Citation Nr: 1751040 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-36 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1952 to September 1954. The Veteran died in November 2000. His decoration and medals include a Combat Infantry Badge, a United Nations Service Medal, a National Defense Service Medal, a Republic of Korea Presidential Unit Citation, and a Korean Service Ribbon with one Bronze Star. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision of the Pension Management Center 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's death in November 2000 was due to promyelocytic leukemia, with underlying causes of chronic renal failure, diabetes, and ischemic cardiomyopathy. 2. At the time of his death, service connection was not in effect for any disability and there was no evidence indicating a relationship between any of the disabilities on his death certificate and his active service. 3. There was no diagnosis of residuals of cold injuries and no indication in the record that this type of injury contributed to or caused the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant is seeking service connection for cause of the Veteran's death or accrued benefits. Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's excellent service and the Board's sympathy with the Appellant's loss. The Veteran was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated. Duties to Notify and Assist In the instant case, notice was provided to the Appellant in July 2016, prior to the adjudication of the claim in the Statement of the Case in May 2017. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. §§ 1310, 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to an Appellant's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not obtained a medical opinion with regard to this claim. The Board finds that the duty to assist is not triggered in this matter. There is no evidence indicating that prior to his death the Veteran was diagnosed with any of the disabilities identified as the cause or underlying cause of his death on the death certificate. Additionally, the evidence does not establish that the Veteran had a diagnosed disability of residuals of cold injuries or recurrent symptoms thereof prior to his death. The Appellant has contended that the Veteran had cold injuries without specifying the extent or location of said injuries or residuals. The medical evidence collected and submitted by the Appellant does not include any notation of a cold injury. Additionally, there is no evidence suggesting a link between residuals of a cold injury and any of the reported causes of the Veteran's death. The only potential evidence of a possible connection between the Veteran's death and any suggested cold injury residuals are the Appellant's own conclusory statements, and these statements are not sufficient to trigger VA's obligation to obtain an opinion, particularly in the absence of any evidence of a cold injury residuals prior to the Veteran's death. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or is etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). To be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312 (c)(1). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a). Merits The Veteran died in November 2000. At the time of his death, service connection had not been established for any disability. The official certificate of death lists the immediate cause of death as promyelocytic leukemia, with chronic renal failure, diabetes, and ischemic cardiomyopathy as underlying causes leading to his death. There are no other causes listed, direct or underlying. The Appellant contends that the Veteran developed a cold injury while serving in combat in Korea and that this condition contributed to his death. While the Veteran does have a combat infantry badge and his service in Korea is not doubted, the evidence does not reveal that the Veteran had a cold injury or any residuals thereof during service. The Board recognizes that the Veteran's service treatment records are unavailable, however, there is no record of residuals of cold injury reported by the Veteran at any time in the medical records identified and collected by VA. The Appellant has not provided a description of the location or severity of the cold injury. Thus, based on the record, there is insufficient evidence to establish that the Veteran suffered a cold injury in service and had residuals thereof. Even assuming arguendo that such a cold injury was present, there is also no evidence of any relationship between a residual of a cold injury and the Veteran's death. Accordingly, there is also no nexus between the two, and insufficient evidence to obtain an opinion regarding any such relationship, as discussed above. Regrettably, the Board must deny the Appellant's claim for compensation for the cause of the Veteran's death. In reaching this decision the Board has considered the benefit-of-the-doubt rule, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed.Cir. 2001). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs