Citation Nr: 18157881 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 13-35 431 DATE: December 13, 2018 ORDER 1. New and material evidence has been submitted to reopen the claim for service connection for the cause of death of the Veteran, and to that extent the claim is granted. 2. Service connection for cause of death is denied. FINDINGS OF FACT 1. The claim for service connection for the cause of the Veteran’s death was previously denied by rating decisions of October 2008 and October 2009. The appellant did not appeal either decision. 2. New and material evidence has been submitted to reopen the claim for service connection for the cause of death. 3. The most probative evidence of record demonstrates that the Veteran was not a POW during his dates of verified service. 4. The most probative evidence of record demonstrates that the Veteran’s atherosclerotic cardiovascular disease, which was a cause of death, was unrelated to his service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for cause of death of the Veteran have been met. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. 2. The criteria to establish service connection for cause of death of the Veteran have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service with the Recognized Guerrillas from February 10, 1943 to September 30, 1943, from January 1, 1944 to February 3, 1944 and from April 9, 1944 to January 11, 1946. The Veteran was a Veteran of the World War II Era and died on June [redacted], 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The appellant requested a Board hearing before a Veterans Law Judge at the local RO on her December 2013 VA Form 9. A hearing was scheduled, but the appellant did not appear. See November 2018 VA Form 8. The Board concludes that the appellant has withdrawn her request for a Board hearing. 1. New and material evidence has been submitted to reopen the claim for service connection for the cause of death of the Veteran, and to that extent the claim is granted. The claim for service connection for the cause of the Veteran’s death was previously denied by rating decisions of October 2008 and October 2009. The appellant did not appeal either decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). When “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold for finding new and material evidence, and view the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The relevant evidence of record at the time of the October 2009 decision included an Administrative Decision issued in September 2009 as well as the Veteran’s personnel records, private hospital records, and his certificate of death, which shows that the Veteran died in June 2008 from cardiopulmonary arrest and atherosclerotic cardiovascular disease. Since the October 2009 rating decision, additional evidence has been associated with the claims file, including affidavits from M.L. and S.M., an August 2016 VA Memorandum; a September 2018 VA Memorandum; and the appellant’s own lay statements. Presuming the credibility of this evidence, it is new and material because, when considered with the evidence previously of record, it raises the possibility that the Veteran could have been a POW, meaning that his death-causing cardiopulmonary arrest due to arteriosclerotic cardiovascular disease could be presumed to be service connected. See M.L. and S.M. Affidavits. The evidence was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran’s death. As the new evidence addresses the reason for the prior denial, it is material and the claim may be reopened. 2. Entitlement to service connection for cause of death is denied. The appellant contends that the Veteran died of a disability that was causally related to his service. She also alleges that the Veteran was a prisoner of war (POW) and that she should be entitled to benefits on that basis. VA service-connected death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To constitute the principal cause of death, a service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. To be a contributory cause of death requires a showing that the service-connected disability contributed substantially or materially to cause death; 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 the service-connected disorder casually shared in producing death. Rather, it must be shown that there was a causal connection between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312 (b), (c). If the evidence shows that the Veteran died of a disorder that was ultimately related to service, the regulations do not require a service-connected disability to be the primary cause of death, only to be etiologically related or causally connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. As an initial matter, at the time of the Veteran’s death, service connection was not established for any disorders. Regardless, the Board has considered the competent, probative evidence of record which indicates that service connection for the cause of death of the Veteran is not warranted in this case. Turning to the relevant evidence, in August 2008, the office of the Adjutant General of the Army (Adjutant General) provided a certification of service determination. Based upon the review of the information provided and official information contained in Army records, the Adjutant General determined that there was no record of the Veteran having been a POW. In February 2009, the National Personnel Records Center (NPRC) also indicated that the Veteran did not acquire POW status. See February 2009 Third Party Correspondence. After reviewing all the information provided, which included a negative response from the War Claims Commission, the NPRC concluded that it could not confer a POW status without a positive determination made by the War Claims Commission. Similarly, the Veteran’s name is not listed in the POW microfiche. See September 2009 Administrative Decision. The Board acknowledges that its review of the records shows a completed POW Questionnaire, sworn statements and affidavits, and a letter from the Veteran dated April 18, 2005 where he stated being captured by Imperial Forces and held under captivity for approximately three months. However, based on the accumulated records on file, there is insufficient evidence of his alleged POW status, and thus no basis for linking the Veteran’s death-causing conditions to his military service. While the Board acknowledges the affidavits from M.L. and S.M., individuals who were allegedly incarcerated with the Veteran, there is no conclusive evidence of any POW status for these affiants. See August 2016 VA Memo. Further, the record does not contain official records that would bolster the appellant’s claim such as Philippine Red Cross, War Claims Commission records, a guarantor’s receipt, or a Japanese Parole Certificate. In addition, the service department has certified that the Veteran was in a “no casualty status” for the period from February 4 to April 8, 1944. See August 1973 Military Personnel Record. The service department has certified that the Veteran’s only recognized guerilla service was for the period from February 10, 1943 to September 30, 1943, from January 1, 1944 to February 3, 1944 and from April 9, 1944 to January 11, 1946. See September 2018 VA Memo. The service department has not recognized any service between February 1944 and April 1944 when it is alleged he was a prisoner of war. The contentions made regarding the Veteran’s POW status are, unfortunately, not supported by the evidence of record nor do they constitute a link to the death-causing conditions the appellant alleges are related to the Veteran’s military service. Service connection for the cause of his death is not established. Based on the findings of the Adjutant General, the NPRC, and the Board’s review of the record, the Board finds that the Veteran may not be recognized as a former POW. Accordingly, the Board will proceed with an analysis as to whether the appellant’s claim may be awarded on other grounds. The question for the Board is whether the Veteran’s cause of death is causally related to his active service. The available evidence on record does not indicate that the Veteran’s arteriosclerotic cardiovascular disease was causally related to his service. Records from the Veteran’s separation exam in January 1946 reflects that his cardiovascular system was “normal” and his chest x-ray was “negative”. Private treatment records from an August 1973 exam indicate that the Veteran’s heart was “unremarkable”. Had the Veteran had a diagnosis of arteriosclerotic cardiovascular disease at this exam almost thirty years post-service, it likely would have been noted instead of his heart being deemed in “unremarkable” condition. In contrast, the claimed arteriosclerotic cardiovascular disease is not listed under the section for “major diagnoses noted but not treated” and his “chest X-ray [was] normal”. At a later private exam that took place in March of 2003, the Veteran was identified as having arteriosclerotic cardiovascular disease on admission to the medical center. See November 2005 Private Treatment Records. However, this exam took place almost sixty years after the Veteran’s release from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). While the Board fully acknowledges the Veteran’s cardiovascular problems which subsequently caused his death, the evidence indicates that his arteriosclerotic cardiovascular disease did not have its onset until many years after his separation from service. The appellant has not asserted, and the record does not otherwise demonstrate that the Veteran experienced cardiovascular problems during his active military service, or for many years thereafter. Absent any competent or credible evidence of an in-service event, injury or disease, or relevant exposure, service-connection cannot be awarded on either a direct or presumptive basis. In view of the foregoing, the Board finds that the record reflects that the appellant’s spouse had no service as a POW. See September 2018 VA Memo. The Board also finds that the competent, credible, and probative evidence establishes that the Veteran’s cause of death, as due to his arteriosclerotic cardiovascular disease, was not etiologically related to the Veteran’s active service. In so finding, the Board acknowledges the appellant’s belief that the Veteran’s death-causing arteriosclerotic cardiovascular disease was connected to his military service. However, while the appellant believes that the Veteran’s cause of death is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of arteriosclerotic cardiovascular disease is not a matter capable of lay observation, and requires medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran’s cause of death is not competent medical evidence. In view of the above, there is no evidence that supports a finding that the Veteran’s death-causing cardiopulmonary arrest and atherosclerotic cardiovascular disease were incurred or aggravated by service. Neither is there evidence to show that the Veteran had atherosclerotic cardiovascular disease at a compensable degree within one year after discharge from service. Moreover, as the Veteran’s POW status is not confirmed for any period during his confirmed dates of service, the POW presumptive provision is not for application. Accordingly, the appellant’s claim for service connection for the Veteran’s cause of death has been successfully reopened, but may not be granted. The Board has also considered the fact that no VA examiner has opined regarding the etiology of the Veteran’s cause of death, to include his diagnosed atherosclerotic cardiovascular disease. Similarly, the Board has contemplated the fact that a private treatment provider stipulated that some medical records were destroyed by termites. See November 2005 Private Treatment Records. However, a remand on this basis would be of no benefit to the appellant. As noted above, the Board affords great probative weight to the credible evidence on record which indicates that the Veteran’s atherosclerotic cardiovascular disease was not related to service. Thus, in the absence of medical evidence linking the claimed disability to service, there is no basis to establish service connection and further analysis is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the Veteran.”). The weight of the credible evidence demonstrates that the conditions involved in the Veteran’s death occurred many years after service and were not caused by any incident of service. The fatal conditions were not incurred in or aggravated by service, and they were not service-connected. A disability incurred in or aggravated by service did not cause or contribute to the Veteran’s death, and thus there is no basis to award service connection for the cause of the Veteran’s death. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for cause of death. As the preponderance of the evidence is against the claim of service connection for cause of death, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board does not wish to convey any lack of sympathy for the appellant in this matter, nor for the unfortunate circumstances which resulted in the Veteran’s death. Moreover, the Board does not doubt the sincerity of the appellant’s contentions. That being said, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. Based on the evidence, the appellant’s claim for service connection for cause of the Veteran’s death must be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk