Citation Nr: 21042684 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-41 270 DATE: July 13, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's death certificate reflects that the immediate cause of death was complications of bowel obstruction with contributing causes of diabetes mellitus, hypertension, and atrial fibrillation. 2. A disability of service origin did not cause or contribute 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, 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 from November 1952 to October 1954. He died in December 2015, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 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 diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). Minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's death certificate reflects that the immediate cause of death was complications of bowel obstruction with contributing causes of diabetes mellitus, hypertension, and atrial fibrillation. As an initial matter, the Board notes, the Veteran was service-connected for bilateral hearing loss, and tinnitus during his lifetime. There is no medical evidence to support, neither does the appellant assert, a link between the Veteran's service-connected bilateral hearing loss and tinnitus to the conditions listed on his death certificate. Although he was not service-connected for bowel obstruction, diabetes mellitus, hypertension, and atrial fibrillation at the time of his death, service connection for the cause of his death may be granted if the evidence demonstrates that a disability of service origin was either the principal or contributory cause of the Veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). Here, the appellant argues that the Veteran was service connected for diabetes type II due to Agent Orange exposure during service and as diabetes type II is listed as a contributing factor on the Veteran's death certificate service connection for the cause of death is warranted. See August 2016 VA Form-9. Notably, the Veteran was in receipt of a VA pension based on the following non-service-connected disabilities: diabetes mellitus, hypertension, and degenerative arthritis of the knees, spine, and shoulders. At no time has the Veteran been service connected for bowel obstruction, diabetes mellitus, hypertension, and atrial fibrillation. Thus, the question before the Board is whether the Veteran's bowel obstruction, diabetes mellitus, hypertension, or atrial fibrillation had its onset in, or is otherwise the result of an injury or disease incurred in service. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including diabetes mellitus, even though there is no record of such disease during service, provided that the disease manifests to a compensable degree any time after service, in a Veteran who had active military, naval, or air service in the Republic of Vietnam and its surrounding off-shore waters during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. According to the Veteran's service records and DD-214, he served during the Korean War and was stationed in France between 1952 and 1954. There is no evidence that the Veteran was ever stationed in the Republic of Vietnam and its surrounding off-shore waters during the period beginning on January 9, 1962, and ending on May 7, 1975. Therefore, the presumption under 38 C.F.R. § 3.307(a)(7); 3.309(e) does not apply; the Veteran's diabetes may not be presumptively linked to herbicide exposure. Further, there is no evidence to suggest the Veteran was ever exposed to Agent Orange or any other herbicides during service, and besides the appellant's bare assertions of exposure, the evidence does not demonstrate that the Veteran had actual exposure to tactical herbicide agents during his period of service. Further, service treatment records show no treatment related to bowel obstruction, diabetes mellitus, hypertension, and atrial fibrillation. In this regard, the evidence of record does not document any diagnosis of bowel obstruction, diabetes mellitus, hypertension, or atrial fibrillation during military service or within one year therefrom. Service connection for such conditions on a presumptive basis therefore does not apply. See 38 C.F.R. § 3.307, 3.309. Furthermore, the separation examination noted normal heart, digestive, and endocrine function and the Veteran did not complain of any heart, bowel, or blood sugar problems at the time of his discharge; rather, the evidence does not demonstrate any complaints for many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Service connection on the basis of continuity of symptomatology in this case therefore does not apply. See 38 C.F.R. § 3.303(b). In December 2016, the appellant was sent a letter requesting any additional documentation to support her claim to include evidence showing the Veteran served in-country in the Republic of Vietnam, medical evidence of dioxin exposure, a medical opinion regarding the relationship of the Veteran's condition to dioxin exposure, or medical evidence that shows the diagnosis of complication of bowel obstruction resulted from the Veteran's exposure to herbicides (Agent Orange). No additional evidence was received by the appellant, nor did she indicate that any additional records were outstanding and available. Based on the foregoing, the Board finds the preponderance of evidence is against service connection for the cause of the Veteran's death. The evidence does not demonstrate that the Veteran was either presumptively or directly exposed to herbicides during his period of military service from 1952 to 1954. The Veteran is not shown to have any in-service injury, event or disease during military service on which to predicate a finding of a bowel obstruction, diabetes mellitus, hypertension or atrial fibrillation either manifesting during or otherwise being related to military service. As such, the in-service and nexus elements for service connection for a bowel obstruction, diabetes mellitus, hypertension and atrial fibrillation that existed at the time of the Veteran's death are not satisfied and the claim for service connection for cause of the Veteran's death must be denied at this time. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. In reaching such conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine does not apply, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.