Citation Nr: 0534818	
Decision Date: 12/27/05    Archive Date: 01/10/06

DOCKET NO.  04-26 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for liver cancer for 
purposes of accrued benefits.  

2.  Entitlement to service connection for hepatitis C for 
purposes of accrued benefits.  

3.  Entitlement to service connection for the cause of the 
veteran's death.

4.  Entitlement to burial benefits.

5.  Entitlement to nonservice connected death pension 
benefits.




REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel


INTRODUCTION

The veteran served on active duty from February 1957 to 
December 1960, December 1967 to October 1969 and from 
December 1969 to September 1983.  

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a January 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Little Rock, Arkansas.  

In July 2005, the appellant testified at a hearing at the RO 
before the undersigned Veterans Law Judge.  

The issues of entitlement to service connection for liver 
cancer for purposes of accrued benefits, entitlement to 
service connection for the cause of the veteran's death and 
entitlement to burial benefits are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The veteran died in April 2001.

2.  At the time of the veteran's death, almost 18 years after 
service, the only claims pending were claims for service 
connection for liver cancer and hepatitis C; he was not 
service-connected for any disabilities.

3.  The competent medical evidence of record does not show 
that the veteran had a diagnosis of hepatitis C in service or 
at the time of his death.

4.  The appellant's income, less allowable expenses, exceeds 
the maximum annual rate of improved death pension for a 
single surviving spouse with one dependent.


CONCLUSIONS OF LAW

1.  For the purpose of accrued benefits, the veteran did not 
have hepatitis C as the result of disease or injury incurred 
in or aggravated by active duty, and incurrence or 
aggravation during such service may not be presumed.  
38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.316, 3.1000 
(2005).

2.  The income criteria for improved death pension benefits 
have not been met.  38 U.S.C.A. §§ 1503, 1541 (West 2002); 38 
C.F.R. §§ 3.23, 3.271, 3.272 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claim Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) is 
applicable to this appeal.  To implement the provisions of 
the law, the VA promulgated regulations codified at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a)).  The Act and 
implementing regulations provides that VA will assist a 
claimant in obtaining evidence necessary to substantiate a 
claim but is not required to provide assistance to a claimant 
if there is no reasonable possibility that such assistance 
would aid in substantiating the claim.  It also includes new 
notification provisions. 

In the present case, the appellant's claim for burial 
benefits was received in April 2001 and her claims for 
service connection for the cause of the veteran's death and 
for accrued benefits and nonservice-connected pension 
benefits were received in May 2001.  In letters dated in 
April 2001 and January 2004, the appellant was informed of 
the requirements of VCAA as they pertained to VA's obligation 
to assist her in completing her claims and notifying her of 
the progress of her claims and the ongoing duties of VA.  By 
these letters, the appellant was notified of what evidence, 
if any, was necessary to substantiate her claims and they 
indicated which portion of that evidence the appellant was 
responsible for sending to VA and which portion of that 
evidence VA would attempt to obtain on her behalf.  Clearly, 
from submissions by and on behalf of the appellant, she is 
fully conversant with the legal requirements in this case.  
Thus, the content of these letters complied with the 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b).

In short, the appellant is well aware of the information and 
evidence necessary to substantiate her claims; she is 
familiar with the law and regulations pertaining to her 
claims; she does not dispute any of the material facts 
pertaining to her claims, and she has not indicated the 
existence of any outstanding information or evidence relevant 
to her claims.  See Desbrow v. Principi, No. 02-352 (U.S. 
Vet. App. May 4, 2004); Valiao v. Principi, 17 Vet. App. 229, 
232 (2003) (holding that failure to comply with VCAA 
constitutes nonprejudicial error "[w]here the facts averred 
by a claimant cannot conceivably result in any disposition of 
the appeal other than affirmance of the Board decision").  
Therefore, to decide the appeal would not be prejudicial 
error to the appellant.

With respect to VA's duty to assist the appellant, the Board 
notes that pertinent medical records from all relevant 
sources identified by the appellant, and for which she 
authorized VA to request, were obtained by the RO.  38 
U.S.C.A. § 5103A.  In this regard the Board notes that the 
record contains the pertinent service medical records, 
private treatment records and death certificate.  In this 
respect, the Board notes that the RO made several attempts to 
secure additional service medical and personnel records, but 
was informed by the National Personnel Records Center (NPRC) 
that an extensive and thorough search of the records was made 
and that they were unable to locate any requested records.  
NPRC concluded that the records either did not exist or that 
they did not have them and that further efforts to locate 
them would be futile.  The appellant has not alleged that 
there are any other obtainable outstanding medical records 
with regard to these issues.  The Board consequently finds 
that VA's duty to assist the appellant in obtaining records 
in connection with the instant appeal has been fulfilled.

In sum, the facts relevant to this appeal have been properly 
developed and there is no further action to be undertaken to 
comply with the provisions of the VCAA or the implementing 
regulations.  Therefore, the appellant has not been 
prejudiced as a result of the Board proceeding to the merits 
of the claims.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 
(1993). 



Factual Background

The veteran died in April 2001.  During his lifetime, he was 
not service-connected for any disability.  At the time of his 
death, the veteran's claims, received in January 2001, for 
entitlement to service connection for liver cancer and 
hepatitis C, to include as the result of exposures to Agent 
Orange, asbestos, mustard gas and ionizing radiation, 
remained unadjudicated.  The RO subsequently reviewed the 
veteran's claims and denied service connection for both liver 
cancer and hepatitis C.  

In April and May 2001, the appellant filed claims for accrued 
benefits, service connection for the cause of the veteran's 
death, entitlement to nonservice-connected death pension 
benefits, and entitlement to burial benefits.

The veteran's DD Form 214 indicates that he was awarded 
several medals for service in Vietnam, including the Vietnam 
Service Medal with combat operation insignia.  

His available service medical records show that he had 
tattoos on his chest and left lower leg as early as December 
1967.  His July 1983 retirement medical examination report 
also shows that he had a tattoo on his left cheek.  From 
September to November 1981, the veteran was treated for 
diagnosed alcohol abuse.  A November 1981 narrative summary 
indicates diagnoses of alcohol dependence and probable 
cirrhosis with ascites.  There are no complaints, findings, 
treatment or diagnoses associated with hepatitis C.  

Private treatment records, dating from May 1998 to March 
2001, relevantly show that the veteran complained of 
anorexia, weight loss and fatigue and an October 2000 
abdominal CT scan was suspicious for malignancy for an area 
of the right lobe of the liver.  A November 2000 referral 
indicated that the veteran was at high risk for 
hepatocellular carcinoma.  Subsequent treatment records show 
that he was diagnosed with inoperable hepatocellular 
carcinoma and that there were no medical options available.  
A March 2001 treatment record shows that the veteran's 
information was forwarded to a private hospice.  There are no 
complaints, findings, treatment or diagnoses associated with 
hepatitis C.

His death certificate reveals that the veteran died at the 
age of 62 at his residence.  The immediate cause of death was 
liver cancer.  No other significant condition contributing to 
his death was listed and no autopsy was conducted.  A 
supplemental report of cause of death, dated in May 2004 and 
signed by the registered nurse who signed the original death 
certificate, indicates that other significant conditions 
contributing to death but not resulting in the underlying 
cause included previous exposure to Agent Orange, hepatitis 
C, Type II diabetes, and cirrhosis of the liver.  

During a September 2004 personal hearing, the appellant 
testified that the veteran had been in the service more than 
20 years and that he had served in Vietnam.  She testified 
that he initially got 4 tattoos while in service and that he 
was diagnosed with probable cirrhosis of the liver with 
ascites in 1981.  Prior to his death he was diagnosed with 
diabetes, hepatitis C, cirrhosis of the liver, arthritis and 
obstructive sleep apnea.  She testified that he was first 
diagnosed with hepatitis C in November or December 2000.  She 
also testified that she had known the veteran for 12 years 
prior to his death and that he was not an intravenous drug 
user.  Although he previously drank a lot, he had quit.  She 
believed that his diabetes and hepatitis C significantly 
contributed to his liver cancer and death.  She felt that the 
tattoos he acquired in Vietnam and other toxins he was 
possibly exposed to in Vietnam contributed to his death.  She 
admitted that she had no medical opinion that either 
hepatitis or cirrhosis caused the veteran's liver cancer.  

In September 2004, a VA physician reviewed the veteran's 
service medical records and claims file.  The physician noted 
that the veteran was treated for alcoholism in service.  At 
that time, he had abnormal liver function studies and there 
was a question of ascites, but it was not a definite 
diagnosis.  A definite diagnosis of cirrhosis was never made 
and the veteran did not have a liver biopsy.  Therefore, the 
physician opined that the service medical records were 
insufficient to justify a diagnosis of cirrhosis of the 
liver, although there was evidence of chronic liver disease 
related to his chronic alcoholism.  The physician also notes 
that a 2000 CT scan of the abdomen revealed no evidence of 
cirrhosis.  The physician opined that the medical evidence of 
record did not confirm a hepatitis C diagnosis.  Therefore, 
he was unable to establish a relationship between hepatitis C 
or cirrhosis to the veteran's death, although he acknowledged 
that liver cancer is more common in people who have had 
hepatitis C and cirrhosis.  He also opined that the veteran's 
diabetes mellitus did not contribute to his liver cancer or 
made it worse and hastened the onset of death.

A May 2005 letter from a private physician notes that getting 
a tattoo is a well established risk factor for transmission 
of hepatitis C.  

During her July 2005 travel board hearing before the 
undersigned, the appellant testified that the veteran served 
two tours of duty in Vietnam.  She testified that he had 
diabetes, PTSD and hepatitis C.  She stated that she was with 
the veteran when he was told that he had both liver cancer 
and hepatitis C.  He was given both diagnoses at the same 
time.  She further testified that the veteran did not file a 
claim for diabetes mellitus because he was unaware that it 
was a presumptive condition.  A private physician had told 
the veteran and appellant that he believed the veteran had 
PTSD and she believed that his PTSD played a role in his not 
seeking treatment and in his alcohol consumption.  She 
testified that the veteran got 4 tattoos during his military 
service.  She testified that he did not have any blood 
transfusions in service or use any intravenous drugs.  She 
stated that the hospice nurse who signed the veteran's 
original death certificate and was in attendance at the time 
of his death amended it because the appellant wanted the 
death certificate to reflect the contributing factors.  The 
appellant testified that the nurse reviewed all the records 
before she amended the certificate.  She also testified that 
the veteran was first diagnosed with diabetes in 1993 and 
that his condition progressively worsened, with his later 
development of peripheral neuropathy and cardiac problems.  
He was eventually placed on insulin.  His physicians 
indicated to the appellant that the veteran's general 
physical health was not good enough for him to be a 
transplant candidate.  She testified that the veteran was 
drinking heavily in December 1989 when they married.  She 
stated that his heavy drinking was often triggered by 
nightmares or when he was in a lot of physical pain.  She 
testified that she did not have a lot of medical expenses 
that could be counted to reduce her income.  

Analysis

Accrued Benefits

Upon the death of a veteran, periodic monetary benefits to 
which he or she was entitled at death under existing ratings 
or decisions, or those based on evidence in the file at the 
date of death, due and unpaid for a period of not more than 
two years prior to death, may be paid to certain persons such 
as the veteran's surviving spouse, children, or dependent 
parents.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 
(2005).  Applications for accrued benefits must be filed 
within one year after the date of death.  38 U.S.C.A. 
§ 5121(c); 38 C.F.R. § 3.1000(c).  In order for a claimant to 
be entitled to accrued benefits, the veteran must have had a 
claim pending at the time of death.  See Jones v. West, 136 
F.3d 1296, 1299 (Fed. Cir. 1998).

As noted above, the veteran's claims of entitlement to 
service connection for liver cancer and hepatitis C were the 
only claims pending at the time of his death.  He also 
claimed that both disabilities were the result of in-service 
exposures to Agent Orange, mustard gas, asbestos and ionizing 
radiation.

The Board first notes that the veteran's death certificate, 
the September 2004 VA physician's evaluation report and the 
May 2005 private physician's statement were added to the 
record following his death.  These records may not be 
considered in addressing the accrued benefits claim.  See 38 
C.F.R. § 3.1000(a), (d)(4) (2005).

Service connection may be granted for disability resulting 
from disease or injury incurred or aggravated during active 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 
3.303 (2005).  Service incurrence of liver cancer (except if 
cirrhosis or hepatitis B is indicated) during wartime service 
may be presumed if manifested to a compensable degree within 
one year of the veteran's discharge from service.  38 
U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 
(2005).  

Diseases associated with exposure to certain herbicide agents 
used in support of military operations in the Republic of 
Vietnam during the Vietnam era will be considered to have 
been incurred in service.  38 U.S.C.A. § 1116(a)(1) (West 
2002); 38 C.F.R. § 3.307(a)(6).  The presumption requires 
exposure to an herbicide agent and manifestation of the 
disease to a degree of 10 percent or more within the time 
period specified for each disease.  38 C.F.R. 
§ 3.307(a)(6)(ii).  A veteran who served in Vietnam from 
January 9, 1962 to May 7, 1975 is presumed to have been 
exposed to herbicides, even without diagnosis of a 
presumptive disease, absent affirmative evidence to the 
contrary.  38 U.S.C.A. § 1116(f) (West 2002).

The following diseases are associated with herbicide exposure 
for purposes of the presumption: chloracne or other acneform 
disease consistent with chloracne, Hodgkin's disease, 
multiple myeloma, non-Hodgkin's lymphoma, acute and subacute 
peripheral neuropathy, porphyria cutanea tarda, prostate 
cancer, respiratory cancers (cancer of the lung, bronchus, 
larynx, or trachea), certain soft-tissue sarcomas, and 
Diabetes Mellitus (Type II).  38 U.S.C.A. § 1116(a)(2); 38 
C.F.R. § 3.309(e).  See 38 U.S.C.A. § 1116(b)(1) (permitting 
the Secretary to determine by regulation diseases subject to 
the presumption in addition to those listed at 38 U.S.C.A. § 
1116(a)(2)).

Based on studies by the National Academy of Sciences (NAS), 
the Secretary of the Department of Veterans Affairs 
(Secretary) has determined that a presumption of service 
connection based on exposure to herbicides used in the 
Republic of Vietnam during the Vietnam era is not warranted 
for any condition for which the Secretary has not 
specifically determined a presumption of service connection 
is warranted.  See Notice, 67 Fed. Reg. 42600 (2002).  
Therefore, the veteran's alleged hepatitis C is not presumed 
by law to have been incurred in service as a result of 
herbicide exposure.  38 U.S.C.A. 38 U.S.C.A. § 1116(a)(1); 38 
C.F.R. § 3.307(a)(6).

Exposure to the specified vesicant agents during active 
military service under specified circumstances together with 
the subsequent development of any of the indicated conditions 
is sufficient to establish service connection for that 
condition: (1) Full-body exposure to nitrogen or sulfur 
mustard during active military service together with the 
subsequent development of chronic conjunctivitis, keratitis, 
corneal opacities, scar formation, or the following cancers: 
Nasopharyngeal; laryngeal; lung (except mesothelioma); or 
squamous cell carcinoma of the skin; (2) Full-body exposure 
to nitrogen or sulfur mustard or Lewisite during active 
military service together with the subsequent development of 
a chronic form of laryngitis, bronchitis, emphysema, asthma 
or chronic obstructive pulmonary disease; and (3) Full-body 
exposure to nitrogen mustard during active military service 
together with the subsequent development of acute 
nonlymphocytic leukemia.  38 C.F.R. § 3.316(a).  However, 
service connection will not be established if the claimed 
condition is due to the veteran's own willful misconduct or 
there is affirmative evidence that establishes a non-service-
related supervening condition or event as the cause of the 
claimed condition.  38 C.F.R. § 3.316(b).  

