Citation Nr: 19115995 Decision Date: 03/05/19 Archive Date: 03/05/19 DOCKET NO. 16-12 137 DATE: March 5, 2019 ORDER Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits are denied. FINDINGS OF FACT 1. The Veteran died in October 2004; the death certificate, in Part I, lists the immediate cause of death as respiratory failure due to chronic obstructive pulmonary disease. 2. At the time of the Veteran’s death, service connection was not in effect for any disabilities. 3. The Veteran’s cause of death is not related to his service. 4. There was no claim for benefits pending at the time of the Veteran’s death; and no periodic monetary benefits were due and payable at the time of the Veteran’s death. 5. Service department records show that the Veteran served as a Philippine Scout from June 1946 to April 1949. 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. §§ 1110, 1310; 38 C.F.R. §§ 3.102, 3.159, 3.312. 2. Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). 3. The legal criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.1, 3.2, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Philippine Scouts from June 1946 to April 1949. He died in October 2004. The appellant is the Veteran’s widow. 1. Dependency and Indemnity Compensation (DIC), death pension and accrued benefits. The appellant asserts that she is entitled to Dependency and Indemnity Compensation (DIC), death pension and accrued benefits. She argues that the Veteran’s cause of death is related to his service. As an initial matter, the Board notes that in December 2006, VA received the appellant’s completed VA Form 21-534 (Application for DIC, Death Pension and Accrued Benefits by a Surviving Spouse of Child). In March 2007, the RO denied the claim, noting that the appellant had not submitted a completed NA Form 13055. In June 2007, the appellant submitted a statement in which she appears to reference the RO’s denial of her claim and to inquire about a right to benefits under current or pending legislation. In November 2007, the RO sent the appellant a letter in which it essentially stated that should relevant legislation be enacted, appropriate steps would be taken. Thereafter, in January 2015, the appellant requested to “reopen” the claim. In July 2015 the RO denied the claims for DIC, death pension, and accrued benefits, on the merits. See RO cover letter, dated July 13, 2015. In August 2015, a notice of disagreement was received, and on February 17, 2016, the RO issued a statement of the case (SOC) in which it discussed the claims for DIC, death pension and accrued benefits on the merits. On the same day that the RO issued the SOC (February 17, 2016), the RO sent the appellant a letter in which it stated that her submission received in January 2015 could not be accepted as a notice of disagreement as to the March 2007 denial of her claims, because it was untimely. The RO subsequently issued a second SOC in May 2016, in which it indicated that a timely appeal (notice of disagreement) had not been received as to its March 2007 denials of her claims for DIC, death pension and accrued benefits. The May 2016 SOC did not discuss the appellant’s June 2007 statement. In summary, the appellant’s June 2007 submission is arguably a timely notice of disagreement as to the March 2007 denial of the claims. In its February 2016 SOC, the RO did not apply a new and material analysis, rather, it denied the claims on the merits. The February 2016 SOC is inconsistent with the RO’s subsequent determination in the May 2016 SOC, that its March 2007 decision was final. Given the foregoing facts, the Board will analyze the claims on the merits. DIC DIC 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. In order to establish service connection for the cause of the veteran’s death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the absence of such evidence, the regulations require that there be a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.310 (a), 3.312. With respect to the principal cause of death, VA regulations provide that a “service-connected disability will be considered as the principal cause of death when such 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 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 death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312. 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. Id. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of the veteran’s health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Id. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted on the basis of a post-service initial diagnosis of a disease when, “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” See 38 C.F.R. § 3.303 (d). The Veteran’s service treatment records are not of record, and may have been destroyed in the 1973 fire at the National Personnel Records Center (“NPRC”). See Form 3101, dated in March 2007. In such cases, the Court has rejected the argument that there should be an “adverse presumption” against VA where service medical records have been lost or destroyed while in the Government’s control, including records destroyed in the 1973 fire at the NPRC. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). However, in a case like this in which a veteran’s service records are unavailable, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This heightened obligation does not establish a heightened “benefit of the doubt” or lower the legal standard for proving a claim of service connection; rather, it increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In this case, the RO has obtained a completed NA Form 13055 from the appellant, in which she did not identify any inservice treatment. She noted that the Veteran had received private treatment from the Leyte Baptist Hospital (LBH) in 2004. The RO attempted to obtain LBH records. A statement from J.S., a medical records clerk at LBH, dated in December 2014, notes that the Veteran was treated in October 2004 with a diagnosis of lower respiratory tract infection and diabetes mellitus, type 2, with the causes of death as noted on his certificate of death. The clerk stated that no additional records are available. In March 2015, J.S. again reported that he could not locate any records for the Veteran. The Veteran’s certificate of death shows that he died in October 2004. The immediate cause of death is listed as respiratory failure secondary to COPD (chronic obstructive pulmonary disease). The antecedent cause is listed as pneumonia. The underlying cause is listed as Koch’s disease. At the time of Veteran’s death, service connection was not in effect for any disabilities. The Board finds that service connection for the cause of the Veteran’s death is not warranted. The Veteran died in October 2004, about 54 years after separation from service. At the time of Veteran’s death, service connection was not in effect for any disabilities. There is no competent evidence of record to show an association between the Veteran’s service and the cause of his death. As the Veteran is not shown to have died from a service-connected disability, DIC benefits are not payable. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The preponderance of the evidence is therefore against the claim, and the claim must be denied. Accrued benefits. With regard to the appellant’s claim for accrued benefits, they are defined as periodic monetary benefits to which an individual was entitled at death based on evidence in the file at death and due and unpaid for a period not to exceed two years prior to the last date of entitlement (i.e., the veteran’s death). 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). The veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, an application for accrued benefits must be filed within 1 year after the date of death. 38 C.F.R. § 3.1000 (c). In this case, at the time of the Veteran’s death in 2004, service connection was not in effect for any disabilities. In addition, the evidence does not show that the Veteran had a claim pending at the time of his death, or any periodic monetary benefits at the time of his death which were due and unpaid. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). As the Veteran had no periodic monetary benefits at the time of his death which were due and unpaid, and as the Veteran did not have a claim pending at time of death, the appellant has no claim upon which to derive her application for accrued benefits. See Jones; Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff’d 102 F.3d 1236, 1300 (Fed. Cir. 1996); cert. denied 117 S.Ct. 2478 (1997). Based on the foregoing, there are no accrued benefits, and the appellant’s claim is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Death Pension. In general, a surviving spouse of a veteran who served 90 days or more during a period of war may be entitled to VA nonservice-connected death pension benefits. 38 U.S.C. § 1541. The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the U.S. pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla 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 U.S. 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 for specified benefits which do not include death pension benefits authorized by chapter 15, title 38, U.S. Code. 38 U.S.C. § 107(a); 38 C.F.R. §§ 3.40, 3.41. In this case, the Veteran’s service records show that he had service in the Philippine Scouts from June 1946 to April 1949. See Veteran’s discharge; see also certificate from Headquarters, Philippines Command, dated in April 1949. There is no evidence of any other service. The law specifically excludes such service for purposes of entitlement to death pension benefits. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (per curiam). The appellant has not contested that the Veteran had any service other than that shown. Consequently, the Board finds that there is no legal basis on which the appellant’s claim can be based. As the law and not the evidence is dispositive on this issue, it must be denied because of lack of legal merit. Sabonis; 38 U.S.C. § 107; 38 C.F.R. §§ 3.40, 3.41. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel