Citation Nr: 1323324 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-19 210 ) 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 cause of the Veteran's death. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The service department has verified that the Veteran served as a recognized guerilla from January to December 1945, with no other active duty service in the Armed Forced of the United States. He died in December 2003. The Appellant is seeking benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. This matter was previously remanded by the Board in July 2011 for additional development, to include obtaining additional private treatment records and providing a VA medical opinion. Review of the record reflects the referenced private treatment records were requested but were not available and a medical opinion was provided. As such, the Board finds the RO/AMC complied with the remand orders and appellate review may continue. Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died in December 2003. The Veteran's primary cause of death was due to cardio respiratory arrest with significant contribution from his cardio respiratory condition. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The weight of the evidence is against a finding that the Veteran's death was the result of his military service. CONCLUSION OF LAW Neither the Veteran's military service, nor a service-connected disability, caused, or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of a veteran's death, the evidence must show that the disease which caused death was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For it to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. That is to say, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In this case the Veteran served as a recognized guerilla from January to December of 1945, with no other active duty service in the Armed Forces. VA regulations provide service as guerillas recognized by and cooperating with the United States Forces is included as service for compensation, dependency and indemnity compensation, and burial allowance. 38 C.F.R. §§ 3.40, 3.41. As such, the Veteran's surviving spouse may be eligible for dependence and indemnity compensation if his death was due to a service-connected disability. Service records have been reviewed and the Veteran's October 1945 certificate of discharge as a civilian guerrilla indicated he did not have any disability. On his affidavit for Philippines Army Personnel in May 1946 the Veteran himself indicated he did not have any wounds or illnesses incur from December 1941 to date. Therefore these guerilla service records provide evidence against the Appellant's claim. The Veteran died in December 2003. The December 2003 burial permit listed his cause of death as cardiopulmonary arrest secondary to cardio-vascular disease. His death certificate from July 2005 reflected the cause of death was cardio respiratory arrest. As such, the Board finds the probative evidence of record establishes the Veteran's primary cause of death was due to cardio respiratory arrest with significant contribution from his cardio respiratory condition. At the time of his death the Veteran was not service connected for any disability. As such, VA regulations provide in order to receive dependency and indemnity compensation the evidence must establish his death was caused by a disability for which service connection should have been established, or otherwise attributable to his military service. 38 U.S.C.A. § 1310. As discussed above, service records do not reflect the Veteran had any heart condition during his guerilla service. However throughout the appeal the Appellant has consistently related the Veteran's death to his military service. As a lay person the Appellant is competent to report what came to her through her senses, such as observing her husband became weaker over time. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Appellant lacks the medical training and expertise required to provide a complex medical opinion as to the cause of the Veteran's death. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore the Board will turn to a discussion of whether the weight of the evidence of record establishes his death was otherwise due to his guerilla service. The earliest medical evidence of record is the report of a chest radiographic film from September 1946 completed by a radiologist, Dr. G.D. Dr. G.D. noted the Veteran's heart was not enlarged, his diaphragm was normal, and his ribs were intact. He opined the Veteran had pulmonary tuberculosis and cardiac arrest asthma. However, the record also contains a second copy of this report from the same date also signed by Dr. G.D., however with some inconsistencies. For example, the first report was typed in upper and lower case letters, while the second is typed in all upper case letters. Additionally the words "years old" after "AGE 21" are included on one copy, but not the other. The Board notes both these forms are photocopies of a report originally completed on a type-writer. As such, the Board is unable to determine which form, if either, accurately reflects the results of any radiography film from September 1946. Additionally, the claims file does not contain any additional records from Dr. G.D. which may provide context to this report. The VA specifically sought such records upon remand, but in a January 2012 phone call with the RO/AMC the Appellant reported she was not able to obtain any additional records from Dr. G.D. In reviewing the evidence of record the Board must address the credibility of evidence submitted. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Due to the above-mentioned discrepancies between the two copies of the report included in the claims file, as well as the lack of other records from the same physician, the Board finds this evidence is limited in credibility and has limited probative value. Similar issues arise regarding a report from a radiography film from December 10, 1990 signed by Dr. R.G. This report noted the Veteran had cardiac asthma in the right lung and hazy densities in the left lung. Dr. R.G. opined the Veteran had pulmonary tuberculosis and cardiac arrest asthma. However, the record again contains a second copy of a nearly identical form also dated December 10, 1990 and signed by Dr. R.G., but with inconsistencies. The second form indicates the Veteran had cardiac asthma in both lungs. Dr. R.G. again opined the Veteran had pulmonary tuberculosis and cardiac arrest asthma. However on the second form the "remarks/recommendation" section stated "secondary to cardiac secular disease," a remark not found on the first copy. The Board notes both forms are again photocopies of a form originally completed with a typewriter. In addition, both forms seem to include smudges and markations that may be the result of corrections or alterations. As such, the Board is again unable to determine which form, if either, accurately reflects the results of any radiography film from December 1990. Therefore under the Board finds this evidence is limited in credibility and has limited probative value. The record also includes a November 2003 treatment record from a Dr. A.M. The physician performed a CT scan of the Veteran's upper abdomen which revealed a mass in the epigastrium, the upper central region of the abdomen. Dr. A.M. also noted the Veteran's spleen and several lower paraortic lymph nodes were enlarged. Of note, he reported the included lower lung fields did not reveal any pulmonary nodules or evidence of pleural effusion. Dr. A.M. opined the Veteran had an epigastric mass, most likely anterior pyloric wall in origin. He recommended histopathologic correlation for the Veteran's neoplastic process. He also noted splenomegaly, paraaortic lymphadenopathy, age-related renal atrophy, aorto-iliac atherosclerosis, and degenerative osteoarthropathy. In January 2006 Dr. A.V. completed a Medical Certificate. The physician certified that he treated the Veteran between July 2002 and October 2003. During this time the Veteran was diagnosed with influenza in July 2002, bronchitis in November 2002, and a stomach tumor, probably malignant, in October 2003. The Board notes Dr. A.V. did not include a diagnosis of any cardio-respiratory condition. In September 2008 Dr. S.F. submitted a written clinical abstract. The physician reported he examined the Veteran in December 1990 and found he had bronchial asthma with initial complication on the heart beats. The physician continued to regularly treat the Veteran for the next six years each time the Veteran had a severe asthmatic attack. The physician recommended hospitalization but the Veteran reported he did not have enough money. Dr. S.F. reported his treatment records for this time frame were discarded in routine practice by the health center. The Board notes Dr. S.F. reported he did not begin treating the Veteran until 1990, forty-five years after his guerilla service. As such, the Board finds this record does not serve to establish the Veteran's bronchial asthma began during, or was otherwise related to his guerilla service. The record also contains several written reports from Dr. O.S. In November 2008 this physician submitted a written clinical summary asserting that he regularly treated the Veteran for dyspnea, chest pains, cough, and nocturnal increased body temperature before the Veteran's death. The physician noted the Veteran had wheezing respiratory sound and rales were noted in the upper portion of his lungs. Dr. O.S. noted the Veteran was diagnosed with progressive cardio-vascular disease, bronchial asthma, and pulmonary tuberculosis. He opined the Veteran died of cardio respiratory arrest secondary to chronic cardio vascular disease. In June 2009 Dr. O.S. submitted another letter to the VA asserting that the Veteran's death certificate was incomplete in saying the Veteran's death was secondary to cardio vascular disease. The physician asserted the cause of death should be cardio respiratory arrest secondary to chronic bronchial asthma, pulmonary tuberculosis, and chronic cardio vascular disease. In August 2009 Dr. O.S. submitted an additional written statement. In this letter the physician opined the Veteran already had primary infection of pulmonary tuberculosis during his military service, but during this latent phase of the disease he showed no symptoms. However, in the later stage of his life this disease gradually manifested and was further complicated by bronchial asthma and cardio pulmonary disease, resulting in the Veteran's death. In November 2009 Dr. O.S. submitted another letter asserting the Veteran had TB prior to his death. The physician also stated the Veteran was physically unable to work more than a year before his death due to recurrent attacks of dyspnea due to chronic asthma, as well as chest pain caused by cardio-vascular disease. The Board acknowledges the August 2009 letter from Dr. O.S. contains some suggestion that the Veteran's death was caused by pulmonary tuberculosis, and this condition had been present since his guerilla service more than 60 years ago. However, the physician does provide any rationale for his conclusion that the Veteran had latent pulmonary tuberculosis during his guerilla service. Because this opinion does not include an analysis the Board can consider and weigh against other opinions the Board finds this report is less probative. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In March 2013 a VA examiner reviewed the claims file and completed a Disability Benefits Questionnaire (DBQ) using the Acceptable Clinical Evidence (ACE) process. The examiner opined it was less likely than not (less than 50 percent probability) that the Veteran's death was caused by his service. The examiner explained the death certificate listed cardiopulmonary arrest as the cause of death, secondary to cardiovascular disease. The examiner also noted his concerns regarding the September 1946 radiology report asserting the Veteran had pulmonary TB and cardiac arrest. First he noted the heart was not noted to be enlarged, which is not consistent with an impression of cardiac arrest asthma. Second, the examiner noted the Philippine College of radiology which Dr. G.D. was a member was not founded until 1948. Third, the chest x-ray was a photocopy and may not be the original. The examiner also noted that if the 1990 x-ray showing upper lung infiltrates had been clinically significant it would have been noted by Dr. A.V., who treated the Veteran from 2002 until right before his death. Instead, Dr. A.V. diagnosed influenza and bronchitis and did not give the Veteran any heart medications. Therefore the examiner opined the Veteran's death was less likely than not caused by his military service. The Board finds this March 2013 VA report is adequate and highly probative. The examiner carefully reviewed the Veteran's claims file and cited to the evidence of record is support of his opinion. In addition the examiner clearly and unequivocally stated his opinion, as well as provided a clear rationale for his conclusion. As such, the Board finds this report provides highly probative evidence against the Appellant's claim. Based on all of the foregoing the Board finds the weight of the probative credible evidence of record fails to establish the Veteran's death was due to a service connected disability or otherwise attributable to his military service. The Death Certificate establishes the Veteran's primary cause of death was cardiac arrest due to a cardio vascular disease. However, service records do not establish the Veteran had any cardio-vascular disease during his guerilla service. In addition the Board finds the records of evidence earlier than November 2003 are of limited probative value due to inconsistencies. The November 2003 record does not include any indication the Veteran had any cardio vascular disease at that time or during his military service. The August 2009 letter from Dr. O.S is also of limited probative value, as discussed above. Finally, the VA examiner found the Veteran's death was less likely than not caused by his military service. As such, the Board finds the majority of the probative evidence does not support the Appellant's claim. The evidence is not in relative equipoise, and as such the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Appellant's claim for dependency and indemnity compensation is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. 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, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case notice was first provided by an August 2008 letter, which informed the Appellant of the notice required by the Pelegrini Court. The Board notes this initial letter did not contain the DIC notice required by Hupp. However, an additional letter was provided in February 2009 which provided all notice required for a DIC case. The Appellant was provided ample opportunity to submit additional evidence, and the claim was readjudicated after receipt of this additional notice letter. As such, the duty to notify was met and continued adjudication is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Guerilla service records have been obtained, as well as private treatment records. Additionally, the Appellant was offered the opportunity to testify at a hearing before the Board, but she declined. A VA examination was also provided and the report has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Appellant's claim. The examiner carefully reviewed the claims file and provided a clear opinion and supporting rationale. Furthermore, the Appellant has not voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Appellant in adjudicating this appeal. ORDER The claim for service connection for the cause of the Veteran's death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs