Citation Nr: 1754889 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-49 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151. ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran had recognized guerrilla service from April 7, 1945, to March 12, 1946. The Veteran died in July 1980. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manilla, the Republic of the Philippines. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died on July [REDACTED], 1980. His sole cause of death was given as pulmonary tuberculosis, far advanced, cavitary. No contributory causes of death were given. 2. The Veteran's pulmonary tuberculosis did not have onset during active guerrilla service; it did not manifest to a compensable degree within three years of his separation from verified guerrilla service. 3. There is no evidence of record that the Veteran ever sought treatment from a VA facility, nor that he death was caused by negligent medical treatment. 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. §§ 1101, 1110, 1112, 1113, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). 2. The criteria for entitlement to dependency and indemnity compensation under 38 U.S.C. § 1151, have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in February 2016. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's private treatment records to the extent that they are available, military personnel records, death certificate, formal finding of unavailability of in-service treatment records, and statements from the appellant. The Board notes that a medical opinion regarding the cause of the Veteran's death has not been obtained in this matter. VA's duty to assist requires it to obtain a medical opinion if the evidence of record is insufficient to decide the claim, but (A) contains evidence of a current diagnosed disability (or in this case, cause of death); (B) evidence of an in-service injury, illness, or incident; and (C) evidence that the claimed disability may be associated with the established incident, injury or illness. 38 C.F.R. § 3.159(c)(4)(i) (2017). The duty to provide a medical opinion is limited to situations that meet this criteria. Robinson v. Peake, 21 Vet. App. 545, 553 (2008). As is discussed in more detail below, there is no evidence of record that the Veteran ever suffered an in-service incident, illness or injury, to which his cause of death may be linked. As such, the duty to assist does not require VA to obtain a medical opinion in this matter. The appellant has not notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Service Connection - Cause of Death The appellant seeks service connection for the cause of the Veteran's death, for purposes of entitlement to Death and Indemnity Compensation (DIC) benefits. Pursuant to 38 U.S.C § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C § 1310 (2012); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). In addition, certain chronic diseases, including tuberculosis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within three years of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board finds that service connection for the Veteran's cause of death should be denied. The Veteran died on July [REDACTED], 1980. His principle cause of death was given as pulmonary tuberculosis, far advanced, cavitary. No contributory causes of death were listed on his death certificate. At the time of his death, the Veteran was not service connected for any disability. VA has attempted to obtain the Veteran's service treatment records, but a formal finding has been issued that no records are available. The appellant was notified of this fact in a letter sent March 30, 2016, and was requested to submit any treatment records in her possession, which might show an in-service illness or incurrence of tuberculosis. The appellant responded in her notice of disagreement with a medical record documenting treatment between February and April 1979 at the Veterans Memorial Medical Center, a Philippine Government facility, over 30 years after his recognized guerrilla service ended. The Veteran's affidavit of guerrilla service does not indicate that he suffered from or was diagnosed with tuberculosis during his period of service. Essentially, the Board has searched the evidence of record, but found no evidence that the Veteran sustained an illness during service to which his pulmonary tuberculosis could be etiologically linked. Neither is there any evidence that he was treated for tuberculosis during his guerrilla service. As such, service connection must be denied because the claim fails the second criteria for service connection, namely, an in-service incident, injury or illness. The Board has also considered whether presumptive service connection may be granted. While tuberculosis is a disease for which presumptive service may be granted, presuming the disease manifested to a compensable degree within three years of separation from service, the evidence in this case does not support such service connection. The earliest recorded medical evidence that the Veteran had been diagnosed with tuberculosis is the April 1979 discharge summary from the Veterans Memorial Medical Center, just over 33 years after his verified guerilla service ended. To the extent that the appellant asserts that the Veteran suffered from tuberculosis prior to his hospital admission, while a lay person is competent to report observable symptomatology, there is no evidence that the appellant has the appropriate medical training and expertise to render an etiological conclusion regarding the onset and cause of his tuberculosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010). As such, the Board must also deny the claim on a presumptive basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). 38 U.S.C. § 1151 The appellant also seeks entitlement to DIC benefits under the criteria set forth in 38 U.S.C. § 1151. DIC benefits shall be awarded for a qualifying death of a Veteran in the same manner as if such death were service-connected, if the Veteran's death was the result of negligent care provided by VA. 38 U.S.C. § 1151 (2012). In order for a death to qualify for compensation under 38 U.S.C.A. § 1151, the death must not have been the result of the Veteran's willful misconduct and was caused by VA hospital care, medical or surgical treatment, or examination and the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151(a) (2012); see also Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013) ("Section 1151 thus contains two causation elements; a Veteran's disability must not only be 'caused by' the hospital care or medical treatment he received from the VA, but also must be 'proximately caused' by the VA's 'fault' or an unforeseen 'event'"). To establish causation of a death, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the Veteran's death. Merely showing that a Veteran received VA care, treatment or examination and that the Veteran died does not establish causation. 38 C.F.R. § 3.361(c)(1) (2017). In this case, the Board finds that the criteria for entitlement to DIC benefits have not been met, and the claim must be denied. After careful review of the evidence of record, there is simply no proof that the Veteran ever received care from a VA facility. The appellant has submitted a discharge report dated April 2, 1979, from the Veterans Memorial Medical Center (VMMC) in Diliman, Quezon City, the Republic of the Philippines. Although the VMMC was established with full U.S. Government assistance, that facility is a unit of the Philippine Veterans Affairs Office, and not a VA facility. See, Veterans Memorial Medical Center, History, http://www.vmmc.gov.ph/home/ vmmc-history. The only VA medical facility in the Philippines is the VA Manila Outpatient Clinic, but there is no evidence that the Veteran ever sought treatment from that facility. Further, even presuming that VMMC treatment was accepted as VA treatment for purposes of 1151 compensation, there is no evidence of record that the Veteran's death was caused by his treatment at that facility. The records merely document that he was treated for far advanced pulmonary tuberculosis between February and April 1979, over a year prior to his death from the same disease. Merely showing that the Veteran was provided with care, does not establish causation. As such, the Board must deny this claim as well. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits under 38 U.S.C. § 1151 is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs