Citation Nr: 18156206 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-35 780 DATE: December 7, 2018 ORDER Service connection for the Veteran’s cause of death is denied. FINDING OF FACT The preponderance of the evidence is against finding a primary or contributory cause of death was related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1310, 1311 (West 2014); 38 C.F.R. §§ 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1951 to July 1958. The Veteran died in 1999, and the appellant is the Veteran’s surviving spouse. The appellant initially requested a Videoconference hearing in her July 2016 Substantive Appeal (VA Form 9). In a December 2017 statement, she withdrew this hearing request in writing. Therefore, her request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (e) (2017). Entitlement to service connection for the cause of the Veteran’s death In a claim of service connection for a veteran’s cause of death, i.e., Dependency and Indemnity Compensation (DIC), evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. DIC is also awarded if the veteran’s death can be service connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. That is, service connection for the cause of a veteran’s death is granted, post mortem, and DIC is awarded, if the evidence shows that a fatal disease or injury was incurred or aggravated in service, though service connection had not been granted for the disease or injury prior to a veteran’s death, was either the principal or a contributory cause of death. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a veteran’s death, due to a cause not already service connected, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (a), 3.312 (a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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 claimant 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)). Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cardiovascular-renal diseases, such as arthrosclerosis and heart disease, are “chronic” diseases listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. 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. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular-renal diseases, 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive 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. Id. Atherosclerosis cardiovascular disease and ischemic heart disease are also diseases presumed associated with herbicide exposure. For the presumptive service connection provisions to apply, the Veteran’s atherosclerosis cardiovascular or ischemic heart diseases must manifest to a compensable degree within one year after the last date on which a veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307 (a) (6) (ii). VA regulations extend a presumption of herbicide exposure to certain Veterans who served in Korea. 38 C.F.R. § 3.307. Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, 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. 38 C.F.R. § 3.307 (a) (6) (iv). The Veteran did not serve in or near the Korean DMZ and thus does not qualify for presumptive exposure to herbicide based on these provisions. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). According to the death certification, the immediate cause of death was intractable congestive heart failure with onset 24 minutes prior to death, ischemic bowel syndrome with onset four days prior to death, and renal failure with its onset years prior to death. The Veteran’s death certificate also noted widespread arthrosclerosis disease as a contributing cause. The appellant contends the Veteran’s death should be service-connected because he was exposed to toxic chemicals as an air craft mechanic. The Veteran’s arteriosclerosis and congestive heart disease qualify for presumptive service connection as chronic diseases, and as ischemic heart diseases associated with herbicide exposure. However, the Veteran’s service treatment records ( STRs ) do not indicate complaints, diagnoses, or treatments for any of the causes of death listed on the death certificate. His clinical heart and vascular evaluations in October 1951 at enlistment, June 1952 at reenlistment, December 1954 for flight engineering school, March 1956, and May 1958 at discharge were normal. The Veteran reported a history of measles, mumps, chicken pox, and whooping cough as a child, but the examiners noted these had resolved prior to service. Private treatment records indicate the Veteran had a history of arthrosclerosis of the lower extremities, but the evidence does not indicate the initial onset or diagnosis of the disease. In addition, the appellant has not provided any probative evidence that the Veteran was exposed to toxic chemicals during service, or that the exposure caused any of the Veteran’s principle or contributory causes of death. The Board has considered the appellant’s submissions of September 2016. These include details of 2 Ford Motor Company recalls. However, these articles provide general information only, and are of minimal probative value. They do not indicate that the Veteran was exposed to toxic chemicals during service or that toxic exposure caused any of the Veteran’s causes of death. See Wallin v. West, 11 Vet. App. 509 (1998) (observing that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314 (1998)); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012) (Board decision affirmed where Board recited law with respect to the probity of medical treatise evidence and found that it did not show to any degree of specificity that the Veteran’s disorder was linked to military service). The evidence also does not indicate the onset or diagnosis of the Veteran’s renal disease. The Board notes that private medical records indicate the Veteran had a long history of alcoholism withdrawal. Alcoholism or alcohol abuse is not a disability for the purposes of VA compensation. VA law and regulations preclude compensation for primary substance abuse disabilities and secondary disabilities that result from primary substance abuse as this is deemed to constitute willful misconduct on the part of the claimant. See 38 U.S.C. § 105 (a) (West 2014); 38 C.F.R. §§ 3.1 (m), 3.301(d) (2015); see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (“the legislative history is quite clear that Congress intended to... preclude recovery for a primary alcohol abuse disability...”). Therefore, service connection for an alcohol abuse disability as a primary disability related to active duty service must be denied as a matter of law as service connection is not permissible for that type of disability. The evidence also does not indicate the onset or diagnosis of the Veteran’s ischemic heart disease. Private treatment records indicate the Veteran had a long history of hypertension, a known early symptom of cardiovascular-renal diseases. “Hypertension” refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland's Illustrated Medical Dictionary, 896 (32nd ed. 2012). Similarly, for VA rating purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm Hg or greater. The term “isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. STRs do not indicate the Veteran demonstrated the onset of hypertension in service. There are no complaints, diagnoses or treatments for high blood pressure during service. The Veteran denied high blood pressure on his October 1951, June 1952, March 1956, and May 1958 reports of medical history, and his blood pressure readings at his October 1951, June 1952, December 1954, March 1956, and May 1958 examinations were within normal limits. The claim for service connection for the Veteran’s cause of death is denied. There is no probative medical evidence that indicates that any of the Veteran’s principle or contributory causes of death were incurred in service, diagnosed within the presumptive period after discharge, caused by exposure to toxic chemicals during service, or are otherwise related to service. (Continued on the next page)   Since neither the Veteran’s principle or contributory causes of death were related to his service, the claim for service connection for the Veteran’s cause of death is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel