Citation Nr: 18157235 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-09 480 DATE: December 12, 2018 ORDER Service connection for cause of death is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death, service connection was in effect for bilateral hearing loss and tinnitus. 2. The Veteran’s death certificate lists the immediate cause of death as respiratory failure, and underlying causes of death were chronic renal failure and end stage dementia. Peripheral vascular disease and hypertension were listed as significant conditions contributing to the Veteran’s death. 3. The Veteran’s cause of death was not incurred in or otherwise etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1951 to March 1953. The Veteran died in 2014, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Agency of Original Jurisdiction (AOJ) is now Houston, Texas. In June 2016, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 60 days to allow for the submission of additional evidence for consideration; however, no additional evidence was submitted within that time. In September 2018, the RO requested the Appellant submit additional private treatment records, but the Appellant has not responded to the request. The Board notes that in October 2007, VA confirmed that some of the Veteran’s military personnel and treatment records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC). Additionally, in a June 2014 rating decision, the Veteran was denied service connection for stenosis of the spine, peripheral neuropathy of the bilateral lower extremities, and dementia as secondary to peripheral neuropathy. 1. Service connection for cause of death Dependency and Indemnity Compensation (DIC) benefits are 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 to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the 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. 38 C.F.R. § 3.312 (a). A principal cause of death is one in which a service-connected 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). A contributory cause of death is one which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). A contributory cause of death is inherently one not related to the principal 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 C.F.R. § 3.312(c)(1). Additionally, service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, 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. Gabriel v. Brown, 7 Vet. App. 36, 39 - 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding 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). VA is responsible for determining whether the evidence supports the claim, with the appellant prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). At the time of his death, the Veteran’s bilateral hearing loss and tinnitus were service connected. His death certificate lists respiratory failure as the immediate cause of death. The underlying causes of death were chronic renal failure and end stage dementia. Peripheral vascular disease and hypertension were noted as significant conditions contributing to death. The preponderance of the evidence does not a support a finding of service connection for the Veteran’s death. At the hearing, the Appellant testified that the Veteran complained of back pain since the 1960s. She also stated the Veteran had discolored feet due to exposure to cold during service. The Appellant stated these medical conditions sometimes caused the Veteran to fall. Towards the end of his life, the Veteran resided in a nursing home. Service treatment records not destroyed in the fire include the Veteran’s March 1951 entrance examination and his March 1953 separation examination. Both examinations were normal and are silent regarding a back condition, neuropathy, or a mental health condition. Private treatment notes show that following a nerve conduction study, the Veteran was diagnosed with neuropathy in October 2008. He reported his symptoms began with a burning sensation that affected the toes and soles of his feet, and eventually caused paresthesias up to his calves. In October 2008, a magnetic resonance imaging (MRI) of the lumbar spine showed moderate spondyloarthritic changes, and moderate degenerative disc disease. A May 2010 computed tomography (CT) scan of the brain revealed mild to moderate chronic ischemic changes. In May 2010, the Veteran was noted to need an increased dosage in his hypertension medication. The claims file also includes medical records from the nursing home where the Veteran resided prior to his death. The records consist of daily physical and occupational therapy notes. The Veteran was noted to have hearing difficulties, and cognitive and memory problems. The preponderance of the evidence is against the claim. Though the Appellant contends the Veteran’s spine condition, neuropathy, and dementia are etiologically related to his military service, the evidence does not support this finding. The available medical records show the Veteran had normal health when he entered and when he separated from service. The earliest dated records in the claims file showing that the Veteran had a spine condition, neuropathy, and dementia are from 2008 and 2010, more than 50 years after service discharge. None of the medical records indicate a connection between the Veteran’s military service and his spine condition, neuropathy, or dementia. The appellant believes that the Veteran’s death was caused by some aspect of his service. However, the appellant’s opinion as to service connection is not probative. As a lay person, she lacks the necessary medical expertise to establish that the Veteran’s medical conditions were etiologically related to his service and ultimately death. See Layno, 6 Vet. at 469. The Appellant was afforded the opportunity to provide additional medical records in support of her claim. However, she did not respond to the requests to submit private treatment records. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel