Citation Nr: 18153473 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-35 243A DATE: November 27, 2018 ORDER The appellant is a proper accrued benefits claimant as the Veteran’s surviving spouse, and therefore his request for substitution is granted. New and material evidence having not been received, the claim to reopen service connection for Hodgkin’s lymphoma, for accrued benefits purposes, is denied. New and material evidence having not been received, the claim to reopen service connection for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), dementia, and depression, for accrued benefits purposes, is denied. Service connection for cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died on May [redacted], 2012, with claims for Hodgkins’ lymphoma and a psychiatric disorder pending before VA. 2. The Veteran and the appellant were married at the time of the Veteran’s death, and the appellant filed his claim for DIC benefits and substitution within one year of the Veteran’s death. 3. The appellant is an accrued benefits claimant and therefore is a proper substitute in this case. 4. In a final January 2010 Board decision, the Board denied service connection for Hodgkins lymphoma. 5. The evidence received since the final January 2010 Board decision is either cumulative or redundant, or does not reasonably raise the possibility of substantiating the Veteran’s claim of service connection for Hodgkin’s lymphoma. 6. In a final December 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied reopening service connection for a psychiatric disorder, to include PTSD, dementia, and depression. 7. The evidence received since last final adjudication of the Veteran’s psychiatric claim is either cumulative or redundant, or does not reasonably raise the possibility of substantiating that claim. 8. The Veteran was not service connected for any disabilities at the time of his death. 9. The Veteran’s cause of death was cardiac arrhythmia and coronary artery disease with contributory causes of hypoxia, chronic obstructive pulmonary disease (COPD), hypertension, and diabetes mellitus, type II. 10. The Veteran is not shown to have service in the Republic of Vietnam during his period of service and is therefore not presumed to be exposed to herbicides as a result of his military service; the evidence of record does not otherwise demonstrate that he was exposed to herbicides as a result of his military service. 11. The Veteran’s cardiac arrhythmia, coronary artery disease, hypoxia, COPD, hypertension, and diabetes mellitus, type II, are not shown to have been incurred in service or for many years thereafter. CONCLUSIONS OF LAW 1. The appellant is a proper accrued benefits claimant in this case, and the criteria for substitution respecting the claims of service connection for Hodgkin’s lymphoma and psychiatric disorders, for accrued benefits purposes, are met. 38 U.S.C. §§ 101, 5121, 5121A; 38 C.F.R. §§ 3.1, 3.50, 3.1000, 3.1010. 2. The January 2010 Board decision denying service connection for Hodgkin’s lymphoma is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 3. The criteria to reopen service connection for Hodgkin’s lymphoma are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The December 2009 rating decision that denied reopening service connection for a psychiatric disorder, to include PTSD, dementia, and depression, are not met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1971, with additional service in the United States Army Reserve; the Veteran passed away in May 2012, after filing a January 2012 notice of disagreement with December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening service connection for Hodgkin’s lymphoma and a psychiatric disorder, to include PTSD, dementia, and depression. The appellant in this case is the Veteran’s surviving spouse. On appeal, the appellant challenges the initial denial as a proper substitute in this case for the Hodgkin’s lymphoma and psychiatric issues in a January 2013 letter of determination, as well as his cause of death claim that was denied in a March 2014 rating decision by the Agency of Original Jurisdiction (AOJ). The Board additionally notes that the appellant requested a Board hearing before a Veterans Law Judge in his October 2014 substantive appeal, VA Form 9; the appellant was scheduled for that hearing in May 2018 and he was informed of that hearing in an April 2018 notification letter. The appellant did not report for his scheduled hearing and as of this decision has not requested to reschedule that hearing nor has he provided good cause for missing his previously scheduled hearing. The Board therefore deems that request for a hearing withdrawn at this time and will proceed with adjudication of the case at this time. See 38 C.F.R. § 20.1304. As a final initial matter, the Board reflects that the appellant’s claim for death pension benefits was addressed in a November 2018 Board decision. The Board will therefore no longer address that issue in this decision. Threshold Substitution/Accrued Benefits Claimant Issue The appellant seeks recognition as the Veteran’s surviving spouse for purposes of entitlement to accrued benefits and also recognition as a proper substitute in any pending claims at the time of the Veteran’s death. Upon the death of a veteran who has a claim pending before VA at the time of his death for periodic monetary benefits, such accrued benefits to which the veteran was entitled at the time of his death will be paid to his or her surviving spouse. See 38 C.F.R. § 3.1000(a). For a veteran who has died on or after October 10, 2008, a person eligible as an accrued benefits claimant may be substituted, in priority order from 38 C.F.R. § 3.1000(a)(1-5), and may continue the claim or appeal on behalf of the deceased claimant for purposes of processing the claim or appeal to completion. See 38 C.F.R. § 3.1010(a). Any claim for DIC or burial benefits will be accepted as a claim for substitution in lieu of any formal request for substitution. See 38 C.F.R. § 3.1010(c)(2). Initially, at the time of the Veteran’s death, the Veteran had a claim to reopen service connection for Hodgkin’s lymphoma and psychiatric disorders pending before VA after filing a January 2012 notice of disagreement with the denial of those issues in a December 2011 rating decision. Furthermore, it is undisputed in this case that the appellant filed a claim for DIC benefits within one year of the Veteran’s death in this case. Thus, the appellant has filed an accrued benefits claims as well as a claim for substitution. The initial question before the Board in this case is whether the appellant is the Veteran’s surviving spouse and therefore a proper accrued benefits claimant and also a proper substitute for any pending claims at the time of the Veteran’s death. The Board finds that he is both a proper accrued benefits claimant and proper substitute in this case. A “surviving spouse” is defined as a person whose marriage to the veteran meets the requirements of §3.1(j) and who was the spouse of a veteran at the time of the veteran’s death, and: (1) lived with the veteran continuously from the date of the marriage to the date of the veteran’s death except where there was separation due to the misconduct of the veteran or procured by the veteran without fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person . . . and held him or herself out openly to the public to be the spouse of such other person. 38 U.S.C. §§ 101(3), 103; 38 C.F.R. § 3.50(b). “Marriage” is defined as a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). The Board reflects that in a January 2013 letter, the AOJ initially determined that the Veteran, as a same-sex spouse lawfully married to the Veteran in the State of California, at the time of the Veteran’s death, was not a proper substitute. The Board recognizes that the regulation on which that decision was based has been subsequently amended to allow same-sex marriages to be recognized for VA purposes. As it is undisputed in the record, and a marriage license from the State of California is of record that demonstrates that the appellant, at the time of the Veteran’s death, was legally married to the Veteran, the Board finds that the Veteran is due recognition of the Veteran’s surviving spouse in this case. As such, he is therefore an appropriate claimant for accrued benefits and a proper substitute in this case. See 38 C.F.R. §§ 3.1000, 3.1010. Reopening Service Connection Claims A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or unaddressed new and material evidence is received during the appeal period of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal. 38 C.F.R. § 20.204(c). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Hodgkin’s Lymphoma Historically, the Board denied service connection for Hodgkin’s lymphoma, to include as secondary to herbicide exposure during service, in a January 2010 Board decision. The Board reflects that the Veteran did not file a Motion for Reconsideration with respect to that decision, nor did the Veteran timely appeal that Board decision to the United States Court of Appeals for Veterans Claims (Court). Accordingly, the January 2010 Board decision is final. See 38 C.F.R. § 20.1100. New and material evidence is therefore required to reopen the claim of service connection for Hodgkin’s lymphoma, to include as secondary to herbicide exposure during service. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Evidence of record at the time of the January 2010 Board decision denying the claim included service treatment records (STRs), the VA disability application/claim, hearing testimony dated February 2008, and an oncology note dated May 2009 indicating a diagnosis of 2004. In the January 2010 Board decision, the Board specifically denied the Veteran’s Hodgkin’s lymphoma claim as not due to service, to include the Veteran’s contentions that he had combat service in the Republic of Vietnam. The Board addressed several instances of issued letters from the service department documenting that the Veteran had service in the r Republic of Vietnam and subsequent issuances correcting those documents as erroneous. The Board further found the Board of Correction for Military Records’ determination that his service personnel records could not be changed to indicate service in the Republic of Vietnam was the most probative evidence in light of evidence that the Veteran had submitted fraudulent evidence of documentation of service in the Republic of Vietnam. Since the January 2010 Board decision, the Board has received new statements from the Veteran and the appellant reiterating the Veteran’s contentions that he was in combat service in the Republic of Vietnam, and therefore he was exposed to herbicides as a result of that service. Additionally, in a April 2014 statement and in his October 2014 substantive appeal, VA Form 9, the appellant indicated that the AOJ “lost” a tape of a “trial hearing” before a Judge wherein the Judge indicated that the Veteran had been found to be on “the daily roster so proof of service in Vietnam is proven.” The appellant was extremely upset that the tape was lost and that a transcript of the hearing was never made; such hearing was to have been in 2006 or 2007. Initially, with respect to the Veteran and the appellant’s statements regarding combat service in the Republic of Vietnam, the Board reflects that the evidence since the January 2010 Board decision is redundant evidence that was considered by the Board in January 2010. It is therefore not new evidence. Additionally, the Board acknowledges the appellant’s statements regarding the “lost” hearing transcript from before a Judge in 2006 or 2007. The Board notes that the Veteran—without the appellant present—presented oral testimony before a Veterans Law Judge in February 2008 at the San Diego RO. That Veterans Law Judge acknowledged the Veteran’s contentions that his service personnel records indicated that he was in the Republic of Vietnam. It is clear, the erroneous dates of 2006 or 2007 notwithstanding, that the appellant is clearly referring to the February 2008 Board hearing in his statements. The Board reflects that the transcript of that hearing is of record, and the statements and testimony from that hearing were acknowledged and addressed in the January 2010 Board decision. It is therefore not new evidence. In short, the evidence of record since the final January 2010 Board decision does not address the threshold issue of whether the Veteran’s Hodgkin’s lymphoma began in or was otherwise due to military service, to include exposure to herbicides therein as a result of any service in the Republic of Vietnam or other evidence of actual exposure to herbicides during military service. Accordingly, the Board finds that the evidence received since the January 2010 Board decision is not new and material in this case and therefore the claim of service connection for Hodgkin’s lymphoma is not reopened at this time. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). Psychiatric Disorder, to include PTSD, Dementia, and Depression Historically, the Board denied service connection for PTSD, dementia, and depression in a December 2004 rating decision. The Veteran was notified of that decision in a December 2004 notification letter. The Veteran did not submit a notice of disagreement or any new and material evidence with respect to the psychiatric claim within one year of that decision. That decision is therefore final. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.1103. The Veteran filed to reopen service connection for a psychiatric disorder in October 2008. The AOJ denied reopening service connection for a psychiatric disorder in a July 2009 rating decision, and then again in a December 2009 rating decision. The Veteran submitted a December 2009 substantive appeal, VA Form 9, in which he indicated that he disagreed with the denial of his psychiatric claim. The AOJ accepted that VA Form 9 as an appeal of the psychiatric claim in lieu of a notice of disagreement, and issued an August 2010 statement of the case, after again denying reopening service connection in a May 2010 rating decision. The Veteran, however, did not submit a substantive appeal, VA Form 9, within 60 days of that statement of the case. Accordingly, the December 2009 rating decision also became final. See Id. The Veteran filed to again reopen service connection for his psychiatric disorder in March 2011; the AOJ again denied reopening that claim in a December 2011 rating decision. The Veteran submitted a January 2012 notice of disagreement with that decision prior to his death in May 2012; the March 2011 claim was therefore a pending appeal prior to the Veteran’s death. The AOJ denied reopening service connection for the Veteran’s psychiatric disorder, for accrued benefits purposes, in an October 2014 statement of the case, to which the appellant timely submitted a substantive appeal, VA Form 9, in October 2014. The Board therefore finds that it has appropriate jurisdiction of the claim to reopen service connection for a psychiatric disorder that was pending at the time of the Veteran’s death, as the appellant as a substitute submitted a timely substantive appeal with respect to that issue. Accordingly, as the Veteran did not complete appeal of the December 2009 rating decision by submitting a timely substantive appeal following issuance of the August 2010 statement of the case, the December 2009 rating decision is final. See 38 C.F.R. § 20.1103. New and material evidence is therefore required to reopen the claim of service connection for a psychiatric disorder, to include PTSD, dementia, and depression. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Board reflects that the December 2009 rating decision and rating decisions issued respecting the psychiatric claim prior to that rating decision all considered the Veteran’s allegations that he was raped during basic training. The August 2010 statement of the case indicated that the Veteran had again submitted statements regarding being raped in service, as well as VA treatment records indicating that he was raped and named three individuals that were involved; it was further noted that the Veteran did not report it during service. Additional evidence included a letter from a VA doctor indicating a diagnosis and continued treatment for PTSD. The evidence of record that has not been previously considered in this case include several statements from the Veteran that he has continued to suffer from PTSD since military service. He also submitted several letters, including a copy of the previous VA doctor’s letter and that of other VA doctors, dated in June 2010 and February 2012, that he was treated for PTSD which made him unemployable. Additionally, VA treatment records demonstrated continued treatment for PTSD. The Board finds that all of the evidence of record since the last adjudication of the Veteran’s psychiatric claim is redundant and cumulative evidence regarding the Veteran’s previous assertions that he was raped in service and suffered from PTSD as a result of that incident. Moreover, the evidence received does not otherwise demonstrate that the alleged in-service incident occurred in this case, nor does it otherwise demonstrate that the Veteran suffers from PTSD or any other psychiatric disorder as a result of military service. Accordingly, the claim to reopen service connection for a psychiatric disorder, to include PTSD, dementia, and depression, must be denied at this time. See 38 C.F.R. § 3.156; Shade, supra. Service Connection for Cause of Death In this case, the Veteran died in May 2012. The causes of death listed on his death certificate were cardiac arrhythmia and coronary artery disease, with contributory causes of hypoxia, chronic obstructive pulmonary disease (COPD), hypertension, and Type 2 diabetes. At the time of his death, the Veteran was not service-connected for any disorders. Thus, the appellant may only be awarded service connection for cause of death if any of the identified causes of death should have been service connected. To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause 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 death. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312; see also Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992); Ventigan v. Brown, 9 Vet. App. 34, 36 (1996). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, VA regulations provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during military service, service connection for ischemic heart disease (coronary artery disease) and diabetes mellitus, type II, will be presumed. See 38 C.F.R. § 3.309(e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i) (2017). Furthermore, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the country. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute “service in the Republic of Vietnam” for the purposes of 38 U.S.C. § 101(29)(A) (establishing that the term “Vietnam era” means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In short, a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S. Ct. 1002 (2009). In Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims (Court) instructed VA to better define the difference between offshore waters and inland waterways, including particularly bays and harbors. VA now defines inland waterways as fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features, as described below. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. Conversely, offshore waters are defined as the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. The following areas have specifically been determined as offshore waters: Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay. With respect to the whether the Veteran’s noted disorders on his death certificate are due to herbicide exposure during service, the Board has previously discussed this topic in-depth in the January 2010 Board decision. The Board, however, will replicate that analysis herein at this time. At the Board hearing conducted in February 2008, the Veteran testified that he had combat duty in the Republic of Vietnam from December 1969 to January 1970, when he was in transit to Germany. Per the Veteran’s testimony, service personnel records sent directly from the National Personnel Records Center (NPRC) to VA support his assertion that he served in the Republic of Vietnam. The Veteran’s DD Form 214 reflects that the Veteran had 1 year, 6 months, and 2 days of foreign and/or sea service. Service personnel records reflect that he served in Germany from January 29, 1970, to July 29, 1971, thus corresponding to the 1 year, 6 months, and 2 days of foreign service reflected on his DD Form 214. Service personnel records contain a ‘Record of Assignments’ document which reflects that on December 5, 1969, he was ‘Enroute to Viet Nam;’ however, such entry is crossed out. The entry on the line item below reflects that on January 16, 1970, he was ‘Enroute to USAREUR’ which corresponds to service in Germany. On December 23, 2003, documentation was submitted to VA via facsimile. The facsimile cover page reflects “To: Department of Veterans Affairs” and “From: NPRC.” The facsimile cover page contains the fax number 775-784-5731 and refers to 11 pages of records. An undated typewritten document with a heading “Department of the Army, National Personnel Records Center” and the NPRC St. Louis, Missouri address, states the following: This is to confirm your combat service in Vietnam from December 5, 1969 through January 16, 1970, effective date is verified for basic combat. . . . Further orders transferred to enroute to Vietnam from December 5, 1969 to CDY July 28, 1971. The document reflects that his physical condition on August 2, 1971, is such that he is considered physically qualified for separation or for re-enlistment. The document contains a typewritten signature of T.A.L.M. “2NT LT FA ASST ADJ.” Also submitted via facsimile are other service personnel records and documents from the Social Security Administration (SSA). In July 2004, the Veteran submitted a VA Form 21-4138, which stated that he was submitting evidence of Vietnam service. Enclosed with such form, was a copy of the undated ‘Department of the Army, National Personnel Records Center’ document referenced hereinabove and previously received in December 2003. A March 2005 response from the NPRC states that there is no record of the Veteran being exposed to herbicides. Service personnel records contain documentation from the Department of the Army, Board for Correction of Military Records dated in August 2005. On the Veteran’s application for correction, he requested correction of item 30 (Remarks) on his DD Form 214 (Report of Transfer or Discharge) to show the entry “Vietnam 5 December 1969 to 16 January 1970.” The Veteran stated that he served in Vietnam from December 5, 1969, to January 16, 1970, until he was transferred to Germany. He stated that while in Vietnam, he was in hold. The Veteran provided a copy of his DD Form 214 in support of his request. The Board for Correction of Military Records considered the Veteran’s application for correction of military records, and military personnel records. It was noted that on the ‘Record of Assignment’ on his DA Form 20, it showed the entry “5 Dec 69 (5 December 1969) CASUAL Enroute to Vietnam.” This entry was lined through and considered void. A search of morning report entries for the U.S. Army Overseas Replacement Station for the period December 1-31, 1969, and January 1-31, 1970 were conducted for evidence that the Veteran arrived in Vietnam as he alleged. The Veteran’s records reflect documentation dated on January 30, 1970, that he was assigned to headquarters in Germany. It was explained that Army Regulation 635-5, in effect at that time, established the standard policy for preparing and distributing the DD Form 214. It directed that foreign service performed during the period covered by the DD Form 214 would be entered in item 22c (Foreign and/or Sea Service). The regulation also provided that the amount of foreign service would be taken from the Soldier’s Enlisted Qualification Record or, if necessary, verified from the Soldier’s Military Personnel Records Jacket. It also stated that item 30 (Remarks) was used to complete entries too long for their respective blocks. The Board for Correction of Military Records concluded that the evidence of record showed that the Veteran completed 1 year, 6 months, and 2 days of foreign service. His DA Form 20 shows that he completed 18 months of foreign service in Germany from January 29, 1970 to July 29, 1971. The evidence of record shows that a line entry was drawn through the words “CASUAL Enroute to Vietnam” on his DA Form 20, which indicated that the entry was null and void. The evidence shows that he was placed on orders to Vietnam; however, there is no evidence he reached this destination. On his arrival in Germany, he was assigned to headquarters, by orders dated on January 30, 1970. Based on the evidence, the Veteran’s record could not be changed to show that he served in Vietnam by adding the entry “Vietnam from 5 December 1969 to 16 January 1970” to his DD Form 214. Records show the Veteran should have discovered the alleged error or injustice under consideration on August 2, 1971, therefore the time for him to file a request for correction of any error or injustice expired on August 1, 1974. He did not file within the 3-year statute of limitations and did not provide a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. The Board for Correction of Military Records determined that the evidence presented did not demonstrate the existence of a probable error or injustice, and the overall merits of the case were insufficient as a basis for correction of the record of the Veteran. Based on a review of the entire evidence of record, a clear preponderance of the evidence is against a finding that the Veteran served in Vietnam. The undated document purportedly from the “Department of the Army, National Personnel Records Center” submitted in December 2003, was submitted directly by the Veteran (not by NPRC) and appears to have been fraudulently created. Initially, such document is not contained within the Veteran’s service personnel records and 201 personnel file provided by NPRC. Although the facsimile cover sheet reflects that the document was from the “NPRC,” the cover sheet contains a fax number of 775-784-5731 which is in the same format and from the same fax number referenced in April 2004 and June 2004 submissions from the Veteran. Likewise, March 2004 and February 2005 faxed submissions from the Veteran also contain the same format and contain a very similar fax number (775-784-5773). Thus, it is clear that the “Department of the Army, National Personnel Records Center” document was submitted by the Veteran via facsimile, not from the NPRC. Likewise, such document was submitted with 10 other documents, which included SSA documents pertaining to the Veteran, and the NPRC is not a repository for SSA records and would not have access to the Veteran’s SSA records. Furthermore, contrary to the Veteran’s February 2008 testimony that he never received the “Department of the Army, National Personnel Records Center” document showing purported Vietnam service, in July 2004, the Veteran submitted a copy of this document with a cover memorandum as discussed hereinabove. Thus, it is clear that such document was in the possession of the Veteran in 2003 and 2004. With regard to the specifics contained within the document received in December 2003 and July 2004, the Board reiterates that the document contains a heading “Department of the Army, National Personnel Records Center” with a St. Louis, Missouri address. The NPRC is located in St. Louis, but such entity is affiliated with The National Archives, not the ‘Department of the Army.’ The NPRC is the repository of military records, but is not affiliated with the ‘Department of the Army’ thus a valid document would not be generated that contains a heading ‘Department of the Army, National Personnel Records Center.” Likewise, there are several grammatical and spelling errors contained in the “Department of the Army, National Personnel Records Center” document which does not appear to be customary in official service documentation. There is an extra space between “This is to [extra space] confirm…”, the word separation is misspelled twice, and there are missing periods at the end of sentences. Moreover, the document lists dates in the format “January 16, 1970” however upon review of other service personnel records on file generated by the Army, the date is always characterized as “16 January 1970” or “16 Jan 70.” Finally, the document contains a typewritten signature of T.A.L.M, but while on other service personnel records received from NPRC his grade and arm are listed as “2LT FA ASST ADJ,” on the document submitted by the Veteran in December 2003 and July 2004, the grade and arm are listed as “2NT LT FA ASST ADJ.” It seems unlikely that if T.A.L.M. had actually signed and generated the document submitted in December 2003 and July 2004, that he would have incorrectly stated his grade and arm, especially since there are no such mistakes reflected in the service personnel records. Notwithstanding this, it is unlikely that as a member of the Army, he would provide his signature to a document with a heading pertaining to the NPRC. Even more compelling are the August 2005 findings and determination of the Board for Correction of Military Records, and the evidence relied on in making such determination. The Board for Correction of Military Records specifically refers to the Veteran’s application for correction of military records. It would seem that if the “Department of the Army, National Personnel Records Center” document received by VA in December 2003 and, again, in July 2004, which specifically states that the Veteran served in Vietnam, was a legitimate document, that the Veteran would have submitted such document in support of his application for correction of military records. Such determination was made by the Board for Correction of Military Records in August 2005, thus over a year and a half after such document was initially submitted to VA. It is illogical that the Veteran would not use such documentation purportedly from a Department of the Army official to support his application to correct his military records. As such document was not submitted to the Board for Correction of Military Records, the institution that makes the ultimate findings with regard to the Veteran’s military records, it would appear highly likely that such document was generated under false pretenses. Notwithstanding the finding by the Board that this document was likely fraudulently created, the Board for Correction of Military Records specifically reviewed the Veteran’s service personnel records and concluded that since the notation referring to his assignment to Vietnam was crossed out, this was considered null and void. Thus, it was determined that the Veteran’s record could not be changed to reflect that he served in Vietnam from December 5, 1969, to January 1970. It is also relevant that at the time of such decision by the Board for Correction of Military Records, the Veteran’s claim of service connection had been denied by the RO in a December 2004 rating decision, on the basis that he did not have the requisite service in Vietnam. Thus, it appears he may have only made such request for correction when he had a pending claim for VA benefits with the potential for pecuniary gain. As the Board for Correction of Military Records determined, the Veteran should have discovered the alleged error on August 2, 1971, not many years outside the 3 year statute of limitations to request a correction. As it appears that the Veteran has submitted fraudulent documentation in support of his contention that he served in Vietnam, such evidence undermines the credibility of the Veteran in attempting to show such service. The Board has considered September 2009 correspondence from the Veteran’s ex-spouse which states that she wrote letters to the Veteran that were addressed to Vietnam in December 1969 and January 1970, and that she and other family members were relieved when he was transferred to Germany. Such evidence, however, cannot provide support for a finding that the Veteran served in Vietnam based on the service personnel records and findings of the Board for Correction of Military Records which reflect otherwise. Based on the above, the Board concludes that the preponderance of the evidence is against a finding that the Veteran served in Vietnam or that his foreign service in Germany involved duty or visitation to Vietnam. Consequently, presumptive service connection for any disorders, to include the noted coronary artery disease and diabetes mellitus, cannot be found in this case. See 38 C.F.R. §§ 3.307, 3.309. Moreover, in light of the Board’s finding in this case that the Veteran did not serve in the Republic of Vietnam, there is no further evidence submitted by the Veteran or the appellant in this case to demonstrate that the Veteran was otherwise exposed to herbicides as a result of his military service. Consequently, the Board cannot find that any such direct basis of exposure to herbicides, outside of the presumptive provisions in this case, can be a basis for an award in this case. In short, as the Board has found that the Veteran is not presumed to herbicides as a result of his service and the Veteran and/or the appellant has not otherwise demonstrated that the Veteran was exposed to herbicides during military service in this case, the basis of herbicides as an in-service injury or event cannot be used as a predicate for any award of service connection in this case. Instead, a review of the Veteran’s service records does not demonstrate any treatment for, complaints of, or diagnosis of any of the Veteran’s disorders listed on his death certificate. Likewise, there is no evidence that such disorders did not become manifest until many years after discharge from service. In fact, the earliest record of a possible heart condition is recorded in a February 1997 medical record documenting a mild heart attack. Further, the first indication of record of COPD, hypertension, and diabetes is found in a June 2002 consultation. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Moreover, neither the Veteran nor the appellant truly asserted that the Veteran’s symptoms existed from separation in in August 1971 to his death in May 2012. Furthermore, insofar as the appellant have attempted to assert a nexus between the Veteran’s disorders listed on his death certificate and the Veteran’s military service, such statements are not competent in this case, as he does not have the requisite medical experience or expertise in this case to render any such opinion regarding etiological relationship to service. 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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board acknowledges that the AOJ did not obtain any nexus opinions in this case with regards to any of the disorders listed on the Veteran’s death certificate. However, the Board finds that the sole basis for any relationship asserted as a result of the Veteran’s death and/or any of his listed disorders on his death certificate by the appellant during the appeal period is as a result of the Veteran’s herbicide exposure in service. As the Board has found such allegations of service in the Republic of Vietnam to be not credible, and as the other evidence lacks any evidence of any of the disorders during military service or any allegations of those disorders as related to any other injury or event during service, the Board finds that remanding to obtain nexus opinions in this case is not necessary as the low threshold for obtaining such a medical opinion has not been met in this case. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, insofar as the record may have raised that the Veteran’s disorders listed on his death certificate in this case may have been related to his use of tobacco in service, particularly his COPD, the Board reflects that after June 9, 1998, 38 U.S.C. § 1103 prohibits service connection for disability or death on the basis that it stems from disease or injury attributable to the use of tobacco products during military service. See 38 C.F.R. § 3.300; VAOGCPREC 6-2003 (holding that neither 38 U.S.C. § 1103(a) nor VA’s implementing regulation at 38 C.F.R. § 3.300 bars a finding of secondary service connection for a disability related to the veteran’s use of tobacco products after the veteran’s service, where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran’s use of tobacco products during service). Although secondary service connection due to tobacco products may be awarded, the Board notes that the Veteran has not been service connected for any disabilities and therefore any such theory of entitlement is moot in this case. Accordingly, service connection for cause of the Veteran’s death is not warranted based on the evidence of record, and the appellant’s claim must therefore be denied at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel