Citation Nr: 18144068 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-35 482A DATE: October 23, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in June 2014. The certificate of death shows the immediate cause of death as acute respiratory failure due to or as a consequence of cerebral edema due to or as a consequence of cerebral ischemic infarction. 2. At the time of the Veteran’s death, service connection was not in effect for any disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Service connection for the cause of the Veteran’s death To establish service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the Veteran’s death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of the veteran’s death. It is not sufficient to show that it casually shared in producing the veteran’s death, but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2018). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection also 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) (2018). In this case, the Veteran died in June 2014. The certificate of death shows the immediate cause of death as acute respiratory failure due to or as a consequence of cerebral edema due to or as a consequence of cerebral ischemic infarction. At the time of the Veteran’s death, service connection was not in effect for any disability. The appellant asserts that the Veteran was exposed to Agent Orange from being in contact with people and aircraft returning from the Republic of Vietnam, and that such exposure lead to ischemic heart disease or coronary artery disease, which lead to his death. The Veteran’s service separation form shows that he served as an infantry unit commander but had no foreign service. The service department confirms that he had no service in the Republic of Vietnam. Initially, the Board observes that the record is unclear whether the Veteran had ischemic heart disease or coronary artery disease prior to his death. A June 2014 private medical record shows that he had no known history of coronary artery disease and suffered a heart attack in the setting of hypotension. In an April 2015 letter, a private physician concluded that based on the June 2014 medical record the evidence that the Veteran had coronary artery disease was strong. As will be seen below, even if the Board were to acknowledge that the Veteran had ischemic heart disease or coronary artery disease, there is no competent evidence that he was exposed to Agent Orange in service to establish a nexus, or link, to service. While the Board acknowledges the appellant’s assertion, service connection for ischemic heart disease, including coronary artery disease, on a presumptive basis is warranted only for Veterans who served on the land mass of the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). In this case, the appellant does not assert, and the record does not show, that the Veteran served in the Republic of Vietnam. Thus, exposure to herbicides is not presumed. Accordingly, service connection for ischemic heart disease or coronary artery disease is not warranted on a presumptive basis. Notwithstanding the presumptive provisions, service connection still may be established by showing that a disorder is, in fact, causally linked to exposure to herbicides. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the appellant’s theory of the Veteran’s Agent Orange exposure is not a method of exposure recognized by VA, and there is no competent evidence that he was in fact exposed to Agent Orange from contact with people and aircraft returning from the Republic of Vietnam. While a private physician observed that VA acknowledges service connection for certain diseases associated with exposure to Agent Orange including ischemic heart disease and coronary artery disease, the physician does not provide any evidence that the Veteran was in fact exposed to Agent Orange. Thus, the Veteran’s exposure to herbicides has not been established. The remaining question is whether the Veteran’s ischemic heart disease or coronary artery disease is otherwise related to active service. The certificate of death indicates that the Veteran’s cerebral ischemic infarction had its onset just days prior to his death in June 2014. He was discharged from active service in November 1971. While not dispositive, the passage of so many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, there is no competent medical evidence establishing a link between the Veteran’s ischemic heart disease or coronary artery disease and active service. The Board notes that a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of the Veteran’s symptoms to decades after his separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the appellant is not competent to address the etiology of the Veteran’s disability. As discussed above, the medical evidence fails to show that his disability is related to active service. (Continued on the next page)   Accordingly, the Board concludes that a disability of service origin did not cause or contribute substantially or materially to the Veteran’s death. Therefore, service connection for the cause of the Veteran’s death is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel