Citation Nr: 1329072	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  11-23 756	)	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 nonservice-connected death pension benefits.

3.  Entitlement to accrued benefits.


ATTORNEY FOR THE BOARD

K. Curameng, Counsel



INTRODUCTION

The Veteran had service in the Philippine Commonwealth Army from December 1941 to September 1942 and in the Regular Philippine Army from August 1945 to June 1946.  He died in May 2000.  The appellant is advancing her appeal as the Veteran's widow.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  

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 died in May 2000; a certification lists cardiac arrest, pneumonia and diabetes mellitus as the cause of death. 

2.  During his lifetime, the Veteran was service-connected for malaria.

3.  The disabilities that caused the Veteran's death were not manifested during the Veteran's military service or for many years thereafter, nor were they otherwise related to the Veteran's service.

4.  Verification of service shows that the Veteran served in the Philippine Commonwealth Army from December 1941 to September 1942 and the Regular Philippine Army from August 1945 to June 1946. 

5.  There were no pending claims for VA benefits at the time of the Veteran's death, and the appellant did not file a claim for accrued benefits within one year of the date of his death. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.312 (2012).

2.  The criteria for basic eligibility to VA nonservice-connected death pension benefits have not been met.  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. §§ 3.40, 3.41, 3.203 (2012). 

3.  Entitlement to accrued benefits is not warranted.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.152, 3.1000(a) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Hupp v. Nicholson, 21 Vet. App. 342 (2007).  Appropriate notice for the cause of death claim was provided to the appellant in September 2010.  

With regard to the duty to assist, VA has obtained service and private treatment records, obtained certification of the Veteran's death as it appears on the Register of Deaths, reviewed the Veteran's Virtual VA file, and assisted the appellant in obtaining evidence.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise.  

The Board finds that a medical opinion is not necessary with respect to the cause of death claim.  In such a case, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit."  38 U.S.C.A. § 5103A(a)(1); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008).  This requirement obligates VA to assess whether it is necessary to obtain a medical opinion in order to substantiate the appellant's claim.  Id. VA is only excused from making reasonable efforts to provide assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2).  Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008).  An appellant's assertion that one condition was caused by another is insufficient to trigger the duty to provide an examination or get an opinion.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). 

Here, the only evidence relating the Veteran's death to a service-connected disability consists of the appellant's rather vague opinion to that effect.  Her opinion is insufficient to trigger the duty to obtain an opinion.  See DeLaRosa; Waters.  There is no indication of evidence that service-connected disabilities caused or contributed to the cause of the Veteran's death.  

VA has complied with the notification and assistance requirements for the cause of death claim.  The claim is thus ready to be considered on the merits.  

Regarding the appeal for accrued benefits and nonservice-connected death pension benefits, the Board notes that the facts are established.  The Veteran did not have a claim pending at the time of his death and does not have qualifying service for nonservice-connected death pension purposes.  Where the law, and not the evidence, is dispositive of a claim, the duties to notify and assist are not applicable.  Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

Analysis

I.  Cause of Death

In a claim of service connection for the cause of the veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.312.  Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death.  A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death.  38 C.F.R. § 3.312.

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term "chronic disease" whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Diabetes mellitus is included in 38 C.F.R. § 3.309(a). 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b). 

The Veteran died in May 2000; a certification lists cardiac arrest, pneumonia and diabetes mellitus as the cause of death.  During his lifetime, the Veteran was service-connected for malaria.  

Service treatment records are silent for heart disability, lung disability and diabetes mellitus.  On an August 1945 affidavit for Philippine Army Personnel, no wounds or illness were reported.  A May 1946 affidavit includes a history of malaria, treated in 1942.  There were no indications of any other disorders.

Post-service medical records include an August 1957 report showing that the Veteran was admitted to V Luna General Hospital from May 1957 to August 1957 for mild diabetes mellitus.  On VA examination in July 1972, the Veteran's cardiovascular system and lungs were checked.  

There is no competent evidence that the conditions noted on the death certificate are related to service.  While not determinative by itself, it is significant that there is no evidence of diabetes mellitus until 1957, approximately 11 years after service.  This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Thus, the one year presumption of service incurrence is not for application.  Further, although military records reflect prisoner of war (POW) status from April 1942 to August 1942, the NPRC stated in September 2010 that the Veteran did not acquire POW status.  Nevertheless, even if the Board were to consider disorders specific to former POWs, the disorders that caused the Veteran's death are not those listed in 38 C.F.R. § 3.309(c)(2).

With regard to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge.  Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465 (1994).  The issue on appeal is based on the contention that the Veteran's cause of death was related to his service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), as to the specific issue in this case, whether or not the Veteran's service or service-connected malaria caused or contributed to his death, this falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

After thorough review of the evidence currently of record, the Board concludes that the preponderance of the evidence is against the claim.  

II.  Pension

The surviving spouse of a veteran is entitled to receive VA improved death pension benefits if the veteran had qualifying service under 38 U.S.C.A. § 1521(j) (West 2002).  "Veteran" means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  "Veteran of any war" means any veteran who served in the active military, naval or air service during a period of war.  38 C.F.R. § 3.1(e).  Service in the Commonwealth Army of the Philippines from and after the dates and hours, respectively, when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation, DIC, and burial allowance.  38 C.F.R. § 3.40(c).  Service as a guerilla under a commissioned officer of the United States Army, Navy or Marine Corps, or under a commissioned officer of the Commonwealth Army recognized by and cooperating with the United States Forces is included for compensation, DIC, and burial allowance.  38 C.F.R. § 3.40(c)-(d).  Service as a guerilla by a member of the Philippine Scouts or the Armed Forces of the United States is considered as service in his regular status and is included for pension, compensation, DIC, and burial allowance.  38 C.F.R. § 3.40(a), (d).         

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under 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 in it is accurate.  38 C.F.R. § 3.203(a).  Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  

Verification of the Veteran's service shows he was a member of the Regular Philippine Army from August 1945 to June 1946, which only entitles the appellant to compensation, DIC, and burial allowance pursuant to 38 C.F.R. § 3.40(c).  Thus, there is no legal basis on which the appellant's claim for death pension benefits can be based.  As the law, and not the evidence, is dispositive, the appeal is denied due to the absence of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  The Board is bound by 38 U.S.C.A. § 107(a), and therefore has no choice but to deny the appellant's death pension claim.  See 38 U.S.C.A. §§ 501(a), 7104(c); 38 C.F.R. § 19.5. 

III.  Accrued Benefits

Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a).  An application for accrued benefits must be filed within one year after the date of death.  38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c).  There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death.  Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). 

After review of the record, the Board finds that the Veteran did not have a claim pending at the time of death.  Prior to his death, he last filed in a claim with VA in 1990, and that claim was adjudicated in an unappealed September 1992 rating decision.  Prior to his death, the Veteran had last filed a claim with VA in November 1990, and the claim was denied in an unappealed January 1991 rating decision.  Therefore, because the Veteran had no claims for VA benefits pending at the time of his death , the appellant's claim for accrued benefits must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

In addition, the certification copies of the Veteran's death certificate of record show that he died in May 2000; however, the appellant did not file a claim until August 2010, which is 10 years after the Veteran's death.


ORDER

Entitlement to service connection for the cause of the Veteran's death is not warranted.  

Entitlement to non service connection death pension benefits is not warranted.  

Entitlement to accrued benefits is not warranted.  The appeal is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs