Citation Nr: 20032385 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 16-14 745 DATE: May 7, 2020 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died on November [REDACTED], 2014; the certificate of death lists the immediate cause of his death as cardiorespiratory arrest, the antecedent cause of death was listed as stroke, and the underlying cause of death listed as hypertension. 2. At the time of his death, the Veteran was service connected for bilateral hearing loss; posttraumatic left elbow arthritis; residuals of a left elbow fracture, muscle group VII & VIII; and left elbow healed scar. 3. The preponderance of the evidence is against a finding that the Veteran’s immediate, antecedent, and underlying causes of death related to active service and were not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1116, 1310, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.40, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served as a Philippine Scout from July 1946 to May 1949. The appellant is his surviving spouse. This matter was Remanded by the Board in October 2018 in order to provide the Appellant with proper notice as to what information or evidence is necessary to substantiate her claim and to provide her with a reasonable amount of time to submit additional evidence or argument. VA sent the Appellant a notification letter in December 2018. A supplementary statement of the case was issued 30 days later. There has been substantial compliance with the Board’s October 2018 remand directives. The matter is now properly before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for the Veteran's cause of death. The Veteran died November [REDACTED], 2014. The death certificate lists his immediate cause of death as cardiorespiratory arrest. Stroke and hypertension were listed as antecedent and underlying causes, respectively. The Appellant asserts that the Veteran’s death should be service connected. Specifically, she believes the Veteran’s underlying cause of death, hypertension, was caused or aggravated by his nonservice-connected posttraumatic stress disorder (PTSD). Service connection may be granted for the cause of the Veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312 (a). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (b). Service connection for cause of death may be warranted where a service-connected disability was a contributory cause of death. A contributory cause of death is inherently one not related to the principal cause, and 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. 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). Service connection is warranted for a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110, 1131. To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Certain chronic diseases, including hypertension and stroke, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307 (a)(3), 3.309(a). Hypertension and stroke qualify as chronic diseases. However, the presumption of service connection for chronic diseases under 38 C.F.R. § 3.309 (a) does not apply in this case because the record does not show any diagnosis of hypertension or stroke during service or within one year of the Veteran’s separation from service. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Hypertension and stroke are qualifying chronic diseases under this regulatory subsection. As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran was diagnosed with PTSD in May 2007 and he suffered a cerebrovascular accident (CVA/stroke) resulting in left hemiparesis and slurred speech in April 2010. His death certificate noted that the Veteran suffered from cardiorespiratory arrest, stroke, and hypertension. As to an in-service disease or injury, the evidence does not support a finding of a disease or injury in-service or an in-service stressor. The Veteran’s service treatment records contain no symptoms, complaints, or diagnosis of PTSD, cardiorespiratory arrest, hypertension, or stroke. The Veteran underwent a separation examination in May 1947, exhibiting no vascular, chest, heart, abdomen, viscera, or endocrinal abnormalities. The Veteran’s blood pressure reading measured 90/70. Medical records show no diagnosis or treatment for an acquired psychiatric disorder, to include PTSD, cardiorespiratory arrest, hypertension, or stroke at any point between discharge in 1949 and 2007, 58 years after service. The Board acknowledges the Veteran’s Philippine guerrilla service from November 1943 to October 1945. Dr. M.C.’s medical report indicates that the Veteran suffered from PTSD due to his experiences during guerrilla service. Philippine guerrilla service may be eligible for compensation, dependency and indemnity compensation, and burial allowance, in certain limited circumstances. 38 C.F.R. § 3.40 (c), (d). These circumstances include when an individual is called into service of the Armed Forces of the United States and serving under a commissioned officer of the United States Army, Navy or Marine Corps, or under a commissioned officer of the Commonwealth Army recognized by and cooperating with the United States Forces. However, guerrilla service must be established by certification from the service department. 38 C.F.R. § 3.40 (d)(2). Where service department certification is required, the service department’s decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203 (c). The Veteran applied for compensation benefits in February 1977. He stated that he was inducted in November 1943 and assigned to Squadron 111 LGAF at Umingan, Pangasinan. He also stated that he was attached to 90 FA BN, APO 25 and served as an artillery man during combat. The Veteran was discharged in October 1945. He submitted a copy of his original identification card in support of his claim. After a search of department records, the Veteran was informed in February 1977 that his guerrilla service was not confirmed by the U.S. Department of the Army. The Veteran then submitted an affidavit supporting his service. The Veteran was directed to contact the Office of the Adjutant General of the Armed Forces of the Philippines. The Veteran’s claims file contains no positive service determination for recognized guerrilla service nor as a member of the Commonwealth Army in the service of the Armed Forces of the United States. As such, the Department of the Army could not authenticate guerilla service that would comply with the parameters of 38 C.F.R. § 3.40. The Veteran did not have recognized guerrilla service, which required service department certification. Therefore, the Board concludes that the Veteran’s guerrilla service prior to July 1946 is not eligible for compensation, dependency and indemnity compensation, and burial allowance as a matter of law because the evidence fails to establish that he had qualifying military service. The Veteran’s service treatment and post-service records show no complaints, diagnosis, or treatment for an acquired psychiatric disorder, to include PTSD until 2007, 58 years after active service. The Board acknowledges that the Veteran was diagnosed in 2007; however, the examiner attributed his PTSD to events while the Veteran served as a guerilla. The Veteran indicated in an October 2007 letter to VA that he had never claimed PTSD as he had developed the disorder during his guerilla military service. The Board finds that direct service connection for PTSD must be denied as there was no indication of in-service psychiatric symptomatology or a disability manifesting for many decades post-service and the medical opinion of record indicates that the Veteran’s PTSD was due to a stressor during a period of service for which the Veteran may not receive benefits. Turning to the Veteran’s causes of death as listed on his death certificate, presumptive service connection requires that the Veteran’s hypertension or stroke manifest to a degree of 10 percent or more within one year of service. Submitted medical records indicate the Veteran was not diagnosed nor did he receive treatment for hypertension or stroke from 1949 to 2007. The weight of the evidence is against the Veteran having hypertension or stroke within one year of service. Service connection under continuity of symptomatology must also be denied. Post-service medical records indicate the Veteran was treated for stroke in 2010, 61 years after discharge. The record is silent as to complaints, symptoms, or treatment for stroke prior to April 2010. Moreover, based upon the evidence of record, the Veteran did not exhibit any symptoms until 61 years after service. With regards to hypertension, the Veteran’s death certificate is the only confirmed diagnosis of hypertension. The Veteran’s records show no diagnosis or treatment for hypertension from discharge until his death. Concerning service connection, the Appellant argues that the Veteran’s hypertension should be service connected. Specifically, she believes the Veteran’s non-service-connected PTSD caused or aggravated his hypertension. The Appellant does not contend that the Veteran’s other service-connected disabilities caused or aggravated hypertension. At the time of his death, the Veteran was service connected for bilateral hearing loss, posttraumatic left elbow arthritis, residual of left elbow fracture, muscle group VII & VIII, and left elbow healed scar. Wallin elements (1) and (2) are met. Turning to Wallin element (3), a nexus, there is no competent evidence indicating a relationship between the Veteran’s service-connected disabilities and cardiorespiratory arrest, hypertension, or stroke. VA has not obtained an expert opinion; indeed, VA does not have a duty to obtain a medical opinion in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA’s obligation to obtain a medical opinion is not triggered unless there is an indication that the claimed disability may be associated with service or a service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Although McLendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s cardiorespiratory arrest, hypertension, or stroke and active service or a service-connected disability. The only evidence of a possible connection between cardiorespiratory arrest, hypertension, or stroke and service are the Appellant’s own broad and conclusory statements that the conditions are related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274 (2010). The Board acknowledges the Appellant’s primary contention is that PTSD was caused by the Veteran’s service, thereby aggravating his hypertension and leading to his death. As discussed above, the Veteran did not carry service connection for an acquired psychiatric disorder, to include PTSD and the requirements for service connection have not been met. As such, there is no basis for granting service connection for an acquired psychiatric disorder, to include PTSD. Further, the Board acknowledges the competent and credible lay evidence from the Appellant reporting the Veteran’s symptomatology regarding his cause of death. Lay individuals are competent to report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nevertheless, lay individuals are not competent to opine on the etiology of a complex medical condition such as hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In conclusion, the Board finds that service connection for the Veteran’s cause of death is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.