Citation Nr: 21026924 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-47 539 DATE: May 4, 2021 ORDER Entitlement to service connection for the Veteran's cause of death for purposes of dependency and indemnity compensation (DIC) benefits is denied. FINDING OF FACT The evidence of record shows that a service-connected disability did not cause or contribute substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1974 to April 1978, with additional service in the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Service Connection To establish service connection for the cause of the Veteran's death, the evidence must show that a disability, which was incurred in or aggravated by active duty service, either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially, combined to cause death, or assisted in the production of death. Significantly, it is not sufficient to show that a service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Furthermore, in cases where the Veteran was not already service-connected for the condition that caused his or her death, service connection for the condition may still be warranted where the evidence of record establishes that the particular injury or disease resulting in death was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In this regard, to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Entitlement to service connection for the Veteran's cause of death for purposes of dependency and indemnity compensation (DIC) benefits is denied. The Appellant seeks service connection for the cause of the Veteran's death for purposes of entitlement to DIC benefits. At the time of his death, the Veteran was service connected for degenerative disc disease of the cervical spine, residuals of a left ankle fracture, bilateral hearing loss, left tibia fracture, and tinnitus. The Veteran died in February 2016 and the official death certificate discloses that his immediate cause of death was renal failure, due to or as a consequence of heart failure, due to or as a consequence of diabetes mellitus. Sepsis and liver failure were listed as significant conditions contributing to death. There is no evidence that the Veteran's service-connected conditions caused, aggravated or were otherwise etiologically related to the death of the Veteran. No such contention is made. Therefore, the preponderance of evidence shows that an already service-connected disease, injury or illness was not the cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Board will consider the Appellant's claim that the Veteran should have been service-connected for diabetes during his lifetime and that this disorder caused or contributed substantially or materially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Appellant asserts that the Veteran was diagnosed with, and treated for, diabetes during Tennessee National Guard service. See Board Hearing Transcript. Reserve and National Guard service generally means active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times... serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Because the Appellant's claim is at least partially predicated on the notion that the Veteran's condition is related to his Tennessee National Guard service, and it is important to emphasize that only "Veterans" are entitled to VA compensation under 38 U.S.C. §§ 1110 and 1131. Therefore, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service does not obviate the need for him to establish that he also is a "Veteran" for purposes of the period of ACDUTRA if his claim for VA benefits is premised on the period of ACDUTRA. Mercado-Martinez v West, 11 Vet. App. 415, 419 (1998). The Board acknowledges that the medical evidence shows that the Veteran was initially diagnosed with diabetes while still enlisted in the National Guard. A retention examination during National Guard service in April 2004 indicated the Veteran had diabetes as a disqualifying defect. A private treatment record from March 1998 is the earliest evidence in the record of a diabetes diagnosis. Diabetes is a disease, not an "injury", and therefore it must be shown that such a condition either began during or was otherwise caused by a period of active duty or ACDUTRA. See 38 U.S.C. § 101 (24). None of the treatment records from the Veteran's Guard service show onset of diabetes during a period when his unit was called into federal service. In addition, none of the service treatment records show the onset of diabetes during a period of active duty service or a period of ACDUTRA, nor any signs or symptoms of it during any such period. In short, there is no record of a diagnosis of diabetes during a period of active duty service or ACDUTRA, or that his diabetes resulted from an injury during INACDUTRA. The record as well does not otherwise contain a medical opinion relating the Veteran's diabetes to active duty service or a period of ACDUTRA. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diabetes falls outside the realm of common knowledge of a lay person. In this regard, while the Appellant can competently report symptoms of diabetes, any actual diagnosis of diabetes requires objective testing to diagnose and can have many causes. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Whether the symptoms the Veteran experienced in service or following service are in any way related to any current diabetes requires medical expertise to determine because it involves a complex medical matter. To the extent that the Appellant believes that the Veteran had diabetes that is due to his service, as a lay person, she is not shown to possess any specialized training in the medical field. The Appellant's opinion as to the etiology of the Veteran's diabetes is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. Moreover, there is no indication that diabetes initially manifested during a given period of active duty service or ACDUTRA For these reasons and bases, the preponderance of the evidence is against the claim of entitlement to service connection for cause of death. The Veteran's diabetes was not incurred or aggravated by any period of active military service, whether active duty, ACDUTRA or INACDUTRA within the meaning of the law. Diabetes also did not manifest to a compensable degree within one year of his active duty service (keeping in mind this presumptive period does not apply additionally to his subsequent service on ACDUTRA and INACDUTRA). Therefore, the claim for service connection for cause of death must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.