Citation Nr: 18142836 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 14-09 424 DATE: October 17, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s Certificate of Death lists cardio/respiratory failure as the Veteran’s immediate cause of death; progressive renal failure, hepatocellular carcinoma, and portal vein thrombosis are listed as underlying causes of death. 2. The Veteran is presumed to have been exposed to herbicide agents while serving in Vietnam. 3. At the time of his death, the Veteran was service-connected for two disabilities: a shell fragment wound left foot with two retained foreign bodies and a right thigh scar. 4. The conditions listed on the official Certificate of Death were not incurred in service, may not be presumed to have been incurred in service, and were not otherwise the result of the Veteran’s period of active service. 5. The Veteran’s service-connected disabilities, separately or in the aggregate, did not cause his death, contribute substantially or materially to cause his death, or aid or lend assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to September 1969. The Veteran died in September 2011. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the benefit sought on appeal. In January 2018, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 1. Appellant’s Contentions The Appellant claims, as the surviving spouse, that the Veteran’s death was due to a service-connected disability. At the time of the Veteran’s passing, he was service-connected for two disabilities: (1) the residuals of a shell fragment wound of the left foot with two retained foreign bodies; and (2) a right thigh scar. In a November 2011 correspondence, the Appellant additionally stated that the Veteran “was exposed to so much” in Vietnam and presented a “complication with other parts of his body--- other than the shot to the foot.” In an April 2013 notice of disagreement, the Appellant also asserted that ischemic heart disease may have contributed to her husband’s death. 2. Service Connection for the Cause of Death Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When a veteran dies from a service-connected disability, the veteran’s surviving spouse may be awarded dependency and indemnity compensation. 38 U.S.C. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that disability that is causally related to service either caused, or contributed substantially or materially to the Veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a disability of service origin to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Although there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Following a careful review of the record, the Board finds that service connection is not warranted for the cause of the Veteran’s death. According to the Veteran’s death certificate, cardio/respiratory failure was the Veteran’s immediate cause of death, and it listed progressive renal failure, hepatocellular carcinoma, and portal vein thrombosis as underlying causes of his death. At the time of his death, the Veteran was service-connected for two disabilities: (1) a shell fragment wound left foot with two retained foreign bodies; and (2) a right thigh scar. The Appellant has not herself specifically claimed, nor do the service or post-service treatment records and death certificate otherwise suggest, that the Veteran’s shell fragment wound of the left foot or right thigh scar had any impact on his death. Accordingly, the Board finds that those disabilities had no bearing on the Veteran’s demise. Instead, the Appellant’s primary assertions is that the Veteran’s “cause of death was as a direct result of exposure to agent orange.” In an April 2013 notice of disagreement, the Appellant sought medical records that “may lend itself to the claim of ischemic heart disease.” In January 2018 the Board remanded the Veteran’s claim to obtain a medical opinion to evaluate whether the Veteran’s cause of death was due to service. In June 2018, a VA examiner issued a medical opinion addressing whether either the Veteran’s in-service agent orange exposure, or heart condition substantial or materially contributed to the Veteran’s death. The January 2018 examiner acknowledged that the Veteran in his fifties had been diagnosed with and treated for hypertension, and noted that the record reflected that the hypertension was well-controlled by medication. The examiner also noted that review of medical treatment records did not reveal any unusual pattern of hypertension, accelerate hypertension, or hypertension not responding to prescribed medication. Given the absence of these findings, in combination with the Veteran’s lengthy history of smoking, which was a known risk factor, and the fact that the Veteran did not develop hypertension at a young age, the examiner concluded that that the Veteran’s hypertension was likely “essential” hypertension and not related to herbicide exposure. Moreover, the examiner opined that the Veteran’s cause of death, cardiorespiratory failure caused by hepatocellular carcinoma and renal failure, was not related to high blood pressure. The Board finds that the March 2017 opinion is probative because the examiner considered the Veteran’s relevant medical history, provided a sufficiently detailed description of the circumstances surrounding his death, and provided analysis to support her opinion concerning the cause of the Veteran’s death. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). There is no competent medical opinion of record to the contrary. While the Appellant may genuinely believe that the Veteran manifested hypertension in Vietnam and that his death was related to his military service, she is not competent, as a lay person, to relate the Veteran’s death to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999). Nor does the evidence support in-service incurrence of hypertension. Service treatment records do not contain any entries of heart-related complaints or treatment for a heart disorder. The January 1969 Report of Medical History for the examination at separation reflects the Veteran denied any prior history of shortness of breath, chest pain, or palpitation or pounding heart. The January 1969 Report of Medical Examination for separation shows that upon clinical evaluation, the Veteran’s heart’s “[t]hrust, size, rhythm, sounds” were found to be “normal.” The Board acknowledges that the Appellant has generally contended that the Veteran’s death was result of in-service “exposures.” See e.g. March 2014 Substantive Appeal. However, exposures, or for that matter herbicide exposure, in and of itself, is not considered a disabling condition. Without evidence of a such a disability, there can be no valid claim of service connection. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer, 3 Vet. App. at 225. To the extent that the Veteran’s cause of death was the result a psychiatric condition, the Veteran is not currently service connected for an acquired psychiatric condition. The Appellant’s reports of the Veteran experiencing symptoms of hypervigilance, isolation, anger, paranoia, alcohol abuse, and emotional detachment. However, the record lacks post-service treatment for a psychiatric condition, and the Appellant stated in a September 2012 correspondence that to her knowledge “he was never treated for PTSD.” Without records of psychiatric treatment, there is simply no competent evidence of record suggesting that the Veteran’s death was the result of a psychiatric condition of service origin. See 38 U.S.C. § 5103A(a); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed.Cir.2008). In conclusion, there is no competent and credible evidence that any disability of service origin caused or substantially contributed to the Veteran’s death. The service treatment records and post-service treatment records are absent any complaints of, or treatment pertaining to a heart condition. Thus, there is no evidence or indication of cardiovascular in service or within one year of separation. Finally, as stated, there is simply no probative evidence that a shell fragment wound in the left foot or a right thigh scar in any way impacted his death. Accordingly, the preponderance of the probative evidence is against the claim for service connection for the cause of the Veteran’s death and the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel