Citation Nr: 21021869 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-19 201A DATE: April 14, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in August 2014. The death certificate indicated that the immediate cause of death was hypothermia; due to or a consequence of congestive heart failure; and the underlying cause was fatal arrhythmia. 2. At the time of his death, the Veteran was service connected for bilateral upper and lower extremity peripheral neuropathy, diabetes mellitus, bilateral hearing loss, and residual scars of the left thumb. 3. The Veteran’s death is not shown to have been caused by or otherwise the result of his service, or in any way related to any disease or injury incurred during service, to include as secondary to a service-connected disability or toxic herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1967 to December 1968. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran died in August 2014, and the appellant is his surviving spouse. This matter was most recently remanded in September 2020 after several previous remands. The Board finds that the remand directives were substantially complied with, and this matter is now ready for adjudication. Steagall v. West, 11 Vet. App. 268 (1996). Entitlement to service connection for the cause of the Veteran’s death The appellant asserts that the cause of the Veteran’s death, was due to heart disorders, which were caused by his exposure to toxic herbicides during his service in the Republic of Vietnam. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. See 38 C.F.R. § 3.312. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. Id. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. Here, the Veteran died in August 2014, and according to his death certificate, the primary cause of death was hypothermia. The underlying conditions contributing to his death were congestive heart failure and fatal arrhythmia. Further, at the time of death, the Veteran was service connected for bilateral upper and lower extremity peripheral neuropathy, diabetes mellitus, bilateral hearing loss, and residual scars of the left thumb. As a result, there is no evidence to indicate that the Veteran’s service-connected disabilities and/or residuals thereto contributed substantially or materially to his death. See 38 C.F.R. § 3.312. Alternatively, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran’s death should have been service-connected. To establish service connection for a particular disability found to have caused death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or is secondary to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. A Veteran exposed to herbicide agents may also be entitled to presumptive service connection for certain enumerated diseases. A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). Here, the Veteran’s DD 214 demonstrates that he had service in Vietnam. However, while the Veteran is presumed to have been exposed to herbicides given his service in Vietnam, non-ischemic cardiomyopathy (the heart disorder the Veteran was diagnosed with) or any of the other disorders on the Veteran’s death certificates are not disorders for which presumptive service connection may be granted under 38 C.F.R. §§ 3.307, 3.309(e). Nevertheless, although service connection on a presumptive basis is not warranted, the Veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the appellant does not content, and the record does not reflect that the Veteran’s heart disorder manifested during service. The Veteran’s service treatment records are silent for treatment or a diagnosis of a heart condition including his December 1968 separation examination. The post-service medical evidence does not reflect symptoms and/or a diagnosis of congestive heart failure until approximately 2006 over 25 years after service. Additionally, the VA treatment records from the same period reflect that the Veteran suffered from obesity. As such, a continuity of symptoms is not shown based on the clinical evidence. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorders to active duty or to toxic herbicide exposure, despite the appellant’s contentions to the contrary. Specifically, there is no competent medical evidence indicating that the Veteran’s causes of death are related to active duty or to his herbicide exposure, and no treating physician has opined that such a relationship exists. In forming this conclusion, the Board places significant probative value on the opinions of the VA examiners April, June and November 2020. The April 2020 VA examiner opined that it is less likely than not that the Veteran’s congestive heart failure or arrhythmia were caused by service because it was no record listing this. The June 2020 examiner opined that the Veteran’s causes of death – hypothermia, congestive heart failure or fatal arrhythmia are not related to active duty service. He provided as his rationale that the service treatment records were silent and none of the disorders were diagnosed within five years of service. Next, he opined that the Veteran’s service connected disabilities were less likely than not the immediate or underlying cause of the Veteran’s death or etiologically related, nor did they contribute substantially or materially to the cause of his death, combined to cause his death or aided assistance to the production of death, as none of them were related to his heart. Third, he opined that the Veteran’s cause of death is not related to exposure to agent orange during his active duty service. He provided as his rationale that there is no evidence in the medical literature that links the Veteran’s causes of death to agent orange, and they are not any of the disorders for presumption related to agent orange exposure. The November 2020 VA examiner opined that it is less likely than not that the Veteran had any type ischemic heart disease. The examiner provided the rationale that a primary care note dated October 21, 2008 stated that the patient had a cardiac catheterization in 2006 with no obstructive coronary artery disease. The etiology of his cardiomyopathy was noted to be secondary to hypertension and alcohol noting contributing factors of morbidly obese and sleep apnea. He further opined that the Veteran’s diabetes did not separately contribute to or hasten the Veteran’s death as it was well controlled with medications. In considering this claim, the Board has also considered the statements made by the appellant relating the Veteran’s heart disorders to his active service and specifically to his toxic herbicide exposure. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). (Continued on the next page)   In this case, however, the appellant is not competent to provide testimony regarding the etiology of the Veteran’s heart disorders. See Jandreau, 492 F.3d at 1377, n.4. Because ischemic heart disease is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran’s lung cancer are found to lack competency, particularly in light of the multiple medical opinions to the contrary. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death, and there is no doubt to be otherwise resolved. As such, the appeal is denied. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, 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.