Citation Nr: 18123736 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-26 658 DATE: August 2, 2018 ORDER An initial rating in excess of 10 percent for coronary artery disease (CAD) is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. During the pendency of the appeal, the RO severed service connection for CAD, effective March 27, 2014. 2. There is no legal basis for a retroactive increase after severance of service connection for CAD. 3. The Veteran passed away in March 2014. The cause of death was listed as respiratory failure due to lung cancer due to smoking. 4. At the time of death, the Veteran was service-connected for bilateral hearing loss and tinnitus. 5. The Veteran’s cause of death was unrelated to service or a service-connected disability. CONCLUSIONS OF LAW 1. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1) (2017). 2. The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1962 to December 1966. During his period of service, he earned the National Defense Service Medal. Increased Rating Service connection for CAD, evaluated as ten percent disabling, was granted by a September 2013 rating decision, effective April 17, 2013. In April 2015, during the pendency of the present appeal for a higher rating, the Appellant was notified that a review of the Veteran’s medical records indicated a clear and unmistakable error in the granting of service connection for CAD. As such, service connection for CAD was severed by a July 2015 rating decision. The Appellant did not appeal this decision; thus, the issue of the propriety of the severance is not before the Board. As service connection for CAD was severed, under the provisions of 38 C.F.R. § 3.400(o)(1), an increased or retroactive benefit cannot be awarded. The law is dispositive, as it prohibits a retroactive increase once basic entitlement has been terminated. Accordingly, the Board finds that the Veteran lacks entitlement under the law for the claim for increase for CAD, and the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Cause of Death In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012), 38 C.F.R. § 3.303 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2017); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from the date of termination of such 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The law provides a presumption of service connection for certain diseases, including lung cancer, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (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 that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, 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. 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). In this case, the Veteran’s certificate of death reflects that he died in March 2014. The cause of death was listed as respiratory failure due to lung cancer due to smoking. At the outset, the Board notes that prior to his death, the Veteran reported that the ship on which he served was added to the list of ships that had “brown water” service during Vietnam. Service connection for CAD was granted on a presumptive basis, as due to exposure to herbicides, by a September 2013 rating decision. However, subsequent to the Veteran’s death, a review of his medical records in relation to the aforementioned increased rating claim showed that there was a clear and unmistakable error in the granting of service connection for CAD. The RO determined that the Veteran did not have qualifying service during Vietnam which would afford the presumption of herbicide agent exposure and service connection for CAD was severed by a July 2015 rating decision, effective March 27, 2014. As such, at the time of his death, the Veteran was service connected for bilateral hearing loss and tinnitus. The evidence does not show that the Veteran’s service-connected bilateral hearing loss nor tinnitus was the principal cause of his death. The Veteran’s death certificate does not mention his service-connected disabilities, nor is there any other medical evidence that lists these disabilities as a principal or contributory cause of death. Further, the Appellant does not assert that the Veteran’s service-connected disabilities caused his death. Rather, the Appellant believes that Veteran’s lung cancer should be service-connected on a presumptive basis as due to exposure to herbicides, specifically Agent Orange, during his period of service. As established above, the Veteran was not service-connected for lung cancer or a respiratory disability at the time of his death. As such, it is necessary to determine whether service connection should have been established for such disorders. In April 2013, in relation to his claim for service connection for CAD, the Veteran indicated that he served aboard the USS Iwo Jima during his period of service, which had been added to the VA list of “brown water” ships that operated on the inland waterways of Vietnam. The Board notes that the USS Iwo Jima entered Qui Nhon Bay in July 1965; docked to a pier at Da Nang on October 6, 1969 and May 19-20, 1971; and operated as troop transport, with helicopters and smaller vessels transporting troops on and off shore for amphibious assaults, from May 1965 to August 1972. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp. However, a review of the Veteran’s service personnel records indicate that he served aboard the USS Iwo Jima from July 1963 to July 1964, approximately ten months prior to the first indication of the vessel being operated as troop transport. The Appellant does not contend, and the record does not reflect, that the Veteran had service in Vietnam. The Appellant has also not provided any additional details to warrant further investigation of her allegations that the Veteran was exposed to herbicide agents. Based on the sum of the evidence, the Board finds that the most probative evidence is against a finding that the Veteran was exposed to herbicides during active duty service. Therefore, there is no presumption of exposure available to the Veteran. Accordingly, the presumptive provisions concerning lung cancer and herbicide exposure are not available, and service connection on that basis is denied. 38 C.F.R. § 3.307(a)(6); 38 C.F.R. § 3.309(e). Although no other theory of service connection was asserted by the Veteran in his lifetime or by the Appellant, the Board has also considered whether service connection for the cause of the Veteran’s death may be warranted under other theories of entitlement. As previously stated, the Veteran’s cause of death was listed as respiratory failure due to lung cancer due to smoking. The Veteran’s service treatment records are silent for complaints, findings, treatment, or diagnoses related to lung cancer or respiratory issues. It has also not been alleged that the conditions were symptomatic in service, or at any time soon thereafter. Therefore, service connection for lung cancer or respiratory issues on the basis that the conditions became manifest in service and persisted is not warranted. In sum, the Board finds that the evidence of record does not link Veteran’s fatal disease processes to service. The Board emphasizes that it is sympathetic to the Appellant and is grateful for the Veteran’s service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (2012). Accordingly, the Board finds that service connection for the cause of the Veteran’s death is not warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel