Citation Nr: 20052920 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-44 710 DATE: August 10, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in June 2007. The death certificate indicated that the immediate cause of death was cardiomyopathy. 2. At the time of his death, the Veteran was service connected for bilateral hearing loss and a left eye disability. 3. The Veteran’s death is not shown to have been caused by or otherwise the result of his service, to include as secondary to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1944 to April 1946. He died in May 2007. The appellant is the Veteran’s surviving spouse and has properly substituted. The Board remanded the appeal for further development in May 2014. The appellant was scheduled to appear before a Veterans Law Judge (VLJ) at an August 2018 video conference Board hearing. She failed to appear at the hearing and failed to provide good cause for not being there. She also has not requested another hearing. As such, the Board deems the appellant’s hearing request to be withdrawn. 1. Entitlement to service connection for the cause of the Veteran’s death The appellant asserts that Veteran’s death was related to service, to include as secondary to service-connected left eye disorder. Specifically, the appellant contends that the Veteran’s service-connected keratitis of the left eye either caused or contributed substantially or materially to his death by weakening his immune system and attacking other areas of his body, significantly his cardiac system. In order to establish service connection for the cause of the Veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or is etiologically related to the cause of death. 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; 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). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is rated 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran’s death should have been service-connected. To establish service connection for a particular disability found to have caused death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or is secondary to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304, 3.310. The Veteran died in June 2007. The death certificate lists the immediate cause of death as cardiomyopathy. At the time of death, the Veteran was service connected for bilateral hearing loss and a left eye disability. The appellant asserts that the service-connected left eye disability contributed to the Veteran’s cause of death. As an initial matter, the appellant contends that the Veteran’s service-connected left eye disability contributed substantially or materially to his death. After a review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities, including his left eye disability, substantially or materially contributed to the Veteran’s death. Specifically, the medical evidence, including the Veteran’s death certificate, does not provide sufficient evidence indicating a relationship between the Veteran’s death and his left eye disability or bilateral hearing loss. The Veteran’s treatment records prior to his death do not indicate that his left eye disability or bilateral hearing loss contributed substantially or materially to his death. The appellant has not offered any competent medical evidence, including private medical opinions, indicating the Veteran’s death was caused by left eye disability or hearing loss or materially contributed to his death. The Board acknowledges the medical article the appellant submitted to support her contention that the Veteran’s herpes virus weakened his immune system, which was a potential underlying cause of death. However, this article is not supported by a medical opinion. Moreover, this article is not related to the Veteran specifically. As such, this article is found to be less probative. Additionally, in March 2020, a VA examiner opined that the available records do not support the notion his keratitis diagnosed in 1945 singularly or jointly relates to his death 62 years later. Therefore, this condition is less likely than not related to his cause of death. Therefore, the Board finds that the evidence of record does not establish that it is at least as likely as not that the Veteran’s left eye disability or bilateral hearing loss materially or substantially contribute to death. Next, the Board considers whether the Veteran’s cardiomyopathy is related to service, to include as secondary to a service-connected disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, to include as secondary to or aggravated by a service-connected disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including cardiovascular-renal disease and hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309 (a). Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). After a review of the evidence, the Board finds that service connection for cardiomyopathy, to include as secondary to or aggravated by a service-connected disability is not warranted. The service medical records do not show complaints of, treatment for, or any diagnosis related to a heart disorder while in service. The post-service evidence does not show symptoms related to hypertension and cardiovascular disease until approximately 2004, which was many years after the Veteran separated from service. Therefore, service connected based upon continuity of symptoms, to include presumptive service connection under 38 C.F.R. §§ 3.309 (a), is not for application. Service connection may also be established when the evidence otherwise establishes a medical nexus between active duty service, and current complaints. The Board finds that the weight of the competent evidence does not attribute the Veteran’s disorders to active duty, to include as secondary to a service-connected disability, despite the appellant’s contentions to the contrary. Here, there is insufficient competent medical evidence indicating that the Veteran’s cardiomyopathy is related to active duty, including as secondary to or aggravated by the Veteran’s left eye disability. Indeed, none of the evidence of record relates the Veteran’s cardiomyopathy to service, nor has any treating physician opined that such a relationship exists. Moreover, the appellant has not submitted any medical evidence, including private medical opinions or treatment records, indicating the disorder was caused or aggravated by his left eye disability. In considering this claim, the Board has also considered the statements made by the appellant relating the Veteran’s heart condition and cause of death to his left eye disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the appellant is not competent to provide testimony regarding the etiology of the Veteran’s cardiovascular disorder or his cause of death. The cause of death is not diagnosed or explained by unique and readily identifiable features. They do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran’s heart disorder and cause of death are found to lack competency.   Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for cause of death and the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel