Citation Nr: 18145817 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 11-05 505 DATE: October 30, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and exposure to herbicides is conceded. 2. The Veteran’s death certificate lists cardiopulmonary arrest as the immediate cause of death and peripheral vascular disease with a gangrenous right second toe, diabetes, and COPD as significant conditions contributing to the Veteran’s death. He died in January 2008. 3. At the time of his death, service connection was in effect for a left knee disability, a left ankle disability, a left hip disability, and a varicocele. 4. The preponderance of the evidence shows that the Veteran’s cause of death was not manifested during the Veteran’s period of active service and it has not otherwise been shown to be related to military service, to include presumed exposure to herbicides. 5. A service-connected disability was not the principal or a contributory cause of the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1963 to June 1966. He served in the waters off Vietnam, and the RO has conceded exposure to herbicides. He died in January 2008, and the appellant is his surviving spouse. The Board denied entitlement to service connection for the cause of the Veteran’s death in a September 2016 decision. The Board’s decision was vacated in July 2017 pursuant to a Joint Motion for Partial Remand ordered by the Court of Appeals for Veterans Claims (Court). The Board issued a remand in October 2017 in compliance with the Court’s order. The Board finds that there is substantial compliance with the prior remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008).   Entitlement to service connection for the cause of the Veteran's death The appellant essentially contends that the Veteran had diabetes and ischemic heart disease secondary to his in-service herbicide agent exposure that caused or contributed to his death. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singularly 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 that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). 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. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247 (1999). The Veteran served in the Republic of Vietnam and his exposure to herbicides is conceded. 38 C.F.R. § 3.307 (a). If a Veteran was exposed to an herbicide agent during active service specific disabilities identified by regulation shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Diabetes and ischemic heart disease have been presumptively associated with herbicide exposure. 38 C.F.R. § 3.309 (e). Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran died in January 2008. The death certificate identifies the immediate cause of death as cardiopulmonary arrest due to or as a likely consequence of peripheral vascular disease with gangrenous right second toe, diabetes, and COPD. At the time of the Veteran’s death, he was service-connected for post-operative medial meniscus repair times 2, left knee, with traumatic arthritis (40%); residuals, fractured left malleolus (20%); trochanteric bursitis, left hip (10%); and a varicocele (0%). Service connection for the cause of the Veteran’s death is not warranted. Service treatment records contain no findings, complaints, or diagnoses of ischemic heart disease or type II diabetes mellitus. Post-service medical records also do not indicate treatment or diagnosis of diabetes mellitus or ischemic heart disease. With respect to diabetes, in December 2012, a VA physician reviewed the record and concluded that there was no evidence that this condition caused or contributed to the Veteran’s death. She noted that VA treatment records “repeatedly say he is NOT diabetic.” Indeed, the weight of the clinical evidence is simply against a conclusion that the Veteran actually suffered from diabetes prior to his death. The Veteran himself denied having a history of diabetes when admitted for VA emergency room treatment on January 4, 2008. Moreover, the clinical evidence, including laboratory findings, proximate to the Veteran’s death specifically note that he did not have diabetes. See VA treatment records dated January 8 and 9, 2008. In addition, an October 28, 2003 private treatment record notes that the Veteran’s medical history did not include diabetes. It appears from the early January 2008 VA medical records that vascular insufficiency, not diabetes was the cause of the toe gangrene. With respect to ischemic heart disease, in June 2018, a different VA physician reviewed the record and concluded that it is “not as likely as not” that the Veteran actually had ischemic heart disease at the time he died. The examiner explained that cardiopulmonary arrest is not a medical condition, but a clinical description that can arise as a result of a wide variety of medical conditions. The examiner wrote: “In the absence of any medically documented signs or symptoms of ischemic heart disease . . . it becomes less likely as not that the veteran had IHD at the time he died. As no autopsy was performed, the actual cause of death is ultimately unknowable.” Notably, a cardiovascular assessment on January 4, 2008 was negative and a January 8, 2008 VA treatment report noted there was no history of heart disease. The clinical record also reflects a 2004 questionnaire indicating the Veteran had never had a heart attack or myocardial infarction. Thus, the weight of the clinical evidence shows that the Veteran did not actually suffer from ischemic heart disease prior to his death. The Board finds the VA opinions to be highly probative evidence against this claim. The appellant has attempted to establish a nexus between the Veteran’s cause of death and his service through her own lay assertions. However, the Board finds that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, as the June 2018 VA physician correctly noted, none of the conditions for which the Veteran was service-connected are listed on the death certificate as a contributing cause of death. The examiner concluded that the totality of the medical records does not indicate that a service-connected condition contributed directly or indirectly to the Veteran’s death. Accordingly, service connection for the cause of the Veteran’s death must be denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel