Citation Nr: 0004417 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-06 181 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for cause of the veteran's death resulting from tobacco use in line of duty during active military service. 3. Entitlement to dependent's educational assistance under 38 U.S.C.A. Chapter 35. 4. Whether the appellant has legal entitlement to payment of accrued benefits. 5. Whether the appellant has legal entitlement to non- service-connected death pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had recognized guerrilla service May 10, 1943, and from June 22, 1943 to November 5, 1945. He had regular Philippine Army service from November 6, 1945 to March 11, 1946, and active military service in the New Philippine Scouts, from May 21, 1946 to April 7, 1949. This appeal arises from the appellant's timely filed October 1997 notice of disagreement (NOD), and April 1998 substantive appeal. The issues of entitlement to service connection for cause of the veteran's death resulting from tobacco use in line of duty during active military service, and entitlement to dependent's educational assistance under 38 U.S.C.A. Chapter 35, are deferred pending the remand contained herein. FINDINGS OF FACT 1. The veteran had recognized guerrilla service May 10, 1943, and from June 22, 1943 to November 5, 1945. He had regular Philippine Army service from November 6, 1945 to March 11, 1946, and active military service in the New Philippine Scouts, from May 21, 1946 to April 7, 1949. 2. The current record contains a medical opinion that there is a causal nexus between the veteran's service and the disabilities that caused or contributed to cause death. 3. The appellant did not file a claim for death benefits within one year of the veteran's death, and under the law, she is not entitled to accrued benefits. 4. The veteran did not have the requisite military service, and under the law, the appellant is not entitled to non- service-connected death pension benefits. CONCLUSIONS OF LAW 1. The issue of service connection for the cause of the veteran's death is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). 2. There is no legal authority for entitlement to accrued benefits. 38 U.S.C.A. § 5121 (West 19991 & Supp. 1999); 38 C.F.R. § 3.1000(a)(c) (1999). 3. There is no legal authority for entitlement to VA death pension benefits for the appellant. 38 C.F.R. §§ 3.1, 3.3, 3.8 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection, Cause of Death The threshold question that must be resolved with regard to a claim is whether the appellant has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded claim is "[a] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The U. S. Court of Appeals for Veterans' Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1997) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit supra. Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Factual Background Pertinent service medical records do not reflect lung or respiratory problems, or treatment for or diagnosis of COPD or emphysema, including separation examination in April 1949. When the veteran originally applied for disability benefits in April 1954, his claim included a "chest condition." Dr. J. A., in a Certificate of Attending Physician, dated May 5, 1954, reported treating the veteran from March 1950 to the present for an asthmatic condition, with periodic attacks. There were no supporting clinical documents. A "Medical Certificate" from Marzan Clinic, dated February 23, 1983, noted treatment for the veteran from 4 years before. The diagnoses were chronic bronchiectasis; PTB (pulmonary tuberculosis); severe anemia; senile cataracts, both eyes; and arthritis. Dr. P. T., in a statement dated November 16, 1983, reported seeing the veteran 3 times, since 1972, with a chief complaint of difficulty breathing. The diagnoses included bronchial asthma. Received in October 1996 was a copy of a document certifying the veteran's death April [redacted], 1992, and a diagnosis of COPD emphysema. Lay statements in January 1997 report that the veteran was exposed to airborne pollutants in service. R. T., M. D., in a letter to the VA January 17, 1997, reported that the veteran had been treated for pulmonary emphysema, in January 1990 and March 1991, and in March 1992 for pulmonary tuberculosis. Later the veteran also reportedly had gastritis "due to chemical intake of Theophyllines, lack of appetite and loss of weight were also noted." Dr. R.T. attributed the veteran's "illness" to his military service because "he stayed and sought refuge to the mountains wherein he encountered not only the enemy forces but also hidden enemies like tiny germs and viruses, element and enclement (sic) weather conditions, drink unpurified and polluted water and exposed to pollen matters, mold, animal fur, leather, dust, chemicals, odors as well as certain food & drugs." It was stated that the veteran inhaled allergens or substances that greatly damaged and affected his lungs and respiratory system, and that the veteran was a heavy cigarette smoker, one pack per day. It was reported that the veteran's cigarette smoking started "during the Japanese occupation" and coupled with his experiences during World War II, he developed PTB due to concomitant emphysema and poor nutrition. Dr. T. described in detail emphysema, and opined that the "disease and injury was incurred in or aggravated by the patients military service w/c substantially and materially contributed to his death." Per a request in March 1997, the RO, received in April 1997 a copy of clinical records for the veteran's terminal hospitalization in April 1992. The admitting and final diagnoses were COPD, emphysema. It was recorded that his past medical history was positive for asthma since 1976. A March 21, 1997 document from the hospital where the veteran died, also showed a diagnosis of COPD emphysema. Received in June 1997 were copies of additional records associated with the veteran's terminal hospitalization, including the discharge summary that showed a final diagnosis of congestive heart failure, secondary to COPD-emphysema cardiomyopathy. Complications included renal shutdown. Analysis The evidence does not show that the veteran had COPD or emphysema in service or for years thereafter. The first reference to any respiratory problem was in his claim for benefits in 1954, more than six years after service. A private physician in 1954 reported treating the veteran for respiratory problems, asthma, beginning in 1950. There was no supporting documentation, and no reference to onset of the respiratory problem. In 1983 there were various diagnoses for the veteran including bronchial asthma, bronchiectasis, and pulmonary tuberculosis. There was no clinical documentation, and no date of onset for the veteran's respiratory disability. Records associated with the veteran's terminal hospitalization in April 1992 do not reflect any opinion as to onset of the veteran's COPD, emphysema, other than the notation in a progress note that the veteran's medical history was positive for asthma since 1976. The death certificate does not shown any dated of onset for the immediate, antecedent, or underlying cause of the veteran's death. The appellant has provided 2 lay statements that report that the veteran was exposed to airborne pollutants in service and the implication and assertion was that such exposure was the basis for the post-service COPD and emphysema. Service connection may be established through competent lay evidence, not medical records alone. Horowitz v. Brown, 5 Vet. App. 217 (1993). But a lay witness is not capable of offering evidence requiring medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The persons making the lay statements are competent to relate conditions readably observable in service, but they are not shown to possess the medical expertise to determine the etiology of medical symptoms or their relationship to service, and their claims of medical causation are of limited probative value. The only positive medical evidence in the appellant's favor is the opinion offered by Dr. T. in January 1997. For the limited purpose of determining whether evidence is new and material, its credibility must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The presumption of credibility, however, does not include any presumption of competence. see King v. Brown, 5 Vet. App. 19 (1993). Dr. T. stated that the veteran was exposed to airborne pollutants in service, that his respiratory system was damaged by such exposure, and that his emphysema was related to service. Dr. T also provided a definition of emphysema to show a nexus to service. The Board finds that his medical opinion is adequate to make the appellant's claim plausible, and thus well grounded. Accrued Benefits In 38 U.S.C.A. § 5107(a), the use of the term "well grounded" is confined to an evidentiary context, and the Court, for the most part, has limited use of the phrase in its decisions to the character of the evidence presented by a claimant. In a case, where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Except as otherwise provided, where death occurred on or after December 1, 1962, periodic monetary benefits (other than insurance and service members' indemnity) authorized under laws administered by the Department of Veterans Affairs, to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not to exceed 2 years prior to the last date of entitlement as provided in Sec. 3.500(g) will, upon the death of a veteran be paid to the living spouse. 38 C.F.R. § 3.1000(a) (1999). An application for accrued benefits must be filed within 1 year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include claim for any accrued benefits. 38 C.F.R. § 3.1000(c) (1999). In this instance, as explained to the appellant in her March 1998 statement of the case (SOC) and July 1999 supplemental statement of the case (SSOC), the appellant did not file a claim for death benefits within one year of the veteran's death, and she is therefore no legally entitled to payment of any accrued benefits. The law is dispositive, and her claim denied for lack of legal merit. Death Pension Benefits Veteran means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 3.1(d) Improved death pension, is a benefit payable by the Department of Veterans Affairs to a veteran's surviving spouse or child because of the veteran's non-service- connected death. Basic entitlement exists if the veteran had 90 days or more active service in the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. §§ 3.1(a), 3.3(b)(4) (1999). Regular Philippine Scouts are included for pension, compensation, dependency and indemnity compensation, and burial allowance. New Philippine Scouts and recognized guerrilla service is included for VA compensation and dependency and indemnity compensation benefits. 38 C.F.R. § 3.8(a)(b)(c)(d). The veteran's valid military service with recognized guerrillas and the New Philippine Scouts is not the type of service deemed to be active military service for VA pension benefits. Benefits for Philippine and Insular forces are specifically delineated by Congress, and the veteran's service does not qualify for pension benefits. The appellant does not meet the legal threshold for the benefit requested, and the claim has no legal merit. ORDER The claim for entitlement to service connection for the cause of the veteran's death is well grounded, and the VA now has a duty to assist. The appellant has no legal entitlement to payment of accrued benefits. The appellant has legal entitlement to non-service-connected death pension benefits. REMAND Dr. T. stated that the veteran was exposed to a host of factors during service that damaged his respiratory system, and that emphysema was related to service. However, Dr. T. only started treating the veteran in 1990, and the contemporary medical records submitted showing treatment in the 1990's for the veteran, did not relate onset of the veteran's respiratory disease to military service, and no such medical history was contained therein. Dr. T.'s rationale for the development of the veteran's respiratory difficulties during and after service is unclear both as to the basis for his conclusion as to the exposures the veteran experienced in service and as to the relationship of a great many of the listed exposures to respiratory disabilities shown in this matter. In other words, while the case law requires that the statement be presumed credible for purposes of determining whether the claim is well grounded, no such presumption attaches to a merits adjudication. The Board finds that further development is required. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In order to fulfill its statutory duty to assist the veteran and adequately develop his claim, the Board believes that further development, as specified below, is required. See 38 U.S.C.A. § 5107(a). Accordingly, the case is remanded to the RO for the following actions. 1. The appellant should be permitted to submit or identify any other evidence in support of her claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should secure a medical opinion by an appropriate medical specialist. This physician, after review of the entire claims file, should provide an opinion as to the degree of medical probability that a respiratory disability was incurred or aggravated in service and, whether such disability caused or contributed substantially and materially to cause death. In this regard, the opinion should further address the degree of medical probability that consumption of tobacco in service caused a disability that caused or contributed substantially and materially to cause death. The rationale for the opinions should be stated. If the examiner believes that a medical opinion can not be formulated as to these questions on the record without resort to speculation, it should so be stated. If the benefits sought on appeal are not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals