Citation Nr: 1328499 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-00 101A ) 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 A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service with the Special Philippine Scouts from March 1946 to January 1949. The Veteran died in October 2001. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. 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. The Veteran's death certificate lists his immediate cause of death as aspiration pneumonia with an antecedent cause of pulmonary tuberculosis, far advanced; a significant condition contributing to his death was listed as severe malnutrition. 2. At the time of the Veteran's death in October 2001, service connection had not been awarded to the Veteran for any disability. 3. There is no evidence that pulmonary tuberculosis was first manifest during active service, or within one year of separation from active service. 4. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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. Id. at 486. In the context of a claim for DIC benefits, § 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). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)- compliant notice. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in December 2010 which addressed the notice elements of a service connection claim and was sent prior to the initial RO decision in this matter. This letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The letter also informed the appellant of what evidence and information was required to substantiate a DIC claim based on a previously service-connected condition. Further, the December 2010 letter notified the appellant, that at the time of the Veteran's death he was not service-connected for any conditions and the letter provided her with notice of the criteria to substantiate a cause of death claim based on a condition not yet service-connected. Therefore, the Board finds that the December 2010 letter complied with all notice requirements, including those outlined by Hupp. VA also has a duty to assist the appellant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's death certificate and a letter from the physician who attended the Veteran at the time of his death have been obtained and associated with the record. A VA medical opinion was not obtained in this matter, however, none is required. With regard to cause of death claims, the duty to assist requirement under 38 U.S.C.A. § 5103(a) requires VA to make "reasonable efforts" to provide assistance if requested, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." See 38 U.S.C.A. § 5103(a)(2) (West 2002). Here, there is no indication that the Veteran's cause of death was in any way related to his active service and there is no medical evidence to suggest that a disability of service origin caused or contributed substantially or materially to his cause of death. As such, a medical opinion in this matter is not warranted. 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. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of her claim discussed above. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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 a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown. 38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service- connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical and lay evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Turning to the merits of the claim, the basic facts are not in dispute. The Veteran's death certificate indicates that he died in October 2001 and that the immediate cause of his death was aspiration pneumonia with an antecedent cause of pulmonary tuberculosis, far advanced, with a significant condition contributing to his death listed as severe malnutrition. At the time of his death, the Veteran was not service-connected for any condition. The appellant filed a claim for entitlement to service connection for the cause of the Veteran's death in December 2010; however, she has not provided any specific information or allegation as to how the Veteran's death was related to his active service. As noted above, the Veteran's STRs are unavailable for review. However, the Board notes that in November 1975 the Veteran filed a claim of entitlement to service connection for a right hand disability. He did not indicate on his claim that he suffered from any disability related to pneumonia or tuberculosis. Additionally, the Veteran filed a claim to reopen his claim of entitlement to service connection for a right hand disability in January 1992. Again, he did not indicate that he suffered from any disability related to pneumonia or tuberculosis. In a December 2010 letter Dr. F.P., a private physician, states that she treated the Veteran for pneumonia and pulmonary tuberculosis in October 2001, for the month preceding his death, and that the Veteran expired in her presence. Dr. F.P. indicated that the Veteran was treated at home, and not in a hospital. This letter provides no indication that the Veteran's cause of death, aspiration pneumonia and pulmonary tuberculosis, was in anyway related to his active service some 52 years earlier. The Board notes that presumptive service connection under 38 C.F.R. §§ 3.307, 3.309 is available for active tuberculosis if shown within one year of separation from active service. However, in this case, there is no evidence of the Veteran's pulmonary tuberculosis until over 50 years following his separation from active service. As for the provisions of continuity of symptomatology under 38 C.F.R. § 3.303(b), there were no allegations from the Veteran during his lifetime that he suffered from pulmonary tuberculosis symptoms during service, which continued thereafter; as noted above, the Veteran only ever claimed service connection for a right hand disability, which the Board notes was not granted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, there is no evidence of record suggesting that the Veteran's aspiration pneumonia and pulmonary tuberculosis, with severe malnutrition, were in any way related to his active service. Further, there is no indication from the record that the Veteran was diagnosed with pulmonary tuberculosis within one year of separation from active service, or that during his lifetime, he complained of tuberculosis symptoms that began during service and continued after separation. Therefore, the Board finds that the evidence of record does not establish that a service- connected condition caused or contributed substantially or materially to the Veteran's death. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of the Veteran's death is not warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs