Citation Nr: 21026819 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-35 480A DATE: May 4, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT The preponderance of the evidence does not show that a disability causally related to service, either caused or contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1137, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1957 to April 1959, with additional reserve service. The Veteran died in April 2015 and the appellant is their surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The appellant requested a Board hearing on the July 2016 VA Form 9, but withdrew the hearing request in an August 2017 statement. This issue was previously before the Board in October 2019, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for cause of death The appellant seeks service connection for cause of the Veteran's death. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A surviving spouse may also demonstrate the disability that caused the Veteran's death should have been service connected. 38 C.F.R. § 3.312. To establish service connection, an appellant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 C.F.R. § 3.303 (a). After a review of the record, the Board finds the criteria for service connection for the cause of the Veteran's death are not met. At the time of the Veteran's death, the Veteran had no service-connected disabilities. The April 2015 Death Certificate indicates that the cause of death was myocardial failure, atherosclerotic vascular disease, and cerebral vascular disease. First, the Board finds that there was a current disability at the time of the Veteran's death. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Private treatment records (PTRs) do indicate that the Veteran had a disability prior to their death. November 2014 PTRs indicate a diagnosis of ischemic cardiomyopathy. November 2013 PTRs confirm a history of ischemic cardiomyopathy. December 2010 PTRs also note a diagnosis of ischemic cardiomyopathy, and that the Veteran received an implant for ventricular tachycardia in 2003. And March 2009 PTRs note coronary artery disease, and that the Veteran had a pacemaker. Accordingly, the first element of service connection is met. Second, the Board finds that there is no evidence of an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The appellant and their representative have made no arguments asserting how the Veteran's death was related to their active duty service. An October 2015 VA memorandum noted that the Veteran's service treatment records (STRs) were destroyed in a fire. In an October 2015 statement, the appellant stated that their spouse never told them of any medical occurrences other than what they had already stated with the claim. A review of the June 2015 Application for DIC, Death Pension, and/or Accrued Benefits VA Form 21-634EZ finds no assertions for any in-service event, injury, or disease. Also in October 2015, the appellant submitted the VCAA Notice Response letter indicating that they had enclosed all remaining information that would support the claim, or that they had no other information or evidence to submit. In December 2015, the RO sent the appellant a letter informing them that the Veteran's STRs are unavailable. In January 2016, the appellant replied with a statement indicating that they did not have any other records in reference to the Veteran's service, and asked that VA continue to process the claim. In February 2016 the appellant submitted the PTRs noted above; however, they do not contain any information regarding the origin of the Veteran's heart disability or any connection to service. In August 2017 the appellant withdrew their Board hearing request, and stated that they had submitted all documents supporting the appeal and that there was no further evidence. In the October 2019 Board decision, this claim was remanded to provide the appellant with an opportunity to identify and authorize for release any relevant medical records, including those from the hospital where the Veteran was receiving inpatient treatment at the time of their death, and to provide the appellant with a notice letter regarding the issue of entitlement to service connection for the cause of the Veteran's death. The RO sent these materials to the appellant in March 2020. In April 2020 the appellant replied by sending back a copy of the notice letter, and a completed VA Form 21-4142 Authorization to Disclose Information enclosing the Veteran and the appellant's identification information. The appellant also submitted a completed VA Form 21-4142a General Release for Medical Provider Information, but without providing any medical provider information other than a note stating, "Request Records." The appellant also signed and dated a VCAA Notice Acknowledgement form, but did not indicate whether they had any further evidence or information to submit in support of the claim. Also included was a signed and dated VA Form 21-4138 Statement in Support of Claim containing the Veteran's identification information, but the form was otherwise left blank without any actual statement. In June 2020, the RO issued a Supplemental Statement of the Case (SSOC) stating that the appellant had not submitted any evidence to show that the Veteran's death was related to military service. In July 2020, the appellant submitted a SSOC Notice Response indicating that they had no other information or evidence to submit, and requested that the case be returned to the Board for further appellate consideration as soon as possible. At no point during the appeal period has the appellant or their representative made any arguments asserting how the Veteran's cause of death was related to their active duty service, and the Veteran's STRs are unavailable for VA to at least see whether the Veteran had a heart disorder while in service. In fact, the appellant has repeatedly informed VA that they have no arguments or evidence to submit in support of their claim, even after a 2019 Board remand provided them with another opportunity to submit further information, arguments, or evidence. The only information that the appellant has submitted is the Veteran's death certificate, and some medical records going back 20 years; however, the Veteran separated from active duty service more than 60 years ago. The duty to assist a claimant is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). Accordingly, service connection is denied. Although the Board is sympathetic to the appellant's claim and acknowledges the years of honorable service the Veteran provided, taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.