Citation Nr: 22019002 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-54 604 DATE: March 31, 2022 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT The Veteran did not suffer an in-service incident, illness or injury which can be etiologically linked to the cause of his 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. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1954 to February 1956. He died in August 2003. The appellant is his surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2017 rating decision. This case was most recently before the Board in April 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Entitlement to service connection for cause of death The Veteran died in August 2003 and the death certificate reflects that the immediate cause of death was acute myocardial infarction, with atherosclerotic coronary artery disease. At the time of the Veteran's death, he was service connected for deep vein thrombosis of the bilateral legs. The appellant asserts that the Veteran's cause of death was related to his service-connected deep vein thrombosis of the bilateral legs or his exposure to radiation while serving in the "Nike unit." 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. Here, the Board concludes that service connection for cause of death is not warranted. As noted above, at the time of his death, the Veteran was service connected for deep vein thrombosis affecting his right and left legs. The Board notes that the Veteran's death certificate does not reflect deep vein thrombosis of the bilateral legs as an underlying cause of death or a condition that significantly contributed to his death. In April 2020 a VA examiner, after reviewing the claims file, opined that it is less likely than not that the Veteran's cause of death was attributable to a service-connected disability. The examiner explained that the Veteran's exit evaluation in February 1956 did not show abnormalities. The examiner further stated that there was no documented treatment of acute myocardial infarction, atherosclerotic coronary artery disease, cerebrovascular accident, or hyperlipidemia complaints or symptoms during the 12 months immediately after military separation. The examiner concluded that the evidence does not support chronic conditions related to military service, and therefore, nexus linking acute myocardial infarction, atherosclerotic coronary artery disease, cerebrovascular accident, or hyperlipidemia to military service cannot be established. The examiner further opined that the Veteran's service-connected deep vein thrombosis did not contribute to acute myocardial infarction, atherosclerotic coronary artery disease, cerebrovascular accident, or hyperlipidemia. She noted that the Veteran was treated for left lower extremity deep vein thrombosis during a hospital admission in 1991, but the condition resolved, and he was discharged in good health. "There was no documentation of further problems with [deep vein thrombosis] at the time of death," wrote the examiner. She further explained that "[t]he principle long-term morbidity from [deep vein thrombosis] is prostthrombotic syndrome and pulmonary embolism." Thus, the examiner concluded, that the Veteran's cause of death is less likely than not related to his service-connected bilateral lower extremity deep vein thrombosis. The April 2020 VA examiner discussed the relevant evidence, cited to relevant medical literature, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the opinion is adequate and highly probative. The Board recognizes that the Appellant believes that the Veteran's cause of death is related to his service-connected bilateral lower extremity deep vein thrombosis. However, the Appellant is not competent to provide an opinion because the issue is medically complex, and she has not demonstrated that she has the necessary medical training to offer such nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board assigns higher probative value to the April 2020 medical opinion of record rather than the Appellant's assertions. Moreover, as to the Appellant's contentions of radiation exposure due to the Veteran's work with the "Nike unit," the April 2020 examiner was unable to provide a medical opinion without confirmation of exposure to radiation. In September 2019, the AOJ sent the Veteran correspondence seeking more information from the Appellant regarding the claimed radiation exposure. The Appellant replied in October 2019 and indicated that she has no more information regarding her spouse's service, and that all information should be available in the Veteran's service personnel records. Notably, the AOJ sent the Veteran another correspondence in May 2020 explaining that some of the Veteran's service treatment records and military personnel records were missing. In that letter, the AOJ asked the Appellant to provide any documents she may have to help verify the Veteran's radiation exposure. She has not responded to that letter. The Board recognizes that the Veteran's complete military personnel records and service treatment records are not in the claims file. Efforts to obtain such records from all potential sources were unsuccessful. Under such circumstances, VA has a heightened duty to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the available service treatment records and military personnel records, as well as the Veteran's certificate of release or discharge (DD214) do not reflect exposure to radiation. The AOJ sought confirmation of radiation exposure from US Army Dosimetry Center by way of a May 2020 letter. The U.S. Army Dosimetry Center "researched the files for records of exposure to ionizing radiation for [the Veteran]" and was unable to locate any records for him. Thus, VA has exhausted its duty to assists. Other than the Appellant's assertion, the evidence in the record otherwise does not confirm exposure to radiation. Exposure to radiation is not a lay observable event and the Appellant is not competent to report that the Veteran was exposed to radiation. Absent competent evidence establishing exposure to radiation in service, the Board cannot grant service connection for cause of death based on exposure to radiation. Moreover, in the notice of disagreement filed in March 2017, the Appellant contends that the Veteran was exposed to Agent Orange while serving in Korea and that he had ischemic heart disease with hypertension. The Appellant did not provide any details as to how she knows that the Veteran was exposed to herbicide agent in service. VA presumes herbicide exposure to veterans that served near the Korean DMZ between April 1, 1968 and August 31, 1971. However, this Veteran served in Korea over a decade prior to the period in which herbicides are known to have been applied in the Korean DMZ. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iv). Additionally, the available service treatment and military personnel records do not confirm exposure to herbicide. Accordingly, service connection for cause of death cannot be established based on the claimed exposure to herbicide agent in service. In summary, the competent and probative evidence of record does not show the Veteran's death was in any way related to his active-duty service. In the absence of probative evidence that a disability incurred in or aggravated by service was either the primary or contributory cause of death, service connection for the Veteran's cause of death is not warranted. The Board is sympathetic to the Appellant's loss of her spouse, but for the foregoing reasons, the weight of the evidence is against the claim. As the weight of the evidence is against the Appellant's claim, there is no doubt to resolve, and the benefit-of-the-doubt doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Sarone Solomon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim 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.