Initially, the Board notes that hepatitis C is not among any 
of the recognized conditions associated with mustard gas or 
other vesicant agents.  38 C.F.R. § 3.316(a).  Moreover, 
there is no evidence that the veteran was exposed to mustard 
gas or other vesicant agents in service.  Therefore, there is 
no presumption of service connection for hepatitis C under 
these provisions.  Id.

Service connection for a condition, claimed to be 
attributable to ionizing radiation exposure during service, 
may be established in one of three ways.  First, the VA has 
identified certain diseases which are presumed to be the 
result of radiation exposure.  Such a presumption, of course, 
must be based upon a finding that the veteran was, in fact, 
exposed to radiation.  38 U.S.C.A. § 1112(c); 38 C.F.R. 
§ 3.309(d).  Second, there are other radiogenic diseases 
which may be service connected directly under the special 
framework set forth in 38 C.F.R. § 3.311.  The list of 
radiogenic diseases, however, is not exclusive.  The veteran 
may provide competent scientific or medical evidence that the 
disease claimed to be the result of radiation exposure is, in 
fact, a radiogenic disease.  38 C.F.R. § 3.311(b)(4).  Third, 
even if the disease in question is not listed in 38 C.F.R. 
§ 3.309 or is not a radiogenic disease under § 3.311, the 
veteran is not foreclosed from proving direct service 
connection by establishing direct actual causation under 38 
U.S.C.A. § 1110 (2005) and 38 C.F.R. § 3.303 (2005).  See 
Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994

When a veteran, who was exposed to ionizing radiation as a 
result of participation in the atmospheric testing of nuclear 
weapons, develops a radiogenic disease, and such disease 
first becomes manifest 5 years or more after exposure, the 
case will be referred to the VA Under Secretary for Benefits 
for consideration.  If any of the foregoing requirements has 
not been met, it shall not be determined that a disease has 
resulted from exposure to ionizing radiation under such 
circumstances.  38 C.F.R. § 3.311.  Hepatitis C is not a 
listed radiogenic disease.

There are no specific statutory or regulatory criteria 
governing claims of entitlement to service connection for 
residuals of asbestos exposure.  McGinty v. Brown, 4 Vet. 
App. 428, 432-33 (1993).  Likewise, applicable criteria 
provide no presumption of service connection for asbestos 
exposure claims.  See Dyment v. West, 13 Vet. App. 141, 145 
(1999) (holding that M21-1 does not create a presumption of 
exposure to asbestos solely from shipboard service).

However, VA has provided guidelines for the adjudication of 
asbestos exposure claims in the Adjudication Procedure Manual 
M21-1 (M21-1), Part VI, Par. 7.21.  The VA General Counsel 
has held that these M21-1 guidelines establish claim 
development procedures which adjudicators are required to 
follow in claims involving asbestos-related diseases.  
VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000).

Specifically, these guidelines provide that VA must determine 
whether military records demonstrate evidence of exposure to 
asbestos in service and whether there is pre- or post-service 
evidence of asbestos exposure.  Then, VA must determine the 
relationship between the claimed diseases and such asbestos 
exposure, keeping in mind latency and exposure information 
provided in M21-1, Part VI, Par. 7.21(b).  This information 
provides that the latency period varies from 10 to 45 years 
between first exposure and development of the disease.  The 
exposure to asbestos may be brief (as little as a month or 
two) or indirect (bystander disease).

VA recognizes that inhalation of asbestos fibers can produce 
fibrosis and tumors.  The most common disease is interstitial 
pulmonary fibrosis (asbestosis).  Asbestos fibers may also 
produce pleural effusions and fibrosis, pleural plaques, 
mesotheliomas of pleura and peritoneum, lung cancer, and 
cancers of the gastrointestinal tract.  Veterans Benefits 
Administration Manual M21-1, part VI, paragraph 7.21(a)(1).

Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status do not constitute competent medical evidence.  
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination, 
the benefit of the doubt is afforded the claimant.  38 
U.S.C.A. § 5107(b).

Prior to his death, the veteran contended that he currently 
had hepatitis C as a result of his in-service exposure to 
herbicides, asbestos, mustard gas and ionizing radiation from 
explosives in Vietnam.  At her July 2005 travel board 
hearing, the appellant contended that the veteran developed 
hepatitis C as a result of tattoos he got while stationed in 
Vietnam.

A review of all the evidence of record at the time of the 
veteran's death reveals that there is no competent medical 
evidence that the veteran had any diagnosed hepatitis C from 
the time of his service until his death.  Although the 
appellant argues that the veteran acquired hepatitis C as a 
result tattoos he acquired in service, there was no objective 
evidence of record of any current diagnosis.  Service 
connection is not in order in the absence of any residuals or 
evidence of a disability currently.  See Brammer v. 
Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, the 
Board finds that the preponderance of the evidence is against 
the claim for service connection for hepatitis C for the 
purposes of accrued benefits.  38 C.F.R. § 3.303.  

While the appellant believes the veteran had hepatitis C as a 
result of his service, she is not competent to provide 
evidence that requires medical knowledge.  Grottveit v. 
Brown, supra.; Espiritu v. Derwinski, supra.  Accordingly, 
the claim for service connection for hepatitis C for the 
purposes of accrued benefits must be denied.

Nonservice-connected Death Pension Benefits

The appellant filed a claim for death pension, and the RO 
denied her claim on the basis of excessive income.  In order 
to receive death pension benefits as a surviving spouse, the 
appellant must be the surviving spouse of a veteran who had 
the requisite wartime service, and her income must be less 
than the statutory maximum rate of death pension.  38 
U.S.C.A. § 1541.  A surviving spouse who meets these 
requirements will be paid the maximum rate of death pension, 
reduced by the amount of her countable income.  38 U.S.C.A. 
§ 1541; 38 C.F.R. § 3.23.  In determining income for this 
purpose, payments of any kind from any source are counted as 
income during the 12-month annualization period in which 
received unless specifically excluded.  38 U.S.C.A. § 1503; 
38 C.F.R. § 3.271.  Exclusions from income include the 
expenses of the veteran's last illness and burial and for the 
veteran's just debts (debts not incurred to secure real or 
personal property), if paid by the appellant.  38 C.F.R. 
§ 3.272(h).  Such expenses may be deducted only for the 12- 
month annualization period in which they were paid.  38 
C.F.R. § 3.272(h).  Exclusions from income do not include 
Social Security disability benefits.  38 C.F.R. § 3.272.

In her application filed in May 2001, the appellant reported 
that her only income consisted of Social Security benefits in 
the monthly amount of $482, and $540 for the couple's minor 
child.  She reported deductible expenses of $3,650 in funeral 
and burial expenses.  Records received from the Social 
Security Administration indicate that the appellant received 
monthly benefits of $532 in April 2001 and that the dependent 
child received monthly benefits of $857.  

For the 12-month period beginning in December 2000, the 
maximum annual rate of pension for a surviving spouse with 
one dependent was $8,507.00.  Effective in December 2001, 
this amount was raised to $8,389.00.  The appellant's monthly 
income of $532 results in an annual income of $6,384, and her 
son's monthly income of $857 results in an annual income of 
$10,284, for a combined income of $16,668.  The combined 
family income, reduced by the amount of the funeral expenses 
paid by the appellant, still leaves $13,018 in annual income, 
which exceeds the maximum allowable rate.

