Citation Nr: 0627079 Decision Date: 08/28/06 Archive Date: 09/06/06 DOCKET NO. 04-38 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) on an accrued basis. 2. Entitlement to an increased disability rating for service-connected anxiety reaction/PTSD on an accrued basis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an accrued basis. 4. Entitlement to service connection for the cause of the veteran's death pursuant to 38 U.S.C. § 1310. 5. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION Procedural history The veteran served on active duty in the United States Navy from March 1944 to August 1945. He died in January 2001. The appellant is the veteran's surviving spouse. This case comes to the Board on appeal of a September 2004 decision in which the RO denied service connection for cause of the veteran's death, entitlement to DIC benefits and entitlement to accrued benefits. This case was previously before the Board in October 2005, when it was remanded so that the RO could issue a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999) [holding that where a notice of disagreement is filed, but a SOC has not been issued, the Board must remand the claim so that a SOC may be issued]. The RO issued a SOC on February 2, 2006. The appellant subsequently perfected her appeal with the timely submission of a substantive appeal. Clarification of issues on appeal Because there was some confusion as to the issues on appeal, in its October 26, 2005 remand, the Board explained in some detail what issued it believed were In appellate status. The Board's remand was calculated to further clarify the matter. The Board agrees with the appellant's attorney that there are three matters on appeal before the Board: entitlement to service connection for the cause of the veteran's death pursuant to 38 U.S.C. § 1310; entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318; and entitlement to accrued benefits. However, because the veteran had three distinct claims pending at the time of his death in January 2001 (service connection for COPD, increased rating for anxiety reaction/PTSD; and TDIU), the Board has divided the accrued benefits claim into three separate issues for the sake of clarity. The three underlying claims by the veteran had already been certified to the Board when the appellant sent notification of the veteran's death to the RO. In March 2001, the Board, obviously unaware of the veteran's then-recent death, dismissed the TDIU claim (due to a lack of filing of a substantive appeal); denied the veteran's claim of entitlement to entitlement to an increased disability rating for service-connected anxiety reaction/PTSD; and remanded the claim of entitlement to service connection for COPD and bronchitis for further evidentiary and procedural development. As a matter of law, veterans' claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Therefore, the March 2001 Board decision is a nullity. FINDINGS OF FACT 1. At the time of the veteran's death in January 2001 there was pending in the RO his claims of entitlement to service connection for pulmonary disability secondary to asbestos exposure, and in increased rating for service connected anxiety reaction/PTSD. 2. The medical and other evidence of record at the time of the veteran's death does not support a finding that a relationship existed between the veteran's COPD and his military service, to include asbestos exposure therein. 3. The medical and other evidence of record at the time of the veteran's death indicates that the veteran's PTSD was manifested by self reported flashbacks, problems with sleeping and hypervigilance, along with anxiety and some difficulty in dealing with others. 4. The veteran was notified by VA on July 24, 1998 that entitlement to TDIU was denied. His notice of disagreement (NOD) was received by VA in June 1999. The RO issued a Statement of the Case (SOC) on August 9, 1999. The veteran did not file a timely substantive appeal as to this issue. 5. The veteran died in January 2001 at the age of 83. The cause of death was pulmonary aspiration due to acute cerebrovascular accident. 6. At the time of the veteran's death, service connection was in effect for anxiety reaction/PTSD, evaluated as 30 percent disabling. 7. The medical evidence of record does not indicate or even suggest that a relationship exists between the veteran's service-connected psychiatric disability and his death. CONCLUSIONS OF LAW 1. The appellant is not eligible for accrued benefits based on the veteran's claim for entitlement to service connection for pulmonary disability secondary to asbestos exposure which was pending at the time of his death. 38 U.S.C.A. §§ 1110, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2005). 2. The appellant is not eligible for accrued benefits based on the veteran's claim for entitlement to an increased disability rating for service-connected anxiety reaction/PTSD which was pending at the time of his death. 38 U.S.C.A. §§ 1155, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.130, Diagnostic Code 9411 (2005). 3. Because there was no claim of entitlement to TDIU pending at the time of the veteran's death, the appellant is not eligible for accrued benefits based on a claim for entitlement to TDIU. 38 U.S.C.A. §§ 5121, 7104, 7105, 7108 (West 2002); 38 C.F.R. §§ 3.1000, 3.2600, 20.200, 20.202, 20.302 (2005). 4. Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2005). 5. The criteria for DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision on the issues on appeal. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). With respect to the accrued benefits claims, accrued benefits include those the veteran was entitled to at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Thus, the appellant could not furnish additional evidence that could be used to substantiate her claim, and VA could not develop additional evidence that would substantiate the claim. The VCAA is therefore not applicable to the accrued benefits claims. See Dela Cruz v. Principi, 15 Vet. App. 143 (2000). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the appellant was informed of the relevant law and regulations pertaining to her claims in a letter from the RO dated June 16, 2004, whereby the appellant was advised of the provisions relating to the VCAA. Crucially, the appellant was advised in the June 2004 VCAA letter that VA is responsible for obtaining relevant records from any Federal agency, including service records, records from SSA and any VA treatment records. With respect to private treatment records, the June 2004 VCAA letter informed the appellant that VA would make reasonable efforts to obtain non-Federal evidence. The June 2004 letter further emphasized: "You must give us enough information about your records so that we can request them from the person or agency that has them. If the holder of the records declines to give us the records or asks for a fee to provide them, we'll notify you of the problem. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis in original]. Finally, the Board notes that the June 2004 VCAA letter specifically requested of the appellant: "If there is any other evidence that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." The Board believes that this request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the appellant that she could submit or identify evidence other than what was specifically requested by the RO. The appellant's attorney has highlighted a number of times that the appellant was not initially provided notice of the VCAA prior to the initial adjudication of her claims, which was by rating decision in August 2003. See, e.g., the October 2004 "VA-9," page 3. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the appellant was provided with VCAA notice through the June 2004 VCAA letter and her claims were readjudicated in the February 2006 SOC, after she was provided with the opportunity to submit evidence and argument in support of her claims and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider her claims on the merits. The appellant's attorney has pointed to no specific prejudice resulting from the timing of the VCAA notice. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. In this case, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of accrued benefits and DIC benefits. In other words, any lack advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. Because as discussed below the Board is denying the appellant's claims, elements (4) and (5) remain moot. In short, the record indicates that the appellant received appropriate notice pursuant to the VCAA. In addition, the appellant is represented by an attorney who is obviously familiar with the provisions of the VCAA. Because of this, and because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The Board finds that reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate her claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In fact, the accrued benefits claims and DIC claims are determined based on evidence that was physically present or constructively present (such as VA treatment records) in the veteran's claims folder when he died. In any event, the claims folder contains the veteran's private treatment records and VA examination reports dated in January 1997, March 1998 and April 2000. Additionally, a VA medical nexus opinion was obtained with respect to the appellant's cause of death claim in September 2004. The reports of these medical examinations reflect that the examiners recorded proper medical histories, conducted proper physical examinations on the veteran prior to his death and rendered appropriate nexus opinions which considered the relevant evidence of record. There is no indication from the appellant or her attorney of any outstanding records. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the appellant's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2005). The appellant has been accorded the opportunity to present evidence and argument in support of her claims. The appellant declined the option of a personal hearing in her February 2006 substantive appeal. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. 1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) on an accrued basis. Relevant law and regulations Accrued benefits The law and regulation governing claims for accrued benefits state that, upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2005); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). [The Board also notes in passing that 38 U.S.C.A. § 5121(a) was amended effective December 16, 2003, to remove the two year limitation on the receipt of accrued benefits. The amendment to 38 U.S.C.A. § 5121(a) is only effective, however, for deaths occurring on or after December 16, 2003, and is thus inapplicable to the appellant's claim. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003).] Although the appellant's claim for accrued benefits that is at issue in this appeal is separate from the claim of the veteran filed prior to his death, the accrued benefits claim is "derivative of" the claim of the veteran and, by statute, the appellant takes the veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as VA treatment records) in the veteran's claims folder when he died. See 38 U.S.C.A. § 5121(a) (West 2002); see also Ralston v. West, 13 Vet. App. 108, 113 (1999). Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis At the time of the veteran's death in January 2001, pending before the RO was his claim of entitlement to service connection for pulmonary disability, claimed as due to asbestos exposure. After the veteran's demise, the appellant filed a timely accrued benefits claim. See 38 C.F.R. § 3.1000 (2005). The evidence of record at the time of the veteran's death included his service medical records, a VA examination report dated in January 1997, a March 1998 opinion by a VA medical advisor to the rating board, and VA and private treatment records. This includes all records considered to be constructively present in the claims folder. See Ralston, supra; see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As noted above, in order for service connection to be granted there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Hickson, supra. With respect to Hickson element (1), current disability, the veteran's January 1997 VA examination report confirms a diagnosis of chronic obstructive pulmonary disease (COPD). Element (1) has therefore been satisfied. Moving to element (2), in-service incurrence of disease or injury, the Board will separately address disease and injury. With respect to in-service disease, the veteran's service medical records are negative for a diagnosis of respiratory disability. The veteran was recommended for discharge due to an anxiety disorder; a hospitalization discharge report in conjunction with such dated in June 1945 was negative for complaints, diagnosis or treatment of respiratory disorder. With respect to in-service injury, the alleged injury is exposure to asbestos in service. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The veteran's service records indicate that he served in US Navy and his military occupational specialty (MOS) was "Fireman First Class." Taking into consideration the veteran's MOS and in-service activities, the Board concludes that the veteran was exposed to asbestos in service, thus satisfying Hickson element (2). See McGinty, supra. With respect to crucial Hickson element (3), medical nexus, resolution of this issue requires competent medical evidence, which can be provided neither by the Board or by the appellant. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions] and Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2005) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, consistent with Colvin, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The VA examiner in January 1997 initially noted that the veteran's COPD was "probably secondary to asbestos exposure." However, in a signed addendum the next day, the examiner indicated he was "unable to relate [the COPD] to asbestos exposure." Perhaps because of the ambiguity of the January 1997 report, the RO sought an opinion from a medical advisor in March 1998. The medical advisor noted a lack of findings with respect to the lungs for decades post-service. The medical advisor cited to chest X-rays dated from 1986 to 1997 which were negative for "distinctive findings recognized as compatible with asbestos related abnormalities." His ultimate conclusion was that there was no causal relationship between the veteran's COPD and asbestos exposure in service. The appellant's attorney has contended that certain post- service medical evidence is in fact indicative of pulmonary problems, thus raising the matter of continuity of symptomatology, 38 C.F.R. § 3.303(b) (2005). See the February 2006 "In Lieu of VA Form 9" document, page 4. The attorney specifically noted that the veteran complained of shortness of breath in October 1947 and April 1949. However, no diagnosis of a respiratory disorder was made at those times, or for many years after service. In essence, the attorney is rendering a medical diagnosis, which he is not competent to do. See Espiritu, supra. Also of record is the opinion of an April 2000 VA psychiatric examiner, which was for the purpose of evaluating the veteran's service-connected psychiatric disability. In pertinent part, the psychiatric examiner stated: "[The veteran] claims that he was exposed [to] and inhaled asbestos fibers while he was in the military service, which I believe is true because of his severely restrictive and obstructive pulmonary condition." The Board must consider this evidence. The April 2000 psychiatric examiner, although not an expert in pulmonary medicine, was in fact a M.D. See Goss v. Brown, 9 Vet. App. 109 (1996) [to qualify as an expert, a person need not be licensed to practice medicine, but just have special knowledge and skill in diagnosing and treating human ailments]; see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board considers the April 2000 opinion to carry little weight of probative value. The VA psychiatrist was not, in fact, a specialist in pulmonary diseases. In determining the probative weight to be assigned to a medical opinion, the Board must consider factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In addition, the psychiatrist's comment was evidently based on the veteran's own self report, which appears to have discounted or ignored his significant history of cigarette smoking (80 pack years as of a November 1986 hospital report). It does not appear that the psychiatric examiner's opinion was informed either by a review of his medical records or physical examination of X-rays of the veteran. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court, citing its decisions in Swann and Reonal, recently reaffirmed that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. In addition, the psychiatric examiner then evidently had second thoughts about his opinion concerning pulmonary disease. He went on to say: "Medical evaluations should be undertaken to reassess to hat extent the asbestos filter inhalation has caused his concurrent [sic] obstructive and restrictive pulmonary disease." The Court has held that medical evidence is inconclusive in nature cannot support a claim. See, e.g., Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In short, the opinion of the psychiatrist is entitled to little weight of probative value. The 1997 and 1998 opinions are entitled to far greater weight. Accordingly, despite the contentions of the appellant's attorney to the contrary (see the February 2006 "In Lieu of VA Form 9," page 4), there are of record are two medical opinions against the claim and one speculative opinion that is not probative which is arguably in favor. Such does not allow for satisfaction of Hickson element (3). The appellant's attorney does not point to a specific opinion in support of the appellant's claim, but instead focuses on the fact that the January 1997 VA examiner initially found a positive nexus but subsequently changed his opinion. See the May 1998 substantive appeal. However, the January 1997 addendum is clearly against the claim. The examiner's initial opinion is speculative (note the use of the word "probably") and in any event was clearly discarded on second thought by the examiner. Even if the January 1997 opinion was ignored (which the Board will not do) the claim would fail based on the negative March 1998 opinion of the VA medical advisor. Conclusion In short, the preponderance of the competent and probative evidence of record at the time of the veteran's death indicates that the veteran's COPD was not related to asbestos exposure in service. Accordingly, Hickson element (3), medical nexus, has not been satisfied, and the appellant's claim fails on that basis. Consequently, the appellant's claim for entitlement to service connection for a pulmonary disorder for accrued benefits purposes is denied. Contrary to the assertions of the appellant's attorney, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. 2. Entitlement to an increased disability rating for service-connected anxiety reaction/PTSD on an accrued basis. Relevant law and regulations Accrued benefits The law and regulations pertinent to accrued benefits are detailed above and need not be repeated. Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2005). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Specific rating criteria PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: 100% Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70% Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50% Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 30% Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2005). The Board observes that the same rating criteria were in effect at the time of the veteran's death in January 2001. Global Assessment of Functioning Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. Analysis At the time of the veteran's death in January 2001, pending before the Board was the issue of entitlement to an increased disability rating for service-connected anxiety reaction/PTSD, which was rated as 30 percent disabling. The evidence of record at the time of the veteran's death included a VA examination reports dated in February 1997 and April 2000. This includes all records considered to be constructively present in the claims folder. See Ralston and Bell, supra. Schedular rating A careful review of the medical evidence of record leads to a conclusion that the veteran did not manifest symptoms which would warrant a disability rating higher than 30 percent under Diagnostic Code 9411. The only pertinent evidence of record is contained in the reports of the VA examinations in 1997 and 2000. It does not appear that the veteran was receiving any ongoing medical treatment for his psychiatric disability. To the extent that the appellant is contending that the veteran's service- connected psychiatric disability was more severe than was recognized by VA, this lack of any treatment is arguably evidence against the claim. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. With respect to the criteria for the 50 percent level, while the February 1997 VA examiner did find "some obvious restriction of affect" although he did not specifically indicate that that affect was flattened. In any event, it appears any problems with affect had resolved by time of the April 2000 VA examination, as no findings pertaining to affect were made at that time. Additionally, though the veteran was noted to have answered questions "somewhat passively, and did not provide a lot of descriptive material unless specifically requested," the February 1997 VA examiner did not determine that the veteran's speech was circumstantial, circumlocutory or stereotyped. The April 2000 VA examiner described the veteran as "clear and coherent". With respect to panic attacks more than once a week, although the February 1997 VA examiner noted "some muscle tension, restlessness . . . sweaty clammy hands, dry mouth and a feeling of being keyed up," he did not indicate that the veteran experienced actual panic attacks more than once per week. Additionally, the April 2000 VA examiner made no findings as to panic attacks. He noted that the veteran appeared "ill at ease," but attributed such to his declining health due to respiratory problems. The evidence further shows the veteran had little or no difficulty in understanding complex commands, that his memory is impaired or that he exhibits impaired judgment. Specifically, the February 1997 VA examiner noted that the veteran "was able to pursue a goal idea successfully and was able to do abstractions without obvious impairment." Additionally, the February 1997 VA examiner stated that the veteran's memory "showed no obvious impairment and was consistent with a person of his age." The April 2000 VA examiner found that the veteran to have "adequate recall of remote and recent events, age-appropriate memory and recall and adequate attention and concentration . . . . his insight and judgment are intact." The examiner also noted that the veteran was well-groomed and oriented. With respect to disturbances of motivation and mood, the April 2000 VA examiner indicated that the veteran evidenced an "anxious mood." Anxiety is however, one of the criteria for the assignment of the 30 percent rating which had been assigned to the veteran. With respect to difficulty in establishing and maintaining effective work and social relationships, the February 1997 VA examiner noted that with respect to employment, "he has chosen to do things that take him away from interaction with people to provide a more insulated and solitary kind of occupational situation that he can more adequately tolerate." The examiner noted that the veteran's symptomatology had "persisted up to the present day to a moderate to severe degree impacting both on interpersonal relationships as well as employment." The February 1997 VA examiner also stated that veteran's "active psychological disorder has interfered with his ability to carry out normal interpersonal relationships due to his restriction of affect and also his tendency to be retiring and to avoid stress." The April 2000 VA examiner added that the veteran's psychiatric problems were "severe enough to affect his day to day activities," but did not comment further as to what extent. However, the April 2000 VA examiner also noted the veteran had continuous employment until 1993, when he was 75 years old. Thus, there is competent medical evidence of some difficulty in establishing and maintaining effective work and social relationships in the evidence of record. However, this is only one of the nine criteria for a 50 percent disability rating under 38 C.F.R. § 4.130. When viewed in light of the schedular criteria, the service-connected psychiatric pathology more closely approximates that which calls for the assignment of a 30 rating. See 38 C.F.R. § 4.7. Indeed, the symptoms described in the record match almost precisely the criteria for the 30 percent rating which was in fact assigned [depressed mood, anxiety, but generally functioning satisfactorily, with routine behavior, self-care, and conversation normal]. The Board additionally observes, as it did in the law and regulations section above, that a GAF score of 60, the score which was assigned in April 2000, is indicative of mild to moderate difficulties in establishing and maintaining effective social relationships. This GAF score appears to be congruent with the veteran's reported symptoms, and it is also congruent with the veteran's 30 percent rating. [No GAF score was assigned in 1997.] The Board further notes that its inquiry is not necessarily strictly limited to the criteria found in the VA rating schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) [the criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating]. However, the Board has identified no symptomatology or other aspect of the veteran's service-connected anxiety reaction/PTSD which would enable it to conclude that the majority of the criteria for a 50 percent rating were approximated, and the appellant and her attorney have pointed to no such pathology. The evidence of record also does not indicate that the veteran meets the criteria for a 70 percent disability rating. Specifically, the veteran denied suicidal thoughts during both VA examinations, and the February 1997 VA examiner specifically found that the veteran "did not appear to have prominent obsessive-compulsive symptomatology." Nor is there evidence of illogical, obscure or irrelevant speech or near-continuous panic, as detailed above. Neither VA examiner found evidence of spatial disorientation, and the evidence shows the veteran maintains his personal appearance and hygiene. There is also no evidence of impaired impulse control. That the veteran had difficulty in adapting to stressful circumstances is evidenced in the record, but neither examiner found that the veteran had a complete inability to establish or maintain effective relationships. Therefore, the evidence of record does not support a conclusion that the veteran has met the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130. Similarly, the record indicates that the veteran has not suffered total occupational and social impairment as would be required for the 100 percent disability rating. There is no evidence of gross impairment to thought processes and communication, persistent delusions or hallucinations or grossly inappropriate behavior. Nor is there a persistent danger of the veteran hurting himself or others, a disorientation to time or place, memory loss or inability to perform activities of daily living. The evidence of record thus demonstrates that the veteran's PTSD is manifested by self reported flashbacks, problems with sleeping and hypervigilance, along with anxiety and some difficulty in dealing with others. While in no way minimizing the effects of the veteran's PTSD, for reasons stated above the Board believes that such symptomatology fits squarely within the criteria for a 30 percent rating. Extraschedular rating The Board notes in passing that neither the appellant or her attorney has in connection with this appeal indicated, nor presented evidence to support the premise, that the veteran's service-connected anxiety reaction/PTSD resulted in marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (2005) [extraschedular rating criteria]. Accordingly, in the absence of the matter being raised by the appellant or adjudicated by the RO, the Board will not address the veteran's entitlement to an extraschedular rating. See Bernard v. Brown, 4 Vet. App. 384 (1993). Conclusion In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the claim of entitlement to an increased disability rating for service-connected anxiety reaction/PTSD on an accrued basis. Consequently, the appellant's claim for entitlement to an increased disability rating for service-connected anxiety reaction/PTSD for accrued benefits purposes is denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an accrued basis. Relevant law and regulations Accrued benefits The law and regulations pertinent to accrued benefits are detailed above and need not be repeated. Perfecting an appeal to the Board Appellate review is initiated by the filing of a notice of disagreement (NOD) and is completed by the filing of a substantive appeal after a statement of the case (SOC) has been furnished. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201 (2005). In order to perfect an appeal to the Board, a claimant must file a substantive appeal, which consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202 (2005). Jurisdiction over an issue does not vest in the Board until an appeal to the Board has been properly perfected by the timely filing of an adequate substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (2005). The NOD must be filed within one year from the date that the RO mails notice of the determination. The date of mailing of the notification is presumed to be the same as the date of the letter. See 38 C.F.R. § 20.302(a). The substantive appeal must be filed within sixty days from the date that the RO mails the SOC to the appellant, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the statement of the case for purposes of determining whether an appeal has been timely filed. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). Analysis Review of the claims folder shows that the veteran filed an application for TDIU (VA Form 21-8940) in May 1998. His claim of entitlement to TDIU was denied by the RO in July 1998. The veteran was provided notice of this denial on July 24, 1998. A NOD was received in June 1999. This is within the one year period provided in 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.302. A SOC was mailed to the veteran at his most recent address of record on August 9, 1999. In the transmittal letter provided with the SOC, the veteran was advised the instructions accompanying the enclosed Form 9 would tell him how long he had to perfect his appeal [within 60 days of the date of the SOC, or within the remainder, if any, of the one-year period from the date of the letter notifying him of the adverse action to perfect an appeal of that issue; effectively, within 60 days after August 9, 1999]. The veteran had until October 9, 1999, or 60 days after the issuance of the SOC, to submit his substantive appeal. No substantive appeal was received at the RO by that date. The veteran's attorney submitted a document on October 21, 1999 concerning the veteran's claims for entitlement to service connection for COPD and entitlement to an increased disability rating for anxiety reaction/PTSD. That communication failed to mention the TDIU claim. Even the most liberal reading of this document would not satisfy the criteria for a substantive appeal. In any event, the communication from the attorney was received 12 days past the deadline to file a substantive appeal for entitlement to TDIU. Thus, a substantive appeal was not timely filed as to the TDIU claim. The July 1988 RO rating action became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Therefore, the veteran's May 1998 claim of entitlement to TDIU was not pending before the Board at the time of his death, and the appellant is not entitled to accrued benefits for TDIU. The appellant's attorney acknowledged in a November 2000 statement that "[the veteran] did not file a timely VA-9 with the denial of TDIU." He then went on to point out that the initial adjudication of the TDIU claim was labeled as a "SSOC" rather than a rating decision. This hardly makes the veteran's claim non-final at the time of his death. Although the July 1998 denial of TDIU was labeled as a SSOC, review thereof indicates that it constitutes a clearly-stated initial denial of TDIU. The veteran's attorney (who is the same attorney who is now representing the appellant) clearly took it for what it was, a denial of TDIU, an duly filed a NOD. A NOD was indeed filed in June 1999, as was noted by the Board above. The RO thereupon issued a SOC, but the veteran did not timely file a substantive appeal. The fact that the initial adjudication by the RO of the TDIU claim was labeled as a "SSOC" rather than as a rating decision hardly changes the outcome. The July 1998 document was a "determination made by the agency of original jurisdiction," and was thus subject to appeal. See 38 C.F.R. § 19.34 (2005). The fact that the veteran's (the appellant's) attorney filed a NOD in response to the June 1998 SSOC demonstrates his acknowledgement of that document as an appealable determination made by the RO. The appellant and her attorney have cited to no legal authority to support the proposition that the July 1998 decision somehow was a nullity and the May 1998 claim somehow remained viable at the time of the veteran's death. The appellant's attorney also states that since the veteran first raised the issue of entitlement to TDIU in a NOD to a March 1997 rating decision which denied his increased rating and service connection claims, he in essence perfected an appeal of the TDIU issue when he completed his appeal as to the other two issues in May 1998. See the November 2000 statement. The appellant's attorney has cited to no legal proposition to buttress this theory. This argument is also meritless. The TDIU issue had not been even been adjudicated by the RO in May 1998, so an appeal of such non-existent decision was impossible. Moreover, the substantive appeal, filed at the RO on May 20, 1998, referred specifically to the issues of an increased rating for the psychiatric disability and service connection for the pulmonary disability and did not reference TDIU. The veteran separately filed his TDIU claim a day later, on May 21, 1998. There are separate cover letters from the attorney, dated May 18, 1998 as to the substantive appeal and May 19, 1998 as to the TDIU claim. In short, the appeal as to the other two issues serves in no way to preserve the TDIU claim, which in fact was not even received at the RO until after the appeal was filed. The Board has carefully reviewed the record in order to determine whether any other communication by or on behalf of the veteran constitutes an adequate substantive appeal under the pertinent law and regulations. The Board has identified no such communication, and the appellant has pointed to none. Similarly, the Board has searched the record to see if there is any other communication by or on behalf of the veteran which could be considered to be a claim for TDIU which was pending at the time of his death. Again, the appellant has identified no such claim. Conclusion The formality of perfecting a timely appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a notice of disagreement and a formal appeal. See Roy v. Brown, 5 Vet. App. 554 (1993). Because the veteran failed to perfect an appeal of his claim of entitlement to TDIU, it cannot be considered to have been "pending" at the time of his death. Thus, there is no legal basis for entitlement to TDIU on an accrued basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) [in a case where the law and not the evidence is dispositive, a claim must be denied because of the absence of legal merit or the lack of entitlement under the law]. The benefit sought on appeal is accordingly denied. 