Citation Nr: 1324487 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-24 571 ) 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 previously denied claim of entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served with the Philippine Commonwealth Army and had Recognized Guerilla service from November 1942 to June 1945. The Veteran died in September 2001, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Manila, the Republic of the Philippines, which denied service connection for cause of the Veteran's death. An October 2010 Board decision denied the appellant's claim. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court's July 2012 Memorandum Decision vacated the Board's October 2010 decision and remanded the appellant's claim to the Board for further development and readjudication. Subsequent to the issuance of the Court's July 2012 Memorandum Decision, the appellant submitted additional statements and evidence in February 2013 and March 2013, for which a waiver of initial RO consideration was provided. See Disabled American Veterans (DAV) statement dated April 2013. In this regard, although DAV submitted the April 2013 statement in support of the appellant's appeal, the record does not reflect the appellant has submitted a signed VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) formally appointing DAV as her accredited representative. In June 2013, the Board sent correspondence to the appellant requesting clarification regarding whether she had an accredited representative, to include submitting a signed VA Form 21-22 for DAV. The correspondence informed the appellant that if she did not respond within 30 days, it would be assumed that she desired to represent herself in this case. No response was received from the appellant regarding this correspondence. Therefore, the Board will proceed to adjudicate the case on the basis that the appellant is representing herself. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note 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. By a September 2002 rating decision, the RO denied the appellant's claim of service connection for the cause of the Veteran's death. 2. The appellant did not submit a notice of disagreement to the September 2002 rating decision within one year of issuance of the decision. 3. Evidence received since the RO's September 2002 decision relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death and it raises a reasonable possibility of substantiating the underlying claim. 4. The Veteran died in September 2001; the death certificate lists the immediate cause of death as cardiopulmonary arrest due to respiratory failure, secondary to chronic obstructive pulmonary disease (COPD), with pulmonary tuberculosis (PTB) class IV as another significant contributing condition. 5. At the time of the Veteran's death, service connection was in effect for Phthisis bulbi, left eye and thigh muscle group XIV injuries. The Veteran also received a special monthly compensation for the loss of use of his left eye. 6. PTB was not chronic in service, did not manifest to a compensable degree within one year of service separation, symptoms were not continuous after service separation. 7. The weight of the evidence demonstrates that neither COPD nor PTB had its onset during service or are otherwise related to a disease or injury of service origin. 8. Service-connected left eye Phthisis bulbi and thigh muscle group XIV injuries did not contribute substantially or materially to the Veteran's cause of death. 9. No disease or injury in service, including the alleged in-service exposure to toxins or chemicals, contributed substantially or materially to cause the Veteran's death. CONCLUSIONS OF LAW 1. The September 2002 RO decision, which denied the appellant's claim of service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (2001). 2. New and material evidence sufficient to reopen the previously denied claim of service connection for the cause of the Veteran's death has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000, VA has a 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 and 3.326(a) (2012). Given the Board's favorable decision on the appellant's petition to reopen her previously denied claim for service connection for the cause of the Veteran's death, the Board finds that all notification and development action needed to fairly adjudicate that claim has been accomplished. Further, certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. Generally, section 5103(a) notice for a DIC case 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. In addition, the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case, the appellant received notice in compliance with Hupp in October 2009. The letter notified the appellant of the information and evidence needed to substantiate and complete her claim for service connection for cause of death, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Accordingly, the Board finds that VA met its duty to notify the appellant of her rights and responsibilities under the VCAA. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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 the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (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. The Board finds that there is no reasonable possibility that such assistance would aid in substantiating this claim because, for the reasons discussed below, the evidence does not establish that the Veteran suffered an injury, disease or event noted during military service related to COPD or PTB, does not indicate that a service-connected disability caused the Veteran's death and the lay evidence of record is insufficient to substantiate the claim. The Board also finds that all necessary assistance has been provided to the appellant. The evidence of record indicates that VA acquired the Veteran's service treatment records to assist the appellant with her claim. Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the appellant. Reopening of Service Connection for Cause of the Veteran's Death New and Material Evidence Legal Criteria The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence Analysis In a September 2002 rating decision, the RO denied service connection for the cause of the Veteran's death because the evidence submitted was not sufficient to establish a causal relationship to any death-causing condition and the Veteran's active duty service. The appellant was properly notified of the September 2002 rating decision, but did not enter a notice of disagreement within one year of notice of the September 2002 rating decision. For this reason, the September 2002 rating decision denial of service connection for the cause of the Veteran's death became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The evidence of record at the time of the September 2002 rating decision included (1) service treatment records; (2) the Veteran's death certificate; (3) the Veteran and appellant's marriage contract; and (5) statements from the appellant. For evidence to be new and material, it would have some tendency to show that the Veteran's death-causing condition was related to service. In support of the current application to reopen service connection for the cause of the Veteran's death, the new evidence of record associated with the record since the September 2002 rating decision includes: (1) a medical certificate from Negros Oriental Provincial Hospital dated August 2009 indicating that the Veteran was diagnosed with pneumonia, septicemia, and COPD while hospitalized from October 1999 to November 1999; (2) a statement from a Bayawan District Hospital's medical officer stating that the Veteran's cause of death was cardiopulmonary arrest secondary to respiratory failure; (3) statements from the appellant which contend that explosives used by the Japanese during WWII caused COPD and are responsible for the Veteran's death (see August 2010 statement where representative contends that the Veteran's death, caused by COPD, was due to his in-service exposure to chemicals and toxins); and (4) internet articles listing the types of explosives used in WWII and the causes and symptoms of COPD. After a review of all the evidence of record, lay and medical, and presuming the credibility of the appellant's additional statements for the limited purpose of reopening a claim, the Board finds that the August 2010 statement is new and material as it relates to an unestablished fact necessary to substantiate a claim for service connection for cause of the Veteran's death, specifically, it suggests a possible relationship between the Veteran's cause of death and service. Accordingly, the evidence is new and material, and the claim for service connection for cause of the Veteran's death will be reopened. See Cox v. Brown, 5 Vet. App. 95 (1993). The appeal is granted to this extent only. Further, the Board may proceed with adjudication on the merits of the appellant's claim. Although the RO did not reopen the appellant's claim for service connection, finding that new and material evidence had not been presented; the Court stated in Bernard v. Brown, "The fact that the RO decided the veteran's claim upon a finding that the veteran had not presented new and material evidence to reopen the claim does not thereby limit the scope of the Board's review of 'the matter' on appeal." Bernard v. Brown, 4 Vet. App. 384, 392 (1993). The Board is required, however, to address whether the appellant has been given adequate notice of the need to submit evidence or argument on the question at issue, an opportunity to submit such evidence and argument, and an opportunity to address that question at a hearing; if not, the Board must address whether the claimant has been prejudiced thereby. Id. at 393. In the present case, the Board finds that the appellant was given adequate VCAA notice of the need to submit evidence or argument on the issue of entitlement to service connection in this case, and that she has been given an opportunity to submit such evidence and argument. Accordingly, because the appellant has had opportunity to address the merits of this claim, the Board may proceed with a final adjudication of the merits of the claim because there is no prejudice to the appellant. See Bernard, at 393. Service Connection for the Cause of the Veteran's Death Service connection for the cause of a 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 constitute a contributory cause, it must contribute substantially or materially. 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). The Veteran died in September 2001. At the time of his death, service connection was in effect for left eye Phthisis bulbi and thigh muscle group XIV injuries. The Veteran also received a special monthly compensation for the loss of use of his left eye. A September 2001 death certificate lists the immediate cause of death as cardiopulmonary arrest due to respiratory failure, secondary to COPD, with PTB class IV (non-active) as another significant contributing condition. The Board finds that service connection was not in effect for these conditions, and there were no unadjudicated claims for service connection pending at his death. Therefore, the Board considers whether these conditions which caused his death could have been service connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Although the Veteran's death certificate lists PTB class IV (non-active) as a significant contributing condition to his death, the Board notes that the Veteran did have active PTB during his lifetime. Accordingly, because active PTB is a "chronic disease" listed under 38 C.F.R. § 3.309(a); the Board finds that 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). On the other hand, COPD is not a chronic disease listed under 38 C.F.R. § 3.309(a) and will be adjudicated using the general principles of service connection. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The appellant is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evidence of record reveals that the Veteran was service-connected for a left eye disability and right thigh wounds. The death certificate shows that the Veteran's immediate cause of death was cardiopulmonary arrest due to respiratory failure, secondary to COPD and class IV PTB as another significant contributing condition. The Board finds that the evidence of record shows no indication that the Veteran was diagnosed with COPD or PTB while in service. Service treatment records reveal that the Veteran had malaria, a shrapnel wound to the right thigh, and lost his left eye while in service. Service treatment records reveal no complaints, treatment, or diagnosis for COPD, PTB, or any pulmonary complications, to include as due to exposure to toxins or chemicals during service. The Board finds that this evidence weighs against a finding that COPD was incurred in or related to service or that PTB was chronic in service. Further, post-service treatment records from Bayawan District Hospital, dated June 2001 and September 2001, reveal that the Veteran was treated for difficulty breathing and was diagnosed with COPD and PTB, 52 years after service separation. The Board finds that this evidence demonstrates that PTB did not manifest to a compensable degree within one year of service separation. Further, a medical certificate from Negros Oriental Provincial Hospital, dated August 2009, indicates that the Veteran was diagnosed with pneumonia, septicemia, and COPD while hospitalized from October 1999 to November 1999, 54 years after service separation. The Board finds that this evidence weighs against a finding that the Veteran's COPD is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, no claims for service connection for COPD, PTB, or exposure to in-service toxins or chemicals were filed by the Veteran throughout his lifetime. The Veteran's omission in filing VA compensation claims for COPD or PTB during his lifetime, despite filing VA compensation claims for other disabilities, provides some indication to the Board that the Veteran did not believe that these illnesses were related to service. For these reasons, the Board finds that the record fails to provide competent evidence linking the Veteran's COPD and PTB to his military service. The appellant concedes that COPD is the cause of the Veteran's death, but argues that VA did not consider the possible causes of the COPD. For example, the appellant suggests that the chemicals used in the Japanese WWII explosives caused COPD and points to internet print-outs which list the various explosives used by the Japanese in WWII and causes and symptoms of COPD. These print-outs are of no probative value because they only list the types of explosives used during World War II (Merck print-out) and the causes of COPD, which are noted as "various occupational exposures" (Wikipedia print-out). In sum, these internet articles do not provide a link between World War II explosives and COPD. Further, while the appellant is competent to report on issues for which she has personal knowledge, she is not competent to provide evidence on questions of complex medical issues, such as etiology or diagnosis of COPD or PTB. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person). The Board notes that the evidence of record does not contain competent evidence linking the Veteran's COPD or PTB to service. The Board finds that the preponderance of the evidence weighs against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The Board also considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, service connection for cause of the Veteran's death is reopened. Service connection for cause of the Veteran's death is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs