Citation Nr: 1333495 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-23 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement for service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1946 to January 1949 in the Special Philippine Scout. He died in September 2005. The appellant is the surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died in September 2005. 2. The Veteran's death certificate lists the immediate cause of death as ventricular arrhythmias, with underlying causes of ischemic cardiomyopathy, coronary artery disease, and atherosclerosis; other significant conditions listed as contributing to death, but not resulting in the underlying cause, were status post cerebrovascular accident, gout, hypertension, and chronic renal failure. 3. At the time of his death, the Veteran had no service-connected disabilities. 4. The conditions ultimately resulting in the Veteran's death were unrelated to his military service and not shown to have manifested to a compensable degree within a year of his separation from service. 5. The Veteran was not a former prisoner of war (POW). CONCLUSION OF LAW Criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §1110, 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as cardiovascular disease, if manifested to the required degree within a prescribed period from the veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. § 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). Service connection may also be established if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. See, e.g., Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, 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 it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. The Veteran died in September 2005. His death certificate lists the immediate cause of death as ventricular arrhythmias, with underlying causes of ischemic cardiomyopathy, coronary artery disease, and atherosclerosis. Other significant conditions listed as contributing to death, but not resulting in the underlying cause, were status post cerebrovascular accident, gout, hypertension, and chronic renal failure. At the time of his death, the Veteran had no service-connected disabilities. A review of the Veteran's service treatment records reveals that there were no findings, diagnoses, or treatment during service for any of the conditions identified as an immediate or contributory cause of the Veteran's death or for conditions identified as significant conditions contributing to death, but not resulting in the underlying cause of death. In fact, the Veteran first sought treatment for chest pain in February 1981, over thirty years after he separated from service. Such findings provide factual evidence against the appellant's claim. In a February 2009 statement in support of her claim, the appellant asserted that the Veteran's experience as a POW "contributed to physical and mental disability." In the December 2009 Notice of Disagreement, the appellant again indicated the Veteran experienced stress as a result of his POW experience, which led to his death. The appellant's assertions align with the contentions offered by the Veteran himself in February 2004, at which time he filed for service connection for heart problems, kidney disease, bilateral knee pain, and PTSD; he attributed his conditions to his experiences as a POW. At the outset, the Board notes that while the appellant, as a lay person, is competent to report what comes to her through her sense, she is not competent to provide a complex medical opinion, such as what caused the Veteran's death. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the appellant's opinion alone is insufficient to establish that the Veteran's hypertension was a contributory cause of his death. In support of her claim, the appellant submitted several documents intended to show that the Veteran was a former POW. Such submissions include a Certificate of Graduation from Filipino War Prisoners Camp, dated September 29, 1943. However, the evidence of record also includes a finding from the U.S. Army Reserve Personnel Center indicating that the Veteran had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The Veteran's service was with the new Philippine Scouts from February 3, 1946 to January 17, 1949. Therefore, a memorandum issued by the VA in February 1995 found that the Veteran was not entitled to benefits as a former POW. The Board finds such evidence to be both probative and credible as to the Veteran's status as a POW. In light of such evidence, the Board similarly finds that the Veteran was not a POW; therefore, service connection for the cause of death based on the Veteran's experience as a POW cannot be awarded. Next, in a June 2009 statement, the Veteran also argued that the Veteran's hypertension should have been service-connected and that his hypertension caused his death. Although the Veteran's death certificate references hypertension, it does so by listing it as another significant condition (which is not in dispute, hypertension is a significant condition) rather than a contributing or immediate cause of death. Significantly, the death certificate does not explain how (or if) the Veteran's hypertension contributed to his death, nor is there any other medical evidence of record that explains any possible nexus or even suggests that it substantially or materially caused the Veteran's death. Instead, the death certificate explicitly identifies hypertension as a condition that did not result in the ischemic cardiomyopathy, coronary artery disease, and atherosclerosis, which were identified as underlying causes of death. Further, the evidence does not show that any of the Veteran's other conditions present at the time of his death are related to his time in service. Service treatment records contain no evidence of ventricular arrhythmias, ischemic cardiomyopathy, coronary artery disease, atherosclerosis, status post cerebrovascular accident, gout, hypertension, or chronic renal failure, all of which were identified on the Veteran's death certificate as having onset before his death. Instead, the Veteran was first diagnosed with ischemic cardiomyopathy, unstable angina pectoris and status post aortocoronary bypass following treatment for chest pain in February 1981. At that time, the Veteran indicated that he had been experiencing pain in his sternal area approximately six to seven months prior to admission, over thirty years since separation from service. Such evidence is against the claim for service connection for the cause of the Veteran's death. In sum, there is no evidence of record indicating the Veteran had any disability at the time of his death that was related to his active service. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (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 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. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Here, the appellant received a letter in February 2009, which informed the appellant of her and VA's respective duties for obtaining evidence. The letter also told the appellant that to substantiate the claim there must be medical evidence showing that a service-connected condition caused or contributed to the Veteran's death, that is, that the Veteran died from a service-connected injury or disease. In addition, the letter noted that the Veteran did not have any service-connected disabilities at the time of his death and provided an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition as well as an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The letter did not, however, inform the appellant how disability ratings and effective dates are established; but in light of the denial of her claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, VA's duty to notify has been satisfied. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4). In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion for a DIC claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. Subsequently, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit held that in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination (or, here, obtain an opinion since the Veteran is deceased) when no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, obtaining an opinion is not warranted under 38 U.S.C.A. § 5103A(d) because there is no competent evidence that the cause of the Veteran's death was related to service and there is other sufficient medical evidence of record to make a decision. Specifically, the evidence of record fails to show that a disability of origin, to include hypertension, contributed substantially or materially to the conditions that caused the Veteran's death; the Veteran was not diagnosed with heart disease until more than thirty years after service and there is no evidence to provide a link to service. Therefore, the Board concludes no reasonable possibility exists that obtaining a medical opinion would aid in substantiating the appellant's claim. The Board also finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the appellant and her representative, and private medical records. Although the records from The Board notes that the appellant identified private treatment received by the Veteran and such records have not been associated with the claims file. The appellant referenced these records in her NOD. Specifically, the appellant asserts that the Veteran was treated by Dr. Waisman, Dr. Perkins, and Dr. Bedoya. VA requested the records from Dr. Waisman in May 2009 and June 2009 and also sent a letter to the appellant in June 2009 notifying her that no response had been received. Similarly, VA requested records from Dr. Perkins and Dr. Bedoya in July 2009 and September 2009 and sent another letter to the appellant informing her that no response had been received from either provider. The letters to the appellant also requested that she contact the providers directly to obtain and submit the records or have the evidence sent directly to VA. In addition, the letters indicated that the claim would be decided based on the evidence of record but that submission of evidence at a later date would be allowed. Therefore, VA complied with 38 U.S.C.A. § 5103A in its attempt to obtain private records. Moreover, records from Sharp Chula Vista Hospital, the facility in which the Veteran died, have not been obtained. However, there is simply no indication that such records would provide a basis to grant this claim based on the appellant's contentions and/or there are any records from this facility regarding the Veteran (there is no such indication). Therefore, the appellant has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the appellant is required for fair adjudication of this claim. 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). ORDER Entitlement to 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