Citation Nr: 18156644 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-50 856 DATE: December 11, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died on December [redacted], 1992. 2. The appellant, Guadalupe Baquiran, was married to the Veteran at the time of his death. 3. During the decedent’s lifetime, service connection was not in effect for any disability. 4. The decedent’s death certificate indicates that the immediate cause of death was malaria. 5. There is no evidence of record that demonstrates that the decedent developed malaria during service, or that malaria manifested within one year after discharge. 6. The Veteran did not die due to a service connected disability, and a service connected disability is not shown to have contributed to cause of death. CONCLUSION OF LAW 1. The Veteran’s death was not from a disability due to active duty service or due to a disease or injury incurred or aggravated by service. 38 U.S.C. §§ 1110, 1131, 1310, 1318, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.308, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army as a part of the New Philippine Scouts from April 1946 to February 1949. This appeal is before the Board of Veterans Appeals (Board) from a March 2015 decision issued by the Department of Veterans Affairs (VA) Regional Office. 1. Entitlement to service connection for the cause of the Veteran's death Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection can also be established on a presumptive basis if provisions related to tropical diseases, which include malaria, are applied and the facts show that the tropical disease became manifest to a compensable degree within one year of separation from active duty. See 38 U.S.C. §§ 1112, 1113; see also 38 C.F.R. §§ 3.307, 3.308, 3.309(b) (2017). A principal cause of death is one which, singly or jointly with some other condition, was immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b) (2017). A contributory cause of death is one which contributed substantially or materially to cause of death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c). 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 of death, 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 (c)(1) (2017). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service connected disability apply. 38 U.S.C. § 1310 (West 2014). Here, “the DIC claimant must establish service connection for the cause of the veteran’s death.” Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Thus, the same standards, theories, and criteria for service connection apply. The appellant contends that the Veteran contracted malaria during service and that malaria was the cause of the Veteran’s death. During the February 2016 R.O. hearing, the appellant testified that the Veteran rode on boats with American forces to Okinawa, Japan during his service in the late 1940’s. The appellant further noted that the Veteran worked on cannons during his military service. The appellant and the Veteran married February [redacted], 1950. The appellant also testified that the Veteran worked as a farmer in the Philippines for approximately twenty-five years after discharge. The appellant recalls that the Veteran begin to have problems with his health, specifically malaria and peptic ulcer disease, in or about 1985. The Veteran’s claims record establishes that at no point during his lifetime was he service connected for any disease or disability. Unfortunately, the Veteran’s service treatment records (STR’s) are unavailable for review. Efforts to obtain any such records by the VA Regional Office that previously adjudicated this claim, were unsuccessful as the National Personnel Records Center in St. Louis, Missouri reported that these records are fire-related. Regarding his fire related records, the Board observes that his medical records were not recovered from the fire. VA has a heightened duty to assist in these cases. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board finds no indication that other available outstanding military records exist, that additional efforts to obtain the missing records would be futile, and that all records identified by the Veteran as relating to this claim have been obtained to the extent possible. The Board has considered all of the evidence of record but finds that there is no nexus between the Veteran’s malaria at death and his service. In accordance with O’Hare, the Board must give careful consideration to the benefit-of-the-doubt-rule where applicable. Therefore, the Board places significant probative weight on the appellant’s testimony. In February 2016, the appellant testified that the Veteran began to experience complications related to malaria and stomach ulcers in 1985, approximately thirty-six years after separation. The appellant married the Veteran in 1950 after he was separated from service. The appellant did not provide any testimony to demonstrate that, at any period prior to 1985, the Veteran experienced symptoms that would constitute malaria. Likewise, the appellant has failed to provide any competent medical evidence, i.e. medical opinions or treatises that would support a theory of malaria lying dormant in a body for nearly forty years and resulting in a corresponding death. See 38 C.F.R. § 3.159 (a)(1). Further the Board is unable to grant service connection for malaria on a presumptive basis as the manifestation of the disease, according to the appellants testimony was in 1985, not within one year of the Veteran’s discharge from service. Certain chronic diseases (including malaria), may be presumed to be service connected if manifested to a compensable degree within a specified period of time post service (one year for malaria). 38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307, 3.309. There is no competent evidence of record documenting the presence of malaria to a compensable degree within one year of the Veteran's discharge. In light of the above, the Board finds that there is no competent evidence to show that the Veteran developed malaria while in-service, or that it developed to compensable degree within one-year post service. The appellant’s claim fails to demonstrate any nexus between the Veteran’s service and the malaria that caused his death forty-three years later. Unfortunately, there is no probative evidence to support a finding that malaria was incurred in-service. Accordingly, the claim must be denied. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Smith, Associate Counsel