Citation Nr: 21065815 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-02 800 DATE: October 27, 2021 ORDER Service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in August 2013 of non-ST elevation myocardial infarction. 2. At the time of his death, the Veteran was service connected for bilateral flat feet, cervical spine degenerative disc disease (DDD), tinnitus, prostatitis, right hand radiculopathy, left hand radiculopathy, hemorrhoids, tinea versicolor, recurrent foot warts, and a foot scar. 3. The Veteran's cause of death is not related to service. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1976 to May 1996. He died in August 2013 and the appellant is his surviving spouse. The case is on appeal from a January 2017 rating decision. In an October 2017 notice of disagreement (NOD), the appellant disagreed with denial of a death pension in addition to the claim on appeal. The RO issued a statement of the case (SOC) for the claim on appeal in December 2017. The appellant filed a VA Form 9 in which she discussed both of the claims on January 9, 2018. However, the RO did not issue an SOC for the pension claim until January 23, 2018 and the appellant never filed a VA Form 9 to appeal the pension denial. Therefore, the pension claim was never appealed to the Board. See 38 C.F.R. § 19.52. The Board also notes that the appellant requested a Board hearing in the January 2018 VA Form 9. However, in a May 2020 correspondence the appellant stated that she does not want a hearing at this time. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for the Veteran's cause of death. Legal Criteria 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 either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to the veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, including some heart conditions, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Analysis The appellant is seeking service connection for the Veteran's cause of death. The Veteran's death certificate shows that he died in August 2013 from an immediate cause of non-ST elevation myocardial infarction with no underlying cause of death. The National Institute of Health's National Center for Biotechnology Information website states that non-ST elevation myocardial infarction is one subgroup of acute coronary syndrome. See https://www.ncbi.nlm.nih.gov/books/NBK513228/. The Veteran's service treatment records (STRs) do not include reports of or treatment for heart symptoms. The Veteran marked "no" for shortness of breath, pain or pressure in chest, palpitation or pounding heart, heart trouble, and high or low blood pressure in May 1976, January 1982, November 1993, and February 1996 reports of medical history. The Veteran's heart was marked as "normal" and no heart symptoms were noted or reported during May 1976, January 1982, April 1991, November 1993, and February 1996 examinations. The Veteran was afforded a VA general medical examination shortly after discharge in July 1996. The examining physician reported that his heart had a regular rate and rhythm without murmur. The Veteran's post-service VA treatment records include a physical performed in January 2002. The physician reported that his heart had a regular rhythm without murmur, rubs, or gallops. At the time of his death, the Veteran was service connected for bilateral flat feet, cervical spine DDD, tinnitus, prostatitis, right hand radiculopathy, left hand radiculopathy, hemorrhoids, tinea versicolor, recurrent foot warts, and a foot scar. The Board finds that the service connection for the cause of the Veteran's death is not warranted. The Veteran was not service connected for a heart or coronary condition at the time of his death. In addition, the evidence does not show that the Veteran experienced the onset of a heart or coronary condition during service or within one year of discharge. In this regard, the Veteran's STRs do not indicate he experienced any relevant symptoms during service and he expressly denied relevant symptoms in May 1976, January 1982, November 1993, and February 1996 reports of medical history. Furthermore, during a July 1996 VA examination and a January 2002 VA physical examination, physicians found that the Veteran's heart had a regular rate and rhythm. The physicians did not note the presence of any coronary concerns. While a medical opinion has not been obtained in regard to this claim, a mere conclusory claim that a current condition is related to service is insufficient to require the Secretary to obtain an opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a VA opinion is not warranted for this claim as there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). In the absence of the evidence indicating that it is at least as likely as not that the non-ST elevation myocardial infarction was related to service connected disability or a condition is related to service, the nexus element for service connection for the cause of death is not met. Accordingly, the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for the Veteran's cause of death is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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.