Citation Nr: 1334284 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-32 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1959 to December 1964, and March 1965 to May 1970. The Veteran died in September 2006, and the appellant is his surviving spouse. This matter come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c)(3) (2013). FINDINGS OF FACT 1. A September 2006 certificate of death indicates that the Veteran died in September 2006 at the age of 74. The certificate of death lists the immediate cause of death as cardiopulmonary arrest due to multiple organ failure. The certificate of death also listed underlying causes of death as sepsis syndrome secondary to community acquired pneumonia, high risk diabetes mellitus, type II, poorly controlled, cardiac dysrrhythmia, and partial intestinal obstruction. 2. At the time of his death, service connection was not in effect for any disorder. 3. The evidence of record shows that the Veteran did not serve within Vietnam as defined by VA for the purpose of determining presumptive exposure to an herbicidal agent. 4. The probative evidence of record does not demonstrate that a disability that originated in service or a service-connected disability caused or contributed to the Veteran's death, to include as due to exposure to an herbicidal agent. CONCLUSION OF LAW A disability incurred in or aggravated by service or presumed to have been incurred in service did not cause or contribute substantially or materially cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1116, 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the RO sent the appellant a letter in October 2006 letter that informed her of what evidence was required to substantiate a claim of entitlement to service connection for the cause of the Veteran's death. See 38 C.F.R. § 5103(a); see also Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). This letter also informed her of her and VA's respective duties for obtaining evidence, as well as notice of the type of evidence necessary to establish an effective date. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service department records, service treatment records, as well as identified private medical treatment records have been associated with the claims folder. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA medical opinion with respect to the cause of the Veteran's death was not obtained. VA's duty to assist specifically includes providing a medical opinion when necessary if the claim at issue involves disability compensation. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 3.326. However, in this case, a medical opinion is not needed. There is no evidence of record, other than the appellant's and the Veteran's former assertions, that the Veteran's cause of death was related to service or to a service-connected disorder. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that reflected that he experienced an event, injury, or disease in service that may be associated with his symptoms). Moreover, there is no competent evidence in the record of a causal connection between the Veteran's fatal disease processes and his military service. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical opinion in order to decide this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The appellant contends that the Veteran's death is related to active military service. More specifically, she has asserted that herbicide exposure during active service in Vietnam caused the Veteran to develop diabetes mellitus, type II, after service. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312 (2013). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A service-connected disability will be considered as the contributory cause of death when that the disability contributed substantially or materially to death, combined to cause death, or aided 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-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, with debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(3). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Additionally, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). Moreover, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Those disorders include Type II diabetes mellitus. 38 C.F.R. § 3.309(e). Service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). "Service in the Republic of Vietnam" also includes service in the inland waterways of Vietnam and excludes veterans who served aboard ships operating in Vietnam's offshore waters unless the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97; 62 Fed. Reg. 63604 (1997). After a thorough review of the Veteran's claims file, the Board concludes that the evidence of record is insufficient to establish a presumption of herbicide exposure because there is no evidence substantiating the appellant's contentions that the Veteran had in-country service in Vietnam. Specifically, the appellant argues, in the VA Form 9, that the Veteran's service aboard the U.S.S. Tortuga and U.S.S. Cavalier exposed him to herbicides. Records indicate that the Veteran intermittently served aboard the U.S.S. Tortuga and U.S.S. Cavalier in the offshore waters of Vietnam during the period July 1965 to May 1968. However, the Veteran's service treatment records and service department records are negative for any indication that he had in-country service in Vietnam, or that he was otherwise exposed to herbicides. The service treatment records are also negative for any complaints of or treatment for diabetes mellitus, type II. Additionally, the National Personnel Records Center stated that the Veteran's service record provided no proof that the Veteran served in-country in Vietnam. In sum, the probative evidence of record does not establish that the Veteran had in-country service in Vietnam during his active duty service. For the foregoing reasons, the Veteran cannot be presumed to have been exposed to herbicides during active duty service. 38 C.F.R. §§ 3.307(a)(6), 3.313 (2013). Accordingly, service connection for diabetes mellitus, type II, is not warranted on a presumptive basis. 38 C.F.R. § 3.309(e). Service connection may also be awarded if the competent evidence demonstrates that the Veteran's diabetes mellitus, type II, was directly related to his active duty service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). After thorough consideration of the medical evidence of record, the Board concludes that service connection for diabetes mellitus, type II, on a direct basis is not warranted. In this case, the Veteran's service treatment records do not show any relevant complaints of, treatment for, or diagnosis of diabetes mellitus, type II. There is no evidence of diabetes mellitus, type II, prior to 2006, which is over 35 years after the Veteran's discharge from active military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Additionally, there is also no competent evidence linking the Veteran's diabetes mellitus, type II, to his service. An April 2006, private treatment note provides a nexus between the Veteran's diabetes mellitus, type II, and exposure to herbicides. However, as noted above there is no evidence that the Veteran was exposed to herbicides in service. Thus, the evidence does not show that the Veteran's diabetes mellitus, type II, was related to his military service. Although the appellant contends that the Veteran's fatal disease process was due to his military service, her statements are not competent evidence. Evidence of the etiology of the cause of the Veteran's death requires medical diagnosis based on diagnostic testing, which the appellant is not trained to perform. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the United States Court of Appeals for Veterans Claims). The appellant's statements are competent evidence as to observable symptomatology, including weakness, disorientation, and bad eating habits. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). However, the statements that the Veteran's death was caused by a disability incurred during service draw medical conclusions which the appellant is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's cause of death falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The Board must rely on competent medical evidence in making its determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (finding that the Board is prohibited from making conclusions based on its own medical judgment). Ultimately, there is no competent evidence of record to support the assertions advanced by the appellant that the Veteran was exposed to herbicides during service, or that the Veteran's death was caused by a service-connected disability. Service connection was not in effect for any disability at the time of the Veteran's death. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Moreover, the probative evidence of record does not demonstrate that the underlying cause of the Veteran's death was incurred in or caused by his active military service, to include exposure to an herbicidal agent. There is no evidence of record demonstrating that the immediate cause of death, cardiopulmonary arrest due to multiple organ failure, or the other underlying causes of death of diabetes mellitus, type II; sepsis syndrome, secondary to community acquired pneumonia; cardiac dysrhythmia; and partial intestinal obstruction, were shown in service or linked to the Veteran's active duty service or to a service-connected disorder. As the evidence does not show that the immediate and underlying causes of the Veteran's death listed above were related to service or to a service-connected disorder, service connection for the cause of the Veteran's death is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for the cause of the Veteran's death is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs