Citation Nr: 19165490 Decision Date: 08/22/19 Archive Date: 08/22/19 DOCKET NO. 19-06 833 DATE: August 22, 2019 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) benefits, pursuant to 38 U.S.C. § 1318, is denied. FINDINGS OF FACT 1. The Veteran died in November 1992; his death certificate lists end stage widely metastatic lung cancer as the primary cause of death. 2. The evidence of record does not demonstrate that the cause of the Veteran’s death was related to his active service. 3. Service connection was not in effect for any disability after the Veteran’s separation from service up until his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312. 2. The criteria for entitlement to DIC benefits, pursuant to 38 U.S.C. § 1318, have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to November 1964. The Veteran died in November 1992. The appellant is his surviving spouse. These matters come to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Service connection for the cause of the Veteran's death The appellant seeks entitlement to service connection for the cause of the Veteran’s death. She contends that the Veteran died from lung cancer as a result of his active service, to include alleged exposure to herbicide agents. VA death 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, 3.312. 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 military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For a disability to constitute the principal cause of death, it must be one of the immediate or underlying causes of death or must be etiologically related to the cause of death. For a disability to be a contributory cause of death, it must have contributed substantially or materially to cause death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(b), (c). Generally, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Certain disease may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the appellant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant married the Veteran in December 1964 and is listed on the Veteran’s death certificate as his surviving spouse. The Veteran was not service connected for any disability following his discharge from service up until this death. His death certificate shows that he passed away in November 1992 as a result of end stage widely metastatic lung cancer. As an initial matter, exposure to herbicide agents has not been conceded and such is not found. Exposure to Agent Orange could not be verified, as the necessary dates required to search the Joint Services Records Research Center (JSRRC) were not provided following requests for information from the appellant. See January 2019 Memorandum. Additionally, the Veteran’s military personnel records demonstrate that the Veteran’s foreign service was limited to Germany, and the Veteran did not have service in the Republic of Vietnam. As such, service connection on a presumptive basis is not warranted. An October 1963 service treatment record (STR) reflects complaints of coughing after inhaling cigarette smoke and indicated no significant pathology. The Veteran’s STRs do not otherwise show complaints of, or treatment for, any respiratory disease. Chest X-rays taken in November 1963 and July 1964 reveal a normal chest with no diagnostic abnormalities. His October 1964 separation examination notes normal clinical evaluations of his lungs and chest. There is no lay or medical evidence of a lung condition until years post-service, when the Veteran was diagnosed with lung cancer in June 1992. Furthermore, there is no competent medical evidence of record suggesting any relationship between service and the primary cause of the Veteran’s death. Therefore, service connection on a direct basis is not warranted. The Board is sympathetic to the appellant and is indeed grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. 38 U.S.C. § 5107(a). Accordingly, the Board finds that service connection for the cause of the Veteran’s death is not warranted. Entitlement to DIC benefits, pursuant to 38 U.S.C. § 1318 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). (CONTINUED ON NEXT PAGE) In the current appeal, the Veteran was not service connected for any disability at any time following his discharge from service up until his death. Therefore, there is no legal basis for entitlement to DIC, pursuant to 38 U.S.C. § 1318, under the law. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.