Citation Nr: 18158370 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-63 793 DATE: December 14, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in August 1981. The immediate cause of death listed on his death certificate is acute neurogenic cardiovascular failure. 2. At the time of the Veteran’s death, the Veteran had not established service connection for any disability. 3. The preponderance of the evidence is against a finding that acute neurogenic cardiovascular disability is attributable to service, or any incident of service, to include exposure to herbicide agents; and acute neurogenic cardiovascular disability is not a disease presumptively associated with exposure to herbicide agents under the applicable law. 4. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred more than 10 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2018). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1969 to May 1971. The Veteran died in August 1981; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for the cause of the Veteran’s death is denied. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 C.F.R. § 3.5. Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312. Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or 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). A 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; or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Certain diseases have been determined to be associated with the use of herbicides in Vietnam and VA regulations identify those diseases that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). Acute neurogenic cardiovascular disability is not a disease identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). However, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. The exclusion of a disability from the list of disabilities for which presumptive service may be assigned does not preclude service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the appellant argued that the Veteran’s death was the result of a heart attack and that his heart attack manifested due to his exposure to herbicide agents. See April 2013 VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. The immediate cause of death identified on the Veteran’s death certificate is acute neurogenic cardiovascular failure. See April 2013 Death Certificate. No contributory cause is noted in the death certificate. The Veteran had no service connected disabilities at the time of his death. Having carefully reviewed the evidence of record, the Board finds that the criteria for service connection for the cause of the Veteran’s death are not met. The Veteran died of acute neurogenic cardiovascular failure. The more persuasive evidence of record shows that acute neurogenic cardiovascular disability is not attributable to the herbicide exposure in service, and acute neurogenic cardiovascular disability is not a disease presumptively associated with exposure to herbicide agents under the applicable law. Turning to the medical evidence, the Board finds that there is no heart-related or neurological-related in-service event, injury, or disease. A review of the service treatment records shows that the Veteran had normal heart, vascular, and neurological assessment with no complaints of heart-related or neurological-related symptoms in the March 1969 entrance examination, August 1969 examination, and May 1971 separation examination. See October 2014 STR – Medical. Further, no post-service medical records substantiating such a relationship between service and his cause of death have been submitted. In addition, the appellant only alleged that the Veteran’s acute neurogenic cardiovascular disability manifested due to exposure to herbicide agents and not due to any other events or injuries in service. See April 2013 VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. As such, the Board finds that there is no in-service incurrence or aggravation of a disease or injury. As for presumptive service connection based on exposure to herbicide agents, the Board concedes that the Veteran was exposed to herbicide agents as he was stationed in Vietnam. See October 1981 Certificate of Release or Discharge from Active Duty. However, the Board notes that acute neurogenic cardiovascular disability is not a recognized disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). As such, the Board finds that the appellant cannot avail herself under the theory of presumptive service connection based on exposure to herbicide agents. In addition, regarding presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s acute neurogenic cardiovascular disability manifested to a compensable level in the first post-service year as there are no post-service treatment records in the file suggesting such. 38 C.F.R. § 3.309(a). The Board has considered the appellant’s statement that the Veteran’s heart attack was due to his exposure to herbicide agents. However, the Board finds that the appellant is not competent to link the cause of the Veteran’s death to service or herbicide exposure as she lacks the requisite medical expertise. Moreover, there is no competent evidence of record that the Veteran had a heart attack. As this is a medical matter, requiring medical training and expertise, the Board affords her statement little probative value. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Accordingly, the claim is denied. There is no doubt to resolve as the evidence is not in equipoise. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran’s death were service connected where it is shown that the Veteran’s death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). In this case, the Veteran had not been continuously rated totally disabled for 10 years immediately prior to his death, the Veteran was not rated totally disabled upon separation from service, and he was not a former POW. Prior to his death, the Veteran had not established service connection for any condition. He died in 1981, approximately 10 years after his separation from service in 1971. Accordingly, the appellant does not qualify for DIC benefits under 38 U.S.C. § 1318. In essence, the facts of this case are not in dispute and the law is dispositive. Accordingly, the claim is denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel