Citation Nr: 1803091 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 07-08 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1963 to May 1965. The Veteran died in May 1992 and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This case was previously before the Board in July 2010 and was remanded for further development. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran died in May 1992. The death certificate lists his immediate cause of death as cardiac arrest due to respiratory arrest due to congestive heart failure with multiple myeloma listed as an other significant condition contributing to death but not related to cardiac arrest. 2. Service connection was not in effect for any cardiac condition, respiratory condition, or cancerous condition at the time of the Veteran's death. 3. The probative evidence of record does not demonstrate that it is at least as likely as not that the cause of the Veteran's death manifested during his period of active military service or is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist and to Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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 duty to assist argument). II. Legal Criteria 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. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for the cause of the veteran's death may be granted if a service-connected disability was either the principal, or a contributory, cause of the veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In cases of service connection for the cause of death of a 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007): Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have been found not to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Merits of the Claim The Appellant contends the Veteran's death was the result of his multiple myeloma caused by amyloidosis that he had before he died that should have been service-connected. Specifically, she contends the Veteran had been exposed to herbicides or radiation during his time in service which caused his death. The Veteran was diagnosed with multiple myeloma and amyloidosis in December 1991. The Veteran died in May 1992. The Veteran's death certificate shows the Veteran's primary cause of death was due to cardiac arrest due to respiratory failure and congestive heart failure. The Veteran's death certificate lists the Veteran's multiple myeloma as a significant condition contributing to death but not related to his cardiac arrest. The questions are whether the conditions causing the Veteran's death were incurred during his time in active service; and if, as the Appellant contends, the Veteran's multiple myeloma was incurred during the Veteran's time in service, whether there is a causal connection between the Veteran's service and his multiple myeloma, and whether the Veteran's multiple myeloma contributed substantially or materially to his death. The Veteran's service treatment records (STRs) are negative for any mention of heart or cancerous conditions. While the Veteran did seek medical treatment for joint and bone problems, there is no mention of heart or cancerous conditions. The Veteran's May 1963 induction examination did not show that the Veteran suffered from any pre-existing heart or cancerous conditions. The Veteran's April 1965 discharge examination was negative for any cancer or heart condition. The Veteran stated he was in good health and had no complaints. The Veteran's personnel records do not indicate he served in Vietnam or otherwise served in a theater where he would have been exposed to herbicide agents. The Veteran's record also does not indicate that he was exposed to radiation that would have caused his multiple myeloma. Throughout 1991 and 1992, the Veteran's medical records show he sought treatment for shortness of breath. In an April 1992 letter, the Appellant stated the Veteran broke his ankle in 1970 but that she was not able to obtain the medical records from the treating hospital. The Appellant also stated she did not receive medical records from the hospital where the Veteran was treated for pneumonia three times. The Appellant submitted multiple articles on multiple myeloma and amyloidosis. While informative as to the nature and causes of the conditions, these articles do not show the Veteran's death was caused by an in-service incurrence of either of these conditions, nor do the articles show the Veteran was exposed to any agents that would cause such conditions. In an April 2008 statement, the Appellant asserted that because of the longevity of the disease multiple myeloma, it was acquired during the Veteran's active duty time. The Appellant asserted the Veteran's death was caused by amyloidosis as secondary to multiple myeloma. The Appellant stated the Veteran was diagnosed in 1992 before his arrival at the VA hospital. The Appellant also asserted the Veteran had been exposed to some sort of agent, including Agent Orange, during his time in Australia. In an April 2009 letter, the Appellant stated the Veteran had amyloidosis, presumptive with exposure to herbicide agents and multiple myeloma disease incorporated in the special presumptions with regard to disabilities as a result of exposure to Agent Orange. The Appellant stated this fact could be documented through tissue samples. The Board acknowledges the many statements by the Appellant saying she believes the Veteran's death was related to his time in service and the many articles she has sent in regarding the Veteran's numerous health conditions. However, the record does not support a finding that the Veteran's cause of death was related to an in-service injury or disease. The Veteran's STRs are negative for any mention of heart, respiratory, or cancerous conditions. Additionally, the Veteran's personnel records do not indicate he was ever exposed to herbicide agents or radiation. Therefore, service connection on a direct or presumptive basis cannot be granted for any of the Veteran's listed causes of death. The Board also acknowledges the Appellant's statements that she believes the Veteran's death was related to his time in service, including that the Veteran's multiple myeloma was incurred in service due to its longevity and that the Veteran's death was caused by multiple myeloma secondary to his diagnosed amyloidosis. However, while multiple myeloma was listed as a significant contributing condition to the Veteran's death, there is no indication that this condition was incurred during the Veteran's time in service. Additionally, the Veteran's amyloidosis was not listed on the Veteran's death certificate as an immediate or contributing cause of death and therefore, cannot be the basis for a claim of service connection for death. The Board also recognizes that the Appellant has difficulty over the years obtaining some of the Veteran's private medical records. However, as they relate to broken bones, pneumonia, and other health conditions not pertaining to the Veteran's cause of death, they are not relevant to the current proceeding. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs