Citation Nr: 1746976 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 15-33 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the Veteran's cause of death. ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1947 to May 1952, June 1952 to June 1955, and September 1955 to September 1967 in the U.S. Airforce as an aircraft control and warning supervisor. The Veteran died in July 2004, and Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 decision of the Pension Center in St. Paul, Minnesota of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in July 2004 and his death certificate (incorrectly listed with a June 2004 death date) listed the sole cause of death as respiratory failure caused by emphysema. 2. The Veteran was not service connected for any disabilities at the time of his death. 3. The Veteran did not serve in Vietnam or other place entitled to a presumption of herbicide exposure. 4. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1103, 1110, 1112, 1116, 1310 (West 2014); 38 C.F.R. §§ 3.5, 3.307, 3.309, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veteran has not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Service Connection for Cause of Death DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected or compensable disability. 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.5(a). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability or disease incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability the appellant must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the Appellant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Appellant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran died in July 2004. His cause of death as "end-stage chronic obstructive pulmonary disease with respiratory failure" on the July 2004 private hospital discharge medical record. The death certificate listed emphysema. The Veteran had no service-connected disabilities at the time of death. Service treatment records show that the Veteran received occasional treatment for upper respiratory infections and rhinitis. In a May 1963 physical examination, the examiner noted the Veteran's report of a history of colds for 10 years prior to a 1976 septectomy and no trouble since that time. No respiratory system abnormalities were noted during that examination or during an April 1967 retirement physical examination. Examiners did note that the Veteran was a one and one-half pack per day smoker at that time. The Appellant has three contentions for why the Veteran's death is attributable to service. First, the Veteran started smoking in service, which caused his death. See April 2016 Statement in Support of claim. Second, the Veteran had been exposed to Agent Orange or had been in Vietnam, and should be entitled to a presumption of service connection for his cause of death as a result. Id. Third, the Appellant also claimed the Veteran had PTSD, which caused him to smoke, and this, combined with his exposure to "polluted air" and "exhaust fumes" in service, caused his emphysema/obstructive pulmonary disease. Id. As to the first contention, as a matter of law, use of tobacco products in service cannot be the basis for a claim for cause of death. 38 U.S.C. § 1103(a) states: [A] veteran's . . . death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service . . . on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. Therefore, this contention cannot sustain a claim for the Veteran's cause of death. The evidence of record does not support the second contention. The Veteran's service records do not show presence in Vietnam or any other place covered by the herbicide presumption during the presumptive period. See 38 C.F.R. § 3.307(a)(6) (noting service in the Korean DMZ from April 1968 to August 1971 is covered, but this is after the Veteran left service). Additionally, the cause of the Veteran's death is not a presumptive disease under the relevant herbicide regulation. See 38 C.F.R. § 3.309(e) To the contension that the Veteran's PTSD caused him to smoke which in turn caused his death, there is no evidence that the Veteran was diagnosed with or had manifestations of PTSD including any psychiatric disorder attributable to a plane crash in Korea in April 1951. The Veteran was involved with a crash while making an emergency landing of a B-29 type aircraft, causing abrasions to the legs, arms, and lower body, and a sprained left elbow. He received treatment with hot soaks for approximately 48 hours and was returned to full duty. However, a medical professional never diagnosed the Veteran with PTSD. The appellant, as a lay person, is not capable of diagnosing the Veteran of PTSD based upon the vague symptoms of "nightmares and recurrent dreams" listed in the April 2016 statement and there is no medical evidence to a diagnosis of PTSD. Likewise, her statements that "polluted air" and "exhaust fumes" caused the Veteran's obstructive pulmonary disease (in other words, that there was a nexus between these and obstructive pulmonary disease) is not something within the competency of a lay person and has little probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Appellant additionally submitted a document regarding herbicide exposure in Vietnam and chronic breathing problems. See April 2016 correspondence. Without commenting on the veracity of this document, it does not apply to the present case. The Veteran did not serve in Vietnam. Finally, the Board has considered other theories not raised by the Appellant. The Veteran was not service connected for any disability at the time of his death. There is no basis to believe, based on the service treatment medical records, that an event, injury, or disease in service, which ended in 1967, is in any way causally related to the Veteran's death in July 2004. There is no other evidence or statements of record for the Board to consider. Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the Appellant's claim for the cause of the Veteran's death. ORDER Entitlement to service connection for the Veteran's cause of death is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs