Citation Nr: 18159774 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-19 704A DATE: December 20, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. Entitlement to VA death pension benefits is denied. FINDINGS OF FACT 1. The appellant’s deceased spouse (hereafter the “Veteran”) had verified service with the Philippine Commonwealth Army/USAFFE from December 1941 to May 1942 and April 1945 to May 1946 and recognized guerrilla service from February 1943 to April 1945. 2. The Veteran died in September 2011. The primary cause of death listed on his death certificate was chronic obstructive pulmonary disease (COPD). Diabetes mellitus, type II (diabetes), was listed under “Other Significant Conditions.” 3. During his lifetime, the Veteran was not service-connected for any disability. 4. Although the evidence indicates the Veteran had malaria which led to his separation from service in May 1942 and that he may have had a relapse of malaria after his discharge in September 1946, by his own report, he denied having any permanent disability from that illness and there is no evidence to suggest that he had malaria or residuals therefrom from November 1996 until his death in September 2011. 5. The preponderance of the evidence is against finding that the Veteran’s COPD and diabetes listed on his death certificate were related to the malaria that the Veteran reported having in service or was otherwise related to his military service. 6. The appellant’s claim for accrued benefits submitted in July 2014 was untimely as it was received more than one year after the Veteran’s death. 7. The Veteran’s service does not qualify the appellant to receive VA pension benefits. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.312. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. 3.57, § 3.1000. 3. The criteria for entitlement to VA death pension have not been met. 38 U.S.C. § 101; 38 C.F.R. § 3.3, 3.6, 3.40. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had recognized active U.S. military service from December 1941 to May 1942 and February 1943 to May 1946. He died in September 2011. The appellant is his surviving spouse and is seeking entitlement to VA death benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from decisions issued in September and November of 2014 by a Department of Veterans Affairs (VA) Regional Office (RO) denying the appellant’s claims for VA death benefits. Initially the Board must address the issue of the status of the appellant’s deceased spouse upon who’s service the appellant is seeking benefits. During his lifetime, the Veteran had filed for service connection for various disabilities. In support of his claim, he contended he had been a member of the Philippine Commonwealth Army/United States Armed Forces Far East (USAFFE) and with the recognized guerrillas from December 1941 to September 1945. He submitted various documents to support his claim. The RO sought verification of his military service with the National Personnel Records Center (NPRC) who was able to verify his service with the Philippine Commonwealth Army/USAFFE from December 1941 to May 1942 and April 1945 to May 1946 and recognized guerrilla service from February 1943 to April 1945. Therefore, the Board considers the appellant’s spouse a veteran for VA benefit purposes. However, his service only permits the appellant access to certain benefits, not all, as discussed below. 1. Entitlement to service connection for the cause of the Veteran's death The appellant is seeking service connection for the cause of the Veteran’s death. In her Notice of Disagreement, the appellant contended that the Veteran had been suffering from chronic pulmonary tuberculosis (PTB), diabetes, urinary disease (hard to leak), hearing loss and still felt the effects of malaria according to a private physician who examined him on September 1946, or just five months after his honorable discharge from service, which illness she contended was incurred while in active military service as witnessed by two buddies. In support of her claim she submitted a statement from these two buddies in which they attest that, in or about in September 1946, they attended with the Veteran a veterans conference to learn about what benefits were due to them at the time because they were newly discharged and, while there, the Veteran felt dizziness and weak and was seen by a private physician who found him suffering from chronic PTB, diabetes, urinary disease (hard to leak), and hearing loss and that he said the Veteran was still suffering the effect of malaria. Initially, the Board notes that dependency and indemnity compensation (DIC) (in other words, service connection for the cause of the Veteran’s death, which is the DIC benefit the appellant is seeking) is a benefit for which the Veteran’s service does qualify the appellant to receive as such benefit is in Chapter 13 of Title 38 of the United States Code. See 38 U.S.C. § 107; 38 C.F.R. § 3.40. Therefore, the Board must consider her claim on the merits. DIC is payable to a surviving spouse, child, or parent either because of a service-connected death occurring after December 31, 1956, or pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. 38 C.F.R. § 3.5. Service connection may be established for the cause of a Veteran’s death when a service-connected disability “was either the principal or a contributory cause of death.” 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, “singly 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 must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, 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. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Subsection (a) also refers to “each disabling condition…for which [a veteran] seeks a service connection” and states that “[d]eterminations as to service connection will be based on review of the entire evidence of record.” Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is 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. 38 C.F.R. § 3.159(a)(2). VA’s duty to assist an appellant in fully developing a claim for service connection for cause of death claim may include obtaining potentially relevant records and a medical opinion when necessary to make a decision on the claim. This additional obligation does not apply if there is no reasonable possibility the assistance would aid in substantiating the claim, however. In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit indicated that, although 38 U.S.C. § 5103A does not always require VA to assist a claimant in obtaining a medical nexus opinion for a Dependency and Indemnity Compensation (DIC) claim, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim. See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). In the present case, the appellant has identified private physicians who treated the Veteran and provided release forms for the RO to seek their records. The RO attempted to obtain their records by sending these private physicians written requests twice. To date, no records were obtained directly from these private physicians. However, the Board notes that some records from two of these physicians are already associated with the claims file as they were either provided by the appellant herself or by the Veteran in connection with the claim for service connection he had filed when he was alive back in 2002. Consequently, the Board finds that all appropriate action was taken to assist the appellant in developing documentary evidence related to her claim. The appellant does not contend there has been a failure in the duty to assist her in this matter. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“Although interest may affect the credibility of testimony, it does not affect competency to testify.”). After considering all the evidence of record, the Board concludes that the evidence shows that, while the Veteran may have had malaria that started in-service (reportedly in May 1942, which is why he was separated at that time, through March 1943), the preponderance of the evidence weighs against finding that the cause of the Veteran’s death was either related to the malaria he had in service or was otherwise related to any injury, event or disease incurred during active military service. The Veteran’s death certificate shows that he died in September 2011 and states that the primary cause of death was COPD. It also lists diabetes under “Other Significant Conditions,” and, therefore, diabetes can be taken as a contributory cause of death. Thus, the evidence must show that the Veteran’s COPD or diabetes were related to his active military service in order to establish service connection for the cause of the Veteran’s death. In October 2002, the Veteran filed a claim for service connection for the following: chills/fever, kidney problems, a lung condition, arthritis and hearing impairment. In an April 2003 rating decision, the RO denied service connection for malaria, arthritis, a kidney condition, hearing impairment and chronic bronchitis with emphysema. The Veteran initiated an appeal by filing a Notice of Disagreement, but did not perfect an appeal by filing a timely substantive appeal after a Statement of the Case was issued. Consequently, the Veteran was not service-connected for any disabilities during his lifetime. Private medical records do not show the Veteran was diagnosed to have COPD per se, but a January 2003 medical statement from his private physician shows the Veteran was treated for chronic bronchitis/emphysema from 1996 to 2002. However, none of the treatment records provided demonstrate a diagnosis of diabetes, only the death certificate. As to the contention the Veteran still had malaria and that somehow caused or contributed to his death, the Board does not find any competent evidence in the record to support this theory of entitlement. The appellant submitted lay evidence that indicates the Veteran still had malaria approximately five months after his discharge from service in 1946, or in September 1946. Even if that were so, such evidence is not sufficient to establish that he continued to have malaria or residuals thereof until the time of his death. Rather, the medical evidence of record fails to demonstrate that the Veteran had a diagnosis of malaria or residuals thereof as of November 1996 until his death in September 2011. Significantly, the Veteran’s primary physician stated in December 2002 that he had not treated the Veteran for malaria from November 1996 until the date of his statement. See VA Form 21-4142 received January 21, 2003; see also Medical Treatment Records - Nongovernmental Facility received September 4, 2003. Although the Veteran was seeking service connection for malaria in his 2002 application, he failed to identify current treatment for this disease but instead only identified his treatment from 1942 to 1943 on all of the medical release forms he provided to VA to obtain his treatment records. Furthermore, the Veteran himself denied having incurred permanent disability as a result of the malaria he claimed to have had in 1942 on his Affidavit for Philippine Army Personnel signed in March 1946. Significantly, in conjunction with his claim for service connection, the Veteran never reported he had continued problems with malaria or residuals resulting from it during his second period of service or a relapse approximately in September 1946 with treatment by Dr. Altrecha. He only reported having malaria from May 1942 to March 1943 with treatment by his friend. Thus, even if the Board were to accept that the Veteran had a relapse of his malaria in September 1946 after his discharge from service, the preponderance of the evidence of record is against a finding that the Veteran’s malaria is related to his death as the available evidence does not show any complaints of, treatment for or diagnosis of malaria or residual thereof from at least November 1996 forward. As such, the Board finds there was no current disability diagnosed as malaria or residuals resulting therefrom at the time of the Veteran’s death upon which the appellant could base a claim for service connection for the cause of the Veteran’s death. Therefore, her claim must fail on that theory of entitlement. As for the Veteran’s COPD and diabetes that were listed on his death certificate, the Board does not find evidence to establish that these disorders were related to his military service. The Veteran himself admitted that his chronic bronchitis began in November 1996, see VA Form 21-4142 received January 21, 2003, which was over 50 years after he was discharged from active military service. His report is consistent with the earliest evidence of record showing treatment for this condition, which was in November 1996. As for his diabetes, as previously mentioned, the evidence submitted by the Veteran in connection with his service connection claims does not demonstrate he had a diagnosis of diabetes at that time. The first diagnosis of diabetes seen in the record is on the death certificate. Consequently, the Board believes is it reasonable to conclude that the diagnosis of diabetes was rendered sometime between last medical evidence received in 2002 and the Veteran’s death in September 2011. Therefore, it appears that the diagnosis of diabetes was rendered more than 55 years after the Veteran’s discharge from active military service. The available service records do not indicate the Veteran had any complaint or diagnosis of a lung condition or diabetes which either led or contributed to death while he was in service and the available post-service records do not show treatment for many decades after service. Consequently, the Board finds that the absence of a lung condition in the service records or of persistent symptoms of such disorders at separation, along with the first evidence being many years later, tends to disprove the assertion that the Veteran’s COPD and diabetes were incurred during his active military service. The absence of medical treatment for the claimed condition for many years after service is a factor for consideration. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed.Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board notes that the appellant also contended that the Veteran had chronic PTB, urinary disease and hearing loss. However, there is no evidence to indicate that these conditions caused or contributed to the Veteran’s death. They were not listed on the death certificate. There is a medical certificate indicating that the Veteran was discharged from the hospital one week before he died for community-acquired pneumonia and PTB. It was noted that he was improved on discharge. However, the Veteran had sought service connection for these conditions in 2002, which the RO had denied. The Board agrees because the Veteran’s statements and the medical evidence demonstrate that the onset of these conditions were decades after the Veteran’s discharge from active military service. In addition, significantly, there is no evidence that the Veteran’s diabetes and/or hearing loss were diagnosed or manifested to a compensable degree within one year after separation from military service or that PTB was manifested to a compensable degree within three years after separation, the presumptive periods associated with these conditions. Notably COPD (including chronic bronchitis and emphysema) and urinary disease (diagnosed as recurrent urinary tract infections) are not chronic diseases subject to presumptive service connection. 38 C.F.R. § 3.309(a). 2. Entitlement to accrued benefits The appellant filed for accrued benefits on a VA Form 21-534, Application for DIC or Death Pension by a Surviving Spouse or Child filed in July 2014, and the RO denied her claim for accrued benefits in September and November 2014 notification letter. Certain periodic monetary benefits to which a veteran was entitled at death, or those based on evidence in the veteran’s claims folder at the date of death, shall be paid to certain named beneficiaries, ordinarily the veteran’s spouse, dependent children or dependent parents. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Pursuant to 38 U.S.C. § 5121(c), an application for accrued benefits must be filed “within one year after the date of [the veteran’s] death.” See also 38 C.F.R. § 3.1000(c). In the present case, the Veteran died in September 2011. Therefore, to be timely, any application for accrued benefits must have been received within one year of the date of the Veteran’s death, or by September 2012. The earliest document that can be construed as an application for accrued benefits from the appellant was received in July 2014, which was clearly received more than one year after the Veteran’s death. Hence, the Board must find that the appellant’s application for accrued benefits was untimely and deny the application as a matter of law. The law is dispositive in this matter, and the Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. As the appellant’s claim for accrued benefits was not timely received, her claim must be denied for lack of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to VA death pension benefits In her Notice of Disagreement, the appellant questioned why she has no legal entitlement to VA pension benefits even though her late husband had service that is deemed to be service under the American flag. The appellant is not entitled to VA death pension benefits because the Veteran’s military service is not qualifying service for basic eligibility for nonservice-connected death pension benefits. The surviving spouse of a veteran is entitled to receive VA improved death pension benefits if the veteran had qualifying service under 38 U.S.C. § 1521(j). The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). In order to establish basic eligibility for VA pension benefits, it is required, in part, that the individual with respect to whom pension is claimed be a veteran who had active military, naval, or air service. 38 U.S.C. §§ 101(2), (24), 1521(a)(j); 38 C.F.R. §§ 3.1, 3.6. Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including organized guerilla 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 benefits under contracts of National Service Life Insurance entered into before February 18, 1946; chapter 10 of title 37; and chapters 11 and 13 of Title 38 of the United States Code. 38 U.S.C. § 107(a); 38 C.F.R. § 3.40; Cacalda v. Brown, 9 Vet. App. 261, 264 (1996). Therefore, governing law restricts the types of entitlements from such service. Although compensation for a service-connected disability or death is available to a Philippine veteran and his survivors, they are not eligible to receive nonservice-connected pension or death pension as those benefits are authorized by 38 U.S.C. Chapter 15, which is clearly not listed as an exception in 38 U.S.C. § 107 (a) as set forth above. In the present case, the record establishes that the Veteran was discharged prior to July 1, 1946 and his service was only with the Philippine Commonwealth Army and the recognized guerrillas. Therefore, the deceased Veteran did not have qualifying service to qualify any dependents for death pension benefits as his type of service does not qualify dependents for benefits under 38 U.S.C. Title 15. In summary, based on the available evidence regarding the Veteran’s service, the provisions of 38 U.S.C. § 107 and 38 C.F.R. § 3.40 are dispositive in this matter. As the Veteran did not have the type of qualifying service required to confer eligibility for death pension benefits, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow