Citation Nr: 21001813 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-53 409A DATE: January 11, 2021 ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for ischemic heart disease is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. PTSD was not manifest in service. 2. The Veteran is presumed to have been exposed to herbicide agents in Vietnam during the Vietnam War era. 3. The Veteran was diagnosed with coronary artery disease and diabetes prior to his death. 4. The Veteran died in December 2014. The Veteran's death certificate indicates the immediate cause of death as congestive heart failure as due to hypertension. 5. At the time of his death, the Veteran was not service connected for any disabilities, but had numerous claims pending. 6. The cause of the Veteran's death is attributable to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 1116, 5101(a), 5107(b), 5121 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.1000. (2019). 2. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 1116, 5101(a), 5107(b), 5121; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.1000. 3. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1116, 5101(a), 5107(b), 5121; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.1000. 4. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1964 to March 1964 and from June 1965 to August 1969. The Veteran died in December 2014. The appellant seeks benefits as the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) regional office. In October 2020, the appellant testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. As an initial matter, the Board acknowledges that the Veteran died on December [REDACTED], 2014 and the appellant filed a timely substitution request as a claim for accrued benefits on February 26, 2015. In a February 2016 statement of the case (SOC), the RO granted the request for substitution. See February 2016 SOC, p.44. Threshold Issue Service personnel records show that the Veteran served aboard the USS Sacramento which was in the official waters of the Republic of Vietnam on several dates listed in the Veteran’s military personnel record. However; it was found that that the record provided no conclusive proof of in-country service. See May 2015 Military Personnel Record, p.1. The appellant contended in a July 2016 statement that the Veteran was possibly exposed to chemicals while making supply runs from the USS Sacramento to Vietnam. See July 2016 VA 21-4138 Statement In Support of Claim. However, there is no evidence of record to support the contention of the presence of the designated herbicides on the ship or of the supply runs by Veteran’s military duties or activities exposed him to these chemicals. In addition, the appellant and her brother submitted articles and other statements from other shipmates aboard the USS Sacramento; however, the statement failed to show that the Veteran had service on land in the Republic of Vietnam or exposed to Agent Orange aboard the USS Sacramento. In a January 2020 memorandum, VA determined that the USS Sacramento operated within 12 nm from the Republic of Vietnam on at least one occasion on April 5, 1966. The Veteran was assigned to the ship on that date. Therefore, there was no longer a dispute and the presumption of herbicide exposure, Agent Orange was conceded. The Board finds that the Veteran is presumed to have been exposed to the designated herbicide agents during the Veteran’s time during active duty service. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence Throughout the course of appeal, the Veteran has contended that the Veteran’s cause of death was related to diabetes and coronary artery disease, caused by herbicide exposure (“Agent Orange”). The Veteran’s service treatment records (STR’s) are associated with the claims file. There were no complaints, treatment or diagnosis in service or within one year after service for PTSD, coronary artery disease or diabetes. In a July 1969 report of medical examination, the clinical evaluation was normal, except for body marks and ophthalmoscopic. See March 2015 STR-Medical, p.7. In a May 2013 private treatment note, the Veteran was seen for uncontrolled diabetes. The Veteran reported that he stopped taking his medication 2-3 years prior. The Veteran reported he had weighed 300 pounds and had lost 150 pounds. The physician noted that the Veteran did not monitor his sugar levels. The examiner noted that the Veteran was diagnosed with myocardial infarction and coronary artery disease in 2001; and that he was an ex-smoker, quitting in 2001. The physician noted that the Veteran had type 2 diabetes but had not been compliant with his medications or diet. See February 2015 Medical Record-Non-Government Facility, p.4;5. In February 2015, VA received a letter from a private physician. The physician stated that while the Veteran’s immediate cause of death was congestive heart failure, the Veteran had a history of coronary artery disease and uncontrolled diabetes which contributed to his congestive heart failure. See February 2015 Medical Record-Non-Government Facility, p.1. In a July 2016, statement in support of claim; the appellant stated that the Veteran referred to being on helicopters for supply runs from the USS Sacramento and sometimes loaded supplies for the run. The appellant also stated that the veteran worried about possible exposure to toxic chemicals. See July 2016 VA 21-4138 Statement In Support of Claim. In a July 2016 notice of disagreement, the appellant indicated that the Veteran was in-country during the Vietnam conflict; and was in proximity to Vietnam (1-2 miles) and subjected to agent orange overspray and water contamination. She also noted the Veteran may have had contact with agent orange on-board ship or in-supply facilities. The appellant stated that the Veteran insisted that he had been in-country in Vietnam and had been on helicopters in-country for supply to the bases. The appellant indicated supporting evidence included emails from fellow USS Sacramento shipmates that routinely went on helicopters to the mainland for supply purposes; deck logs and statements regarding agent orange contact. See July 2016 NOD. In a July 2016, a correspondence was sent which included several statements from various people. The appellant’s brother contacted several people who were onboard the USS Sacramento who indicated that they traveled in helicopters from the USS Sacramento to Vietnam to supply facilities. However, it was noted that no shipmate present with the Veteran on the ship had been located. The correspondence also included articles and deck logs. See July 2016 Correspondence. In September 2016, the appellant submitted anther statement. The appellant stated that she observed symptoms of PTSD in the Veteran when he was alive. The appellant indicated that she was a licensed psychologist. However, the appellant noted that the Veteran was never formally diagnosed with PTSD. The appellant indicated that based on the DSM-IV criteria the Veteran was exposed to a traumatic event that involved a severe threat and involved intense fear; persistently re-experienced the trauma; persistent avoidance of stimuli associated with the trauma; persistent symptoms of increase arousal; symptoms occurred for more than one month and symptoms would have to cause significant distress or impairment of social, occupational or other important areas of functioning. The appellant stated that the Veteran was exposed to traumatic events during the Vietnam war while aboard the USS Surfbird and USS Sacramento related to his duties as a machinist mate. She did not identify these events. The appellant also stated the Veteran had nightmares; frequent outbursts of anger; problems falling asleep and difficulty concentrating. She also noted the Veteran had difficulty interacting with others and maintaining friendships. See September 2016 VA 21-4138 Statement In Support of Claim. However, the statement did not detail any of the traumatic events the Veteran allegedly experienced. In September 2016, another statement was submitted by the appellant’s brother. The appellant’s brother stated that he observed symptoms of PTSD in the Veteran for 40 years. The appellant’s brother indicated that the Veteran stated he experienced a number of traumatic events on the USS Surfbird and USS Sacramento; had bad dreams; woke up in fear drenched in sweat; avoided people; had anger outbursts; frequently out of work and was unable to make or maintain friendships. See September 2016 VA 21-4138 Statement In Support of Claim. However, the statement did not detail any of the traumatic events the Veteran allegedly experienced. In October 2020, the appellant participated in a Board hearing. The appellant testified that it was her belief that the Veteran had PTSD, but he never went to a psychiatrist or therapist. The appellant stated that although it was her belief that the Veteran had the condition, she did not have any documentation to support her belief. The appellant further testified that that the Veteran did not say much regarding the traumatic event he experienced in-service. She also stated that she knew that the Veteran’s ship was never under attack, but that something happened to him while he was on leave. See October 2020 Correspondence, p.8;9. Entitlement to service connection for coronary artery disease and diabetes Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A Veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including diabetes mellitus and ischemic heart conditions (i.e., cancer of the lung), are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contended, among other things, that he had coronary artery disease and diabetes which was related to his exposure to herbicide agents (including Agent Orange) when he made supplied runs aboard the ship USS Sacramento. The Board concludes, for the following reasons, that the Veteran had a current diagnosis of coronary artery disease and diabetes at the time of his death and that he is presumed to have been exposed to herbicide agents in Vietnam during service as a minimum because deck logs have shown that his ship did pass within 12 nm of the Republic of Vietnam. 38 U.S.C. §§ 1110, 1116(a)(1), 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. §§ 3.303(a), 3.307, 3.309. Medical records, including the report of an May 2013 private physician letter, show the Veteran had a current diagnosis of coronary artery disease which was diagnosed in 2001 and diabetes which was uncontrolled at the time. He contended, that his conditions were related to his exposure to herbicide agents (including Agent Orange) when he was possibly exposed to chemicals in Vietnam while he was serving aboard the USS Sacramento. As the Veteran had a current diagnosis of coronary artery disease and diabetes at the time of his death and he is presumed to have been exposed to herbicide agents in Vietnam, service connection for coronary artery disease and diabetes is granted on a presumptive basis. 38 U.S.C. §§ 1110, 1131, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). Entitlement to service connection for PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). When there is a current diagnosis of PTSD, the sufficiency of a claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304(f). Credible supporting evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). If the evidence establishes that a Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen, 10 Vet. App. at 128; Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In this case, the appellant contended that the Veteran had PTSD related to his service. However, the evidence does not support that he engaged in combat as defined by the regulations and VA as he was not engaged in hostile fire with the enemy. The ordinary meaning of the phrase “engaged in combat with the enemy,” as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case by case basis. See VAOPGCPREC 12 99 (October 18, 1999). Neither the Veteran nor the appellant and brother were able to report on the nature and time of the traumatic events associated with his duties as a machinist mate aboard ship. Although the appellant reported that she is a psychologist and the appellant and brother reported observing symptoms typical of PTSD, information is absent regarding the events and a clear assessment that they caused the symptoms, However, the Board concludes, that the Veteran did not have a diagnosis of PTSD based on the DSM-5 PTSD at the time of his death. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303 (a), 3.304(f). In sum, the Veteran did not have a current diagnosis of PTSD at the time of his death, and there is no competent medical evidence of a nexus between his PTSD and any claimed in-service stressors, and there is credible evidence that the stressors occurred. Hence, the criteria for service connection for PTSD are not met and service connection for this disability is denied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.304(f). Dependency Indemnity Compensation To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). 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). Service Connection for Cause of Death The appellant claims entitlement to service connection for the cause of the Veteran's death. A death certificate shows the Veteran died on December [REDACTED], 2014. The immediate cause of the Veteran's death listed on the death certificate was congestive heart failure; due to or as a consequence of hypertension. See February 2015 Death certificate. At the time of the Veteran's death, he was not service connected for any disabilities. However, the Veteran had service connection claims pending for diabetes mellitus, a heart condition, to include ischemic heart disease and for PTSD. The Veteran’s claim for these conditions was received on May 30, 2014 and as noted above he died on December [REDACTED], 2014. The appellant’s claim was received on February 26, 2015. In light of the above February 2015 private medical opinion, the Board finds that the weight of competent and credible evidence is in favor of granting service connection for the cause of the Veteran's death. The private physician provided a very detailed rationale in support of his opinion that while the Veteran’s immediate cause of death was congestive heart failure, the Veteran had a history of Coronary artery disease and uncontrolled diabetes which contributed to his congestive heart failure. The Board notes that there is no medical opinion of record that contradicts the opinion of the February 2015 private physician. In summary, for the reasons explained above, the Board finds that service connection for the cause of the Veteran's death is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, Associate Counsel 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.