Citation Nr: 1630193 Decision Date: 07/28/16 Archive Date: 08/04/16 DOCKET NO. 13-25 697 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for non-ischemic cardiomyopathy with systolic heart failure, claimed as heart disease, including as due to herbicide exposure, for accrued benefits purposes. 2. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran had active service from July 1965 to May 1969. The Veteran died in March 2012. The appellant is the surviving spouse of the Veteran. This matter came before the Board on appeal from an October 2012 rating decision of the RO in Philadelphia, PA, which denied service connection for a heart disorder for accrued benefits purposes, and also denied service connection for the cause of the Veteran's death. Under the provisions of 38 U.S.C.A. § 5121A (2015), when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A substitution in case of death of a claimant who dies on or after October 10, 2008). Pursuant to 38 C.F.R. § 1010(c)(2) (2015), a claim for accrued benefits by an eligible survivor is deemed to include a request to substitute. The appellant's VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), was received by the RO in March 2012. As this was prior to the ratification of 38 C.F.R. § 1010, the RO did not consider the issue of substitution at that time. The record in this case contains credible evidence that the appellant was married to the Veteran at the time of his death. See April 1976 Marriage License. While the Agency of Original Jurisdiction (AOJ) has yet to make a determination as to the appellant's actual eligibility to substitute in the appeal, the evidence of record shows that the appellant is the Veteran's surviving spouse (and thus an eligible "accrued benefits" claimant, according to 38 U.S.C.A. § 5121 , so is eligible to substitute as the claimant for the purposes of completing the appeal). In this case, the record already establishes that the appellant is an accrued benefits claimant who is eligible for substitution under 38 U.S.C.A. § 5121A; therefore, the requirement of sending the claim to the AOJ to verify that the appellant is an eligible accrued benefits claimant (under 38 U.S.C.A. § 5121) has been rendered moot, such that sending the case to the RO for such verification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Accordingly, the appellant has been substituted as the claimant for the purposes of the service connection issue on appeal. In this regard, the appellant's appeal in her own claim for accrued benefits (under 38 U.S.C.A. § 5121) is rendered moot by the appellant's substitution (under 38 U.S.C.A. § 5121A) as the claimant for the issue of service connection for non-ischemic cardiomyopathy with systolic heart failure, claimed as heart disease, including as due to herbicide exposure. While substitution under 38 U.S.C.A. § 5121A is a form of accrued benefits claim, it is potentially more favorable to the appellant because it allows her to continue to submit evidence in support of the appealed issues, whereas the evidence in an accrued benefits claim under 38 U.S.C.A. § 5121 is limited to evidence in the claims file as of the date of a veteran's death. The appellant testified from Columbia, South Carolina, at a July 2015 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. Regarding the July 2015 Board videoconference hearing, when conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating a claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010); 38 C.F.R. § 3.103 (2015). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Bryant, 23 Vet. App. at 497. Here, during the videoconference Board hearing, the Veterans Law Judge specifically noted the issues on appeal, and sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate the claim. Specifically, the Veterans Law Judge asked for evidence that might be used to substantiate the issues on appeal. The appellant was informed that a nexus opinion establishing that a diagnosed heart disorder was related to Agent Orange exposure in service was needed to substantiate the issue. The Veterans Law Judge informed the appellant specifically regarding the need for a medical nexus opinion to support the claim; therefore, the Veterans Law Judge substantially complied with the requirements of 38 C.F.R. § 3.103; Bryant at 496-97. FINDINGS OF FACT 1. The Veteran died in March 2012. 2. The Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to Agent Orange. 3. Prior to death the Veteran was diagnosed with non-ischemic cardiomyopathy with systolic heart failure. 4. Per the Veteran's Certificate of Death, the immediate cause of death was cardiogenic shock stemming from the diagnosed non-ischemic cardiomyopathy. Contributing causes of death included respiratory failure and pneumonia. 5. The Veteran did not exhibit chronic symptoms of non-ischemic cardiomyopathy with systolic heart failure during service. 6. The Veteran did not exhibit continuous symptoms of non-ischemic cardiomyopathy with systolic heart failure since service. 7. Non-ischemic cardiomyopathy with systolic heart failure did not manifest within one year of service separation. 8. The Veteran's non-ischemic cardiomyopathy with systolic heart failure was manifested many years after service separation and is not causally or etiologically related to service, including as due to herbicide exposure. 9. At the time of the Veteran's death, service connection was not in effect for any disability, and service connection was not warranted for non-ischemic cardiomyopathy with systolic heart failure, chronic obstructive pulmonary disease (COPD), and/or pneumonia. CONCLUSIONS OF LAW 1. The criteria for service connection for non-ischemic cardiomyopathy with systolic heart failure, including as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2015). 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312, 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The United States Court of Appeals for Veterans' Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the context of a claim for dependency and indemnity compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In May 2012, July 2012, and September 2012, VA issued the appellant adequate VCAA notice as to both the accrued benefits and service connection for cause of death issues. The VCAA notices were issued to the appellant prior to the October 2012 rating decision on appeal. The issues were readjudicated in the April 2013 statement of the case (SOC); therefore, there was no defect with respect to the timing and/or content of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the appellant's claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159; DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (indicating that, while 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical nexus opinion for a DIC claim, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim); see also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (clarifying DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103A(a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion, and that VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2)). Specifically, the information and evidence that has been associated with the claims file includes service treatment records, the Veteran's VA and private treatment (medical) records, and the appellant's statements. Prior to death the Veteran did not receive a VA examination addressing the question of whether a heart disorder was related to service, to include exposure to herbicides; however, during the course of this appeal, VA did obtain a Veterans Health Administration (VHA) opinion answering this question. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VHA opinion report reflects that the examiner reviewed the evidence of record, considered the current medical research, and answered all relevant questions. The Board notes that the requested opinion was received in December 2015. While the opinion was very thorough and addressed the questions advanced, the Board subsequently returned the opinion to the VHA examiner due to the examiner's previous inability to review certain evidence. In April 2016, the VHA examiner noted reviewing the evidence and stated that the previous opinion had not changed. As such, the Board finds the December 2015 VHA opinion to be adequate. All relevant documentation, including VA and private treatment (medical) records, has been secured or attempted to be secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the record as to the issues on appeal. 38 U.S.C.A. §§ 5103, 5103A(a), 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Service Connection for a Heart Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Non-ischemic cardiomyopathy with systolic heart failure (as cardiovascular-renal disease) constitutes a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, non-ischemic cardiomyopathy with systolic heart failure is not a disability for which presumptive service connection based exposure to herbicides may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2015); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Throughout the course of this appeal, the appellant has advanced that a heart disorder was caused by the Veteran's exposure to the herbicide Agent Orange in service. As found in the October 2012 RO rating decision, the Veteran had qualifying service in the Republic of Vietnam, and is presumed to have been exposed to herbicide agents during active service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Prior to death, the Veteran submitted to VA a March 2012 Ischemic Heart Disease (IHD) Disability Benefits Questionnaire (VA Form 21-0960A-1) completed by a private cardiologist. Per the questionnaire, the Veteran had a diagnosis of non-ischemic cardiomyopathy with systolic heart failure. Further, the private cardiologist specifically noted that the Veteran did not have IHD. Subsequently, VA sought its own opinion as to whether the diagnosed non-ischemic cardiomyopathy may, in fact, have been IHD. Per a March 2013 opinion, a VA examiner noted that all of the relevant medical records noted a history of non-ischemic cardiomyopathy, with no documented history of IHD. As such, the VA examiner opined that the Veteran did not have IHD that could have contributed to the Veteran's cause of death. After a review of the evidence, lay and medical, the Board finds that the non-ischemic cardiomyopathy with systolic heart failure did not have its onset during service or within one year of service. Service treatment records reflect that during service the Veteran did not complain of, and was not diagnosed or treated for, any heart disability symptoms. The April 1969 service separation examination was negative for any heart disability diagnosis. Available private treatment records reflect that the Veteran was diagnosed with heart disease prior to 2009. At the July 2015 Board videoconference hearing, the appellant testified that the Veteran's heart problems began in approximately 1984, approximately 15 years after service separation. As such, the Board finds that the Veteran was not diagnosed with and/or treated for a heart disorder during service, and did not have symptoms of such in service. The service treatment records appear to be complete, and complaints of heart disability symptoms would have been recorded had the Veteran sought treatment during service. Service treatment records reflect that the Veteran complained of or sought treatment for other medical issues, including jaw trauma, foot numbness, and headaches/vertigo, which reflects that he would similarly have sought treatment for heart related complaints or symptoms during service. As a result, the absence of any in-service complaint, finding, or reference to treatment for heart disorder symptoms weighs against a finding that the Veteran incurred a heart disorder in service. See Kahana, 24 Vet. App. at 438 (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board next finds the weight of the evidence demonstrates that symptoms of a heart disorder have not been continuous since service separation in May 1969. As noted above, service treatment records do not reflect any heart problems at service separation. At the July 2015 Board videoconference hearing, the appellant testified that the Veteran's heart problems began in 1984, which was approximately 15 years after service separation. Further, the Board has reviewed all the relevant VA and private medical records. There is no indication from the treatment records that the Veteran was diagnosed with any heart disorder earlier than the mid-1980s. The approximately 15 year period between service and the onset of a heart disorder is one factor among other factors in this case that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan, 451 F.3d at 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additional factors weighing against continuous symptomatology since service include the appellant's own testimony and the normal service separation examination. Additionally, the evidence does not show that a heart disorder manifested within one year of service separation. Specifically, the lay evidence reflects that heart disorder symptoms first manifested in 1984, approximately 15 years post service. As heart disorder symptoms did not manifest within one year of service separation, the criteria for the presence of a heart disorder to a compensable (i.e., at least 10 percent) degree within one year of service separation are not met. Finally, the Board finds that the weight of the evidence demonstrates that the non-ischemic cardiomyopathy with systolic heart failure, which manifested many years after service, is not causally or etiologically related to service, including presumed herbicide exposure during service. The appellant's only contention is that the heart disorder was caused by service due to herbicide exposure. The Board notes that non-ischemic cardiomyopathy, by regulation, is not a disease for which service connection may be presumed as being the result of herbicide exposure. See 38 C.F.R. § 3.309(e). The scientific studies reviewed as part of that regulatory process established no correlation between herbicide exposure and non-ischemic cardiomyopathy which develops many years later such that non-ischemic cardiomyopathy was specifically excluded by regulation as diseases associated with herbicide exposure. While non-ischemic cardiomyopathy is excluded from presumptive service connection due to herbicide exposure, IHD is a disability for which presumptive service connection due to herbicide exposure may be granted. Id. As discussed above, in March 2013 VA sought to ascertain whether the Veteran may, in fact, have had IHD as opposed to a non-ischemic heart disorder. Per the March 2013 opinion, the Veteran's entire relevant medical history reflects non-ischemic cardiomyopathy, with no documented history of IHD; therefore, the VA examiner found that the Veteran did not have IHD that could have contributed to the Veteran's cause of death. While the Veteran's heart disorder was non-ischemic, and thus barred from presumptive service connection due to herbicide exposure, as discussed previously, this does not prevent the establishment of service connection on a direct basis. While the appellant has contended that the diagnosed non-ischemic cardiomyopathy with systolic heart failure was caused by exposure to herbicides in service, the Board does not find that under the facts of this case, where there is no in-service symptomatology and no credible symptoms or treatment until many years after service, the appellant is competent to provide evidence of an etiological nexus between a heart disorder and herbicide exposure. See Kahana, 24 Vet. App. at 437 (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). The etiology of the Veteran's non-ischemic cardiomyopathy with systolic heart failure involves complex medical etiological questions dealing with the origin and progression of the cardiovascular system, and such disabilities are diagnosed primarily on clinical findings and physiological testing. While the appellant is competent to relate heart disorder symptoms experienced by the Veteran at any time, she is not competent in this case to opine on whether there is a link between a heart disorder and active service, including herbicide exposure during active service, because such a medical opinion requires specific medical knowledge and training that the appellant has not been shown to possess. The Board has reviewed the VA and private treatment records and has not found any opinions within such records indicating that the non-ischemic cardiomyopathy with systolic heart failure was related to service, including as due to herbicide exposure. In fact, a July 2009 private treatment record diagnosed the Veteran with "cardiomyopathy, tobacco abuse." Such a diagnosis indicates that the Veteran's own physician suspected that the Veteran's heart disorder was related to a history of smoking. Such a finding is supported by the fact that multiple other private treatment records noted the Veteran's history of smoking when discussing the heart problems. In a December 2012 statement, the appellant advanced that a VA physician had stated that exposure to herbicides in service "could" have caused the non-ischemic cardiomyopathy. At the July 2015 Board videoconference hearing, the appellant testified that, after the Veteran's first heart failure in 1984, subsequent doctors were unable to identify a cause for the Veteran's heart disorder; however, after the Veteran began receiving treatment with VA, at least one VA doctor opined that because there were no other factors that appeared to be the cause of the heart problems, the problems might stem from herbicide exposure in service. As VA had not received any such written opinion from any physician, the undersigned Veterans Law Judge suggested that the appellant have one of the aforementioned physicians submit an opinion that herbicide exposure was the most likely cause of the non-ischemic cardiomyopathy as all other factors had been ruled out. Unfortunately, no such opinion has been received. The Board notes that in the December 2012 statement, the appellant advanced that a VA physician had expressed that herbicides "could" have caused the heart disorder, and presumably, this is the opinion that would have been rendered if the requested opinion had been obtained. Such a purported opinion is of no probative value as it would be a statement of mere possibility and not probability. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that the veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician's opinion that service "could have" precipitated a disability found too speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). VA did receive a private opinion in August 2015. Per the opinion, the private physician noted that the Veteran had a documented history of herbicide exposure in service. The private examiner went on to state that "amyloidosis is one of the presumptive illnesses recognized by the VA as resulting from exposure to Agent Orange. Amyloidosis is a recognized cause of non-ischemic cardiomyopathy. In my professional opinion, [the Veteran's] non-ischemic cardiomyopathy was at least as likely as not caused by his exposure to Agent Orange." As such, it appears to the Board that the private examiner was opining that the Veteran had amyloidosis caused by Agent Orange exposure that, in turn, caused the Veteran's non-ischemic cardiomyopathy. If this were the case, then service connection would have been warranted for amyloidosis, and in turn, service connection for non-ischemic cardiomyopathy would then have been warranted on a secondary basis. See 38 C.F.R. § 3.310. Unfortunately, the private physician did not discuss any of the evidence upon which this opinion was rendered. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an opinion without any rationale against which to evaluate the probative value of his determination is inadequate). This was particularly problematic as the evidence received by VA did not indicate that the Veteran had previously been diagnosed with any form of amyloidosis. Further, the Board notes that only AL amyloidosis is presumptively related to herbicide exposure. 38 C.F.R. § 3.309(e). Due to the deficiencies in the August 2015 private opinion, VA sought a VHA opinion on the questions of 1) whether the Veteran had any form of amyloidosis during life, and 2) whether or not the Veteran had any form of amyloidosis, whether it was at least as likely as not that the Veteran's non-ischemic cardiomyopathy with systolic heart failure was related to service, including as due to herbicide exposure. As to the amyloidosis question, the VHA cardiologist noted that the evidence of record made no mention of the Veteran having a diagnosis of either amyloidosis or restrictive cardiomyopathy (the type of cardiomyopathy caused by amyloidosis). Further, the examiner explained that the median survival rate with AL amyloidosis is 13 months, and only four to nine months after presentation with heart failure, while the Veteran had been having heart problems for over 30 years. In addition, available electrocardiogram (EKG) readings did not support a diagnosis of AL amyloidosis, and during the relevant period the Veteran was prescribed medications that commonly have negative side effects if the individual taking the drugs has AL amyloidosis. For these reasons, the VHA cardiologist opined that the Veteran did not have AL amyloidosis. Next, the VHA cardiologist also opined that the evidence did not support a finding that the Veteran had any other form of amyloidosis during life. The two most common forms of amyloidosis are AA amyloidosis, in which only 5 percent of cases have cardiac involvement, and ATTR amyloidosis, which is familial and the evidence did not reflect any family history consistent with AATR amyloidosis. Additionally, many AL amyloidosis markers, which were absent, are also markers of other forms of amyloidosis. For these reasons, the VHA cardiologist opined that the evidence of record did not support a finding that the Veteran had any form of amyloidosis during life. Finally, the VHA cardiologist addressed the issue of whether the non-ischemic cardiomyopathy with systolic heart failure was related to service, including as due to herbicide exposure. In addressing the August 2015 private opinion, which effectively found that the Veteran had amyloidosis caused by exposure to Agent Orange that, in turn, caused the non-ischemic cardiomyopathy, the VHA cardiologist noted that even if the Veteran had amyloidosis (which per the VHA opinion he did not), "non-ischemic cardiomyopathy caused by amyloidosis is a restrictive cardiomyopathy, rather than a dilated cardiomyopathy, which is the form of non-ischemic cardiomyopathy documented to be [the Veteran's] long-standing cardiac issue." As to the question of whether the non-ischemic cardiomyopathy with systolic heart failure was caused by any in-service factors, including herbicide exposure, the VHA cardiologist noted that non-ischemic cardiomyopathy is idiopathic (that is, having no known cause) in almost 50 percent of cases. Considering the 15 year delay between service separation and the onset of symptoms, the VHA cardiologist opined that she was unable to directly link the Veteran's service, and in particular exposure to Agent Orange, to the diagnosed heart disorder. For these reasons, the Board finds that the weight of the evidence is against direct, presumptive, or secondary service connection, including as due to herbicide exposure, for non-ischemic cardiomyopathy with systolic heart failure under the provisions of 38 C.F.R. §§ 3.303, 3.307, 3.309, and 3.310. As the preponderance of the evidence is against service connection, benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Cause of Death In addition to seeking service connection for a heart disorder, the appellant also seeks service connection for the cause of the Veteran's death, as the non-ischemic cardiomyopathy with systolic heart failure caused the Veteran's death. Dependency and indemnity compensation (DIC) is 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. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent 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). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran died in March 2012. The death certificate listed the immediate cause of death as cardiogenic shock, with non-ischemic cardiomyopathy as the underlying cause. Contributing causes of death included respiratory failure and pneumonia. At the time of death, the Veteran was not service connected for any disability. For all the reasons discussed above, service connection for non-ischemic cardiomyopathy with systolic heart failure is not warranted; therefore, service connection for cause of death is not warranted on that basis. As the death certificate states that the disabilities of respiratory failure and pneumonia contributed to the cause of death, the Board has considered whether service connection is warranted for either disability. VA treatment records reflect that prior to death the Veteran was diagnosed with and treated for COPD. VA treatment records reflect that the Veteran was not diagnosed with COPD until approximately February 2010, when a VA lung function test "showed some changes we can see in patients who have COPD or emphysema." This was approximately 40 years after service separation. The evidence of record, including a June 2010 VA treatment record, conveys that the COPD symptoms were not particularly severe. The April 1969 service separation examination reflects that the Veteran's lungs were normal at service separation, and the evidence of record does not reflect any pulmonary event, injury, and/or disease during service that may have resulted in the COPD diagnosed 40 years later. Further, COPD is not a disability for which presumptive service connection due to exposure to herbicides may be granted. 38 C.F.R. § 3.309(e). While VA has not requested an opinion as to whether the Veteran's herbicide exposure may have caused the subsequently diagnosed COPD, the Board notes that neither the appellant nor the evidence of record has suggested any such connection between herbicide exposure and the Veteran's COPD. Rather, the evidence of record suggests that any respiratory disability was related to the Veteran's smoking history. As such, the Board finds remand for an opinion as to whether the COPD was related to herbicide exposure is unnecessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). For these reasons, the Board finds that service connection for COPD was not warranted at the time of the Veteran's death, and that service connection for the cause of the Veteran's death is not warranted on this basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Finally, the Board notes that with any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). While pneumonia was listed as a contributing cause of death, the Board notes that the evidence of record does not reflect that the Veteran had ever been diagnosed with chronic and/or recurrent pneumonia. Rather, it appears that this was an acute instance of pneumonia. As such, service connection for pneumonia would not have been warranted at the Veteran's time of death as there was no current pneumonia disability that could have been subject to service connection. In summary, the Veteran was not service connected (or entitled to be service connected) during his lifetime for any of the disorders which caused or contributed to his death. The preponderance of the evidence weighs against a finding that the cause of death is related to service. Therefore, service connection for the cause of death is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for non-ischemic cardiomyopathy with systolic heart failure, claimed as heart disease, for accrued benefits purposes, is denied. Service connection for the cause of the Veteran's death is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs