Citation Nr: 22010908 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-28 250 DATE: February 24, 2022 ORDER Service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran's November 2010 death was immediately caused by anoxic encephalopathy and secondarily caused by aspiration pneumonia, a cerebrovascular accident and ischemic cardiomyopathy. 2. At the time of death, the Veteran was not service connected for any disability. 3. The causes of the Veteran's death are not related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from August 1969 to September 1972. He attended Officer Candidate School and had Reserve service prior to, and following discharge from, active duty. He died on November [REDACTED], 2010. The appellant is his surviving spouse. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 Department of Veterans Affairs (VA) rating decision. In June 2020, April 2021 and August 2021, the Board remanded this claim to the Agency of Original Jurisdiction (AOJ) for additional action. The appellant initially requested a Board hearing at the AOJ in support of her claim, but in May 2019, she submitted a written statement waiving her right to the hearing and asked that the Board render a decision based on the evidence of record. Entitlement to service connection for the cause of the Veteran's death The appellant seeks service connection for the cause of the Veteran's death. She claims that the cause of his death is consistent with his active duty in the Republic of Vietnam from 1969 to 1972, and he died in a VA facility. In a March 2021 Notice of Disagreement, she explains that the Veteran was contaminated with something during service that killed him. He entered service in excellent health and, when he came home, he was no longer healthy. His eyesight was never the same. He visited Vietnam, but he told her that that is not where he was contaminated. She requests VA to look at the files and see that a deliberate action was done by the government. She indicated that the Veteran, who served as an Intelligence Officer, told her things about which he did not want to write. She claims she looked through his encrypted writings on the computer to find information, and some of it refers to chemical weapons the government developed during the Vietnam era. She recalls the Veteran having ugly rashes on his body and blood so thick (like pudding), he had to have his leg amputated. She does not believe the amputation or the Veteran's need for many transfusions was caused by his diabetes. She asserts that the government sprayed and injected all kinds of garbage into the Veteran and others. She does not believe it's a coincidence that after service, the Veteran was not healthy enough to find and keep jobs. She had to work to support him, and she took care of him. According to the appellant's August 2015 VA Form 9 (Appeal to Board of Veterans' Appeals), VA has retained the Veteran's service records, which should show that the Veteran was on active duty during Vietnam and served an undetermined amount of time there. These records should be sufficient to concede exposure to herbicide agents. The appellant argues VA has not performed its duty to assist her, a widow of a deceased veteran who has very little knowledge of the military and its placement of personnel during times of conflict. For the reasons that follow, the evidence here is neither evenly nor approximately balanced with regard to the cause of the Veteran's death. Rather, it persuasively weighs against granting service connection for the cause of the death. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application in this case. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 C.F.R. § 3.5. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be 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). To constitute a contributory cause of death, the service-connected disability must contribute substantially or materially, combine to cause death, or aid or lend assistance to the production of death. It is not sufficient to show that the 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(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In determining the cause of death, one must exercise sound judgment, without recourse to speculation, after carefully analyzing all of the facts and circumstances surrounding the death. 38 C.F.R. § 3.312(a). In this case, according to the Veteran's death certificate, his November 2010 death was immediately caused by anoxic encephalopathy and secondarily caused by aspiration pneumonia, a cerebrovascular accident and ischemic cardiomyopathy. At the time of his death, the Veteran was not service connected for any disability; therefore, the primary and contributory causes of his death are not related to his active service. As noted above, the appellant asserts that such causes should be related to the Veteran's service during the Vietnam era, not necessarily in Vietnam, during which the Veteran was contaminated with certain sprays and injections. Service personnel records confirm that the Veteran served during the Vietnam era. However, there is no evidence of record establishing that, during that era, he was in Vietnam or otherwise exposed to a hazardous substance, including any contaminant or herbicide agent, the latter of which would entitle the appellant to consideration of this claim on a presumptive basis. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). According to his service personnel file, he served as an Intelligence Officer with Top Secret clearance in communication and electronic intelligence and had foreign service in Hawaii from February 1970 to September 1972. According to DA Form 67-6 (U.S. Army Officer Efficiency Report), one of his duty assignments involved, "Special projects off to the G-1 of an Army Security Agency theater headquarters with organizational responsibilities encompassing approximately 10,000 highly selected personnel in 16 major units in Hawaii and 7 countries of the Far East." In describing what the Veteran accomplished during this assignment, there is no mention of travel, including to any Far East location where some of the selected personnel might have been located. The only evidence of travel in the Veteran's personnel file is in the Remarks section of a DA Form 20, where "OVERSEAS PANAMA" is noted. The appellant also contends that she is entitled to service connection for the cause of the Veteran's death because the Veteran died at a VA facility. However, the law and regulations governing this type claim do not allow for an award of service connection for a veteran's cause of death on such a basis. The criteria for such an award are noted above and, in this case, as the causes of the Veteran's death are not related to active service, such criteria are not met. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.