Citation Nr: 1420197 Decision Date: 05/06/14 Archive Date: 05/16/14 DOCKET NO. 11-14 664 ) 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. ATTORNEY FOR THE BOARD M. Marotta INTRODUCTION The Veteran has been certified as having had recognized guerilla service and regular Philippine Army service from January 1945 to March 1946. The Veteran died in October 2004. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the VA Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. Service department records show that the Veteran's service was from January 1945 to February 1946 with the Philippine Commonwealth Army, including recognized guerrilla service, in service of the United States Armed Forces in the Far East. 2. The Veteran died in October 2004; the death certificate lists the immediate cause of death as a cerebrovascular accident. 3. At the time of his death, the Veteran was service-connected for an injury to the intrinsic muscles, (Muscle Group X) of the foot. 4. The competent evidence does not establish that the Veteran's service-connected disability was either the principal or a contributory cause of the Veteran's death. 5. A cerebrovascular accident was not first manifested during service or within the first post-service year, and the preponderance of the evidence is against a finding that such is related to military service. 6. Service in the Philippine Commonwealth Army, including the recognized guerrillas, is not qualifying service for nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The Veteran's death was not caused, or substantially or materially contributed to, by a disability incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1310, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2013). 2. The criteria for entitlement to nonservice-connected death pension benefits are not met. 38 U.S.C.A. §§ 1541 , 1543 (West 2002); 38 C.F.R. §§ 3.23 , 3.158, 3.271, 3.272 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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). In the context of a claim for dependency and indemnity benefits, 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 dependency and indemnity claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a dependency and indemnity claim based on a condition not yet service connected. The duty to notify was satisfied via letters sent to the Veteran in April and October 2009. The duty to assist has also been satisfied. VA has of record evidence including the decedent's Philippine service records, death certificate, and various lay statements of the appellant. The Board notes that the appellant was advised in October 2009 that the Veteran's original claims folder could not be located. The appellant was asked to submit evidence of the Veteran's military service and any available previous VA correspondence. The appellant was also asked to submit evidence that shows that a disability was incurred or aggravated during service and was the primary or contributory cause of death. The appellant submitted some documents related to the Veteran's service, but she did not submit any treatment evidence that shows that a disability that was incurred or aggravated during service was the primary of contributory cause of the Veteran's death. The appellant has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on her claims at this time. II. Service Connection for Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities 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 was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be 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) . Service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The Veteran died in October 2004; the death certificate lists the immediate cause of death as a cerebrovascular accident. At the time of his death, the Veteran was service-connected for an injury to the intrinsic muscles, (Muscle Group X) of the foot. The appellant contends that the Veteran died due to his service as a recognized guerilla during World War II. In statements supporting her claim for service connection for the cause of the Veteran's death, the appellant asserts that the Veteran's service-connected foot disability contributed substantially or materially to the cause of the Veteran's death. The Board notes that the Veteran's original claims file is unavailable; however, the appellant was advised in October 2009 and she was asked to submit evidence indicating that a disability that was incurred or aggravated by the Veteran's service was the primary or contributory cause of his death. The appellant did not submit any evidence. The appellant indicated the following in her substantive appeal: "Cause of death of the Veteran was cerebrovascular accident considered as service-connected disability contributed substantially or materially to the death of the Veteran." However, there is no evidence of record that suggests that the Veteran's service-connected foot disability was the primary or a contributory cause of the Veteran's death. Further, there is no evidence in the record that suggests that the Veteran's cerebrovascular accident was incurred in, aggravated by, or related to his service. And there is no evidence of record that the Veteran had a disability that was incurred in or aggravated by his service either on a direct or presumptive basis, that was the primary or a contributory cause of the Veteran's death. In addition, the appellant did not submit any evidence showing that the Veteran's cause of death was in any way related to his service. Although the Board does not doubt the sincerity of the appellant's beliefs that the Veteran's death was somehow aggravated or caused by his service, there is no competent evidence of record to support her contentions. For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's cause of death is related to service; therefore, the claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. III. Death Pension The appellant seeks nonservice-connected death pension benefits based on the death of the Veteran. The Veteran had service with the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States from January 1945 to February 1946. Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces as organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except for specified benefits, which do not include death pension benefits authorized by chapter 15, title 38, U.S. Code. 38 U.S.C.A. § 107(a); 38 C.F.R. §§ 3.40, 3.41. In other words, the law provides that nonservice-connected death pension benefits are not available to the surviving spouse of one whom served in the recognized guerrilla forces, the New Philippine Scouts, or the Philippine Army. The Veteran's service does not satisfy the statutory or regulatory requirements which define "active military service" requirements necessary to establish basic eligibility for entitlement to nonservice-connected death pension. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(b). Service in the Philippine Commonwealth Army is included as service for compensation, dependency and indemnity compensation, and burial allowance; however, it does not include pension. 38 C.F.R. § 3.40(c)(1). In order to be entitled to pension benefits, the appellant's spouse must have had service in the United States Armed Forces. As the Veteran did not have service in the United States Armed Forces, the appellant is not eligible for pension benefits. The Veteran had documented service only in the Philippine Commonwealth Army under the United States Army Forces in the Far East. As a matter of law, documented Philippine service in the Philippine Commonwealth Army is excluded from the definition of "active military service," as defined for purposes of the statutory provisions governing pensions administered by VA. 38 U.S.C.A. § 107. Consequently, there is no legal basis on which the appellant's claim can be granted. 38 U.S.C.A. § 107(a); 38 C.F.R. §§ 3.40 , 3.41. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs