Citation Nr: 20031925 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 19-29 605 DATE: May 6, 2020 ORDER Service connection for the Veteran's cause of death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in February 2016; he was not service connected for any disabilities. 2. The death certificate listed asphyxiation from smoke inhalation as the primary cause of death, with contributory conditions in death of stage 4 chronic obstructive pulmonary disease (COPD) and a house fire. 3. The evidence does not demonstrate that COPD was incurred in service or that COPD was manifest within one year of separation from active service. 4. The Veteran’s death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred in active military service. 5. The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. § 3.312. 2. The criteria for DIC under 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 in the United States Army from January 1971 to May 1971. The Veteran died in February 2016. The appellant is the Veteran’s surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for the Veteran’s cause of death The appellant contends that the Veteran’s COPD, noted on his death certificate as a contributing cause of death, is etiologically related to his exposure to asbestos during service in Vietnam. The appellant is currently seeking service connection for the cause of Veteran’s death for purposes of entitled to DIC benefits. Service connection for the cause of a veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). The Veteran died in February 2016. Prior to death, service connection was not in effect for any disability. The death certificate listed asphyxiation from smoke inhalation as the primary cause of death, with contributory conditions in death of stage 4 chronic obstructive pulmonary disease (COPD) and a house fire. The appellant has asserted that the Veteran had COPD and post-traumatic stress disorder (PTSD) due to active service, and that he was exposed to asbestos during service in Vietnam which caused his COPD. Active service includes periods of ACDUTRA when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of INACDUTRA when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). The Veteran’s complete service personnel records reflect that he served in the Army reserves. The Veteran served on active duty for training from January 3, 1971 to May 12, 1971 and then continued in the Reserves until his discharge August 3, 1976. The service personnel records show that the Veteran did not have any active duty. All of his active duty for training and inactive duty for training for training was shown to have taken place in the continental United States. In order for service connection to be warranted for the Veteran’s death based upon reserve service, the cause of death must be the result of an injury received during a period of inactive duty for training or the result of a disease or injury received during a period of active duty for training. The service records do not show the cause of death was the result of an injury received during a period of inactive duty for training or the result of a disease or injury received during a period of active duty for training. The records fail to show that the Veteran had any line of duty determinations on any disabilities. The Veteran’s military personnel records fail to show that he served in Vietnam, even though the Appellant stated Veteran told her he was in Vietnam “for a little bit,” but she did not know when. Because of the lack of documentation showing any service in Vietnam, herbicides exposure is not conceded. As herbicides or asbestos exposure is not conceded, service connection cannot be established for cause of death on this basis. Regarding the contention that Veteran has PTSD due to service in Vietnam, the Board cannot determine the Veteran experiences any stressor in service or that there is any evidence that PTSD contributed to the Veteran’s death, and thus consideration of PTSD as a disability of service origin in not warranted. Additionally, no evidence was received regarding the contention that the Veteran’s COPD was due to exposure to asbestos, as his military service failed to show such exposure, exposure is not conceded, and no medical evidence was received linked the Veteran’s death to exposure to asbestos. Therefore, the Veteran’s COPD was not incurred in-service or caused by injury or disease that bean in service, nor did it manifest to a compensable degree within one year of discharge from service. Additionally, the Veteran’s VA treatment records do not relate his death to service and show that Veteran had COPD for which he was on home oxygen and noted he had a 50-year history of smoking with 4 to 5 packs per day. After considering the entire record, the Board finds there is insufficient evidence to support that service connection is warranted for the Veteran’s cause of death. In these circumstances, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim for service connection for cause of death must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 The Veteran died in February 2016. The death certificate listed asphyxiation from smoke inhalation as the primary cause of death, with contributory conditions in death of stage 4 chronic obstructive pulmonary disease (COPD) and a house fire. These listed causes of death were not service-connected disabilities at the time of his death. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran’s surviving spouse in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran’s death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran’s release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318. (Continued on the next page)   At the time of the Veteran’s death, service connection was not I n effect for any disability. The record does not show that the Veteran had been a former POW. Accordingly, the Board finds the requirements for establishing DIC under 38 U.S.C. § 1318 have not been met, and the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, 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.