Citation Nr: 20022467 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 15-12 199A DATE: April 1, 2020 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 1974. The cause of his death was bilateral lobar pneumonia. 2. At the time of his death, the Veteran had no service-connected disabilities. 3. The preponderance of the evidence is against a finding that the Veteran’s bilateral lobar pneumonia was caused by, or was otherwise etiologically related to, his active service. 4. A service-connected disability did not cause or contribute materially or substantially to the Veteran’s death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1967 to December 1968 and November 1970 to October 1971. The Veteran died in October 1974. The Appellant is the Veteran’s surviving spouse. The issue was previously before the Board of Veterans’ Appeals (Board). In May 2019, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. In November 2019, the AOJ asked the Appellant to submit any additional evidence or information in support of the claim, but the Appellant did not submit any new evidence. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in December 2019. The Appellant’s VA claims file has been returned to the Board for further appellate proceedings. Service Connection 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain enumerated diseases shall be presumptively service-connected, even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii). The VA Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice: Diseases Not Associated with Exposure to Certain Herbicide Agents, 61 Fed. Reg. 59232 (Nov. 2, 1999). 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). 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) (detailing that it is not sufficient to show that a service-connected disability “casually shared in producing death, but rather it must be shown that there was a causal connection”). 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 (providing that “competency” is a “legal concept determining whether testimony may be heard and considered by the trier or fact” and that “credibility” is a “factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran’s death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Although 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. 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) (“A veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ to prevail”). 1. Service connection for the cause of the Veteran's death The Appellant asserts that the Veteran’s cause of death was related to service, to include as due to herbicide agent exposure incurred during service in the Republic of Vietnam and due to an acquired psychiatric disorder with alcohol abuse. At the time of the Veteran’s death, he was not service connected for any disabilities. Factual Background In November 2005, the Regional Office (RO) denied the Appellant’s application to reopen the claim of service connection for the cause of death. The rating decision explained that service connection for the Veteran’s cause of death was originally denied in December 1974 as the death was not due to or secondary to a service-connected disability, and that the denial was upheld in an October 1977 decision from the Board. The Board’s October 1977 decision noted the Veteran’s diagnosis of schizophrenia during service and his treatment for an acute upper respiratory infection in September 1973. It found that the Veteran had no service-connected disabilities, that lobar pneumonia was not shown to have been present during the Veteran’s active service, and that schizophrenia was shown to have been first present in 1970 subsequent to separation in December 1968 and prior to the Veteran’s reenlistment in November 1970. The Appellant’s claim was again denied in a September 1984 rating decision, again upheld by the Board in October 1985, and then later once again in June 1994. Prior to the November 2005 rating decision, the RO notified the Appellant of these facts in August 2005, explaining the evidentiary requirements for the claim. The November 2005 rating decision also recognized that the Veteran served in the Republic of Vietnam and was exposed to herbicide agents, but found that there was no evidence of the Veteran being medically diagnosed with any disabilities presumed to have been caused by such exposure, including respiratory cancer, nor that the Veteran’s respiratory condition was a manifestation of respiratory cancer. Evidence considered prior to the November 2005 rating decision include medical records from January 1974 showing that imaging of the Veteran’s chest were normal in June 1972 and in January 1974, that the Veteran had mild fatty metamorphosis of the liver in June 1973, or more than a year after discharge. Also considered was an Autopsy Protocol added in May 1977 that listed undifferentiated schizophrenia and active portal cirrhosis with severe fatty metamorphosis as “significant pathology relevant to death” but opined after necropsy that the “direct cause of [the Veteran’s] demise is essentially extensive lobar pneumonia.” The Appellant submitted a notice of disagreement in November 2005, and a Statement of the Case (SOC) was issued in February 2006. The Appellant did not respond within the applicable time period and the November 2005 rating decision became final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. In November 2013, the Appellant submitted an application for DIC, Death Pension, and/or Accrued Benefits. She did not submit any new evidence outside a notification of an end of contract from October 2013. In January 2014, the Appellant was notified that the claim for service connection for the cause of death remained denied as the evidence submitted was not new and material. In February 2014, the Appellant submitted a statement stating that the Veteran’s medical information was destroyed but believed that the Veteran’s death was service connected. In September 2014, the RO notified her that the claim remained denied because the evidence was not new and material. She submitted a NOD in September 2014, and a SOC was issued in April 2015. The Appellant perfected hear appeal by submitting a Form 9 in April 2015. In June 2015, a certificate of death from the State of Arkansas was added to the record where the cause of death was marked as “natural causes—cause unknown” and the date of death as July 11, 1974. Later that month, the Veteran’s service treatment records were added. In pertinent part, the records showed that the Veteran’s schizophrenia was considered to have been caused by his active service by the Medical Board in April 1971. That rating was modified in July 1971 by the Physical Evaluation Board as there was no evidence to substantiate the connection between Republic of Vietnam duty and the Veteran’s schizophrenia. There were no records of the Veteran complaining of, receiving treatment for, or being diagnosed as having any respiratory illnesses or drinking conditions. In February 2019, the Appellant testified that she believed that the development of schizophrenia ultimately led the Veteran into developing a problem with alcohol, which subsequently led to him developing cirrhosis of the liver, which led to his passing. She also testified that the Veteran could not stop drinking continuously since discharge, and that he exhibited signs of schizophrenia. She testified that the Veteran received treatment for schizophrenia prior to September 1970. The record was left open for 60 days for the Appellant to submit additional evidence, specifically evidence related to the conceded exposure to herbicidal agents during service. The Appellant did not submit any new evidence during the 60-day period, and the Board made a decision in May 2019 remanding the Appellant’s claim as relevant evidence was added to the file in June 2015 that was not previously considered by the AOJ. The RO, as directed by the May 2019 Board remand, notified the Appellant and asked for additional evidence in its November 2019 Notice. The Appellant did not submit new evidence and a SSOC was issued in December 2019. The claim was denied as there was no medical evidence linking the Veteran’s death to his military service. Specifically, the RO found that there was no evidence of the Veteran’s fatal conditions during his military service nor evidence that cirrhosis manifest to a compensable degree within one year from the date of military discharge, and that the Veteran’s schizophrenia was not related to his service. Analysis There is no medical evidence of record showing that the Veteran’s cause of death, lobar pneumonia, had its onset in, or is otherwise related to, his period of active service, to include due to presumed herbicide agent exposure. The most probative evidence of record on the Veteran’s cause of death is the medical opinion added to the Veteran’s file in May 1977. The medical practitioner opined after performing a necropsy, detailing the various ailments that the Veteran had suffered prior to his passing. The practitioner then specifically remarked that while cirrhosis is “thought to be possibly contributing to development of lobar pneumonia (emphasis added),” that the direct cause of the Veteran’s death was “essentially extensive lobar pneumonia.” There is no medical evidence of record showing 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, as the Veteran did not have a service-connected disability at the time of his death. There is also no medical evidence showing that the Veteran’s conceded herbicide exposure caused lobar pneumonia. Pneumonia is not among the list of presumed diseases associated with exposure to herbicide agents, and the Appellant did not submit any medical evidence alleging a direct connection between the Veteran’s lobar pneumonia and exposure to herbicide agents. See 38 C.F.R. § 3.309. Even if, for the sake of argument, the Veteran’s schizophrenia had been service connected, there is no medical evidence of record showing that the Veteran’s schizophrenia contributed substantially or materially to the Veteran’s cause of death, lobar pneumonia. Although the Board is sympathetic to the Appellant’s claim and acknowledges the years of honorable service the Veteran provided, the claim of entitlement to service connection for the cause of the Veteran’s death is denied. In this regard, the preponderance of the evidence of record is against a finding that the Veteran’s cause of death was related to his military service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53–56. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.