Citation Nr: 21023931 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-25 422 DATE: April 21, 2021 ORDER Entitlement to service connection for the Veteran’s cause of death is denied. FINDINGS OF FACT 1. The Veteran’s immediate cause of death was cardiac arrest. Respiratory arrest and cerebrovascular arrest (CVA), or stroke, are listed as significant conditions contributing to death. 2. The Veteran had not been awarded service connection for any disabilities at the time of his death. 3. The Veteran’s cardiac arrest, respiratory arrest, and CVA did not have onset during his military service and are not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1965 to October 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran died in November 2002. The Appellant is his surviving spouse. The Appellant did not appear for her Board hearing scheduled in May 2016. In May 23, 2016 correspondence, the Appellant’s representative stated that the Appellant was unable to attend the Board hearing due to medical reasons and requested that the Board proceed based on the evidence of record. Accordingly, the request for a hearing has been considered withdrawn. 38 C.F.R. § 20.704(d). This matter was previously remanded for further development in June 2016, August 2017, and November 2018. The most recent development having been completed, this matter has returned to the Board for further appellate review. Entitlement to service connection for the Veteran’s cause of death. The Appellant contends that the Veteran’s heart disease and complications thereof are a result of his exposure to Agent Orange during his service in Vietnam. See November 2011 Statement in Support of Claim. Dependency and Indemnity Compensation (DIC) is available to a surviving spouse who can establish that a Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). Service connection for the cause of a Veteran’s death requires a showing that either the fatal disorder or disease was incurred in, or aggravated by, service or, in some instances, was manifest to a compensable degree within one year of service discharge and either caused or contributed substantially or materially to the cause of death. 38 U.S.C. §§ 1110, 1112, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. 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. 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Certain disease associated with exposure to certain herbicide agents, will be presumed to have been incurred in service, even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The identified diseases, which includes ischemic heart disease, shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. §§ 501(a), 1116; 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to 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). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg.346 (1994); see also 61 Fed. Reg. 41, 442 -41, 449, and 61 Fed. Reg. 57, 586 -57, 589 (1996). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran died in November 2002. His cause of death is listed as cardiac arrest. Respiratory arrest and CVA are listed as other significant conditions contributing to his death but not resulting in the underlying cause. See Certification of Death received February 2012. As an initial matter, the Veteran’s service personnel records verify his service in the Republic of Vietnam, and thus, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange during that service. The Veteran had not been awarded service connection for any disability at the time of his death. Consequently, no service-connected disabilities were listed on the death certificate as a contributing or underlying cause of the Veteran’s death. Service treatment records (STRs) do not indicate that the Veteran suffered from any heart or respiratory related conditions. There are also no records of complaints or treatments for stroke related issues. The Veteran’s undated separation examination reflects normal clinical evaluations. See December 2015 STR. A November 2002 post-service radiological report demonstrates a finding of stroke consistent with coronary heart failure. See May 2012 Medical Treatment Record. A February 2012 Ischemic Heart Disease (IHD) disability questionnaire reflects a diagnosis for chronic coronary heart failure but does not demonstrate IHD. A January 2019 VA addendum opinion was obtained. The examiner opined it is at least as likely as not that any principal or contributory cause of the Veteran’s death had onset during, or is otherwise related to any injury, disease, or event, that occurred during his active military service, including his presumptive exposure to herbicide agents in Vietnam, and based the opinion on the body of evidence and relevant medical literature in accordance with accepted medical principles. The examiner stated that the death certificate notes CVA as the triggering condition to the Veteran’s death which led to respiratory and cardiac arrest and concluded that due to multiple etiologies for stroke and lack of records surrounding the circumstances related to the stroke, the medical evidence of record, to include STRs or post-service documents, is insufficient to support that the Veteran’s active service, including presumptive exposure to herbicide agents, in any way contributed to the Veteran’s death. Furthermore, the examiner also opined that it is less likely than not that any coronary or respiratory disorder was manifested to a compensable degree within a year of separation from service because the objective medical evidence of record does not report or suggest that any coronary or respiratory disorder was manifested within a year of separation from service. The Board finds the January 2019 VA opinion is probative because the examiner noted review of the claims file, pointing out that there was no evidence suggesting a causal relationship between the Veteran’s cause of death and service, to include presumptive exposure to herbicide agents, and provided sufficient rationales to support the opinion. The Board notes that the RO attempted to identify and obtain private medical treatment records from the Appellant but was unsuccessful after several attempts. Accordingly, relying upon the January 2019 VA opinion, and no other conflicting medical opinions of record, the Board finds that the third element, medical nexus, is not met, and the claim fails. The Board is sympathetic to the Appellant’s claim; however, because the evidence is against the claim of service connection for the cause of death, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.