Citation Nr: 21061801 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-11 718 DATE: October 5, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT The evidence of record shows that a service-connected disability did not cause or contribute substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from February 1945 to August 1945. He also had service in the United States Army from August 1951 to December 1953. The Veteran died in March 1999 and the Appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for cause of death The Appellant seeks service connection for the cause of the Veteran's death. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability, which was incurred in or aggravated by active-duty service, either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 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 medically determined to have been one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially, combined to cause death, or assisted in the production of death. Significantly, 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. 38 C.F.R. § 3.312 (c)(1). Furthermore, in cases where the Veteran was not already service-connected for the condition that caused his or her death, service connection for the condition may still be warranted where the evidence of record establishes that the particular injury or disease resulting in death was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In this regard, to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran died in March 1999. His death certificate listed the immediate cause of death as cardiorespiratory arrest. The Veteran's antecedent cause of death was myocardial infarction with the underlying cause of death listed as advanced age. At the time of his death, the Veteran was not service connected for any disabilities. Therefore, the record does not show that the Veteran was service-connected for any disease, injury, or illness at the time of his death, and as such, the Board finds that an already service-connected disease, injury, or illness was not the cause of the Veteran's death as a matter of law. 38U.S.C. §1310; 38C.F.R. §3.312. Therefore, the question for the Board is whether the Veteran was entitled to service-connection for cardiorespiratory arrest or myocardial infarction during his lifetime. The Appellant has made several contentions that the Veteran should be presumptively service connected as he was exposed to radiation during World War II, exposed to Agent Orange in Vietnam, and exposed to chemicals and radiation during the Gulf War. See April 2016 Statement in Support of Claim. Even if the Veteran was exposed to any of the above, cardiorespiratory arrest and myocardial infarction are not disabilities entitled to presumptive service connection. In any event, there are no indications in this record of any such exposures. As such, service connection for the Veteran's cause of death cannot be granted as a presumptive disease based on the record before the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). However, the availability of presumptive service connection for a disability based on exposure to herbicides or radiation, as outlined above, does not preclude an Appellant from establishing service connection with proof of direct causation for his cause of death. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record establishes that some of the Veteran's service records were destroyed in a 1973 fire at the National Personnel Records Center, so a remand to obtain any other unavailable records would only serve to delay adjudication of the Veteran's claim. See National Archives, The 1973 Fire, National Personnel Records Center, http://www.archives.gov/st-louis/military-personnel/fire-1973.html. The Board recognizes it has a heightened duty to consider the application benefit-of-the-doubt rule when service records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Yet, this heightened duty does not change the legal standard for establishing a service connection claim. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The service treatment records and military personnel records that are in the file do demonstrate complaints, treatment, or diagnoses for cardiorespiratory arrest or myocardial infarction. In addition, post service treatment records are also silent for complaints, treatment, or diagnoses for cardiorespiratory arrest or myocardial infarction. In this regard, there is simply no indication of any records, even if they were available, that would provide a basis to grant this case. The appellants own statements due not suggest treatment for these problems during service, therefore, further development is not warranted. The Appellant's recollections of the Veteran's service are severely mistaken. He was discharged from service most recently in 1953, over 46 years prior to his death. Next, the Board notes that the Veteran's myocardial infarction or cardiorespiratory arrest did not manifest within the first year following the Veteran's separation from service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309 (a) do not apply to the current appeal. To the extent that the Appellant asserts that Veteran's cause of death is related to his active service, to include his radiation, Agent Orange, or chemicals in the Gulf, such statements lack probative value, as the Appellant lacks the medical expertise to assert a nexus opinion relating a complex medical disorder to his active service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the service and post-service records. Overall, the service and post-service medical records provide evidence against this claim that the Board cannot ignore, indicating a problem that began decades after service with no indication of a connection to service. In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). , John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.