4. Entitlement to service connection for the cause of the veteran's death. Relevant law and regulations Service connection -- in general The law and regulations pertaining to service connection in general are detailed above and need not be repeated. Service connection - cause of death In order to establish service connection for the cause of the veteran's death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2005). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2005). The service-connected disability will be considered as the principal (primary) 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. 38 C.F.R. § 3.312(b) (2005). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2005); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, 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. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2005). 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 disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3) (2005). Analysis The appellant seeks service connection for the cause of the veteran's death. In substance, she contends that a service- connected disability somehow caused or contributed to the cause of his death. The appellant's main contention is that the veteran's exposure to asbestos in service was somehow responsible for his death. This contention mirrors the first issue adjudicated on appeal. In other words, the appellant believes that the veteran's in-service asbestos exposure led to his development of COPD, which eventually caused his death. The appellant's attorney argues that entitlement to service connection for COPD should be awarded on an accrued basis, which would then allow for entitlement to service connection for the cause of the veteran's death. See the February 2006 substantive appeal, pages 5-6. The Board has already determined that entitlement to service connection for COPD on an accrued basis is not warranted. It made a finding above, based on the evidence of record at the time of the veteran's death that the veteran's asbestos exposure in service did not cause his COPD. For the sake of brevity, the Board will not duplicate its prior discussion of this issue. There has, however, been added to the record additional evidence since the veteran's death which could not be considered in connection with the accrued benefits claims. See Ralston, supra. Most significantly, a September 2004 VA reviewer drew the same conclusion as the March 1998 medical advisor, noting that the veteran "seems to have been exposed to asbestos while in the Navy, but there is no evidence that it caused any pulmonary disease in this patient." Instead, the September 2004 VA reviewer stated the veteran's COPD was secondary to cigarette smoking. The examiner concluded that "asbestos exposure is unlikely to have caused the obstructive lung disease." persuasive to this claim. There is no competent medical evidence to the contrary. The appellant's attorney submitted medical treatise evidence containing the unremarkable proposition that asbestos exposure can cause pulmonary/respiratory disease. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, as detailed above the Court has held that medical evidence is speculative, general or inconclusive in nature cannot support a claim. See Beausoleil, supra. To the extent that there is evidence supporting the general premise that asbestos exposure may lead to pulmonary/respiratory problems, it is of little probative value, particularly in light of competent medical evidence specific to this veteran showing that his COPD was unrelated to asbestos exposure in service. To the extent that the appellant and her attorney contend that a medical relationship exists between COPD and asbestos exposure in service, and/or that continuous pulmonary symptomatology existed after service, their opinions are entitled to no weight of probative value. See Espiritu, supra; see also Voerth v. West, 13 Vet. App. 117, 119 (1999). Any such statements offered in support of the claim does not constitute competent medical evidence and cannot be accepted by the Board. See also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The only evidence which is in the appellant's favor, aside from her own contentions, is the recanted portion of the January 1997 examination report which initially noted that the veteran's COPD was "probably secondary to asbestos exposure". However, that opinion was withdrawn by the examiner, who appears to have taken the opposite position. Crucially, two reviewing VA physicians, in 1998 and in 2004, concluded that no relationship existed between the veteran's military service, specifically asbestos exposure, and his death. The appellant has been accorded ample opportunity to provide crucial medical nexus evidence. She has not done so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. Accordingly, the preponderance of the competent medical evidence indicates that the veteran's in-service asbestos exposure is not related to his death. Conclusion In short, there is no competent medical evidence which supports the appellant's contentions to the effect that any of the veteran's in-service asbestos exposure caused or contributed to the cause of his death. A preponderance of the evidence is therefore against the claim. Element (3) has not been met, and the appellant's claim fails on that basis. The benefit sought on appeal is accordingly denied. Additional comments Though neither the appellant or her attorney has raised the issue, for the sake of completeness the Board will briefly address the matter of the relationship, if any, between the veteran's service-connected psychiatric disability and his death. The death certificate does not refer to the veteran's service-connected psychiatric disability, and the record does not in any way suggest that this disability was in any way responsible for his death. The death certificate is competent medical evidence against the claim. See Forshey, supra. As alluded to above, the medical evidence suggests that the veteran's COPD was related to his long history of smoking. The appellant has not suggested that The veteran's tobacco use is related to his military served. In any event, the award of VA benefits based on death or disability caused by tobacco use is specifically prohibited by law. See 38 U.S.C.A. § 1103 (West 2002). 5. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. Relevant law and regulations Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service-connected, even though the veteran died of non-service-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. See 38 U.S.C.A. § 1318 (West 2002). In January 2000, prior to the veteran's death and the appellant's DIC claims, VA amended 38 C.F.R. § 3.22 (the implementing regulation for 38 U.S.C.A. § 1318) to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for clear and unmistakable error (CUE) in the adjudication of a claim or claims. Accordingly, as amended, the regulation specifically prohibited "hypothetical entitlement" as an additional basis for establishing eligibility to DIC benefits. See 65 Fed. Reg. 3,388 (Jan. 21, 2000). In August 2001, VA suspended the adjudication of claims for DIC benefits under the provisions of 38 U.S.C.A. § 1318, due to a temporary stay on the adjudication of such claims that was imposed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in National Organization of Veterans' Advocates, Inc., v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001). In that decision, the Federal Circuit directed the Department to conduct expedited rulemaking which would either explain why certain regulations-- 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106 -- were inconsistent or revise the regulations so that they are consistent. The Department then revised 38 C.F.R. § 20.1106 to bring it into conformity with 38 C.F.R. § 3.22. In an order issued January 10, 2003, the Federal Circuit lifted the stay on adjudication of 38 U.S.C.A. § 1318 claims, unless the claim was based on the receipt of new and material evidence. Because the appellant's claim does not involve the submission of new and material evidence, the Board may now proceed to adjudicate her DIC claim. Analysis The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318. Neither the appellant nor her attorney have made any specific contentions as to why she is entitled to DIC benefits under section 1318. In order for DIC benefits to be awarded to the appellant under the provisions of 38 U.S.C.A. § 1318, it must be established that the veteran received or was entitled to receive compensation for a service-connected disability at the rate of 100 percent for a period of 10 years immediately preceding his death. [It is undisputed that the veteran was not a former prisoner of war and was not continuously rated totally disabling for a period of not less than five years from the date of his discharge from active duty, which was in 1953, so those parts of § 1318 are clearly not applicable.] The Federal Circuit has held that VA could properly construe the "entitle to receive" language of 38 U.S.C.A. § 1318 to bar the filing of new claims, i.e., "hypothetical entitlement" claims, in which no claim was filed during the veteran's lifetime or where a claim had been denied and was not subject to reopening. Thus, under VA regulations the term "entitled to receive" means that at the time of his or her death a veteran had service-connected disability rated as totally disabling but was not receiving compensation because of one of the stated reasons shown in the regulation. According to 38 C.F.R. § 3.22, the appellant cannot establish entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 by showing "hypothetical" entitlement. See also National Organization of Veterans' Advocates, Inc., v. Secretary of Veterans Affairs, 314 F. 3d 1373 (Fed. Cir 2003). The evidence of record at the time of the veteran's death shows that he had established service connection for anxiety reaction, evaluated as 30 percent disabling from November 7, 1996. This was the veteran's only service-connected disability. Hence, the veteran was not in receipt of a total disability rating as required under 38 U.S.C.A. § 1318(b). Therefore, the appellant is not eligible for DIC benefits under § 1318(b) on the grounds that the veteran had actually been in receipt of, or actually established entitlement to, a total rating for 10 years prior to his death. The evidence clearly indicates that he was not. See 38 C.F.R. § 3.22 (2005). The Board must address the question of whether the veteran was "entitled to receive" compensation for service- connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death. According to the only subsection of 38 C.F.R. § 3.22 potentially applicable in this case (because the other subsections of the regulation involve other circumstances inapplicable here such as the withholding or waiver of payment), "entitled to receive" means that, at the time of death, the veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of disability evaluation or effective date. See 38 C.F.R. § 3.22(b)(3) (2005). In this case, there is no specific contention in the record that any rating decision addressing the evaluation of the veteran's service-connected disability was clearly and unmistakably erroneous. As for the veteran's pending claim of entitlement to service connection for COPD, such has already been discussed in the Board's denial of accrued benefits, above. The appellant attorney's sole argument is that a TDIU claim was also pending at the time of the veteran's death, but as discussed above that contention has already been discounted by the Board. Accordingly, there is no evidence that the veteran qualified for a total disability rating at the time of his death, let alone for 10 continuous years prior thereto. Conclusion In short, as the veteran was not rated by VA as totally disabled for a continuous period of at least 10 years immediately preceding his death, or for five years following discharge from service, see 38 U.S.C.A. § 1318(b), there is no legal basis for entitlement to DIC under 38 U.S.C.A. § 1318. See Sabonis, supra. ORDER Entitlement to service connection for COPD on an accrued basis is denied. Entitlement to an increased disability rating for anxiety reaction/PTSD on an accrued basis is denied. Entitlement to TDIU on an accrued basis is denied. Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs