Citation Nr: 1330336 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-30 532 ) 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. REPRESENTATION Appellant represented by: Philip P. Madlem WITNESSES AT HEARING ON APPEAL The appellant and R.B. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran had recognized guerrilla service from October 1943 to April 1945, and Regular Philippine Army service from April 1945 to May 1945. The Veteran died in June 1988, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The appellant and R.B. presented testimony before the undersigned Veterans Law Judge (VLJ) in April 2011. A transcript of that hearing has been associated with the Veteran's claims file. As noted in the Board's February 2012 remand, the issues of entitlement to accrued benefits and entitlement to nonservice-connected death pension benefits were denied in a July 2009 rating decision. Notice of that decision was provided to the appellant that same month. In a July 2010 substantive appeal, the appellant indicated her disagreement to the denial of her claim for accrued benefits. A statement of the case on that issue was provided to the appellant in February 2011, but she did not file a substantive appeal perfecting her claim. Similarly, the appellant expressed disagreement to the denial of her claim for nonservice-connected death pension benefits in the July 2010 substantive appeal. In accordance with the February 2012 Board remand directives, the RO issued a statement of the case with regard to that issue in April 2013. However, the appellant did not file a substantive appeal perfecting that claim either. As the appellant did not timely perfect her appeals as to the issues of entitlement to accrued benefits and entitlement to nonservice-connected death pension benefits, those issues are not before the Board for appellate consideration, and will not be addressed in this decision. The appellant is represented in this case pursuant to 38 C.F.R. § 14.630, which allows for representation by any person on a one time basis. She completed the necessary requirements with the filing of a VA Form 21-22a in April 2012, acknowledging that no compensation would be paid or charged for the services. 38 C.F.R. § 14.630(a) (2012). 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. A June 1988 death certificate indicates that the Veteran died in June 1988 at the age of 61. The certificate of death lists the immediate cause of death as cerebrovascular accident, and the antecedent cause as hypertension. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The evidence of record does not show that the cause of the Veteran's death was related to his active military service or a service-connected disability. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the Veteran's death, and is not presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a substantially complete application for benefits, VA must notify the appellant of what information or evidence is needed in order to substantiate the claim, and it must assist the appellant by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With regard to the appellant's claim for entitlement to service connection for the cause of the Veteran's death, a June 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev.'d on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (2009), the Court held that when VA receives a detailed claim for death and indemnity compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103(a), the notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of 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. The June 2009 letter fully complied with the Hupp requirements. Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The duty to assist the appellant has also been satisfied in this case. The Veteran's identified private treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are not available for the Veteran's service. Although requested by the RO, a September 2009 response from the National Personnel Records Center (NPRC) provides that all available medical and clinical records were provided. Review of the information provided by the NPRC reflects only personnel records, and no service treatment records. Accordingly, the Board concludes that service treatment records are not available and that further efforts to obtain them would be futile. 38 C.F.R. § 3.159. Although VA did not obtain a medical opinion addressing the etiology of the cause of the Veteran's death, one was not required in this case, as there is no evidence in the claims file suggesting that the cause of the Veteran's death was related to his active duty service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ identified the issue on appeal, and focused the intent of the hearing by ensuring that questions were asked to ascertain why the appellant believed that the cause of the Veteran's death was related to his active duty service. The VLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the appellant's claim; through her testimony, she demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. Accordingly, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2); any error in notice or assistance by the VLJ at the April 2011 Board hearing constitutes harmless error. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant contends that the cause of the Veteran's death is related to his active duty service. Specifically, she contends that service connection is warranted on a presumptive basis, because hypertension is a chronic disease under 38 C.F.R. § 3.307 and 38 C.F.R. § 3.309, and an antecedent cause of the Veteran's death was hypertension. In her April 2011 hearing, she alleged that service connection for the cause of the Veteran's death was warranted on the sole basis that the Veteran served during World War II. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). Arteriosclerosis demonstrated to a compensable degree within one year of discharge from service will be presumed to have been incurred in or aggravated by active service. 38 C.F.R. §§ 3.307, 3.309 (2012). A disabling hypertension demonstrated within the one year period after separation from service will be given the same benefit of presumptive service connection as any other chronic disease listed at 38 C.F.R. § 3.309. See 38 C.F.R. §§ 3.307, 3.309. VA death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312 (2012). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b), (c). The Veteran died in June 1988 at the age of 61. The certificate of death reported the immediate cause of death as cerebrovascular accident, and the antecedent cause was hypertension. At the time of the Veteran's death, service connection was not in effect for any disability. As previously noted, no service treatment records are available for the Veteran. The first evidence in the claims file documenting diagnoses of and treatment for hypertension are VA treatment records from 1983. Blood pressure at that time was 180/127. Medication was started. The diagnosis on hospital discharge was hypertensive vascular disease. An April 1988 VA hospital discharge summary report included diagnoses of cerebrovascular accident, old problem, thrombosis of left middle cerebral artery with right hemiparesis and secondary aphasia, and hypertensive arteriosclerotic heart disease, old inferior wall myocardial infarction, high lateral wall ischemia. Reported blood pressure readings were 140/110 and 140/100. It was noted that the Veteran had been a known hypertensive patient since 1968, with the highest blood pressure reading of 160/130. A February 2009 private treatment letter states that, in 1987, the Veteran was admitted to the hospital with diagnoses including cerebrovascular thrombosis and hypertension. After reviewing the evidence of record, the Board finds that service connection for the cause of the Veteran's death is not warranted. First, the Board observes that the Veteran's death was not caused by a service-connected disability, as the Veteran was not service-connected for any disability at the time of his death. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Further, there is no evidence of record suggesting that the cause of the Veteran's death is related to his active duty service, as there is no evidence showing that the Veteran developed hypertension or cerebrovascular accident during military service, nor hypertension or arteriosclerosis to a compensable degree, or a cerebrovascular accident, within one year of separation from service. Further, there is no evidence of record suggesting a link between the Veteran's hypertension and cerebrovascular accident and his active duty service. The first evidence of hypertension noted in the record is in 1968, approximately 23 years after the Veteran's period of active duty service. Similarly, the first evidence of cerebrovascular accident was in 1987, approximately 42 years after the Veteran's period of active duty service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board acknowledges the appellant's argument that service connection for the cause of the Veteran's death should be awarded on a presumptive basis. In that regard, some chronic diseases, including hypertension, are presumed by law and regulation to have been incurred in service if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Although the evidence demonstrates that hypertension, a chronic disease, was an antecedent cause of the Veteran's death, the evidence of record does not show that hypertension was diagnosed and became manifest to a degree of 10 percent or more within one year of the Veteran's service discharge. As noted above, the Veteran's period of service ended in 1945, and the first evidence of hypertension shown in the record was in 1968, approximately 23 years after the Veteran's period of service ended. Accordingly, as the evidence does not demonstrate that hypertension became manifest to a degree of 10 percent or more within one year of the Veteran's service discharge, service connection for the cause of the Veteran's death is not warranted on a presumptive basis. Id. For the foregoing reasons, service connection for the cause of the Veteran's death is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs