Citation Nr: A21020408 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 211208-202797 DATE: December 22, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in October 2021 and the immediate cause of death was hypertensive heart disease and secondary condition as hypertension with other significant conditions contributing to death being chronic obstructive lung disease. 2. At the time of the Veteran's death, service connection was established for bilateral hearing loss and tinnitus. 3. The cause of the Veteran's death was not related to his active service, to include herbicide exposure; the record does not reflect a diagnosis of ischemic heart disease. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310; 38 C.F.R. §§ 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1962 to September 1966, to include service in the Republic of Vietnam. Unfortunately, the Veteran died in October 2021 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office. In the December 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction decision on appeal. 38 C.F.R. § 20.301. The appellant asserts that the Veteran's cause of death was related to his active service, to include his service in the Republic of Vietnam. Dependency and indemnity compensation benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause and must be shown to have contributed substantially or materially to death; combined to cause death; or 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). In determining whether the disorder that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA has established certain rules and presumptions for chronic diseases, such as cardiovascular renal disease, which includes hypertension. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including ischemic heart disease. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). When a claimed disability is not included as a presumptive disorder, a veteran may nevertheless establish service connection based on evidence of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). While the Board sympathizes with the appellant concerning her husband's death, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the cause The Veteran's death certificate shows he died in October 2021 and lists the immediate cause of death as hypertensive heart disease, with a secondary condition of hypertension and another significant condition contributing to death of chronic obstructive lung disease. At the time of his death, the Veteran was only service connected for hearing loss and tinnitus. The record does not suggest, and the appellant does not contend, that the Veteran's service-connected disabilities were the principal or contributory causes of his death. Rather, she has asserted that his presumed herbicide exposure led to the development of his hypertension. Initially, the Board notes the Veteran was diagnosed with hypertension prior to his death. However, the evidence does not reflect, nor does the appellant contend, that the Veteran's hypertension manifested in or within one year of service. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of hypertension. Moreover, an August 1966 separation examination indicate the Veteran's heart was normal and his blood pressure was 110/70. In fact, there are no post-service medical records in evidence showing that the Veteran was diagnosed with hypertension until 2021. There is also no indication in the record that any medical professional has related the Veteran's hypertension to his active service or any incident therein. Regarding the claimed in-service herbicide exposure, the Board notes that the Veteran's service personnel records show that he served in the Republic of Vietnam in 1966. Thus, he is presumed to have been exposed to herbicide agents. However, the evidence does not reflect that he was diagnosed with ischemic heart disease. In addition, hypertension is not listed among the enumerated diseases for which service connection may be presumed due to exposure to herbicide agents. 38 C.F.R. § 3.309(e). Thus, service connection cannot be granted on a presumptive basis. The Board acknowledges the appellant's statements that the Veteran's hypertension should be presumptively service-connected due to his service in the Republic of Vietnam. However, while ischemic heart disease is listed as a presumptive condition pursuant to 38 C.F.R. § 3.309(e), Note 2 indicates that the term ischemic heart disease does not include hypertension. Moreover, it is acknowledged that the Veteran has asserted that there is relationship between coronary artery disease and hypertension. However, as noted above, the Veteran was never treated for or diagnosed with coronary artery disease. Although she is competent to report the Veteran's symptoms which she observed, the appellant is not competent to provide a diagnosis of coronary artery disease, a nexus between hypertension and coronary artery disease, or a nexus opinion regarding the nature and etiology of his hypertension. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of the Veteran's hypertension and asserted coronary artery disease, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship, particularly in light of the delayed onset of the disorder. While a VA opinion was not provided with respect to this claim, the Board notes that neither the appellant nor the record raised a particular theory of entitlement such that VA's duty provide an opinion was triggered at any time prior to the period on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1277-79 (Fed. Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Further, while the appellant later asserted her belief that the Veteran's hypertension was related to exposure to herbicide agents in the Republic of Vietnam, under the modernized appeals system, the Board may only remand a claim in order to correct a predecisional error in the duty to assist or other regulatory or statutory duty; that is, an error that occurred prior to the AOJ decision on appeal. 38 C.F.R. § 20.802. Based on the foregoing, the Board finds that the requirements for service connection for the cause of the Veteran's death are not met. The weight of the evidence is against the claim, and benefit-of-the-doubt rule does not apply; accordingly, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. D. Bruce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.