Citation Nr: 21020947 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-62 007 DATE: April 8, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran was service connected for diabetes mellitus at the time of his death. 2. Although the Veteran’s original death certificate listed sepsis as his cause of death with clostridium difficile colitis as an underlying case, the Veteran’s state filed an amended death certificate listing diabetes mellitus as an additional underlying cause of death in November 2018. 3. Competent evidence is at least relatively evenly balanced on the question of whether the Veteran’s service-connected diabetes mellitus substantially contributed to his death. CONCLUSION OF LAW Resolving reasonable doubt in the appellant’s favor, the criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1965 to September 1967. Regrettably, the Veteran died in August 2012. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Milwaukee, Wisconsin. Jurisdiction of this appeal is currently with the RO in Little Rock, Arkansas. The appellant testified at a virtual hearing before the undersigned Veterans Law Judge of the Board in April 2021. A transcript of the hearing will be associated with the record. Entitlement to Service Connection for the Cause of the Veteran’s Death The appellant asserts that service connection for the cause of the Veteran’s death is warranted. Specifically, she argues that his service-connected diabetes mellitus substantially contributed to his death. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for the cause of the veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Blue Water Navy Vietnam Veterans Act of 2019 became effective on January 1, 2020. 116 P.L. 23, 133 Stat. 966 (2019). Pursuant to this legislation, for purposes of determining whether a veteran was presumptively exposed to herbicide agents, the term "service in the Republic of Vietnam" was expanded to include service in the offshore waters, which includes the territorial sea extending 12 nautical miles from the shores of that nation. 38 U.S.C. § 1116A. The statute further delineates latitudinal and longitudinal intersecting points within the territorial waters of Vietnam and Cambodia. Notably, the Republic of Vietnam specifically refers to what was South Vietnam during the Vietnam War. See Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the evidence reflects that the Veteran died in August 2012. The original death certificate stated that the cause of death was sepsis with an underlying cause of clostridium difficile colitis. In November 2018, an amended death certificate was filed with the Veteran’s state. That amended death certificate listed diabetes mellitus as an underlying cause of death. The amended death certificate was supported by a certifier’s affidavit. At the time of the Veteran’s death, service connection was in effect for diabetes mellitus. A September 2013 opinion Dr. J.C., the Veteran’s treating physician, stated that the presence of the Veteran’s diabetes made it difficult for the Veteran to survive his sepsis and his diabetes mellitus and chronic obstructive pulmonary disease (COPD) put him in a generally weakened condition. The physician opined that had the Veteran had not diabetes or COPD, he might have possibly survived the sepsis episode. Thus, Dr. J.C. opined that the diabetes mellitus and COPD were implicit in his death. A February 2016 opinion from Dr. D.F. indicated that it was more likely than not that the Veteran’s severe diabetes significantly contributed to his death because a patient with severe diabetes would be extremely limited in being able to fight off a serious septic infection. Therefore, Dr. D.F. opined that the Veteran’s diabetes was not the direct and immediate cause of death but was definitely a “significant contributing factor.” The Board finds the opinions rendered by Drs. J.C. and D.F. highly probative regarding whether the Veteran’s service-connected diabetes mellitus significantly contributed to his death as the doctors reviewed the claims file and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record. The Board notes that an October 2016 Formal Finding For Agent Orange Exposure indicated that the AOJ had previously conceded in-country Vietnam service for the Veteran in error as there was no documentation supporting the Veteran's statement that he left the ship when it was anchored at Da Nang Harbor. The Formal Finding further noted that the Veteran's ship, the U.S.S. Hassayampa, was in the official waters of the Republic of Vietnam for various periods between November 1965 to November 1966 and that this ship anchored briefly in Da Nang Harbor to debark passengers to the U.S.S. Repost at Da Nang. However, pursuant to the Blue Water Navy Vietnam Veterans Act of 2019, the Veteran served within the Republic of Vietnam as his ship was in the official waters of Vietnam and anchored in Da Nang Harbor while the Veteran was aboard. The Veteran is therefore properly afforded the presumption of exposure to herbicide agents. (Continued on the next page)   Given the evidence discussed above, and with resolution of all reasonable doubt in the appellant’s favor of certain elements of the claim, the Board concludes that service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.