The maximum countable income is set by statute, which the 
Board is not free to disregard.  The relevant facts are not 
in dispute, and it is the law which determines the outcome of 
this case.  The appellant is not entitled to death pension 
benefits because of excess countable income; as a matter of 
law, the claim must be denied.  Sabonis v. Brown, 6 Vet. App. 
426 (1994).


ORDER

Service connection for hepatitis C for accrued benefits 
purposes is denied.

Entitlement to nonservice-connected death pension is denied.


REMAND

In his claim, filed in January 2001, the veteran contended 
that his liver cancer was caused by exposure to ionizing 
radiation, Agent Orange, asbestos, or mustard gas.  He 
contended that he was exposed to ionizing radiation in 
Vietnam from explosive residuals in the air.  

Under the provisions of 38 C.F.R. § 3.3111(a), in all claims 
involving rating exposure other than those based on 
participation in atmospheric nuclear testing or participation 
in the American occupation of Hiroshima or Nagasaki, Japan, 
prior to July 1, 1946, "a request will be made for any 
available records concerning the veteran's exposure to 
radiation.  These records normally include but may not be 
limited to the veteran's Record of Occupational Exposure to 
Ionizing Radiation (DD Form 1141), if maintained, service 
medical records, and other records which may contain 
information pertaining to the veteran's radiation dose in 
service.  All such records will be forwarded to the Under 
Secretary for Health, who will be responsible for preparation 
of a dose estimate, to the extent feasible, based on 
available methodologies."  38 C.F.R. § 3.311(a).

In view of the foregoing, the Board determines that an 
explicit, quantitative dose estimate (even if it is zero) 
should be obtained for the veteran's claimed exposure to 
ionizing radiation while stationed in Vietnam.

The Board finds that the appellant's claims for service 
connection for the cause of the veteran's death and for 
burial benefits are inextricably intertwined with the issue 
of entitlement to service connection for liver cancer for 
purposes of accrued benefits and must be initially considered 
by the RO before further appellate action can be taken on the 
these claims.  See Harris v. Derwinski, 1 Vet. App. 180, 183 
(1991).  Therefore, the appellant's claim for service 
connection for liver cancer for purposes of accrued benefits 
must be resolved prior to further appellate action on these 
issues.  

Accordingly, the case is REMANDED for the following actions:

1.  The claims file must be reviewed to 
ensure that all notice and development 
action required by 38 U.S.C.A. §§ 5103, 
5103A (West 2002), 38 C.F.R. § 3.159 
(2005) and applicable judicial precedent 
are fully complied with and satisfied.  
See 38 C.F.R. § 3.159(b)(1) (2005).

2.  The RO should contact the National 
Personnel Records Center (NPRC) and the 
service department (Navy) to obtain 
copies of all available service personnel 
records, showing the veteran's 
assignments and duties during active duty 
while stationed in Vietnam.  

3.  Thereafter, claims file should be 
forwarded to the VA Under Secretary for 
Health with a request that a quantitative 
estimate of ionizing radiation exposure 
for the veteran be obtained for the 
veteran for his service in Vietnam, in 
view of the veteran's service records and 
his contentions.  This should be an 
explicit estimate, even if it is zero.  
With the dose estimate, any other 
indicated development under the 
provisions of 38 C.F.R. § 3.311 should 
then be undertaken.

4.  Thereafter, the RO should review the 
record and with consideration of all 
evidence added to the record readjudicate 
the claims for service connection for 
liver cancer due to exposure to ionizing 
radiation, Agent Orange, asbestos or 
mustard gas in service, for purposes of 
accrued benefits, service connection for 
the cause of the veteran's death and 
entitlement to burial benefits.  

5.  If the benefits sought on appeal 
remain denied, the RO should issue a 
supplemental statement of the case, and 
the appellant and her representative 
should be provided an opportunity to 
respond.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The appellant need take no action 
unless otherwise notified by VA.  The appellant has the right 
to submit additional evidence and argument on the matter the 
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).


____________________________________________
N. R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs