Citation Nr: 18155046 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-55 171 DATE: December 4, 2018 ORDER Service connection for the Veteran's cause of death is denied. FINDING OF FACT 1. The Veteran died in December 2013. The cause of death was end stage renal disease, hypertension, and adult onset diabetes mellitus. 2. Service connection was not established for any disabilities during the Veteran’s lifetime. 3. The Veteran did not have service in the Republic of Vietnam (Vietnam), was not exposed to herbicide agents during service, and herbicide exposure during service is not presumed. 4. End stage renal disease, hypertension, and diabetes mellitus were not chronic in service, were not continuous since service separation, and were not shown to a compensable degree within one year of service separation. 5. The cause of the Veteran’s death (end stage renal disease, hypertension, and diabetes mellitus) was not incurred in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1967 to March 1968, and had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from April 1968 to September 1973. He died in December 2013. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an July 2015 rating decision from the Regional Office (RO), which denied service connection for the Veteran’s cause of death. Since issuance of the October 2016 statement of the case, additional evidence has been received by the Board for which a waiver of initial RO consideration was provided in writing in the January 2017 Correspondence. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304. The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. Neither the appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection for Cause of Death The appellant contends that service connection for the Veteran’s cause of death is warranted due to Agent Orange (herbicide agent) exposure. Specifically, the appellant contends that the Veteran told her he served in Vietnam during service, so service connection for end stage renal disease, hypertension, and diabetes should be presumed as due to herbicide agent exposure. See 05/2016 Notice of Disagreement, November 2016 VA Form 9, January 2017 Affidavit. The representative asserts that the appellant submitted a DD Form 214 and NAVMC 118(9) service personnel record that reflects handwritten notes indicating service in Vietnam to substantiate the contention that the Veteran had service in Vietnam, such that the presumption of herbicide agent exposure is applicable. See January 2017 Representative Brief. 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. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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). 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; 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 order to establish service connection for 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) medical evidence of a nexus between the claimed in service disease or injury and death. Under the relevant laws and regulations, 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). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. In this case, the cause of death, end stage renal disease, hypertension, and diabetes mellitus are recognized as a “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for basal cell carcinoma. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran must have served 90 days or more during a war period or after December 31, 1946 for the chronic presumptive provisions to attach. 38 C.F.R. § 3.307(a)(1). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease, or diabetes become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309 (e). The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Accordingly, end stage renal disease and hypertension are not diseases for which presumptive service connection based on exposure to herbicides agents may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Initially, the evidence of record reflects that the Veteran died in December 2013. The death certificate, issued December 10, 2013 by the State of South Carolina, lists the causes of death as end stage renal disease, hypertension, and adult onset diabetes mellitus. At the time of the Veteran’s death, service connection had not been established for any disability, to include any of the causes of death listed on the death certificate; therefore, a service-connected disability was not the cause of the Veteran’s death. The Board will also consider whether the cause of the Veteran’s death was related to any disease, injury, or other incident of service. Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not have “service in the Republic of Vietnam,” so may not be presumed to have been exposed to herbicides during service, and did not otherwise have actual exposure to herbicides during service, to warrant presumptive service connection for diabetes mellitus. In January 2017, the appellant submitted a DD Form 214 marked with handwritten notes that that reflect “Vietnam Service from April 1, 1968 to October 1, 1968;” however, appellant asserted that the handwritten notes on the DD Form 214 were scribed by the Veteran. See January 2017 Affidavit. The appellant also submitted an NAVMC 118(9) with barely legible handwritten notes that purports to show combat history -expeditions and awards. The NAVMC 118(9) also reflects hand scribed notes with statements such as: “Temp active duty USN + USMC,” “Intelligence (illegible),” “Rec NSO School RVN and Combined Action Vietnam,” “Vietnam Service Ribbon,” etc. The appellant contends that the notes scribed on the NAVMC 118(9) were not written by the Veteran. See January 2017 Affidavit. However, the service records the appellant submitted are not original or certified copies of the Veteran’s service personnel records. Moreover, a review of the official service treatment and personnel records does not reflect any evidence of foreign service, to include service in Vietnam during the claimed period from April 1968 to October 1968 as scribed on the DD Form 214 the appellant submitted. Service personnel records reflect that Veteran enlisted in the United State Marine Corps Reserves on September 7, 1967 for a term of six years. The DD Form 214 reflects that the Veteran had a six-month period of active duty service from September 28, 1967 to March 27, 1968, and had no foreign service during this period. The Veteran was assigned to Camp Lejeune, North Carolina from January 1968 to March 1968. After release from active duty, service personnel records show that the Veteran was assigned to Company C, 6th Engineer Battalion (6th Egnr Bn) in Knoxville, Tennessee from April 1968 to July 1968 and from September 1968 to May 1969. The Veteran was assigned to Supply Company, 4th Service Battalion, 4th Marine Division, Fleet Marine Force, United States Marine Corps Reserve (4th Svc Bn) in Washington D.C. from July 1968 to September 1968. As such service personnel records do not reflect service in Vietnam for the claimed period from April 1968 to October 1968. Moreover, service personnel records dated May 1969 to September 1973 also reflect no evidence of foreign service as the Veteran was assigned to duty stations in Washington D.C., Cleveland, Ohio, an Kansas City, Missouri during this time. See service personnel records. Accordingly, the Board finds that the Veteran did not have service in Vietnam, and was not actually exposed to herbicides while stationed at various duty stations throughout the United States. After reviewing all of the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran’s cause of death, end stage renal disease, hypertension, and diabetes mellitus, did not have its onset during, and is not otherwise related to, active service. The weight of the evidence is against finding that symptoms of renal disease, hypertension, and diabetes were “chronic” in service. Service treatment records do not reflect any history, complaints, symptoms, diagnosis, or treatment for symptoms of renal disease, hypertension, or diabetes. The Board next finds that the weight of the evidence is against finding that symptoms of renal disease, hypertension, and diabetes were “continuous” since service separation. The appellant has not asserted that renal disease, hypertension, and diabetes symptoms were present since service separation. June 2013 private treatment records reflect treatment for renal disease, hypertension, and diabetes, but do not reflect that symptoms of these conditions were present and continuous since service separation. This same evidence also shows that symptoms of renal disease, hypertension, and diabetes did not manifest to a compensable degree within one year of service separation. As discussed above, post-service treatment records demonstrate no evidence of renal disease, hypertension, and diabetes until 2013, approximately 40 years after release from active service in March 1968 and 45 years after release from the Marine Corps Reserve in September 1973. On the question of direct nexus to service, the appellant has not submitted any medical evidence of a link between the causes of death (renal disease, hypertension, and diabetes) and active service. While the June 2013 private treatment record reflect diagnoses of end stage renal disease, hypertension, and diabetes mellitus, the treatment record does not indicate that renal disease, hypertension, and diabetes were etiologically related to service. Although the appellant has asserted that the Veteran’s renal disease, hypertension, and diabetes, which caused his death, was related to herbicide exposure and thus service, the evidence does not reflect that the Veteran was actually exposed to herbicide agents during service. Moreover, she is not competent to diagnose renal disease, hypertension, and diabetes or render a competent opinion regarding their cause because the diagnosis and etiology of renal disease, hypertension, and diabetes requires medical expertise and falls outside the realm of common knowledge of a lay person. The etiology of the Veteran’s renal disease, hypertension, and diabetes is a complex medical etiological question dealing with the origin and progression of the cardiovascular, renal, and endocrine systems and diagnosed primarily on clinical findings and physiological testing. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for the cause of the Veteran’s death and, consequently, the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel