Citation Nr: 19154591 Decision Date: 07/15/19 Archive Date: 07/15/19 DOCKET NO. 16-09 145 DATE: July 15, 2019 ORDER The petition to reopen a previously-denied claim of entitlement to service connection for the cause of the Veteran’s death based on the receipt of new and material evidence is granted. Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to nonservice-connected (NSC) death pension benefits, to include special monthly pension, is denied. Entitlement to special monthly pension (SMP) or compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound is denied. FINDINGS OF FACT 1. A January 2005 Rating Decision denied a claim of entitlement to service connection for the cause of the Veteran’s death; the appellant did not appeal that determination and no new and material evidence was received within one year from its issuance. 2. Evidence received since the January 2005 Rating Decision is new, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran’s death. 3. The Veteran’s Certificate of Death shows that he died in October 1985 due to cor pulmonale and emphysema. 4. The Veteran was not service-connected for any disability at the time of his death, and the most probative evidence of record does not demonstrate that a cause of his death is etiologically related to service. 5. The Veteran served as a member of the Philippine Commonwealth Army from March 1942 to October 1942, and from September 1945 to March 1946. CONCLUSIONS OF LAW 1. The January 2005 Rating Decision that denied a claim of entitlement to service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105 (c) (2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 2. Evidence received since the January 2005 Rating Decision which denied service connection for the cause of the Veteran’s death is new and material and the claim is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1131, 1310 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2018). 4. The criteria for entitlement to NSC death pension, to include special monthly pension benefits, have not been met. 38 U.S.C.A. §§ 101, 107 (West 2014); 38 C.F.R. §§ 3.1, 3.7, 3.40, 3.41, 3.203, 3.351 (2018). 5. The criteria for entitlement to special monthly pension (SMP) or special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound, have not been met. 38 U.S.C.A. § 1541(d), (e); 38 C.F.R. § 3.351(a)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Philippine Commonwealth Army from March 1942 to October 1942, and from September 1945 to March 1946. He died in March 2000. The appellant is his surviving spouse. These matters are on appeal to the Board of Veterans Appeals (Board) from a March 2015 letter decision. The Board recognizes that the appellant included the issue of “insurance claim” in her February 2016 VA Form 9. However, although this claim has since been addressed by the RO in a July 2017 Report of General Information, it was never adjudicated by the RO and is therefore not currently within the Board’s jurisdiction. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review this appeal under the existing Legacy Appeals System. In correspondence dated in March 2019, the appellant was informed that a recent VA Form 21-22 in the claims file (received in April 2016) which designated Disabled American Veterans as her representative was unsigned by the Veterans Service Organization, and that regulations of the Department of Veterans Affairs stipulated that only one service organization, attorney, or agent may represent her at any one time on the same issues on appeal. 38 C.F.R. §14.631. Another VA Form 21-22 (received in May 2016) again designated Disabled American Veterans as the Veterans Service Organization, but listed an individual from Veterans Federation of the Philippines as the individual representative, who then signed the form. No response was received from the appellant regarding the Board’s March 2019 request for clarification. Moreover, Veterans Federation of the Philippines is not recognized by the Board as a Veterans Service Organization. As such, the Board will recognize the appellant as a pro se litigant. With respect to the claims decided herein, the appellant has not alleged that VA failed to fulfill its duty notify or assist in the development of her claims. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. New & Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, in May 2003, VA initially received the appellant’s claim for death benefits. The RO denied the claim of entitlement to service connection for the Veteran’s cause of death in a February 2004 Rating Decision on the basis there was no evidence that the Veteran’s causes of death, listed as cor pulmonale and emphysema, were incurred in service or otherwise related to service. Based on new evidence submitted by the appellant in December 2004, the RO reconsidered the claim in a January 2005 Rating Decision, at which time the claim was again denied on the basis there was no evidence that the Veteran’s causes of death were incurred in service or otherwise related to service. The appellant did not file a timely Notice of Disagreement and no new evidence was submitted within one year of this decision. 38 C.F.R. § 3.156 (b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). As such, the denial became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. In June 2014, the appellant filed an untimely Notice of Disagreement with the January 2005 Rating Decision, which was interpreted as a petition to reopen the previously-denied claim of entitlement to service connection for the Veteran’s cause of death. In correspondence dated in September 2014, the RO found there was no new and material evidence to reopen the claim. Additional evidence was received from the appellant within a year of this adverse determination, but the RO again found there was no new and material evidence to reopen the claim in a March 2015 decision. Thereafter, the RO determined in a January 2016 statement of the case that new and material evidence had been received to reopen the claim. However, regardless of the RO’s finding in this regard, the Board must adjudicate whether new and material evidence has been received to reopen the claim in the first instance. The issue of new and material evidence must be addressed in the first instance by the Board because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996), aff’g 8 Vet. App. 1 (1995). Once the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 R.3d at 1383. Evidence submitted since the last prior final denial includes lay statements submitted by the appellant indicating that the Veteran had an ulcer disease in service, that the Veteran was a Japanese prisoner of war (POW) during his military service, and that the Veteran died as a result of an ulcer disease. As these lay statements present alternative theories of entitlement which were not considered at the time of the January 2005 Rating Decision, the evidence relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. Thus, the evidence is considered both new and material, and the claim is reopened. See Shade, 24 Vet. App. 110. The 2. Entitlement to Service Connection for the Cause of the Veteran's Death Having reopened the appellant’s claim of entitlement to service connection for the Veteran’s cause of death, the Board will now consider the claim on the merits de novo. Although the lay statements submitted by the appellant are presumed to be credible for the purpose of determining whether the case should be reopened, the presumption as to the credibility of these statements no longer applies. See Justus, supra. Here, the appellant seeks entitlement to service connection for the Veteran’s cause of death for purposes of establishing entitlement to Dependency and Indemnity Compensation (DIC) benefits. 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. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). Here, the Veteran died in March 2000. His March 2000 Certificate of Death listed cor pulmonale and emphysema as his causes of death. The record shows that the Veteran was not service connected for any disability at the time of his death. A review of the Veteran’s available service records does not reveal any in-service treatment for cor pulmonale, emphysema, or related symptomatology. To the contrary, on his February 1946 Affidavit for Philippine Army Personnel, the Veteran indicated that he incurred no wounds or illnesses. Private treatment records submitted by the appellant reveal diagnoses of treatment for cor pulmonale and emphysema proximate to the time of the Veteran’s death in March 2000, approximately a half century since his separation from military service, but do not include medical opinions relating these diagnoses to military service. The appellant has contended that the Veteran was captured by hostile Japanese forces as a POW and held for a period of three days at a Japanese garrison encampment at Sinawingan, Barrio Libungan, Cotabato Province, from March 8, 1943, to March 11, 1943, at which time he was able to escape during a powerful storm at night when his captors were sleeping. Further, the appellant listed the names of five other men who were allegedly captured and/or interned with the Veteran during this period. However, this account is not supported by the evidence of record. Significantly, on his February 1946 Affidavit for Philippine Army Personnel, the Veteran certified that he was never captured and never surrendered as a POW. Additionally, in correspondence dated in October 2014, an Expert Archives Technician from the National Personnel Records Center (NPRC) indicated that the records indicate the Veteran did not acquire prisoner of war status. There is no evidence of a claim with the War Claims Commission (WCC). Without a positive determination from the WCC, our agency cannot favorably consider prisoner of war status. Furthermore, searches of the POW microfiche maintained at the RO in Manila, Philippines, as well as the World War II Prisoners of the Japanese Data Files, an online database maintained by the National Archives, failed to show the Veteran’s name or serial number. Finally, a March 2015 Memorandum for File produced by the RO in Manila, Philippines, indicated that research into the five other men listed by the appellant who were allegedly captured and/or interned with the Veteran revealed that all five had already died, and that only claims files for two of the men were available for review. This review revealed that neither of the two men had verified POW status. Alternatively, the appellant contended that the Veteran had an ulcer disease while in service and that this ulcer disease ultimately caused his death in March 2000. However, the Board finds that the weight of the evidence shows that the Veteran’s cause of death was not incurred in service. See 38 C.F.R. §§ 3.303(d), 3.312(c). As mentioned above, on his February 1946 Affidavit for Philippine Army Personnel, the Veteran indicated that he incurred no wounds or illnesses. Furthermore, his March 2000 Certificate of Death listed cor pulmonale and emphysema, and not ulcer disease, as his causes of death. The Board finds that the evidence of record shows that the Veteran’s cor pulmonale and emphysema manifested many years after service. Insomuch as the appellant has attempted to relate the Veteran’s death due to cor pulmonale, emphysema, and/or ulcer disease in service, the Board finds that she is not competent to provide an opinion relating to these illnesses, or an opinion with regard to his diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board finds that the weight of the evidence is against the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death. 3. Entitlement to Nonservice-Connected Death Pension Benefits The appellant also seeks entitlement to nonservice-connected death pension benefits. VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C. § 1521 (a). 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). “Veteran of any war” means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1 (e). 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, as authorized by 38 U.S.C. § 107 (2012) and 38 C.F.R. § 3.40 (2017). A Philippine Veteran is limited by law to the award of a narrowly defined set of benefits. Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation, and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. 38 U.S.C. § 107 (b); 38 C.F.R. § 3.40 (a), (b). Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States, also referred to as the USAFFE, including recognized guerilla service, is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947 are also not included for pension benefits. See 38 U.S.C. § 107; 38 C.F.R. §§ 3.7 (p), 3.40(b) and (d), 3.203. For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge, without verification by the service department. VA may accept such evidence if it is issued by the service department and includes the needed information as to length, time and character of service and VA finds that it is genuine and includes accurate information. If the evidence the claimant submits does not meet these requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203. 38 C.F.R. § 3.203 (a) and (c), to govern the conditions under which the VA may extend Veterans’ benefits based on service in the Philippine Commonwealth Army. Those regulations require that service in the Philippine Commonwealth Army (and thus Veteran status) be proven with either official documentation issued by a United States service department or verification of the claimed service by a department. 38 C.F.R. § 3.203 (a), (c). The findings of the service department are binding on VA for the purpose of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department does not verify the claimed service, the applicant’s only recourse lies within the relevant service department, not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the service. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997); 38 C.F.R. § 3.203 (2017). Here, the service department certified that the Veteran served as a member of the Philippine Commonwealth Army from March 1942 to October 1942, and from September 1945 to March 1946. As discussed above, service department findings are binding on the VA for purposes of establishing service in the U.S. Armed Forces. Therefore, the Veteran does not have the qualifying service to establish basic eligibility for nonservice-connected death pension benefits. 4. Entitlement to SMP or SMC Based on the Need for Regular Aid and Attendance or by Reason of Being Housebound The law provides increased pension or compensation benefits to a surviving spouse of a veteran by reason of need for aid and attendance or of being housebound. 38 U.S.C.A. § 1541(d), (e); 38 C.F.R. § 3.351(a)(5). Aid and attendance and housebound benefits under 38 CFR 3.351 may be paid to a surviving spouse who is receiving or entitled to receive death pension, including protected pension and old war service pension, dependency and indemnity compensation, or death compensation. Under 38 C.F.R. § 3.351(b), the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for establishing the need for aid and attendance include: consideration of whether the appellant is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance. 38 C.F.R. § 3.351(c). In determining whether there is a factual need for regular aid and attendance, the Board will consider the following: the inability of the appellant to dress or undress herself or himself, or to keep herself or himself ordinarily clean and presentable; whether he or she requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed herself or himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or, incapacity that requires assistance on a regular basis to protect her or him from the hazards or dangers incident to her or his daily environment. 38 C.F.R. § 3.352. It is not required that all of the disabling conditions enumerated in the above paragraph be found to exist before a favorable rating may be made. The particular personal function which the appellant is unable to perform should be considered in connection with her or his condition as a whole. It is only necessary that the evidence establish that the appellant is so helpless as to need regular aid and attendance, not that there be constant need. 38 C.F.R. § 3.352(a). If the criteria for special monthly pension based on the need for regular aid and attendance are not met, then special monthly pension can be awarded if a surviving spouse is permanently housebound by reason of disability. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.351(f). A surviving spouse will be considered to be permanently housebound when she is substantially confined to her house (ward or clinic areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout her lifetime. 38 U.S.C.A. § 1541(e)(2); 38 C.F.R. § 3.351(f). However, as discussed above, as the Veteran was not service connected for any disability at the time of his death, had no service-connected cause of death and no qualifying service for pension benefits, the basic eligibility criteria for establishing entitlement to DIC benefits and/or death pension benefits (to include special monthly compensation benefits) have not been met, and the claim must therefore be denied. Because VA benefits are not authorized as a matter of law in this case, the benefit of the doubt is not applicable. See Sabonis v. Principi, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel