Citation Nr: 18149828 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-15 547 DATE: November 13, 2018 ORDER Entitlement to service connection for cause of death due to non-ischemic dilated cardiomyopathy is denied. FINDING OF FACT The Veteran’s non-ischemic dilated cardiomyopathy, which was the principal cause of death, was not secondary to a service-connected disability, nor was it related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for cause of death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1967 to May 1970, to include service in Vietnam. This case is on appeal before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Neither the Appellant nor her representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Appellant nor her representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran passed away on October [redacted], 2001. His surviving spouse, the Appellant, seeks service connection for cause of death. She alleges that his non-ischemic dilated cardiomyopathy was related to herbicide exposure during service or, in the alternative, was secondary to his service-connected diabetes mellitus. See October 2017 Board hearing. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. Given that the Veteran had qualifying service in Vietnam, the VA concedes herbicide exposure during service. However, the Board notes that non-ischemic dilated cardiomyopathy is not one of the diseases entitled to presumptive service connection due to herbicide exposure under 38 C.F.R. § 3.309(e). Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran is not precluded from establishing service connection where entitlement on a presumptive basis is not warranted, as long as there is proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Dependency and Indemnity Compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). In order to establish service connection for cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. Id. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; 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 rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s service treatment records are entirely devoid of any complaints of heart problems. However, during his May 1970 separation examination, the Veteran indicated that his father died from a heart attack at age 73. The first indication of heart problems in the claims file does not appear until July 1987. That month, the Veteran was admitted to a VA facility for coughing and shortness of breath. The treatment record noted a 20-year history of alcohol abuse, and reflected a diagnosis of alcohol-induced cardiomyopathy. In October 1987, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with chronic alcohol abuse resulting in alcohol-induced cardiomyopathy. The examination report also reflects abnormal liver function secondary to congestive heart failure. The Veteran was diagnosed with diabetes mellitus in September 1995. Later that month, a progress note indicated a history of alcohol-induced cardiomyopathy. In December 1995, the Veteran sought treatment for an exacerbation of his heart condition. The attending physician noted a history of alcoholic dilated cardiomyopathy, and opined that the exacerbation was likely due to noncompliance. During a VA examination in July 1996, the Veteran reported that he was diagnosed with congestive heart failure and a weakened heart due to chronic alcohol ingestion. The examination report noted that the Veteran was currently in therapy for his cardiomyopathy, but no further testing was conducted. In November 2000, the Veteran was admitted to a VA facility for treatment for a congestive heart failure exacerbation. Treatment records from this episode generally referred to the Veteran’s condition as alcoholic cardiomyopathy. However, one progress note indicated that the Veteran had a “history of diabetic cardiomyopathy secondary to alcohol use.” VA treatment records from 2001 variously referred to the Veteran’s cardiomyopathy as “alcohol-induced” and “nonischemic.” The Veteran died on October [redacted], 2001. His death certificate cites “arteriosclerotic cardiovascular disease,” a type of ischemic heart disease, as the cause of death. In August 2011, the Veteran’s records were submitted to a VA examiner to ascertain the nature and etiology of his heart condition. The examiner reviewed the claims file, noting the numerous diagnoses of alcohol-induced cardiomyopathy as well as the fact that no autopsy was performed at the time of the Veteran’s death. Based on this evidence, the examiner opined that the Veteran’s heart condition was less likely as not related to service. Rather, the examiner found that it was more likely than not that the Veteran’s heart disease was actually due to non-ischemic dilated cardiomyopathy, which is not a type of ischemic heart disease subject to presumptive service connection due to herbicide exposure. In support of this conclusion, the examiner cited to multiple diagnoses of alcoholic cardiomyopathy. Additionally, there was no evidence of coronary artery disease or related treatment that would meet the statutory definition of ischemic heart disease. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran’s death was caused by an ischemic heart disease. Similarly, the preponderance of the evidence does not support the Appellant’s contention that the Veteran’s non-ischemic dilated cardiomyopathy was linked to his military service or his service-connected diabetes mellitus. Here, the Board finds that the opinion of the August 2011 VA examiner is entitled to the greatest weight. The VA examiner had the benefit of reviewing the claims file, which includes the Veteran’s service treatment and VA treatment records. Based on this evidence, the VA examiner found that the Veteran did not die from an ischemic heart disease, as noted on his death certificate. Instead, his cause of death was non-ischemic dilated cardiomyopathy, a condition that is not linked to herbicide exposure. The Board also notes that the opinion of the August 2011 VA examiner is the only statement from a medical professional that is based on a full evaluation of the record. As such, the Board affords this opinion the greatest probative weight, and adopts the VA examiner’s conclusion that the Veteran did not die from a condition caused by herbicide exposure. The Board also acknowledges the statements of the Appellant, which allege a link between the Veteran’s non-ischemic dilated cardiomyopathy and herbicide exposure during service. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the August 2011 VA examiner is more probative than the Appellant’s lay assertions. The VA examiner has expertise, education, and training that the Appellant is not shown to have. As such, that etiology opinion warrants more weight. Lastly, the Board recognizes the Appellant’s assertion that the Veteran’s non-ischemic dilated cardiomyopathy was caused by his service-connected diabetes mellitus. Although a single progress note from November 2000 characterized the Veteran’s cardiomyopathy as “diabetic,” the Board notes that this designation appears nowhere else in the claims file. Additionally, the Veteran’s non-ischemic dilated cardiomyopathy was diagnosed 8 years prior to his diabetes mellitus. Given the length of the time between the two diagnoses, it would be unreasonable to conclude that the latter condition caused the former. Indeed, the overwhelming majority of the evidence indicates that the Veteran’s non-ischemic dilated cardiomyopathy was alcohol-induced. Moreover, this is not a determination the Appellant is competent to make. Jandreau, 492 F.3d 1372. As such, given the lack of competent evidence in the claims file to indicate a nexus between the Veteran’s non-ischemic dilated cardiomyopathy and his service-connected diabetes, the Board assigns little probative value to the Appellant’s statements concerning this matter. In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran did not die from an ischemic heart disease. Additionally, the evidence of record is inconsistent with the Appellant’s claim that the Veteran’s non-ischemic dilated cardiomyopathy was the result of his military service or secondary to his service-connected diabetes mellitus. Although the Board acknowledges the Appellant’s assertions to the contrary, the majority of the evidence does not align with her statements. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Appellant’s claim for service connection for cause of death due to non-ischemic dilated cardiomyopathy is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel