Citation Nr: 21068297 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 10-16 383 DATE: November 9, 2021 ORDER The claim for service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in July 1996. The death certificate identified the immediate cause of death as myocardial infarction with an antecedent cause of atherosclerotic heart disease. The underlying cause of death was identified as diabetes mellitus. Pulmonary congestion and pulmonary tuberculosis were listed as other significant conditions contributing to death. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran is not shown to be a "radiation-exposed" veteran or to have been exposed to ionizing radiation at any time during his military service. 4. The Veteran did not serve within the Republic of Vietnam or its waters and is not shown to have been exposed to herbicides such as Agent Orange during or as a result of military service. 5. The Veteran's presumed exposure to asbestos is not etiologically related to an immediate or underlying cause of his death. 6. The diseases noted to be connected to his death are not shown to have begun during, as a result, or within one year of military service. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by a disability incurred during or as a result of his active duty service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1942 to April 1964. He died in 1996 and the Appellant is his surviving spouse. In October 2013, the Board reopened the claim and remanded it for further development. In May 2016, the Board issued a decision denying the appellant's claim. The appellant thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in February 2018, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. In July 2018, the Board remanded the claim for additional development; it has been returned now for further appellate action. The Board finds that there has been substantial compliance with the prior remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran's death from myocardial infarction with an antecedent cause of atherosclerotic heart disease and underlying causes identified as diabetes mellitus, pulmonary congestion, and pulmonary tuberculosis was caused by the Veteran's service, to include alleged herbicide exposure when he served in Korea, participated in chemical and biological war against North Korea and while serving aboard the USS YMS (DD-143), USS Hocking (APA-121), and USS Boyd (DD-54) which she appears to indicate was within the territorial limits of Vietnam. She alternatively contends that the Veteran's causes of death were due to in-service ionizing radiation exposure during his service in World War II and the Korean War. To establish service connection for the cause of a veteran's death, the evidence must show that the disease which caused death was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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 be etiologically related. For it 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 acausal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. That is to say, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or aided in the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), are not held to have contributed to a death that is primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2), (3). Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), § 1131 (peacetime service). Certain chronic diseases, including coronary artery disease and diabetes mellitus, may be presumed to have incurred in service, although not otherwise established as such, if manifested to a degree of 10 percent or more within one year of the date of separation from service. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(d). Regarding a direct connection between the Veteran's service and his cause of death, the Board notes that he was not service-connected for any disability when he died in July 1996. His death certificate lists the immediate cause of death as myocardial infarction with an antecedent cause of atherosclerotic heart disease with underlying cause of death identified as diabetes mellitus, pulmonary congestion, and pulmonary tuberculosis were. The evidence does not suggest, nor did the Veteran/does the Appellant contend, that the diseases related to his death were present in service or for many years following discharge. The first evidence of a disability associated with his death is in a VA treatment record dated May 1983, more than 15 years post-discharge in April 1964. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116. If a Veteran was exposed to Agent Orange during service, certain listed diseases, including ischemic heart disease and diabetes, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Here, there is no proof of any fatal process during service or within an applicable presumptive period. Rather, at time of separation, the heart, lungs, chest, and endocrine system were normal. As discussed above, the Appellant contends that the Veteran's death from myocardial infarction with an antecedent cause of atherosclerotic heart disease with underlying causes identified as diabetes, pulmonary congestion, and pulmonary tuberculosis was caused by the Veteran's alleged in-service herbicide exposure when he served in Korea, his alleged participated in chemical and biological war against North Korea, and while serving aboard the USS YMS (DD-143), USS Hocking (APA-121), and USS Boyd (DD-54), the last of which she appears to indicate was within the territorial limits of Vietnam. The Board initially notes that The United States Department of Defense ("DOD") has confirmed that Agent Orange was used from April 1968 through July 1969 along the demilitarized zone ("DMZ") in Korea. Therefore, a presumption of service connection based on exposure to Agent Orange in Korea is limited to the period from April 1968 through July 1969 along the demilitarized zone ("DMZ"), and then only for servicemen shown to have served near or attached to one of the units along the DMZ identified by DOD. In this case, the Veteran's entire period of service in Korea was prior to the identified period and, therefore, service connection based on Agent Orange exposure in Korea is not warranted. Additionally, to the extent that the appellant contends the Veteran had in-country service in Vietnam, VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). For the following reasons, the Board finds that the Veteran did not serve in Vietnam under this interpretation of the statute and regulation. The Veteran's service personnel records reflect the Veteran served aboard the USS YMS (DD-143), USS Hocking (APA-121), and USS Boyd (DD-54), but do not indicate whether he set foot in Vietnam. The RO requested that the National Personnel Records Center (NPRC) furnish dates of service in Vietnam, and the NPRC responded in December 2013 that there is no evidence in the Veteran's file to substantiate any service in Vietnam. There is no objective evidence to the contrary. Moreover, there is no objective indication that the USS YMS (DD-143), USS Hocking (APA-121), and USS Boyd (DD-54) were in the territorial waters of Vietnam, had any inland waterway service, or docked in Vietnam during the Veteran's service aboard these vessels. Indeed, the deck logs were obtained and evaluated and do not demonstrate such service. Upon careful review of the record, the Board finds that the weight of the evidence is against a finding that the Veteran had requisite service in the Republic of Vietnam to warrant service connection on this presumptive basis under the relevant regulation. Although entitlement to a regulatory presumption of service connection is not warranted, the Board must determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Regarding the Appellant's contention that the Veteran's cause of death was due to ionizing radiation, the evidence, including service personnel records, do not demonstrate that the Veteran was exposed to ionizing radiation or participated in a "radiation-risk activity" at any time during his military service. While the Appellant alleges that the Veteran was exposed to ionizing radiation during his service in World War II and the Korean War, and his service personnel records document service in Korea and during World War II, there is no indication in the Veteran's records that he was in either Hiroshima or Nagasaki, Japan. Accordingly, as the Veteran is not considered a radiation-exposed Veteran under 38 C.F.R. § 3.311, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances. 38 C.F.R. § 3.311(b)(iii). Moreover, his cause of death is not among those listed for presumptive service connection under 38 C.F.R. § 3.309. See Stone v. Gober, 14 Vet. App. 116, 118 (2000). Thus, the Veteran's fatal myocardial infarction with atherosclerotic heart disease, diabetes, pulmonary congestion, and pulmonary tuberculosis are not subject to service connection by operation of the statutory presumption. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). As such, there is no evidence demonstrating service connection for the cause of the Veteran's death based upon an alleged exposure to ionizing radiation. Id.; see also Davis v. Brown, 10 Vet. App. 209, 211(1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Id. Additionally, while the Appellant asserted that the cause of the Veteran's death may be etiologically related to exposure to asbestos, and such exposure is conceded based upon his service aboard multiple vessels, the evidence does not support a connection between that exposure and the causes of his death. A July 2021 VA opinion stated that tuberculosis is a disease caused by bacteria and is not related to exposure to asbestos. The Veteran's pulmonary congestion was more than likely caused by the inefficiency of the heart as a pump to remove that fluid due to increased viscosity caused by his diabetes. The examiner further explained that increased viscosity of the blood leads to hardening of the arteries and accumulation of atherosclerotic plaque causing the ultimate myocardial infarction (heart attack) by preventing oxygen to reach the heart muscle and its death. Therefore, the examiner concluded, it is only logical to assume that the claimed conditions, which led or contributed to his death, were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. There is no competent and credible evidence against the VA examiner's opinion, which the Board finds to be highly probative. Here, there is no competent evidence in the record of a possible nexus between the Veteran's myocardial infarction with atherosclerotic heart disease, diabetes, pulmonary congestion, and pulmonary tuberculosis which manifested many years after service, and service. The Appellant has not submitted any competent evidence even suggesting that the Veteran's myocardial infarction with atherosclerotic heart disease, diabetes, pulmonary congestion, and pulmonary tuberculosis might have been related to his service. Moreover, the Veteran was not, and the Appellant is not, competent to testify as to the diagnosis and etiology of his myocardial infarction with atherosclerotic heart disease, diabetes, pulmonary congestion, and pulmonary tuberculosis. To do so would require a level of medical knowledge that they have not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331,1336 (Fed. Cir. 2006). Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the cause of the Veteran's death and his military service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Bordewyk, 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.