Citation Nr: 18158564 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-02 268 DATE: December 17, 2018 ORDER Service connection for a chronic kidney disorder, on the basis of substitution, is denied. Service connection for chronic obstructive pulmonary disease, on the basis of substitution, is denied. Service connection for diabetes, on the basis of substitution, is denied. Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during service. 2. The Veteran did not have a kidney disorder. 3. Chronic obstructive pulmonary disease (COPD) did not originate in service or until years thereafter, and was not otherwise etiologically related to the Veteran’s active service. 4. Diabetes did not originate in service or until years thereafter, and was not otherwise etiologically related to the Veteran’s active service. 5. The Veteran died from COPD, diabetes, and hypertension. 6. At the time of the Veteran’s death, service connection was in effect for gout affecting the left foot and toes, right tennis elbow, left tennis elbow, and chronic lumbosacral strain. 7. The Veteran’s fatal COPD, diabetes, and hypertension did not originate in service or until years after service, were not otherwise etiologically related to service, and were not caused or aggravated by service-connected disability; the Veteran’s service-connected disorders played no role in contributing to or hastening the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic kidney disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1963 to July 1967, from August 1971 to June 1979, and from September 1983 to September 1987. The Veteran died in February 2001. The appellant is the Veteran’s surviving spouse. Service Connection When any veteran dies from a service-connected disability, the veteran’s surviving spouse is entitled to Dependency Indemnity Compensation (DIC). 38 U.S.C. § 1310. In order 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 either caused or contributed substantially or materially to death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal cause of death when the 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 there was a causal connection. 38 C.F.R. § 3.312(c). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 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. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. VA policy is to recognize that special consideration of herbicide agent exposure on facts found or direct basis should be extended to those veterans serving during the Vietnam era whose duties placed them on or near the perimeters of Thailand military bases. Such duties would include, but are not limited to, those involving service as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on facts found or direct basis. Additionally, VA recently amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Effective October 22, 2018, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. “Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307(a)(6)(v). When such a veteran contracts a disease associated with exposure to herbicide agents under § 3.309(e) that becomes manifest to a compensable degree within the time period specified in 38 C.F.R. § 3.307(a)(6)(ii), the disease will be presumptively considered to have been incurred in service, even though there is no evidence of it during service. Herbicide Agent Exposure While all veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, here, the Veteran and the appellant claimed that the Veteran should be entitled to the presumption of herbicide agent exposure because he was stationed at the Udorn Royal Thai Air Force Base. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. The Veteran reported that while he was stationed in Thailand, he flew 44 missions to the Republic of Vietnam and landed on the ground each time to load and unload supplies and perform maintenance. He also reported that he was treated at the Saigon hospital for a day. A review of the Veteran’s service personnel records does in fact show that he had service in Thailand from 1972 to 1973, and it is noted that he served on an air base where herbicide agent exposure was possible. However, the Veteran’s MOS was an aircraft mechanic, which is not an MOS VA recognizes as typically associated with service at the perimeter of the base. Nor do service personnel records otherwise suggest that his duties involved contact with the base perimeter. In addition, the Veteran service personnel records show that he worked on C-130s, but not with C-123s. As such, he was not presumed to be exposed to herbicide agents while stationed at Udorn Royal Thai Airforce Base. A review of the Veteran’s service personnel records contains various performance evaluations. Once of these performance appraisals reported that the Veteran’s duties would involve providing assistance to aircraft in distress. However, the performance evaluations do not suggest that this involved visitation to Vietnam, and in fact none report any visitation to Vietnam by the Veteran for any reason. The Veteran’s STRs also do not show that he ever was treated in Vietnam or ever went to Saigon. The Veteran’s service decorations, which include a Vietnam Campaign Medal, A Vietnam Service Medal, and Gallantry Cross, are consistent with operations in support of the war, and not necessarily with actual service in Vietnam. Those decorations allow for Air Force servicemembers who operate in support of aircraft missions into Vietnam to be awarded the medal. The Veteran claimed to have been sent to Vietnam frequently, and yet none of his rather detailed personnel evaluations mention such visits. Given that the service personnel records are silent for any reference to visitation to Vietnam, the service treatment records which also do not show any indication of Vietnam service, and the fact that this awards and decorations are equally consistent with service solely in Thailand, the Board finds that the evidence as a whole established that the Veteran did not serve at any point or in any capacity in Vietnam. Nor does the evidence suggest his duties involved working at the perimeter of his Thailand air base or that he was otherwise exposed to herbicides. The Board accordingly finds the Veteran was not exposed to herbicides in service. As such, he was not entitled to presumptive service connection due to herbicide agent exposure. Chronic Kidney Disorder The Veteran filed his service connection claim for a chronic kidney disorder in October 2010, which was denied by a May 2013 rating decision. He asserted that he had a kidney failure due to his diabetes. He also reported that his kidneys were functioning normally at the time of his claim for benefits. The Veteran’s STRs do not show complaints, treatment, or diagnoses for a chronic kidney disorder. The Veteran’s medical records after his separation from service show that he had acute kidney failure in September 2010. The Veteran reported that he did not have a history of kidney disease. Later in September 2010, he had a normal ultrasound of his kidneys. While the Veteran asserted that he had a kidney condition secondary to his diabetes, his kidney condition resolved prior to his claim for benefits. In addition, the diagnosis of a chronic kidney disorder requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone; and the Veteran was not considered competent (meaning medically qualified by training or experience) to diagnose such disabilities nor relate them to service or a service connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, there is then no need to address whether his lay statements in this regard were also credible. Id. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007). Here neither the Veteran nor the appellant have shown by medical evidence the presence of a chronic kidney disorder after the Veteran filed his service connection claim. Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for a chronic kidney disorder is denied. Chronic Obstructive Pulmonary Disease and Diabetes The Veteran filed his service connection claim for COPD and diabetes in April 2010, which were denied by September 2010 and May 2013 rating decisions. He asserted that his COPD and diabetes were due to his active service. The Veteran’s STRs do not show a diagnosis of COPD or diabetes during his active service. He had normal examinations of his chest and lungs in June 1963, December 1965, July 1966, August 1971, July 1975, February 1982, October 1985, and May 1987. Chest x-rays showed no cardiopulmonary findings. He denied having any pulmonary symptoms in June 1963, December 1965, July 1966, June 1967, August 1971, February 1982, and May 1987. His STRs also do not show blood test results consistent with a diagnosis of diabetes. The first evidence of COPD after the Veteran’s separation from service is not until December 2002 when he was diagnosed with COPD, over a decade after his separation from service. The first evidence of diabetes after the Veteran’s separation from service is not until November 2005, almost two decades after his separation from service. As such, the record contains no diagnosis of COPD or diabetes in service and the Veteran’s COPD and diabetes are not considered a chronic disease, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. There is also no medical evidence linking the Veteran’s COPD or diabetes to his active service, and neither the Veteran nor the appellant have submitted any medical opinion that even suggests a relationship between his COPD or diabetes and the Veteran’s active service. See Shedden, 381 F.3d 1163, 1167. In October 2014, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s COPD was less likely than not caused by his active service. The examiner reported that the Veteran’s COPD was due to his cigarette smoking. The examiner reported that the Veteran did not have a diagnosis of COPD during his active service. The examiner reported that the Veteran’s medical record showed he was advised to quit smoking multiple times. The examiner reported that cigarette smoking was the number one cause of COPD and that nine out of ten deaths from COPD were caused by smoking. After weighing all the evidence, the Board finds great probative value in the October 2014 VA examiner’s opinion. This negative opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). While no medical opinion of record was obtained to address the etiology of the Veteran’s diabetes, the Veteran’s claims file is void of any competent medical evidence even suggesting that his diabetes either began during or was otherwise caused by his active service. Consideration has been given to the assertions of the Veteran and the appellant that the Veteran’s COPD and diabetes were due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of COPD and diabetes, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4. Here, neither the Veteran nor the appellant have been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to whether COPD or diabetes was caused by the Veteran’s active service. As such, the criteria for service connection for COPD and diabetes have not been met, and the appellant’s claims are denied. Cause of Death In February 2011, the appellant filed claim for service connection for the cause of the Veteran’s death, which was denied by a May 2013 rating decision. The appellant has appealed. For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. In the absence of such evidence, the regulations require a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.310(a), 3.312. With respect to the principal cause of death, VA regulations provide that a “service-connected disability will be considered as the principal 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; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312. 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. Id. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Id. The Veteran died in February 2001. His death certificate identified the cause of his death due to COPD, diabetes, and hypertension. At the time of his death, the Veteran was service connected for left foot and toes gout, right tennis elbow, left tennis elbow, and chronic lumbosacral strain. As discussed more fully above, service connection for COPD and diabetes is not warranted. In October 2014, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s hypertension was less likely than not due to his active service. The examiner reported that the Veteran was not diagnosed with hypertension during his active service or within one year after his separation from service. After weighing all the evidence, the Board finds the greatest probative value in the VA examiner’s opinion, which considered the elements necessary to substantiate a service connection claim for hypertension. The Veteran was not service-connected for COPD, diabetes, or hypertension at the time of his death. Based on the evidence of record, the Board finds that a service-connected disability was not the principal cause of death. Nor is there competent evidence suggesting that any of the service-connected disorders caused or aggravated the fatal disorders, or that the cause of the Veteran’s death was otherwise etiologically related to his service. The Board would like to express that it is extremely sympathetic toward the appellant’s claim and is deeply appreciative of the Veteran’s air service, including his service during the Vietnam Era. Unfortunately, the evidence of record does not establish that the Veteran’s death was due to his active service. (Continued on the next page)   Accordingly, the claim for service connection for the cause of the Veteran’s death is denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel