Citation Nr: 18159215 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-31 602 DATE: December 18, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The cause of the Veteran’s death is not related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1154, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corp. from January 1961 to December 1964. The Veteran died on May [redacted], 1999, and an original death claim was received in April 2014. The appellant is the Veteran’s surviving spouse. This matter is on appeal from a June 2014 rating decision for service connection for cause of death by cardiorespiratory arrest. A hearing was scheduled for October 2018; however, the appellant was a no show to the hearing. Service Connection for Cause of the Veteran’s death Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 was the principal or contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In order to constitute the contributory cause of death, it must be shown that the service connected disability 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 (c)(1). To comprise the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. See 38 C.F.R. § 3.312 (b). In the case of contributory cause of death, the appellant must show that a service-connected disability contributed substantially or materially to the veteran’s cause of death, that it combined to cause death, or that it aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c)(1). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, the VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the duty to provide an examination is not limitless. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010). The McLendon threshold elements above must be satisfied before VA is obliged to provide an examination or opinion. Id.; McLendon, supra. To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The appellant, the deceased Veteran’s spouse, seeks entitlement to DIC to include consideration of the issue of service connection for the cause of the Veteran’s death. She asserts in her July 2015 Form 9 that she is “owed this, due to [her] husband’s service”. The appellant and her representative in the November 2018 Appellate Brief repeat the same contention that the appellant is entitled to death benefits due to her husband’s service. The representative has also stated the Veteran was at one point stationed at Camp Lejeune, North Carolina during his service. While the Veteran’s April 1967 DD 214 Form confirms it was effected at Camp Lejeune, neither the appellant nor representative have actually asserted that a primary or contributing cause of his death was related to service at this location. To establish service connection on a direct basis, there must be evidence of a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the two. See Shedden, 381 F.3d at 1167. The Veteran’s May 1999 death certificate lists the cause of death as cardiorespiratory arrest. The death certificate also lists metastatic prostate cancer as an underlying cause of the Veteran’s death. At the time of death, the Veteran was not service-connected for any conditions. There is no evidence of an in-service event or injury related to the Veteran’s cause of death. The Veteran’s service treatment records do not note any reports, findings, diagnoses, or treatment of any type of cardiorespiratory issues. The Veteran’s medical history reports do not show any diagnosis or treatment for any cardiac conditions. Regarding the listed metastatic prostate cancer as an underlying or contributing cause of the Veteran’s death, there is no indication in the Veteran’s records that demonstrates a link between this condition and the Veteran’s ultimate cause of death. The appellant has not provided any evidence to the contrary. Therefore, the Board finds that the Veteran’s metastatic prostate cancer was not a contributory cause of his death. See 38 C.F.R. § 3.312 (c). The appellant has not submitted any competent or probative evidence to link the Veteran’s cardiorespiratory arrest with his active duty service. As the Veteran’s service treatment records were negative for any complaints, treatment, or diagnosis of any cardiorespiratory condition, and the evidence does not show complications from a cardiorespiratory condition, the Board concludes that the weight of the evidence is against a finding of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent evidence or opinion indicating that there is a medical nexus between a cardiorespiratory condition and the Veteran’s active duty service. The appellant has been allowed the opportunity to furnish medical evidence in support of the claim, but has not done so. 38 U.S.C. § 5107 (a). The Board further finds VA was not obliged to provide an examination or obtain an opinion on the Veteran’s cause of death because there was no competent evidence that shows the Veteran’s cardiorespiratory condition manifested in service; no competent evidence indicating a link between the Veteran’s cardiorespiratory condition; and no lay evidence suggesting that a cause of death had its onset in service or is otherwise related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d), 38 C.F.R. § 3.159 (c)(4)(i). As the threshold for finding that the evidence of record indicates that the claimed disability or symptoms may be related was not met, VA was not obliged to provide an examination or obtain an opinion in response to this claim. McLendon, 20 Vet. App. at 83. The Board therefore finds that the weight of the probative evidence is against a finding that a disability incurred in active service was the principal or contributory cause of the Veteran’s death. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not available to the appellant. 38 U.S.C. § 5107 (b). Consequently, entitlement to service connection for the cause of the Veteran’s death and entitlement to DIC is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk