Citation Nr: 18148324 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-21 011 DATE: November 7, 2018 ORDER Service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in October 1981. The cause of death listed on his death certificate was cardiopulmonary failure secondary to status asthmaticus. 2. During the Veteran’s lifetime, service connection was established for a left leg gunshot wound. 3. During the Veteran’s lifetime, he was diagnosed with pulmonary tuberculosis (PTB) which was first manifested during his service in the Philippine Army, and no earlier than 1971 and has not been shown to be related to service in the Armed Forces of the United States during World War II. 4. Neither the Veteran’s death-causing cardiopulmonary failure nor his status asthmaticus have been shown to have been etiologically related to the Veteran’s active service in the Armed Forces of the United States during World War II. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 101(3), 107, 1312; 38 C.F.R. §§ 3.1(j), 3.40, 3.41, 3.50, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Other Philippine Guerilla and Combination Service from July 1945 to November 1945 and the Other Special Philippine Scouts from May 1946 to March 1949. The Veteran died in October 1981 and the appellant is the surviving spouse. The appellant filed a claim for service connection for cause of death in November 2014. The Agency of Original Jurisdiction (AOJ) issued a rating decision in January 2015. The appellant filed a notice of disagreement in December 2015. The AOJ issued a statement of the case in April 2016. The appellant filed an appeal in May 2016. The appeal was certified to the Board of Veterans’ Appeals in November 2016. Service connection for cause of death To receive dependency and indemnity compensation under § 1312, a surviving spouse must show that: (1) a service connected disability was the immediate or underlying cause of death, or (2) a service connected disability contributed substantially or materially to, combined to cause, or aided/assisted in the Veteran’s death. 38 U.S.C. § 1312. Establishing service connection requires: (1) medical evidence of a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. 3.303. The Board recognizes that the Veteran submitted documentation verifying his service in the Philippine Scouts to the VA. Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, including dependency and indemnity compensation. 38 U.S.C. § 107; 38 C.F.R. §§ 3.40, 3.41. During the Veteran’s lifetime, service connection was established for one disability incurred in United States military service: a gunshot wound to the left leg. The appellant has not contended, nor does the evidence suggest, that the Veteran’s gunshot wound is etiologically related to his cause of death. Thus, this service connected disability is not sufficient to support service connection for cause of death. Likewise, the Veteran’s death-causing disabilities have not been shown to be related to his creditable U.S. service. The Veteran’s death certificate lists the cause of death as cardiopulmonary failure secondary to status asthmaticus. The appellant contends that the Veteran’s asthma contributed to his cause of death and should be service connected. In a service connection case for cause of death, the requirement of evidence of a current disability will always have been met (i.e. if a condition caused the Veteran to die, current disability must be found for that condition). Carbino v. Gober, 10 Vet. App. 507 (1997). However, the evidence of record does not establish that the Veteran’s asthma was incurred in service, nor does it indicate his asthma was causally related to his service. The Veteran’s entrance examination from May 1946 indicated that there were no abnormalities in his lungs. The Veteran’s exit examination from March 1949 also indicated a finding of no lung abnormalities. The Veteran also underwent a VA examination in January 1973 which did not reflect a complaint or diagnosis of asthma. The only evidence that supports an in-service incurrence of asthma comes in the form of an affidavit from the appellant and a buddy letter from P.S. and R.G. The affidavit and buddy letter contain the same contention(s): the Veteran was diagnosed with asthma in October 1945 by Dr. T.R. However, this evidence lacks competency and credibility and thus has very little probative value. Lay evidence is only competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. The appellant is not competent to testify as to what medical diagnoses may or may not have been made because she was not present at the time the diagnoses were allegedly made; while she would be competent to report the presence of observable symptomatology, she could not have observed symptoms that manifested when she was not present. The appellant has not contended that he suffered from these symptoms at any other time. Furthermore, she does not have the specialized education, training, or experience necessary to make medical diagnoses. Because this evidence is not competent, it is not probative of any fact and should not be assigned any weight. Layno v. Brown, 6 Vet. App. 465, 460 (1994). P.S. and R.G. are competent to testify as to witnessing contemporaneous medical diagnoses that were made. Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). However, their buddy statement is not credible. Their statement is not consistent with the medical evidence of record. If a diagnosis of asthma had been made in October 1945, it is reasonable to infer that such diagnosis would have been noted during the May 1946 and/or March 1949 medical examinations. This is especially true of the March 1949 examination, where a chest x-ray was performed. This is also true of the January 1973 VA examination where the Veteran presented complaining of coughing and chest pains that had existed since 1971; the examining physician completed a chest x-ray and diagnosed PTB while also stating that the rest of the lung examination was unremarkable. The Veteran’s statement that he had been experiencing coughing since 1971 also bears on the credibility of the buddy letter because it directly contradicts the claims made by P.S. and R.G. Because the claims made in the buddy letter are inconsistent with all of the available medical evidence, the buddy letter is assigned very little probative value. Thus, while the Veteran did have an asthma diagnosis, there is no probative evidence to establish that his asthma was incurred or aggravated in-service. Because the appellant has not demonstrated that there was an in-service incurrence or aggravation, a causal connection between the Veteran’s asthma and his military service cannot be found. Therefore, since the Veteran’s asthma cannot be service connected, asthma is not a sufficient basis for service connecting his cause of death. The medical records from the Veteran’s January 1973 VA examination reflect that he had a diagnosis of PTB. This diagnosis was made in conjunction with chest x-rays that were performed. Significantly, the Veteran reported the onset of PTB symptoms no earlier than 1971. There are no medical records in the claims file indicating that the Veteran was diagnosed with PTB prior to this examination. The 1973 examination is sufficient to conclude that the Veteran did have a current disability of PTB at that time. While the Veteran did have a diagnosis of PTB, there is no evidence establishing that there was an in-service incurrence or aggravation. The only evidence that the Veteran incurred PTB while in service was the lay statement made by the appellant and the lay statement made by P.S. and R.G. However, as noted above, the appellant is not competent to report a diagnosis, nor symptomology that the Veteran exhibited while not in her presence. Further, the statement submitted by P.S. and R.G. is not credible because it contradicts the available medical evidence and is inconsistent with the Veteran’s own statement that indicated onset in 1971. The Board notes that the Philippine Veterans Affairs Office service-connected the Veteran’s PTB, however this has no bearing on the Veteran’s entitlement to VA benefits in the United States. Only diseases with a causal relationship to service in the U.S. military will be qualifying service. Here, the Veteran contracted PTB long after his U.S. service was completed, and there is no indication in the record that the Veteran’s 1972 diagnosis of PTB was in any way related to his creditable U.S. service which ended in 1949. As such, there is insufficient evidence of in-service incurrence or aggravation of PTB. Because the appellant has not demonstrated that there was an in-service incurrence or aggravation, a causal connection between the Veteran’s PTB and his military service cannot be found. Since the in-service incurrence or aggravation element and the nexus element of service connection are not met, service connection for the cause of the Veteran’s death due to PTB cannot be granted. In sum, the Veteran’s cause of death is unrelated to his period of creditable active U.S. service. Accordingly, the claim must be denied. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Law Clerk