disability. 38 U.S.C.A. §§ 1521, 1541. Determining basic eligibility for VA nonservice-connected death pension benefits, requires different service criteria than that required for Chapter 13 benefits. In relevant part, the veteran must have active military, naval, or air service. 38 U.S.C.A. §§ 101, 1521; 38 C.F.R. §§ 3.1, 3.6. In this regard, the term "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, or air service includes active duty. "Active duty" is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6. The "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. Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(b). That is, service in the Philippine Scouts qualifies for VA pension, compensation, dependency and indemnity compensation, and burial allowance benefits. 38 C.F.R. § 3.40(a). Service in the Philippine Scouts after July 26, 1941, however, is not considered active military service for purposes of eligibility for non-service-connected pension benefits. See 38 U.S.C.A. § 107(a), (b); 38 C.F.R. § 3.40. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity benefits, or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214 (Certification of Release of Discharge from Active Duty) or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA, the document is genuine and the information contained therein is accurate. 38 C.F.R. § 3.203(a) . When an appellant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA should request the verification of service from the appropriate service department. 38 C.F.R. § 3.203. 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. A service department determination as to an individual's service is binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). A review of the evidence discloses that the appellant has submitted a July 2008 Certification from the General Headquarters of the Armed Forces of the Philippines showing that in February 1946, the decedent was recognized as having served with A Company, 1st Squadron LGAF. However, such document does not satisfy the requirements of 38 C.F.R. § 3.203, and, therefore, does not constitute probative evidence that the decedent had the requisite service during World War II which would entitle the appellant to be considered for VA death pension benefits. In January 2009, VA attempted to verify the decedent's service with the service department through the National Personnel Records Center (NPRC). The NPRC found that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The Board points out that the pertinent evidence with regard to the decedent's type of service has been submitted to NPRC for verification of service. See generally Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). As noted above, the service department's determination is binding on the Board. Therefore, the Board concludes that the appellant does not meet the criteria for entitlement to VA death pension benefits. Indeed, the law is dispositive of the issue; and, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to non-service connected death pension benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs