Citation Nr: 20005923 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 14-40 512 DATE: January 23, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in March 1998 from cardiopulmonary arrest due to probable pulmonary embolus. 2. At the time of the Veteran’s death, service connection was not in effect for any disability. 3. The cause of the Veteran’s death was not related to service or any event therein. 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, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1969 to August 1970. The Veteran passed away in March 1998; the appellant is his surviving spouse. The Board of Veterans Appeals (Board) remanded the Veteran’s claim for service connection for cause of the Veteran’s death in November 2018. The Board remand decision instructed the appellant to complete the appropriate release of information form so that the agency of original jurisdiction (AOJ) could procure the Veteran’s private treatment records from his primary care physician and requested that the AOJ refer the Veteran’s claims folder to appropriate personnel for a VA medical opinion. Documents, including the November 2018 Board remand, which were sent to the appellant were returned as undeliverable. The appellant was not notified of the November 2018 Board remand instructions until October 2019 and has since not responded to the request for a completed release of information form. 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). After carefully reviewing the evidence of record, the Board finds that the probative and persuasive evidence is against the grant of service connection for the cause of the Veteran’s death. Specifically, the evidence fails to show that the cause of the Veteran’s death is in any way related to his service or any event therein. In this regard, the Board notes that the Veteran died in March 1998, 28 years after his military service. His Certificate of Death lists cardiopulmonary arrest as the immediate cause of his demise, due to, or as a consequence of, “probable pulmonary embolus.” An autopsy was not performed. At the time of the Veteran’s death, service connection was not in effect for any disability. In any event, the appellant contends that her husband’s death is the result of his exposure to herbicide agents while serving in Vietnam. In this regard, the Board notes that the Veteran’s Form DD-214 verifies that he served in Vietnam between July 1969 and August 1970. In an April 2014 Statement in Support of Claim, the appellant reported that “[o]n March [REDACTED], 1998, we had just gone to bed when I heard him making strange sounds. When I turned on the light, he was already dead.” The appellant stated that she had “only just learned that there are many conditions and disabilities that have been found to have been caused by exposure to agent orange and that heart disease is one of them.” The appellant maintained in the August 2014 notice of disagreement that her husband died of “cardiac causes.” Nonetheless, she went on to say that “[h]e had no history or diagnosis of heart disease.” Significantly, the appellant stated that she does not have medical records documenting treatment of a cardiac condition prior to the Veteran’s death. In April 2014, the appellant stated that “[t]here are no hospital records or medical treatment notes that I can submit in support of my claim.” See April 2014 Statement in Support of Claim. Further, as previously noted herein, the appellant failed to respond to the Board’s November 2018 request for information pertaining to any available private treatment records from the Veteran’s primary care physician. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with the VA in developing evidence, including (as here) providing the necessary release for the Veteran’s primary care physician. VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Therefore, while the requested medical records could possibly have yielded evidence favorable to the claim, VA has no further duty to assist in this aspect of the appeal, as the appellant has not fully cooperated in VA’s efforts to obtain such evidence. Also, in relevant part of the November 2018 remand, the Board requested that the AOJ obtain a medical opinion as to whether it is as likely as not that the Veteran’s death was caused by ischemic heart disease rather than a pulmonary embolism. A VA medical opinion was issued in February 2019. The examiner opined that the Veteran’s death was more likely related to a pulmonary embolism and less likely related to underlying ischemic heart disease. The examiner noted in her rationale that the death certificate shows that the cause of death was documented by a coroner as cardiopulmonary arrest due to probable pulmonary embolus. The VA examiner noted that no autopsy was performed and that the death certificate did not document ischemic heart disease causing or substantially contributing to death. Further, the examiner noted that no ambulance records, death investigation reports, private treatment records, or hospital records were submitted for review. The examiner concluded that, due the lack of such records, there is no documentation of any underlying ischemic heart disease diagnosis for the Veteran. The VA examiner also noted that pulmonary embolus occurs in a sudden manner and is a well known cause of cardiopulmonary arrest resulting in sudden death. The examiner reported that she found the appellant’s description of her husband’s sudden death compatible with pulmonary embolus. Significantly, the February 2019 VA examiner opined that it is unlikely the pulmonary embolus developed while in active service, for if it had, it would have killed him instantly. The Board notes that the Veteran served in the Republic of Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to an herbicide agent in service. While service connection may be granted for specific disabilities associated with exposure to herbicide agents, including ischemic heart disease under 38 C.F.R. § 3.309(e), in this case, the record indicates that the Veteran was not diagnosed with ischemic heart disease during his lifetime. The appellant has not presented or identified any medical opinion or other competent evidence that, in fact, supports her contention that the Veteran had ischemic heart disease. Moreover, the claims folder contains no competent evidence associating the pulmonary embolism that caused the Veteran’s death to his service. The Board does not doubt the sincerity of the appellant’s belief that the Veteran’s death was somehow related to his active duty service. While sympathetic to the appellant’s claim, the only evidence of record tending to support her claim for service consists of her own lay statements. As noted earlier herein, the record confirms that service connection was not in effect for a heart condition prior to the Veteran’s death. The appellant is not competent to assert that the Veteran’s cause of death was etiologically related to either service or a service-connected disability, as she lacks medical training or credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a lay person is competent to report information of which he or she has personal knowledge, i.e., information that he or she can gather through the senses). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable in the instant appeal, and the claim for service connection for the cause of the Veteran’s death is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Board recognizes the Veteran’s service to the nation and is sincerely empathetic to the appellant’s loss of her husband but is unable, for the reasons stated herein, to grant the benefit sought. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Dourmashkin, Law Clerk 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.