Citation Nr: 21030052 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 07-25 290 DATE: May 17, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1121, based on the cause of the Veteran's death, is granted. FINDING OF FACT The evidence at least evenly balanced as to whether the Veteran's death, which was prior to January 1, 1957, was the result of disease incurred in line of duty in active military service during a period of war. CONCLUSION OF LAW With reasonable doubt resolved in favor of the appellant's claim, the criteria for entitlement to compensation pursuant to 38 U.S.C. § 1121, based on the cause of death, have been met. 38 U.S.C. §§ 1110, 1121, 1154, 5107; 38 C.F.R. §§ 3.4, 3.5, 3.41, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The issue in this case concerns the Veteran's military service during World War II. He died in October 1944. As indicated below, the appellant is his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO found new and material evidence adequate to reopen the claim for service connection for cause of death had not been submitted. Prior to the present claim on appeal, historically the appellant had filed for Dependency and Indemnity Compensation (DIC) benefits due to the death of her husband in August 1954, which was denied in October 1954. The appellant disagreed with the decision in February 1955. Due to insufficient evidence that the Veteran died from his active military service, the appellant was informed in February 1955 that the claim must be denied. In March 1955, the appellant submitted a letter contesting the whereabouts of the Veteran during his service, which was responded to in April 1955. Subsequently, she sent in her and the Veteran's daughter's birth information in April 1955 and the Veteran's service records in August 1955. In August 1955, the Director of Compensation and Pension Services wrote to her that the information furnished was a matter already of record. The appellant filed for death benefits with VA in January 1976, which was denied on the merits in October 1976. The appellant disagreed in November 1976, and VA denied the claim again in September 1977. In March 1978, the appellant filed a claim for death benefits. An April 1978 letter from VA informed her that her claim was previously disallowed and a July 1980 letter to the appellant contained that she had no entitlement to any death benefits because the record did not establish her husband's death was due to or the result of a service-connected disease or injury. Pertaining to the present September 2005 claim on appeal, in May 2009, the Board remanded the claim to provide the appellant with proper notice. In April 2010, the claim was remanded by the Board for substantial compliance with the May 2009 remand for proper notice. In May 2013, the Board reopened the claim for entitlement to DIC benefits and remanded the case for development. Specifically, the Board noted exhaustive development to establish the Veteran's period of recognized service, when he died, and the cause of his death was necessary. In March 2014, the Board remanded the claim for a credibility determination on the appellant's assertions that she is the Veteran's surviving spouse. The appellant initially requested a hearing in her January 2007 appeal to the Board. However, she withdrew her request in October 2009. Compensation Pursuant to 38 U.S.C. § 1121 Based on Cause of Death As a general matter, service connection for the cause of death is a type of DIC that may be granted pursuant to 38 U.S.C. § 1310(a). That statute, however, applies only to veterans who died after December 31, 1956. In this case, the Veteran died before that date. A different statute therefore applies. 38 U.S.C. § 1121 provides that the surviving spouse of any veteran who died before January 1, 1957 as the result of disease incurred in active military, naval or air service, in line of duty, during a period of war, is entitled to receive compensation. 38 C.F.R. § 3.4(a) provides that compensation means a monthly payment by VA to a surviving spouse of a veteran because of a service-connected death occurring before January 1, 1957, and that if the Veteran was discharged or released from service, the discharge or release must have been under conditions other than dishonorable. 38 C.F.R. § 3.5(a)(2) provides that a surviving spouse of a veteran may elect DIC if a service-connected death occurs before January 1, 1957. For the following reasons, the Board finds that the criteria for compensation under 38 U.S.C. § 1121 and 38 C.F.R. § 3.4(a) have been met. The Board recognizes that the determination as to whether the Veteran died during "active military, naval, or air service" is a difficult one given the length of time since death and lack of records due to the circumstances and events regarding military service of Filipino veterans during World War II. The Board emphasizes that it does not find that "No Casualty Status" falls within the term active military, naval, or air service. Rather, it finds that the Veteran contracted the disease that led to his death while he was a prisoner of war (POW), prior to his No Casualty Status, and therefore died before January 1, 1957 as the result of disease incurred in active military service, in line of duty, during a period of war. In this case, the Veteran was single at the time of entry to service in September 1941, as evidenced by personnel records. A photocopy of an original marriage contract received by VA in September 1954 is in the claims file which shows the Veteran and the appellant as contracting parties to their marriage on August [REDACTED], 1943. In December 1974, an attending witness to the marriage signed an affidavit stating that she learned of the fact that the Veteran died in the line of duty as a member of the Army and that she had been a neighbor of the Veteran and appellant and she had also attended their wedding. A joint affidavit signed by two other witnesses to the marriage is dated April 2005. VA deemed the claimant appellant's marriage to the Veteran valid and formally recognized her as the Veteran's surviving spouse for VA purposes in a September 2020 Administrative Decision. The Veteran's wife wrote in a December 2006 correspondence that her husband died of malaria, which he contracted from the time he was a POW. In a January 2007 statement submitted in disagreement with the rating decision on appeal, she wrote the Veteran was inducted to the United States Army Forces in the Far East (USAFFE) on September 1, 1941 before the war under the Philippine Commonwealth Government, was a POW from May 10, 1942 to October 14, 1943, and while in the prison camp became sick with beriberi, dysentery, and malaria which was the cause of his death. In May 1949, the Veteran's father had written, in conjunction with his own claim for benefits, that he had been informed by a schoolteacher that his son had died of malaria. Two fellow servicemembers of the Veteran, who wrote that they knew him personally, signed a joint affidavit in March 1954 that the Veteran had malaria during his POW time which he also died of. In a February 1955 letter to the appellant, the Chief of VA Dependents Claims Division wrote that the service records show the Veteran was inducted into the Philippines Army and into the service of the Armed Forced of the United States on December 8, 1941, which was the date that Philippines Army members were generally recognized as becoming members of the Armed Forces of the United States. A July 1951 VB Form 32 shows the beginning date of Veteran's service in the Armed Forces of the United States was recorded as December 8, 1941, the Veteran was missing from May 7, 1942 to May 9, 1942 and October 15, 1943 to October [REDACTED], 1944, he was a POW from May 10, 1942 to January 11, 1943, he was in no casualty status from January 12, 1943 to October [REDACTED], 1944, and that the Veteran died while in the service. Death was incurred in line of duty under AR 40-1025, with a date of death listed as October [REDACTED], 1944 "presumed" and "last seen while in a POW status, whereabouts unknown." According to this July 1951 form, he was not entitled to pay during his status after he was held as prisoner of war and the last date Veteran or his dependents were entitled to receive as allowances, allotment, or service pay was January 11, 1943. Under remarks, the form contains that the Veteran was "arbitrarily" determined to have been released on January 12, 1943, the date was POW Concentration Camp, Casisang Malaybalay ceased to be a POW camp. However, in an official government Certification of service by the Republic of the Philippines Ministry of National Defense received by VA in September 1981, the Veteran's service is listed as: Beleaguered from December 8, 1941 to May 6, 1942, Missing from May 7, 1942 to May 9, 1942, POW from May 10, 1942 to October 14, 1943, and Missing from October 15, 1943 to October [REDACTED], 1944. Date of death is October [REDACTED], 1944 (presumed). A May 2003 and an August 2006 Certification from General Headquarters of the Armed Forces of the Philippines Office of the Adjutant General contains the same set of dates and status, noting all service resulted in paid arrears in pay. In a typed letter received February 1955, the appellant wrote to the VA Dependents Claims Division that her husband died in the line of duty. In a handwritten letter received April 1955, the appellant stated that the Veteran's service had been continuous. The appellant wrote to VA in March 1955 that the Veteran was not released in January 1943, and to the contrary, they were married in the Japanese concentration camp at Davao City on August [REDACTED], 1943 which was witnessed by an imprisoned soldier. In fact, there are multiple statements in the claims file supporting the assertion the Veteran was held as a prisoner in Davao City and not in Casisang Malaybalay, including the appellant's written statements from August 1954, the August 1943 marriage contract reflecting a location of Davao City, three witnesses to the marriage noting the location was in Davao City in signed statements from December 1974 and April 2005, the Veteran's father's March 1951 statement that the Veteran had been transferred from Malaybalay, Bukidnon to Davao, and a March 1954 joint affidavit from two of the Veteran's fellow servicemembers who wrote that they were transferred with the Veteran as Prisoners of War from Malaybalay concentration camp to Davao. The appellant provided a history of the Veteran's arrest. She had explained in handwritten portions of her August 1954 claim that their home was near the Garrison and they lived in the region where Japanese were holding prisoners and that she and the Veteran had both been caught at the same time. She recalled how he was tortured; as a result, he "became very weak," "could hardly walk straight," and was disabled, and thus was not given work. She also wrote how he was pale, very thin, and developed a cough. He was only able to travel about accompanied by Filipino scouts, presumably non-allied soldiers. She last saw him when he had returned to warn his family to escape. In the March 1978 claim for death benefits, the appellant wrote her husband was missing in action and was dead per information from his co-soldiers. In the March 1954 notarized joint affidavit signed by two of the Veteran's fellow servicemembers from his military service, the men wrote that they personally knew the Veteran, that he served as a Technical Sergeant during the war, and they were together with him in the same unit. They explained that the Veteran had symptoms of malaria from the time they were sent to the firing line at the Davao area, and that when they were transferred from Malaybalay concentration camp to Davao as POWs, the Veteran's malaria became more severe as he suffered frequent chills, headaches, and fever, and he became thinner, paler and weaker. The joint affidavit also contains that there was a lack of medicine and the Veteran died from his malaria contracted during service. The servicemembers stated that they each personally know these facts because they were in the same prison camp until they dispersed when the American troops liberated Davao from the Japanese. Regarding the Veteran's service, personnel records associated with the claims file in August 1955 show he was a Technical Sergeant inducted into the USAFFE in September 1941. He was also referred to as First Sergeant by a First Lieutenant of the USAFFE in a January 1976 letter. On AGRD VB Form 32 associated with the claims file in July 1951, it had been "arbitrarily determined" that the Veteran had been released on January 12, 1943, the date when POW Concentration Camp, Casisang, Malaybalay ceased to be a POW camp, from January 12, 1943 to October 14, 1943 the Veteran had "unknown military activities," he was last seen on October 15, 1943, and thus from January 12, 1943 to October [REDACTED], 1944, the Veteran's status was recorded as "NCS" (No Casualty Status). The date of separation from service was October [REDACTED], 1944. However, the weight of the evidence in the Veteran's file demonstrates that he was transferred to a Davao City concentration camp as a prisoner of war, and was with his unit until around October 1943 when he was last seen, until he was presumed dead and assigned the date of death of October [REDACTED], 1944. Other Filipino soldiers signed notarized affidavits as to the Veteran's whereabouts, the appellant has explained the history of events, and the legal marriage between the Veteran and appellant is documented as occurring in Davao City in August 1943. Also supportive of the timeline of when the appellant and Veteran were together, is that their daughter was born the following May, as birth and baptismal certificates reflect. Despite the discrepancies of when the Veteran's NCS or missing in action status commenced, the Veteran's service during which he contracted fatal malaria qualifies him as a Veteran for compensation purposes. 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. See 38 U.S.C. § 101(2). For a Regular Philippine Scout or a member of one of the regular components of the Philippine Commonwealth Army while serving with Armed Forces of United States, the period of active service will be from the date certified by the Armed Forces as the date of enlistment or date of report for active duty whichever is later to date of release from active duty, discharge, death, or in the case of a member of the Philippine Commonwealth Army June 30, 1946, whichever was earlier. 38 C.F.R. § 3.41(a). Release from active duty includes beginning of missing-in-action status, except where factually shown at that time he was with his or her unit or death is presumed to have occurred while carried in such status: Provided, however, that where there is credible evidence that he was alive after commencement of his or her missing-in-action status, the presumption of death will not apply for Department of Veterans Affairs purposes. 38 C.F.R. § 3.41(a)(4). Active service of a Regular Philippine Scout or a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States will include a prisoner-of-war status immediately following a period of active duty, or a period of recognized guerrilla service or unrecognized guerrilla service under a recognized commissioned officer. In those cases where following release from active duty as set forth in paragraph (a) of this section, the veteran is factually found by the Department of Veterans Affairs to have been injured or killed by the Japanese because of anti-Japanese activities or his or her former service in the Armed Forces of the United States, such injury or death may be held to have been incurred in active service for Department of Veterans Affairs purposes. Determination shall be based on all available evidence, including service department reports, and consideration shall be given to the character and length of the veteran's former active service in the Armed Forces of the United States. 38 C.F.R. § 3.41(b). The discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces, or the discharge of any such person on the ground that such person was a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise to comply with lawful orders of competent military authority, or as a deserter, or on the basis of an absence without authority from active duty for a continuous period of at least one hundred and eighty days if such person was discharged under conditions other than honorable unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence, or of an officer by the acceptance of such officer's resignation for the good of the service, or (except as provided in subsection (c)) the discharge of any individual during a period of hostilities as an alien, shall bar all rights of such person under laws administered by the Secretary based upon the period of service from which discharged or dismissed, notwithstanding any action subsequent to the date of such discharge by a board established pursuant to section 1553 of title 10. See 38 U.S. Code § 5303. There is no evidence that the Veteran was court-martialed, a deserter, or a conscientious objector. It is also factually shown the Veteran was with his unit following the beginning of no casualty status of January 12, 1943, as arbitrarily assigned in the VB Form 32, and following his initial beleaguered status, assigned from the start of service. Therefore, active duty service continued through those dates he is factually found to have continued serving with his unit. See 38 C.F.R. § 3.41(a)(4). Nevertheless, the people who personally witnessed the Veteran's experiences when he was captured as a POW have told VA that he contracted malaria during active duty and that it was malaria that he died from. Lay persons are competent to report the symptoms they witnessed and relay knowledge of medical diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the witness statements supporting the appellant's case, including those from the appellant herself, are credible. Further discussion including factual findings of whether the Japanese directly injured or killed the Veteran due to the abuse reported by the appellant, neglect to provide medical care while imprisoned under their custody as relayed by the Veteran's fellow servicemembers, or due to any other factors is not necessary as the Veteran is found herein to have died, at least in part, from malaria contracted when he was in POW status. Therefore, the Veteran's service at which point he contracted malaria around the time he was captured as a POW in 1942 was in line of duty in active military service during a period of war. The Board notes that, in another matter pertaining to a type of death benefits, the Veteran's father previously received Gratuitous National Services Life Insurance payments on account of the Veteran's death, which appear to have been paid from October [REDACTED], 1944 until October 19, 1954, three years beyond the death of the Veteran's father, according to a Stop Payment Notice in the claims file, with a reason given of "Veteran was survived by a widow." The claims file contains a December 2005 Codesheet reflecting a character of discharge of "honorable" for service between December 8, 1941 to January 11, 1943, and a character of discharge of "dishonorable" for service from January 12, 1943 to October [REDACTED], 1944. However, there is no evidence of a basis for this entry and no official determination made regarding the Veteran's character of service. As discussed above, the Veteran's military status, documented in earlier records as no casualty from January 1943 due to the assumption he had been held in Malaybalay, was later corrected to reflect the Veteran's actual location in Davao and thus had POW status until October 1943 and is considered to have been missing thereafter. An October 2005 Veteran Identification Data page in the claims file reflects the Veteran's branch of service was "CA" (Commonwealth Army), he died on October [REDACTED], 1944 in service and the separation reason code is "satisfactory." Thus, the preponderance of the evidence reflects that the December 2005 Codesheet was based on error or an oversight, and the Veteran was not dishonorably discharged. Based on the above, the evidence is at least evenly balanced as to whether the Veteran's death was due to a disease contracted in line of duty in active military service during a period of war. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, his surviving spouse, she is entitled to compensation pursuant to 38 U.S.C. § 1121 based on the cause of the Veteran's death. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.