Citation Nr: 18156436 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-31 785 DATE: December 11, 2018 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran had active service between September 1954 and June 1974, including service in the Republic of Vietnam between March 1966 and April 1967; he is presumed to have been exposed to herbicide agents while in service. 2. The Veteran died in January 2014 at the age of 76. The death certificate identified the immediate causes of death as acute hypoxic respiratory failure, empyema thoracis, and metastatic malignancy; other significant contributing conditions were anemia, hyponatremia, and encephalopathy. 3. At the time of his death, the Veteran was not service connected for any disabilities. 4. Type II diabetes mellitus did not have a material role in causing the Veteran’s death. CONCLUSIONS OF LAW 1. Type II diabetes mellitus did not cause, or contribute substantially or materially, to the cause of the Veteran’s death. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5017 (2012); §§ 1310, 5103(a), 5103A, 5017 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2017). 2. The causes of the Veteran’s death were not incurred in or aggravated by active service, and cannot be presumed to have incurred therein and are not related to a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1310, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To establish service connection for the cause of a 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. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate cause or underlying cause, or be etiologically related. 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, a causal connection must be shown. 38 U.S.C. § 1310; 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, but, even in such cases, there is for consideration whether 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. 38 C.F.R. § 3.312(c)(4). In such a 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 of itself of a progressive or debilitating nature. In adjudicating a claim, the Board determines whether the weight of the evidence supports the claim, or, whether the weight of the “positive” evidence in favor of the claim is in relative balance with the weight of the “negative” evidence against the claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted above, the Veteran died in January 2014 at age 76. His immediate causes of death were listed as acute hypoxic respiratory failure, empyema thoracis, and metastatic malignancy. Other significant conditions contributing to his death included anemia, hyponatremia, and encephalopathy. A review of the medical evidence shows that the Veteran had a past medical history of type II diabetes, hypertension, chronic back pain, and a chronic cough. At the time of death, the Veteran was not service connected for any disabilities. Accordingly, service-connected disabilities did not cause the Veteran’s death. Turning to the issue of whether the cause of the Veteran’s death is related to service, a review of the service treatment records (STRs) does not show treatment or diagnoses related to respiratory failure, empyema thoracis, metastatic malignancy, anemia, hyponatremia, encephalopathy or any symptoms reasonably related thereto. Indeed, his heart, vascular system, endocrine system, and skin were found to be clinically normal in his November 1973 retirement examination; additionally, the examination found that he was neurologically clinically normal. Rather, the medical record does not establish a chest pain, abdominal pain, or a chronic cough until more than 40 years after his separation from service. Therefore, the disorders that caused or significantly contributed to his death are not directly related to service. The appellant’s primary contention is that the Veteran developed type II diabetes mellitus as a result of in-service exposure to Agent Orange. The STRs and personnel records confirm his service in the Republic of Vietnam between March 1966 and April 1967. Accordingly, exposure to herbicides is presumed. Moreover, type II diabetes mellitus is presumed to have been caused by his in-service herbicide exposure. Therefore, the Veteran’s type II diabetes mellitus is presumed to be service connected. 38 C.F.R. § 3.309(e). Nonetheless, despite the appellant’s contentions to the contrary, type II diabetes mellitus is not listed on his death certificate as either a primary or contributory cause of death. Furthermore, the record does not otherwise establish that type II diabetes mellitus was a primary or contributory cause of the Veteran’s death. The Board has considered lay statements made by the appellant asserting that the Veteran’s type II diabetes mellitus contributed substantially or materially to the cause of his death. While she is competent to report her observations because this requires only personal knowledge as it comes to her through her senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), she is not competent to opine as to complex medical issues, such as the cause of the Veteran’s death. Such competent evidence concerning the cause of the Veteran’s death has been provided by the medical personnel who have rendered pertinent opinions during the current appeal. The medical findings (as provided in the clinical records and death certificate) directly address the criteria under which this issue is evaluated. As noted above, to establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by service caused or contributed substantially or materially to cause the veteran’s death. In this case, other than the appellant’s lay statements, the evidence does not show that type II diabetes mellitus caused or contributed substantially or materially to cause the Veteran’s death. Therefore, the appeal is denied. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel