Citation Nr: 1319993 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-48 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of 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. WITNESSES AT HEARING ON APPEAL Appellant and granddaughter ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1946 to May 1949. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines that denied the appellant's claims for nonservice-connected death pension benefits and accrued benefits and a December 2009 rating decision by the VA RO in Manila, the Republic of the Philippines that denied an application to reopen a claim of entitlement to service connection for the cause of the Veteran's death. The appellant testified at a hearing before the undersigned Veterans Law Judge in January 2013. 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. Service connection for the cause of the Veteran's death was denied by a September 2002 rating decision. The appellant was notified of that decision in September 2002, but did not appeal the denial. 2. The evidence received since the September 2002 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. 3. The Veteran did not possess the requisite service to allow his surviving spouse to qualify for VA nonservice-connected death pension benefits. 4. 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. 5. The Veteran had no claims for VA benefits pending at the time of his death. 6. The appellant filed a claim of entitlement to accrued benefits more than one year after the Veteran's death. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen a previously denied claim of service connection for the cause of the Veteran's death has not been received. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (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 Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claims. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claims, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Certain additional notice requirements attach in the context of a claim for service connection for the cause of a Veteran's death. Generally, that notice must 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 the claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service-connected. The content of the notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007); 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the appellant was notified in a letter dated in August 2009. The appellant was advised in the August 2009 correspondence that service connection was not established for any disability during the Veteran's lifetime and in order to support a claim of entitlement to service connection for the cause of the Veteran's death the evidence must show that a disability was incurred in or aggravated during service and was the primary or contributory cause of death. The letter also advised the appellant that new and material evidence was required to reopen a previously denied claim. The correspondence also included the elements necessary to establish service connection for death benefits based on a disability that was not service-connected during the Veteran's lifetime, the evidence necessary to establish death pension benefits, and the evidence necessary to establish accrued benefits. That document satisfied the notice requirements. Kent v. Nicholson, 20 Vet. App. 1 (2006). The appellant has been given ample time to respond to that notice and provide evidence that relates to the previously unestablished facts. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the September 2010 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence The appellant claims entitlement to service connection for the cause of the Veteran's death. The appellant originally submitted a claim of entitlement to service connection for the cause of the Veteran's death in August 2002. The claim was denied by the RO in September 2002. Notice of the denial and notice of appellate rights were provided in September 2002. The appellant did not initiate an appeal and the RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). As a result, service connection for the cause of the Veteran's death may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that new and material evidence has not been received, that is where the analysis must end. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Finally, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A claim of entitlement to service connection for the cause of the Veteran's death was denied in a September 2002 rating decision. The evidence of record at the time of the September 2002 rating decision consisted of the Veteran's certificate of death, a negative response to a request for the Veteran's service medical records from the National Personnel Records Center (NPRC), a medical certificate from Tarlac Provincial Hospital dated in March 2002, and a NA Form 13055, Request for Information Needed to Reconstruct Medical Data. The Veteran's certificate of death shows that the Veteran died in July 2002. The immediate cause of death was cardiopulmonary arrest secondary to uncal herniation secondary to cardiovascular disease, hemorrhage. The medical certificate from Tarlac Provincial Hospital indicates that the Veteran had a diagnosis of severe uncontrolled hypertension. The NA Form 13055 included reference to treatment prior to the Veteran's death, but did not include any medical records related to that treatment. The RO denied the claim in September 2002. The RO determined that the evidence did not show that the death-causing condition began in service or within one year of the Veteran's discharge from service or had a relationship to an illness or event of service origin. The Veteran's spouse submitted an application to reopen her claim for service connection for the cause of the Veteran's death in August 2009. The evidence received since the September 2002 rating decision consists of treatment records from Tarlac Provincial Hospital dated in July 2002, laboratory tests from Perpetual Succor Medical Clinic, statements from the appellant, and testimony from the appellant and her granddaughter offered at a hearing before the Board in January 2013. The medical evidence listed above is new in that it was not of record at the time of the September 2002 rating decision. However, it is not material. The laboratory tests include laboratory values for a number of different tests. The records from Tarlac Provincial Hospital include reference to treatment the Veteran obtained in the days leading up to his death. However, none of the records link the cause of the Veteran's death to his active duty service. Consequently, the Board finds that evidence is not new and material. The statements from the appellant are new in that they were not of record at the time of the September 2002 rating decision. However, they are not material. The appellant claims that the Veteran's missing service medical records could show that his death was related to his active duty service. The appellant's assertions are cumulative in that the RO considered the fact that the Veteran's service medical records were missing at the time of the final prior denial. Consequently, the Board finds that evidence is not new and material. The appellant and her granddaughter's hearing testimony is new in that it was not of record at the time of the September 2002 rating decision. However, it is not material. The appellant indicated that the Veteran suffered from hypertension for many years prior to his death but was not diagnosed with hypertension during service. She testified that she was unsure if any physician ever linked her husband's cause of death to his active duty service because the Veteran sought treatment for his hypertension in the United States. The appellant's granddaughter requested a favorable decision on the appellant's claim for benefits. While the hearing testimony is new, neither the Veteran nor her granddaughter proffered a theory of entitlement to service connection for the cause of the Veteran's death. Consequently, the Board finds that the evidence is not new and material. In summary, the Board finds that the new evidence received does not raise a reasonable possibility of substantiating the claim. Therefore, that new evidence is not material. To substantiate a claim of service connection, there must be some nexus between the cause of the Veteran's death and his active duty service. Without some new evidence tending to show that the Veteran's cause of death was caused or aggravated by his active service, the claim of entitlement to service connection for the cause of the Veteran's death cannot be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). In sum, the new evidence received is not material to the claim of entitlement to service connection for the cause of the Veteran's death. Thus, in the absence of new and material evidence, the appellant's claim is not reopened. Nonservice-Connected Death Pension The appellant claims entitlement to nonservice-connected death pension benefits. 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 38 C.F.R. § 3.24. 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 that the individual with respect to whom pension is claimed be a Veteran who had active military, naval, or air service. 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) (West 2002). 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) (2012). 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 (2012). 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 United States 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. 38 U.S.C.A. § 107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.40(b), (c), (d) (2012). "Other Philippine Scouts," which includes all those who served during the period from October 6, 1945 to June 30, 1947, (New or Special Philippine Scouts), are eligible for compensation and DIC benefits, but are bit eligible for nonservice-connected pension benefits. 38 U.S.C.A. § 107(b) (West 2002); 38 C.F.R. § 3.40(b) (2012); Manlincon v. West, 12 Vet. App. 238 (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." 38 C.F.R. § 3.40(a) (2012) ("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 (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). Generally, a service department determination as to an individual's service shall be binding upon VA. 38 C.F.R. § 3.1(y) (2012); 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 have been determined to be fire-related. However, the Veteran's service separation documents have been associated with the claims file and verified the Veteran's service with the Army of the United States Philippine Scouts from August 21, 1946, to May 19, 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. Unlike service in the "Old Philippine Scouts" or the "Regular Philippine Scouts," the Veteran's particular type of service, in the Philippine Scouts after October 6, 1945, is not deemed to be qualifying service for death pension benefits. 38 C.F.R. § 3.40(a) (2012). 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 United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (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 pertinent law and regulations specifically exclude service such as the Veteran's for purposes of entitlement to nonservice-connected death pension benefits. 38 U.S.C.A. § 107(a) (West 2002); 38 C.F.R. § 3.40 (2012); Cacalda v. Brown, 9 Vet. App. 261 (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) (West 2002); 38 C.F.R. § 3.4 (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994). Accrued Benefits The appellant claims entitlement to accrued benefits. An accrued benefits claim arises after a Veteran has died. A Veteran's claim does not survive his death. Landicho v. Brown, 7 Vet. App. 42 (1994). However, certain individuals may be entitled to accrued benefits under certain conditions. 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 (West 2002); 38 C.F.R. § 3.1000 (2012). 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 (West 2002); 38 C.F.R. § 3.1000 (2012). To support a claim for accrued benefits, the Veteran must have had a claim pending at the time of his death for benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a) (West 2002); 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. The appellant submitted her claim for accrued benefits in August 2009, more than one year after the Veteran's death in July 2002. Furthermore, there was no claim pending at the time of the Veteran's death. Jones v. West, 136 F.3d 1296 (1998). 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. Therefore, the appellant's claim must be denied as a matter of law as her claim for accrued benefits was untimely and there was no pending claim for benefits at the time of the Veteran's death. ORDER The application to reopen a claim of entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to nonservice-connected death pension benefits is denied. Entitlement to accrued benefits is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs