Citation Nr: 18143878 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 15-38 880 DATE: October 23, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in January 2013. The death certificate lists the immediate cause of death as aspiration, pneumonia, and dysphagia. Other significant conditions were noted to include coronary artery disease with congestive heart failure and chronic kidney disease. 2. At the time of his death, service connection was not in effect for any disability. 3. The competent and credible, therefore most probative, evidence does not establish that the Veteran’s death was the result of any disease, injury, or incident in service. Coronary artery disease was not chronic in service, did not manifest to a compensable degree within one year of service, and was not continuous since service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1131, 1310, 1313, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1954 to May 1954 and from October 1955 to June 1961. In the September 2015 VA Form 9, the appellant requested a Board hearing. In an August 2017 statement, the appellant withdrew her request for a Board hearing, therefore the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702. The appellant filed a July 2018 motion to advance her appeal on the docket (AOD) due to financial hardship. Appeals are generally considered in docket number order, but may be advanced on the docket for sufficient cause, which may include advanced age, serious illness, severe financial hardship, or administrative error resulting in a significant delay. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). The Board finds that sufficient cause has been shown due to severe financial hardship, and the motion to advance the case on the docket is granted. Accordingly, please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). See 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for the cause of the Veteran's death Dependence and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability or if the veteran was entitled to a 100 percent disability rating from VA continuously for five years from the date of discharge or for 10 years prior to his death. 38 U.S.C. § 1310, 1318. Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). The evidence indicates that the Veteran had coronary artery disease, which is a chronic disease listed under 38 C.F.R. § 3.309(a); thus, 38 C.F.R. § 3.303(b) is applicable. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases (such as hypertension) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. The Veteran’s certificate of death shows that he died in January 2013, and the immediate cause of death is listed as aspiration, pneumonia, and dysphagia. Other significant conditions were noted to include coronary artery disease with congestive heart failure and chronic kidney disease. The Veteran was not service connected for any disabilities at the time of his death. Although the appellant contends that the Veteran separated from service on February 26, 1962, and that the Veteran’s Form DD-214 incorrectly lists June 23, 1961 as the date of separation, the record does not support the appellant’s contention. For example, the Veteran’s separation examination took place in June 1961, and the record does not reflect additional service treatment records after this time period. The appellant contends that the Veteran served during the Vietnam era and was exposed to Agent Orange. However, even if the Veteran separated from service in February 1962, personnel records do not support that the Veteran served in the Republic of Vietnam or that he was otherwise exposed to Agent Orange, and as such, service connection may not be presumed for any disabilities listed in 38 C.F.R. § 3.309(e). The Board has reviewed the Veteran’s medical records for evidence that aspiration, pneumonia, dysphagia, coronary artery disease with congestive heart failure, or chronic kidney disease could have been caused by or was a result of active duty service and finds that the preponderance of the evidence is against a relationship. The service treatment records (STRs) show that the Veteran was found to have normal clinical evaluations of his heart, endocrine system, lungs and chest in February 1954, May 1954, October 1955, December 1957, and June 1961. Although not directly related, the Veteran denied a history of shortness of breath, palpitation of pounding heart, and kidney stones or blood in urine in February 1954, October 1955, and June 1961. The Board notes that although the Veteran was found to have acute bronchitis due to pneumococci in April 1954 and acute respiratory disease with exanthema in August 1960, the fact that the examiner noted the diagnoses as acute indicates that they were not permanent or chronic disabilities. In sum, the evidence weighs against a finding that the Veteran had aspiration, pneumonia, dysphagia, coronary artery disease with congestive heart failure, or chronic kidney disease in service. As to a nexus to service, In a March 2012 private medical record by Dr. A.J., the examiner wrote that the Veteran had a history of diabetes for more than twenty years, and generally indicated that the Veteran’s coronary artery disease and chronic kidney disease had their onset after the diagnosis of diabetes, which tends to establish that coronary artery disease and chronic kidney disease did not have their onset in service. To the extent that the appellant had implied that coronary artery disease and chronic kidney disease had their onset in service, the Veteran’s service treatment records refute such a finding. The appellant is not medically trained and is therefore not qualified to competently opine about medical etiology. Although the appellant claims that the causes of death or other significant conditions at the time of death are related the Veteran’s service, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities. 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. However, these disabilities require specialized training for determinations as to diagnosis and causation, and are therefore, not susceptible to lay opinions on etiology. The origin or cause of the Veteran’s causes of death and other significant conditions is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran’s lay assertion is not competent to establish a nexus. Based on the diagnosis of coronary artery disease, the Veteran could have been considered service-connected based on the diagnosis of an eligible chronic disability under 38 C.F.R. § 3.309(a). However, the evidence does not support that the Veteran’s symptoms were continuous since separation from service in June 1961. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). As mentioned above, in a March 2012 private medical record by Dr. A.J., the examiner indicated that the Veteran had a history of diabetes for more than 20 years, and that coronary artery disease had its onset after the diagnosis of diabetes. Accordingly, even if coronary artery disease was diagnosed concurrently with diabetes, the earliest possible date of onset for coronary artery disease is approximately 1992, which is more than 30 years following service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 31 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. In sum, the Board concludes that the preponderance of the evidence is against a finding that the Veteran was entitled to service connection for any of the causes of death or for any of the other significant conditions at the time of death. The Board finds that an injury or disease in service did not cause or contribute substantially or materially to the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel