Citation Nr: 21005457 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-41 202A DATE: February 1, 2021 ORDER Entitlement to service connection for the Veteran’s cause of death is denied. FINDINGS OF FACT 1. The Veteran’s cause of death was due to non-small cell lung carcinoma, and Chronic Obstructive Pulmonary Disease (COPD), which was not incurred during active service, to include herbicide agent exposure, or otherwise related to service. 2. The Veteran was not service connected for any disability at the time of his death. 3. The evidence does not substantiate that the Veteran had active service in the Republic of Vietnam (RVN). CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death are not met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1966 to February 1970. He died in July 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In an October 2018 Board decision, the Board remanded this matter for further development of his1997 treatment records at the Dubois VAMC, 2001-2002 VA treatment records, Military Personnel Record (MPR) and take action to verify whether the Veteran was exposed to herbicides while in service. The additional development has completed in substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service Connection for Cause of Death The Appellant seeks service connection for the cause of the Veteran’s death. The Veteran died in July 2010. The certificate of death indicates the immediate cause of death was non-small cell lung carcinoma and COPD was a contributory factor. At the time of the Veteran’s death, he did not have service connection for any disability. However, the Appellant believes that the Veteran served in the RVN and was exposed to herbicides. She contends that his cause of death should be service-connected based on the presumption provisions applicable to herbicide exposure. Under 38C.F.R.§§3.307(a)(6) and 3.309(e), when a veteran is exposed to herbicide agents, service connection is presumed for respiratory cancers, including cancer of the lung, bronchus, larynx, and trachea. The Veteran’s service personnel records have now been associated with the claims file for review which contain the dates, location and circumstances of the Veteran’s service. After review of the Veteran’s MPRs from February 1966 to February 1970, the Board finds no indication of service in RVN. The Veteran’s MPRs indicate his overseas service was in Europe at the Headquarters of the 2nd Battalion, 13th Infantry in Frankfurt, Germany. See MPRs. Therefore, the Board finds that the weight of the evidence does not indicate service in the RVN. Thus, the presumption provisions applicable to herbicide exposed Veterans does not apply. Nevertheless, this does not preclude the Appellant from establishing service connection for death with a proof of direct theory of entitlement. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir, 1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As to the first element of Shedden for direct service connection, a diagnosed condition, per the Veteran’s VA treatment records at the time of his death he had a diagnosis of non-small cell carcinoma of the lung, and COPD. Therefore, the Board finds that the claim meets the first element for service connection for the cause of death. See April 2010 VA treatment record. As to the second element of Shedden, for service connection the Appellant must show that the cause of death is related to an in-service incurrence of a disease, event or injury. Here, the Board notes that service in the RVN has not been shown and Frankfurt, Germany, is not listed as a location in which exposure to herbicide agents is presumed. Therefore, the Board finds that the weight of the evidence is against a finding that the cause of death was related to herbicide exposure. The Appellant has not set forth another contention for an in-service incurrence, event or injury. See November 2020, Appellant Brief, pg. 2. As such, the claim does not meet the second Shedden element for service connection for the cause of death. As to the last element of Shedden, for service connection the Appellant must show a causal relationship between the cause of death and an in-service event. Here, the Board finds no probative medical evidence weighing in favor of the Appellant’s claim that his cause of death is service connected. The medical evidence of record does not show that the Veteran had small-cell lung carcinoma, COPD or respiratory disease while in service. See VA treatment/private medical records/STRs. Post-service medical records indicate that the Veteran was diagnosed with non-small cell lung cancer in 2009, approximately thirty-nine years after discharge from service. Further, the Veteran was admitted in June 2010 for shortness of breath and his treating providers noted that his left ventricular function of his heart was mildly depressed, he had mild degenerative aortic valve disease, was suffering from chest pain and that his cardiac function was abnormal. See June 2010 Private Treatment Records. His hospice admission record noted multifactorial problems of respiratory failure, atrial fibrillation, myocardial fibrillation, a mechanical heart valve and recurrent systemic embolisms. See July 2010, Christ the King Manor Hospice Treatment Records; see also June 2010 Echocardiogram Results. Despite this, service connection may be presumed for certain chronic diseases, to include malignant tumors, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). COPD is not listed as a chronic disease for which the presumption applies. See 38 C.F.R. 3.309; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence has not shown that the Veteran developed COPD or non-small lung cancer to a compensable degree within one year of service or demonstrated a continuity of symptoms since service. See 38 C.F.R. § 3.303(b). The Board acknowledges that the Appellant believes the Veteran’s causes of death is related to an in-service injury, event, or disease or service-connected disabilities. However, the Appellant in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahuna v. Shinseki, 24. Vet. App. 428 (2011). The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A (d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A (a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. There is no competent evidence suggesting that the causes of the Veteran’s death are related to service and thus an VA opinion regarding the claim is not required. In conclusion, the Board finds that the evidence establishes that service connection for the Veteran’s cause of death is not warranted. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.