Citation Nr: 21003946 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 09-37 935 DATE: January 25, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to nonservice-connected death pension benefits is denied. FINDINGS OF FACT 1. The medical evidence, to include a certificate of death, shows that the Veteran died in February 1979 at age 55 of an abdominal tumor. 2. The competent evidence does not show that the Veteran’s fatal abdominal tumor was related to active service. 3. At the time of the Veteran’s death, service connection was not in effect for any disabilities. 4. The appellant is not entitled to receive non-service-connected death pension benefits based on the Veteran’s recognized service in the New Philippine Scouts. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.§§ 1101, 1110, 1112, 1137, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312. 2. The criteria for entitlement to nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 5121; 38 C.F.R. §§ 3.40, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Armed Forces from July 1946 to April 1947 as a member of the New Philippine Scouts. He died in February 1979. The Appellant is his surviving spouse. There is also information from the Republic of the Philippines government that he also served as a Guerilla in the Armed Forces of the Philippines from April 1944 to February 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Manila, Philippines Department of Veterans Affairs (VA) Regional Office (RO). In a decision in May 2011, the Board denied the issues of entitlement to service connection for the cause of the Veteran's death; entitlement to non-service-connected death pension benefits; and entitlement to accrued benefits. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Decision dated in April 2012, the Court vacated and remanded the Board's decision as to the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to non-service-connected death pension benefits for compliance with the instructions in the Joint Motion. In November 2012, October 2013, and September 2015, the Board remanded the case to the RO for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for the cause of the Veteran's death The Appellant contends that the cause of the Veteran’s death is related to active service. She essentially contends that the Veteran incurred his fatal abdominal tumor during active service in the New Philippine Scouts between July 1946 and April 1947. To establish service connection for the cause of the Veteran’s death, evidence must be presented which in some fashion links the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In short, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). As an initial matter, in November 2008, the National Personnel Records Center in St. Louis, Missouri (NPRC), notified VA that the Veteran’s service treatment records (STRs) were missing and likely destroyed in the July 1973 fire at NPRC. In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). In a March 2009 formal finding included in the claims file, the RO determined that it was reasonably certain that the Veteran’s STRs did not exist and further efforts to obtain them would be futile. In June 2009, the Appellant provided additional documentation in support of her claim, to include a Certification of service from Armed Forces of the Philippines showing service as a guerilla from 1944 to 1946 and an Affidavit for Philippine Army Personnel. In January 2020, these documents, to include the Veteran’s unit information (company, battalion, and regiment), were provided to the Service Department for re-verification of the Veteran’s service, and VA again requested the Veteran’s STRs from the NPRC. The Board notes that while available personnel records were associated with the record in February 2020, VA has been notified by the NPRC that the Veteran’s record is fire-related and that no STRs are available. Further, the Service Department determined that no change is warranted to the prior negative certification by the NPRC, as the Veteran had “no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.” The RO also sent the Appellant a letter in March 2009, December 2012, October 2013, and January 2020 asking her to provide copies of any of the Veteran’s service treatment records that were in her possession; to date, the Appellant has not provided this information. In November 2020, VA notified the Appellant that the records pertaining to the Veteran’s alleged recognized guerrilla and Philippine Commonwealth Army (USAFFE) service and service personnel records from the Service Department cannot be located and that further attempts to obtain the records would be futile. The November 2020 letter detailed the actions taken to attempt to obtain the records. The Board finds that the preponderance of the evidence is against the Appellant’s claim of service connection for the cause of the Veteran’s death. The Appellant has contended that the Veteran’s fatal abdominal tumor was incurred during active service and contributed to or caused his death almost 32 years after his service separation. The competent evidence shows that the Veteran served with the New (or Special) Philippine Scouts between July 1946 and April 1947. The Veteran died in February 1979. A “Certification of Military Service” issued by NPRC in May 1979 indicates that the Veteran served as a Philippine Scout from July 1946 to April 1947 and was honorably discharged. The Veteran’s death certificate indicates that he died on February [REDACTED], 1979, at age 55. The immediate cause of death was an abdominal tumor. No antecedent cause of death or other significant condition was listed on the death certificate. A “Certification” from Pangasinan Medical Center, Dagupan City, Philippines, dated in June 2009 and date-stamped as received by the RO in July 2009, indicates that the Veteran’s medical records were no longer available because they had been destroyed by termites. This medical center also stated on this certification that they could not provide the medical certificate for the Veteran who had been confined to this facility between December 10 and 13, 1975. The Board acknowledges the appellant’s assertion that the Veteran incurred his fatal abdominal tumor during active service. Although it is unfortunate that the Veteran’s service treatment records were not available for review, the Board finds it significant that, at the time of the Veteran’s death, service connection was not in effect for any disabilities, to include the fatal abdominal tumor which caused his death in February 1979, almost 32 years after his service separation in April 1947. The Board also notes that, although it is unfortunate that the Veteran’s post-service hospitalization records from Pangasinan Medical Center were not available for review, the appellant has not identified or submitted any competent evidence, to include a medical nexus, which relates the cause of the Veteran’s death to active service or any incident of service. In summary, the Board finds that service connection for the cause of the Veteran’s death is not warranted. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C. § 7104(a) (“decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (VA “shall consider all information and lay and medical evidence of record in a case”); 38 C.F.R. § 3.303(a) (service connection claims “must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence”). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr, 21 Vet. App. at 303 (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In contrast, when the Appellant reported after the Veteran’s death what she had observed of the Veteran’s symptoms prior to his death, she was seeking compensation. The Board is aware of an appellant’s self interest in any claim for benefits. The Board properly may consider the personal interest a claimant has in his or her own case but is not free to ignore his or her assertion as to any matter upon which he or she is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999), and Cartright, 2 Vet. App. at 25. As part of the current VA disability compensation claim, in recent statements, the Appellant has asserted that the Veteran’s symptoms of an abdominal tumor were continuous between active service and his death. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of an abdominal tumor between service separation and his death. Further, the Board concludes that the Appellant’s assertion of continued symptomatology between the Veteran’s separation from active service and his death is not credible. Given the nature of malignant tumors, the Board does not find it plausible that one existed from service up to the Veteran’s death without requiring earlier medical intervention. Although the Appellant has contended that the Veteran was diagnosed as having an abdominal tumor following service separation and was treated for this problem prior to his death, no medical evidence has been identified or submitted to support her assertion. The Board finds it significant that, in her statements to VA, the Appellant herself essentially has admitted that there is no competent evidence to support her assertion of an etiological relationship between the Veteran’s fatal abdominal tumor and active service. The Board also emphasizes the multi-year gap between discharge from active duty service (1947) and the abdominal tumor noted on the Veteran’s death certificate in 1979 (a 32-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board has weighed the Appellant’s statements as to continuity of the Veteran’s symptomatology for an abdominal tumor between active service and his death and finds her current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the absence of complaints or treatment for decades after service and the lack of competent evidence in the claims file supporting her statements. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms due to an abdominal tumor between service separation and the Veteran’s death. 2. Entitlement to nonservice-connected death pension benefits The Appellant also has contended that she is entitled to non-service-connected death pension benefits based on the Veteran’s service in the New Philippine Scouts between 1946 and 1947. The Appellant further asserts that the Veteran had qualifying service from 1944 to 1946 as a recognized guerrilla. Applicable law and regulations provide that VA "shall pay to the surviving spouse of each Veteran of a period of war who met the service requirements prescribed in section 1521(j) of this title, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, pension at the rate prescribed by this section." 38 U.S.C. § 1541(a). Under 38 U.S.C. § 1521(j), "[a] Veteran meets the service requirements of this section if such Veteran served in the active military, naval or air service" for a period of at least 90 days. See 38 U.S.C. § 1521(j). As relevant to the Appellant’s claim, service in the Philippine Scouts is included for purposes of pension, compensation, dependency and indemnity compensation, and burial allowance only when Veterans served as members of the Regular Philippine Scouts prior to October 6, 1945. See 38 C.F.R. §§ 3.40(a) (emphasis added). Service in the New Philippine Scouts is included only for purposes of compensation and dependency and indemnity compensation. See 38 C.F.R. §§ 3.40(b) (emphasis added). The Board finds that the preponderance of the evidence is against the Appellant’s claim of entitlement to non-service-connected death pension benefits. NPRC certified that the Veteran only had active service in the New Philippine Scouts from July 15, 1946, to April 2, 1947. As noted in a September 2020 administrative decision, the Service Department determined that the Veteran had no valid recognized guerrilla and/or Philippine Commonwealth Army (USAFFE) military service. The finding of the Service Department is binding on VA. Despite the Appellant’s assertions to the contrary, the evidence does not show that the Veteran’s recognized service was as a member of the Regular Philippine Scouts prior to October 6, 1945, or as a member of the Armed Forces of the United States. Because the Veteran’s recognized service in the New Philippine Scouts is included only for purposes of compensation and dependency and indemnity compensation, the Board finds that the Appellant is not eligible for non-service-connected death pension benefits. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.