Citation Nr: 21013857 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-16 919 DATE: March 10, 2021 ORDER Entitlement to service connection due to cause of death is denied. FINDINGS OF FACT 1. The Veteran died on February [REDACTED], 2016; the death certificate listed aspiration pneumonia as the immediate cause of death and severe ileus, acute renal failure and complications of neurogenerative disease as contributing to his death; no autopsy was performed. 2. The Veteran was not service connected for any disabilities prior to his death; the Veteran's military personnel records and service treatment records do not show service in the Republic of Vietnam nor complaints, treatments, or diagnosis of pneumonia, ileus, renal failure, or neurogenerative disease; the evidence of record does not show that the Veteran developed these disorders within one year after discharge from service. CONCLUSION OF LAW The criteria for entitlement to service connection due to cause of death have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1945 to November 1946 and in the United States Navy from June 1950 to June 1960 and August 1961 to August 1971. The Veteran died on February [REDACTED], 2016. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In January 2021, the Appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to service connection due to cause of death. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. 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 military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For a disability to constitute the principal cause of death, it must be one of the immediate or underlying causes of death or must be etiologically related to the cause of death. For a disability to be a contributory cause of death, it must have contributed substantially or materially to cause death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312 (b), (c). Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases, to include atherosclerotic cardiovascular disease and respiratory cancers, may be presumed to have been incurred in service where a veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307 (a)(6)(ii). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the appellant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the time of the Veteran’s death on February [REDACTED], 2016, he was not service connected for any disabilities. The death certificate states that he was 88 years of age, and listed aspiration pneumonia as the immediate cause of death and severe ileus, acute renal failure and complications of neurogenerative disease as contributing to his death. No autopsy was performed. The Appellant contends that the Veteran’s cause of death was due to his exposure to herbicide agents while serving in Vietnam. On the March 2018 VA Form 9, the Appellant wrote that she lived with the Veteran during his military service. When they were stationed in Japan, he went to Vietnam for periods of time aboard numerous ships and carriers. During the January 2021 Board hearing, the Appellant stated that the Veteran was aboard a ship which traveled close to Vietnam. Also, when the Veteran was stationed in Japan, something fell on his head which caused him to be in the hospital for a few days. On one occasion, the Veteran told the Appellant that he had to serve as a supply officer on a ship on the coast of Vietnam. The Appellant testified that she found out the Veteran had prostate cancer when he was stationed in San Diego during service. Thereafter, he developed colon cancer, but the Appellant was unsure of when the Veteran’s colon cancer started. The Appellant’s representative clarified that the Veteran injured his head in May 1968 and was hospitalized for four days. The Board notes the Appellant’s contention that the Veteran’s cause of death may have been caused by exposure to herbicide agents while in service. However, the Board cannot grant service connection for cause of death on the possible, yet credible, contention that the Veteran may have been aboard a ship near the coast of Vietnam without evidence to support it. Although the Veteran was awarded the Vietnam Service Medal, this alone does not prove service in Vietnam as it was also awarded for service in other areas. Moreover, the Board notes that prostate cancer is the only herbicide presumptive disorder, and was listed on the death certificate by history, and was not listed as an immediate cause of death. The disorders listed on the death certificate as a cause of death do not fall under the presumptive list of diseases due to herbicide exposure. See 38 C.F.R. § 3.309. The Veteran’s military personnel records and service treatment records do not show service in the Republic of Vietnam. See e.g., Chronological list of billets held (service in Washington D.C., Rhode Island, California, Georgia, France, and Japan). This service does not satisfy the criteria for presumptive herbicide agent exposure. 38 C.F.R. § 3.307 (a)(6). In addition, the records, including the March 1971 pre-retirement examination, do not show complaint, treatment, or diagnosis of pneumonia, severe ileus, acute renal failure and complications of neurogenerative disease. Post -service treatment records do not indicate that any of these disorders developed within one year after service. Although the Appellant testified that the Veteran developed cancer while in service, the records indicate that prostate and colon cancer were diagnosed in 2015 which was more than 40 years after service. See February 2015 and March 2015 Kaiser Permanente Record. The Board also notes that even if the Veteran sustained a head injury in service, there is no competent evidence suggesting that this played any role in his death. Therefore, service connection is not warranted on a direct basis. On balance, the weight of the evidence is against the claim for service connection for the cause of the Veteran's death. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.