Citation Nr: 22018757 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 14-35 103A DATE: March 30, 2022 ORDER The previously disallowed claim for entitlement to service connection for the cause of the Veteran's death is reopened. Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. Entitlement to service connection for the cause of the Veteran's death was denied in a rating decision dated April 2002. The appellant was notified of this denial, and informed of her appellate rights, but she did not appeal. 2. Evidence received since the prior final rating decision in April 2002, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating the claim. 3. The Veteran did not suffer an in-service incident, illness or injury which can be etiologically linked to the cause of his death. CONCLUSIONS OF LAW 1. The April 2002 denial of entitlement to service connection for the cause of the Veteran's death is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence submitted subsequent to the April 2002 final rating decision is new and material, and the issue of entitlement to service connection for the cause of the Veteran's death is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1968 to August 1970. He died in March 2002. The appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated June 2014 issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of death. The appellant timely appealed. Claim to Reopen The appellant seeks entitlement to service connection for the cause of the Veteran's death. The appellant's claim for the cause of the Veteran's death was considered and denied by the AOJ in an April 2002 rating decision. The appellant did not file a notice of disagreement or submit new and material evidence within one year and the denial became final. 38 C.F.R. § 20.1103. As such, the appellant's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The appellant filed a new claim in April 2014. The evidence received since the April 2002 rating decision includes evidence that is both new and material to the claim for service connection for the cause of the Veteran's death. See 38 C.F.R. § 3.156. Indeed, the record since the April 2002 rating decision includes a lay statement from the appellant. This testimony is new as it was not previously of record. Additionally, it is material as it is related to the Veteran's service in the Republic of Vietnam and the presumption that he was exposed to herbicide agents while there. Thus, the appellant's claim is reopened. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran's death was related to his active-duty service and that she is therefore entitled to service connected cause of death benefits. In a March 2014 statement, the appellant wrote, "If a Veteran was exposed to Agent Orange during service, certain specified diseases shall be presumptively service connected, if the requirements of § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e)." She then discussed the October 2009 decision by the VA Secretary to establish presumptions of service connection based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era, for three new conditions: Ischemic Heart Disease, Parkinson's Disease, and B Cell Leukemias. She also discussed two other new regulations and memoranda as of November 2009 and October 2010. She wrote, Because the Veteran died from cardio-pulmonary arrest on March 1, 2002, there is an initial presumption under these new regulations that his death was associated with his military service and in particular, his presumed exposure to Agent Orange in Vietnam. The above captioned Veteran serviced on active duty from August of 1968 to August of 1970 and service in-country Vietnam. 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 service-connected disability is one that was incurred in or aggravated during active service or may be presumed to have been incurred during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The pertinent presumptive regulations will be discussed below. Where a disease is first diagnosed after service, service connection will be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran died in March 2002. The death certificate noted causes of death of cardio-pulmonary arrest and COPD exacerbation/respiratory failure. At the time of his death the Veteran was service connected for posttraumatic stress disorder (PTSD), bilateral hearing loss, a skin condition of the legs and feet, multiple shell fragment wounds of the arm, shoulder, neck, and face, refractive error and presbyopia, postoperative residuals of the left inguinal herniorrhaphy, and residuals of a concussion. The Board recognizes that the Veteran was the recipient of numerous awards and decorations, to include the National Defense Service Medal, Vietnam Service Medal with Bronze Service Stars, Republic of Vietnam Campaign Medal, the Purple Heart Medal, Army Commendation Medal, and Combat Infantryman Badge. Some diseases may be presumptively service-connected for Veterans who served in the Republic of Vietnam. 38 C.F.R. §§ 3.307, 3.309(e). VA has determined that certain diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, even though there is no record of such disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309(e). A Veteran who, during active military, naval, or air service, served in or offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. §§ 1116, 1116A. However, although the Veteran had Vietnam service that entitled him to a presumption of herbicide exposure under 38 U.S.C. § 1116, none of the disabilities that contributed to or caused his death (cardio-pulmonary arrest and COPD exacerbation/respiratory failure) are listed as presumptively service-connected diseases. 38 C.F.R. § 3.309(e). While the appellant asserts that the Veteran is entitled to a presumption of herbicide exposure because he died, in part, from cardio-pulmonary arrest, the Board notes that cardio-pulmonary arrest is not the same thing as ischemic heart disease. Rather, cardio-pulmonary arrest is not one of the presumptive service-connected diseases listed under 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs "has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted." See Notice, 72 Fed. Reg. 32395-32407 (2007). Neither the record nor the appellant indicates any other connection between herbicide exposure and the cause of the Veteran's death. Thus, service connection for the cause of death cannot be established on a presumptive or direct basis due to herbicide exposure. In this case, no competent medical or lay evidence of record suggests that the Veteran's cardio-pulmonary arrest or COPD are related to service. The only evidence in favor of the appellant's appeal are her beliefs that the Veteran's death was caused by an incident of his active duty, to specifically include his presumed in-service exposure to an herbicide agent. The Board acknowledges these assertions; however, the appellant does not have the medical expertise or training to render competent and credible medical opinions concerning causation disabilities, diseases, or death. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the weight of the persuasive evidence is against finding that the Veteran's death was etiologically related to any in-service incident, illness or injury. Rather, the evidence persuasively weighs against this. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim is denied. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.