Citation Nr: 18147951 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-13 112 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 January 2014. His death certificate lists the immediate cause of death as cardiorespiratory arrest, arterial hypertension, diabetes mellitus, and sleep apnea. 2. A service-connected disease or disorder did not cause or materially contribute to the Veteran’s death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1131, 1310, 1318; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1978 to June 1979. The Veteran died in January 2014, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant has not raised any issues with the duty to notify or duty to assist. Entitlement to service connection for the cause of the Veteran's death. The Appellant is seeking dependency and indemnity compensation based on service connection for the cause of the Veteran’s death. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence; or one that is proximately due to or the result of service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to 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 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. 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, there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c). The Veteran died in January 2014. The immediate causes of death listed on his death certificate were cardiorespiratory arrest, arterial hypertension, diabetes mellitus, and sleep apnea. At the time of death, service connection was in effect only for psychomotor epilepsy. As the Veteran was not service-connected for the conditions listed as the causes of death on his death certificate, the Board considers whether the cause of death was caused by the Veteran’s active duty service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As noted above, the immediate causes of death were listed as cardiorespiratory arrest, arterial hypertension, diabetes mellitus, and sleep apnea. The Appellant, however, does not claim that these disabilities were incurred during active duty service. She merely stated in her February 2016 substantive appeal, rather, that the Veteran died due to his service-connected condition. However, the Appellant has submitted no medical evidence or argument to support this assertion, and there is nothing in the record to support her assertions. A January 2014 VA social worker encounter notes that the Veteran’s daughter reported that at 2:00AM on January 1, 2014, the Veteran stated that he was feeling “breathless” and that, after being taken to the hospital, was declared dead at 4:35AM. The record since is negative for any further medical evidence that might suggest that his service-connected epilepsy hastened or contributed in any way to his death. Moreover, the Veteran’s service treatment records are silent for any findings, complaints, or treatment of the disabilities listed on the Veteran’s death certificate as the cause of death, and there is no indication that any of the causes of death manifested to a compensable degree within one year of separation from service for presumptive considerations. Post-service treatment records, including VA and private treatment records, are negative for any evidence or statements showing that the conditions resulting in the Veteran’s death were incurred in service or caused by injury or disease that began during a period of active duty service. While the record reflects previous claims for entitlement service connection for a heart condition and accrued benefits for service connection for sleep apnea, both claims were denied on findings that the evidence of record did not show that a heart condition or sleep apnea was either incurred in or caused by his active duty service. Thus, based on the foregoing, the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death must be denied. 38 C.F.R. §§ 3.303, 3.312. The Appellant has been given the opportunity to provide additional evidence in support of her claim, including any medical opinions. Although VA has a duty to assist the appellant in the development of her claim, that duty is not “a one-way street.” If a claimant wishes help, she cannot passively wait for it. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board acknowledges her lay statements that the Veteran’s military service was the cause of his death. Her statements, however, are not supported by the evidence of record outlined above, nor does the record suggest that the Appellant has been shown to have the education, training, or experience necessary to make a competent opinion as to the cause of the Veteran’s death. Such findings fall outside the realm of common knowledge of a lay person. 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). While the Veteran was rated as totally disabled prior to his death, this rating was not in effect for 10 years and dependency and indemnity compensation is not otherwise warranted under the provisions of 38 U.S.C. § 1318. (Continued on the next page) In reaching the above conclusion, 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 this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel