Citation Nr: 1803503 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-07 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION The Veteran represented by: Kenneth L. LaVan, Attorney ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. He was the recipient of service awards, including the National Defense Service Medal and the Vietnam Service Medal. He died in December 1994. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The claim for the cause of the Veteran's death had been previously denied in a February 2008 rating decision. As a general rule, "new and material evidence" is required to reopen a previously denied claim. See 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). However, in this case, there is liberalizing law that creates a new evidentiary standard for which a claim of entitlement to service connection for ischemic heart disease (or coronary artery disease) can be substantiated under 38 C.F.R. § 3.309(e) (2017); See 75 Fed. Reg. 53202 (Aug. 31, 2010). Thus, new and material evidence is not necessary to reach the merits of the claim. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004); Spencer v. Brown, 4 Vet. App. 283 (1993). In March 2016, the Board remanded the matter for the RO to schedule the appellant for a live videoconference hearing before a Veterans Law Judge. However, the appellant withdrew her request for a Board hearing in an August 2016 correspondence. FINDINGS OF FACT 1. The Veteran died in December 1994 and the cause of death, as certified, was adult respiratory distress syndrome, due to septic shock of unknown origin. 2. At the time of the Veteran's death, he was not service-connected for any disability. 3. The weight of the evidence is against a finding that the Veteran's death is related to his active military service. CONCLUSION OF LAW The cause of the Veteran's death was not due to a disability incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309,3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for Cause of Death Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2017). 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a) (2017). To constitute as a principal cause of death from a service-connected disability, it must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2017). To constitute as 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 a material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability casually shared in producing death, rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). The appellant asserts that her husband, the Veteran, died as a result of conditions secondary to herbicide agents, such as Agent Orange. See October 2010 Statement in Support of Claim. VA regulations provide that if a veteran served in Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides during such service. 38 C.F.R. § 3.307(a)(6). Certain diseases, including and not limited to, ischemic heart disease (including coronary artery disease) and Type 2 diabetes (also known as Type 2 diabetes mellitus or adult-onset diabetes) are presumed to be service connected due to such exposure, even if there is no record of the disease during service. 38 C.F.R. § 3.309(e) (2017). The Certificate of Death establishes that the Veteran died in December 1994, and that the immediate cause of death was adult respiratory distress syndrome, due to septic shock of unknown origin. However, service connection had not been established for any disability at the time of the Veteran's death. Therefore, the Board must first determine whether the Veteran had a disability for which service connection was warranted at the time of his death. The medical evidence of record reflects that the Veteran had a history of coronary artery disease and diabetes mellitus, in addition to hypertension. See December 1994 Hospitalization Treatment Note. Although coronary artery disease and type 2 diabetes are two disabilities that establish presumptive service connection, under 38 C.F.R. 3.309(e); here, the weight of the evidence does not show that coronary artery disease or hypertension was the principle or contributory cause of death. Alternatively, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Thus, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. In this case, however, direct service connection has not been established because the evidence of record does not show, nor has the appellant presented, any evidence of an in-service injury, illness or event that could be causally related to any disabilities that were related to respiratory distress syndrome and/or septic shock of unknown origin, which are the principle and contributory causes of the Veteran's death. In this regard, neither the lay evidence nor the medical evidence separately, or in combination, rises to the level of equipoise regarding this claim. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Skoczen v. Shinseki, 564 F.3d 1319, 1323 -29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Therefore, based on the foregoing reasons, entitlement to service connection for the cause of the Veteran's death must be denied. The Board has considered the claim and decided entitlement based on the evidence of record. Neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 - 70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).