Citation Nr: 18147733 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-29 703 DATE: November 6, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 1997. The cause of his death was cardiopulmonary arrest with underlying conditions of emphysema and smoking. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 4. The Veteran did not have ischemic heart disease that is presumed to be service connected in veterans exposed to Agent Orange. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from August 1967 to March 1976, including service in the Republic of Vietnam. He died in October 1997. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision. In the December 2011 rating decision, the Philadelphia Regional Office (RO) treated the Appellant’s claim as a request to reopen a previously denied claim for service connection for the Veteran’s death and denied the request. In a September 2012 Statement of the Case (SOC), the Roanoke RO granted the request to reopen and then denied the claim on the merits. In June 2017, the Board remanded the matter for additional development. The case is again before the Board for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Cause of Death The Veteran passed away in October 1997. The cause of death was cardiopulmonary arrest with contributory causes of emphysema and smoking. At the time of his death, the Veteran was not service connected for any disabilities. The Appellant, who is the Veteran’s surviving spouse, contends that service connection for the cause of the Veteran’s death is warranted. Specifically, she asserts that the Veteran had ischemic heart disease that caused his death, and that his death should be presumptively service connected because he was exposed to herbicides while serving in the Republic of Vietnam. The record documents that the Veteran did serve in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including cardiovascular disabilities and diabetes, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases listed under 38 C.F.R. 3.309 (a), such as cardiovascular disabilities and diabetes. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In the case of such a Veteran, service connection for certain diseases, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), will be presumed if they become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered the principal (primary) cause of death when such disability, 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). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially to death; that it combined to cause death; or that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312 (c)(1). In this matter, the Appellant asserts that service connection is warranted because the Veteran died of cardiopulmonary arrest, he served in Vietnam, was exposed to herbicides in Vietnam, and heart disease is one of the disabilities presumed service connected under 38 C.F.R. § 3.309(e). The Veteran’s service treatment records (STRs) are silent as to signs, symptoms or diagnoses of ischemic heart disease. Post-service treatment records document treatment for a number of conditions, including chronic obstructive pulmonary disease, chronic respiratory failure, and end-stage lung disease. See October 1997 Mary Immaculate Hospital treatment record. An August 1997 treatment record indicates the Veteran presented to the emergency department with respiratory distress and severe CO2 retention. The record notes no prior history of heart disease, and the record did not present any evidence of ischemic heart disease. April 1998 correspondence from the Veteran’s private physician indicated the Veteran was addicted to cigarettes, which ultimately caused his death. In July 2017, the Veteran’s claims file was reviewed by a VA physician for opinion on the cause of the Veteran’s death. The VA physician opined that it is less likely than not that the Veteran had ischemic heart disease at the time of his death. The reviewing physician noted that the Veteran had never been evaluated for, treated for, or symptomatic for ischemic heart disease prior to his death. He further noted that, in considering the possibility of left ventricular dysfunction, any left-side role in the respiratory failure of the Veteran was more likely due to the severe systematic hypoxemia/hypoventilation and not a disorder of the heart. The physician also opined that it is less likely than not the Veteran had a heart disability that was caused or aggravated by exposure to herbicides in Vietnam. He noted that the Veteran was diagnosed and treated a non-ischemic heart disease of cor pulmonale, caused by COPD. The physician indicated that review of the October 1997 medical records showed arterial blood gasses of 35 percent O2/Venturi mask with pH of 7.328, pCO2 83.6, and pO2 of 55. The Veteran was then discharged to hospice secondary to end-stage COPD. The examiner indicated that, after review of available medical literature, herbicide exposure did not likely cause, or substantially, or materially contribute to the Veteran’s death. The physician noted that the role of herbicide exposure and heart disease remains under investigation and unknown. In this case, the record shows that the Veteran was not diagnosed with ischemic heart disease during his lifetime. While the July 2017 VA physician disclosed a diagnosis of cor pulmonale, this is a non-ischemic heart disease. The record does not otherwise indicate a diagnosis of myocardial infraction, coronary artery disease or other ischemic heart disease. Thus, the only credible, probative opinion of record weighs against the claim, and the Appellant has not presented or identified any medical opinion or other competent evidence that, in fact, supports her contention that the Veteran had ischemic heart disease. Accordingly, service connection for the cause of death based on this condition is not warranted. Nor can service connection for the cause of the Veteran’s death be granted on a direct basis. First, the Veteran’s January 1976 Report of Medical Examination for separation does not note any abnormality of the heart. Further, the Veteran's service treatment records show no in-service complaints of, treatment for or a diagnosis related to a heart disability. Nor is there evidence of any associated ischemic heart disease that manifested to a compensable degree within one year following discharge from service. Rather, the first recorded evidence of a heart disability was, as noted, cor pulmonale, a non-ischemic heart disease related to COPD. Furthermore, none of the private treatment records indicates that the Veteran’s heart disability was related to military service. In fact, the Veteran private physician indicated in his April 1998 letter that it was the Veteran’s long-term smoking that contributed to his death. Beyond this, there is no medical evidence of record that would support a finding that heart disease manifested to a compensable degree within one year of service separation. Likewise, the Appellant does not contend and there is no medical evidence of record that would support a finding of continuity of heart disease symptomatology since service. See 38 C.F.R. §§ 3.303 (b), 3.309(a), 3.307(a)(3). The Board considered the lay evidence of record, including the Appellant’s statements suggesting a relationship between the Veteran’s heart and service. While the Appellant is competent to report what she observed about the Veteran’s health or what he informed her about events in service, she is not competent to offer evidence regarding the nature and etiology of heart disability, or regarding the cause of the Veteran’s death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the lay statements are of limited probative value. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel