Citation Nr: 21029710 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-07 025 DATE: May 14, 2021 ORDER Entitlement to death pension benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT The Veteran served in the Philippine Commonwealth Army and this service is not considered "active military service" for the purposes of VA pension. CONCLUSION OF LAW The criteria for entitlement to death pension benefits have not been met. 38 U.S.C. §§ 101(24), 107; 38 C.F.R. §§ 3.3, 3.40(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the Philippine Commonwealth Army from September 1941 to April 1942 and July 1945 to November 1945. He died in February 2012, and the Appellant is his surviving daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 letter of determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Pasay City, Philippines. In March 2016, the Board determined that the Appellant's Notice of Disagreement (NOD) had been timely and remanded the above claims for additional development. The matter returned to the Board in October 2017. At that time, the Board denied the Appellant's claims for entitlement to service connection for the cause of the Veteran's death and entitlement to death pension benefits due to a lack of standing by the Appellant. The Appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2020, the Court issued a Memorandum Decision vacating the Board's decision and remanding the claims back to the Board for further action. In December 2020, the Board found that the Appellant was a helpless child for the purposes of eligibility for VA death benefits, but remanded the claims for entitlement to service connection for the cause of the Veteran's death and entitlement to death pension benefits for additional development. This development was completed, and the claims have returned to the Board. 1. Death pension benefits The appellant is seeking to establish entitlement to death pension benefits. Death pension benefits are available for children as a result of a veteran's service-connected death. 38 U.S.C. § 1542. An appellant is entitled to the benefits if the deceased veteran met the service requirements prescribed in section 1521(j) of this title (served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected that would have justified a discharge for disability); and, if the appellant meets specific income and net worth requirements. 38 U.S.C. § 1542; 38 C.F.R. § 3.3 (b)(4). The record reflects that the Veteran served in the Philippine Commonwealth Army from September 1941 to April 1942 and July 1945 to November 1945. Such service is considered "active military service" for the purpose of VA compensation, dependency and indemnity compensation, and burial benefits. However, it is not considered "active military service" for VA pension benefits. 38 U.S.C. §§101(24), 107(a); 38 C.F.R. § 3.40(c). Because there is no active military service for pension purposes, the claim must be denied because of the lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Cacalda v. Brown, 9 Vet. App. 261, 265-66 (1996). REASONS FOR REMAND 2. Entitlement to service connection for the cause of the Veteran's death is remanded. To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). At the time of his death, the Veteran was service connected for bilateral hearing loss and posttraumatic stress disorder (PTSD). The Veteran died in February 2012 with the immediate cause of death listed as "senility." The Appellant argues that scientific studies have found a relationship between mental health difficulties and dementia (senility). Given this, the Board remanded the claim for a medical opinion to determine whether the Veteran's PTSD principally or contributorily caused the Veteran's death. A medical opinion was returned in March 2021. The clinician did not find that PTSD caused or contributed to the Veteran's death because "senility was listed as the cause of death and noting PTSD as causing or contributing to the Veteran's death would resort in speculation." In support of the opinion, the clinician stated "research has identified an association between PTSD and dementia...Specifically, PTSD increases one's risk for late-onset dementia. Although an association has been identified, this does not equal causation. Thus, indicating PTSD caused the dementia (i.e. senility) would resort in speculation, and as such, the PTSD is less likely than not the principle cause of death." While the examiner's opinion addresses whether PTSD principally caused the Veteran's death, it does not adequately address whether PTSD contributed to cause the Veteran's death. In this regard, for a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Given that the examiner stated that "PTSD increases one's risk for late-onset dementia" this raises the issue of whether the PTSD contributed to cause the Veteran's death. Thus, another remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to address whether the Veteran's PTSD contributed to cause his death. The examiner should note the following: For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The Veteran was diagnosed with PTSD at age 92 and died four years later. Prior to the time of his death, dementia had overshadowed the symptoms of PTSD. (See January 2011 PTSD examination). The examiner should explain why if research shows that PTSD increases one's risk for late-onset dementia, it does not show that PTSD "contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death" with the cause of death being senility. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.