Citation Nr: 0814157 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-03 085A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the appellant's claim for entitlement to service connection for the cause of the veteran's death. 2. Whether new and material evidence has been submitted sufficient to reopen the appellant's claim for entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318. 3. Entitlement to service connection for a knee disability, for accrued benefits purposes. 4. Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD), on appeal from an initial grant of service connection, for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran has honorable service in the US Army from August 1966 to November 1968. He passed away on December [redacted], 1996. The appellant is the veteran's widow. This case comes before the Board on appeal from a rating decision of January 2003, which denied entitlement to service connection for the cause of the veteran's death and for Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. The matter was adjudicated by the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. The issues involving accrued benefits are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant is further action is required on the part of the appellant. FINDINGS OF FACT 1. The VA has fulfilled, to the extent possible, its notice and duty to assist duties to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issues addressed in this decision. 2. The veteran died in December 1996; the Certificate of Death listed the causes of the veteran's death to be pulmonary edema, hypertrophic cardiomyopathy, and cocaine abuse. 3. At the time of death, the veteran was service-connected for post-traumatic stress disorder, the residuals of a shell fragment wound to the left foot, the residuals of a shell fragment wound to the left lateral thigh, the residuals of a shell fragment wound to the left leg, the residuals of a shell fragment wound of the right foot, the residuals of a shell fragment wound of the right medial thigh, the residuals of a shell fragment wound of the right leg, and the residuals of a shell fragment wound of the left buttock. The combined disability evaluation was 90 percent. He was in receipt of a total disability evaluation based on individual unemployability. 4. Entitlement to service connection for the cause of the veteran's death and entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318 was denied by the RO in a rating decision issued in February 1997. 5. The evidence received subsequent to the February 1997 RO rating action includes medical treatment records, a VA examination report, written statements made by the veteran, and other documents in support of the appellant's assertions. This evidence does raise a reasonable possibility of substantiating the appellant's claim for entitlement to service connection for the cause of the veteran's death and entitlement to DIC benefits pursuant to38 U.S.C.A § 1318. 6. Competent medical evidence establishing a nexus between the cause of the veteran's death and service or showing that the veteran's service-connected disabilities substantially or materially contributed to the cause of his death has not been presented. 7. The veteran was not evaluated as totally disabled from service-connected disabilities for ten continuous years immediately preceding death nor was he rated totally disabled continuously after his last discharge from service in November 1968 for a period of not less than five years immediately preceding death. CONCLUSIONS OF LAW 1. The February 1997 RO decision denying entitlement to service connection for the cause of the veteran's death and entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318 is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. New and material evidence has been submitted, and the claim of entitlement to service connection for the cause of the veteran's death and entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318 has been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (a) (2007). 3. Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1310, 3500 et seq., 5103 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.312, 3.807 (2007). 4. The criteria for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.22, 20.1106 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) became effective in November 2000. This liberalizing legislation is applicable to all claims for VA benefits, to include claims to reopen previously denied claims of service connection. Besides eliminating the requirement that a claimant submit evidence of a well- grounded claim, it provides that VA will assist the claimant in obtaining evidence necessary to substantiate a claim. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of information required to substantiate a claim. The VCAA also provides for a broader VA obligation to obtain relevant records and advise a claimant of the status of those efforts, although the ultimate responsibility for furnishing evidence rests with the claimant. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(c) (2007). In August 2001, VA issued regulations to implement the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007)). The amendments, which apply only to claims governed by Part 3 of the Code of Federal Regulations, were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which was made effective August 29, 2001. Special provisions apply to claims to reopen finally adjudicated claims filed after November 9, 2000, and provide in some circumstances for VA to obtain additional service department evidence or medical records. The Board acknowledges that the implementing regulations modify the definition of new and material evidence and provide for assistance to a claimant on claims to reopen. 38 C.F.R. §§ 3.156(a), 3.159(c) (2007). Because the appellant's request to reopen the previously denied claim of entitlement to service connection for the cause of the veteran's death and entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 was received in January 2002, these regulatory provisions apply. The Board observes, however, that the VCAA appears to have left intact the requirement that a claimant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 (West 2002). It is specifically noted that nothing in the VCAA shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2006). Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case with respect to the issue of whether new and material evidence has been received to reopen the appellant's claim for entitlement to service connection for the cause of the veteran's death and entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the appellant's claim. This is so because the Board is taking action favorable to the appellant in reopening her claim for entitlement to service connection for the cause of the veteran's death and entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318, and the decision, at this point, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Following the veteran's death in December 1996, the appellant submitted a claim for benefits to the VA. She specifically asked that service connection be granted for the cause of the veteran's death and that DIC benefits pursuant to 38 U.S.C.A. § 1318 be paid to her. The RO reviewed the appellant's claim and in February 1997, the RO issued a decision on the merits of her claim. Specifically, the RO found that the veteran's death was not due a service-connected disability, and as such, service connection could not be granted. Additionally, because the veteran's total disability evaluation had not been effect for 10 or more years at the time of his death, DIC benefits could not be granted. The appellant was notified of this decision but she did not appeal. Hence, that decision became final. In October 2001, the appellant requested that her claim be reopened. She submitted additional documents concerning the veteran's health prior to his death. She also provided statements concerning the veteran's various service-connected disabilities and how they affected his daily life. The appellant's file was reviewed and in January 2003, the RO concluded that the appellant had not submitted new and material evidence sufficient to reopen her claim. The appellant was notified and she has appealed to the Board for review. As noted above, the claim has been the subject of an adverse prior final decision. As a result, this claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). For claims to reopen filed on or after August 29, 2001, evidence is considered "new" if it was not previously submitted to agency decision makers. Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (Applicability Dates); 38 C.F.R. § 3.156(a) (2007). "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court), has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claims as in this case dealing with claims for service connection. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. As reported above, a February 1997 rating decision denied the appellant's claim seeking entitlement to service connection for the cause of the veteran's death and entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318. The basis for the denial was that the veteran's service-connected disabilities and disorders did not cause the veteran's death. Moreover, since the veteran was not in receipt of a 100 percent rating for a period of 10 years, DIC benefits could not be paid to the appellant. The appellant was notified of that decision but she did not perfect her appeal; hence, it became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). When the RO denied the appellant's claim, it based its decision on the veteran's service medical records, the appellant's application for benefits, and the Certificate of Death of the veteran. In making its decision, the RO concluded that there was no evidence showing that the veteran had died due to or the result of or caused by his service- connected disabilities. It was further determined that since the veteran was not in receipt of a 100 percent rating for a period of 10 years or more, DIC benefits could not be granted to the appellant. Since then, the appellant has submitted written statements, she has proffered additional medical records concerning the veteran's death and the treatment he received prior to his demise, and the RO has obtained a medical opinion concerning the effect of the veteran's multiple service-connected disabilities on his overall well- being. This evidence is new. It was not of record prior to February 1997. This evidence is material because it does possibly substantiate a previously unestablished fact. The evidence does suggest and insinuate that as a result of his service- connected disabilities, the veteran self-medicated in order to cope with the pain and distress caused by his multiple disabilities. It was this self-medication that ultimately caused his death. Hence, it is the conclusion of the Board that this evidence is material because it does relate to a previously unestablished fact necessary to substantiate the claim. Accordingly, the Board concludes that the appellant has submitted evidence that is new and material, and the claim seeking entitlement to service connection for the cause of the veteran's death and entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is reopened. Since the claim is reopened, the Board must address the merits of the appellant's claim. However, the Board must discuss the applicability of the VCAA with respect to the two issues that have been reopened. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). VA satisfied its duty to notify by means of a December 2001 letter from the agency of original jurisdiction (AOJ) to the appellant that was issued prior to the initial AOJ decision. The letter informed the appellant of what evidence was required to substantiate her claim and of her, and VA's, respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her possession to the AOJ. The Board further observes that the appellant was notified of the information necessary to substantiate her claim by means of the discussion in the original rating decision, the statement of the case (SOC), and the numerous supplemental statements of the case (SSOCs). In each instance, the VA has discussed what the appellant needed to present in the form of evidence that would allow for her to succeed with her appeal. VA has informed the appellant of which evidence she was to provide to VA and which evidence VA would attempt to obtain on her behalf. In this regard, the VA sent the appellant notice of the VCAA, which spelled out the requirements of the VCAA and what the VA would do to assist the appellant. The VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that she should inform the VA of any additional records or evidence necessary for her claim. The Board, and the VA, has fulfilled its duty to assist. In this instance, the VA obtained the veteran's available medical treatment records, including requesting any treatment records from the various facilities the veteran has been treated, and those other records that the VA was made aware thereof. As such, the VA obtained those records and they have been included in the claims folder, available for review. Given the foregoing, the Board finds that the RO has substantially complied with the duty to procure the necessary medical and personnel records. Moreover, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The appellate availed herself to this opportunity and, in January 2004, she did provide testimony before an RO Hearing Officer. A transcript of that hearing was prepared and has been included in the claims folder for review. The appellant was given notice that the VA would help her obtain evidence but that it was up to the appellant to inform the VA of that evidence. During the course of this appeal, the appellant and her accredited representative have proffered documents and statements in support of the appellant's claim. It seems clear that the VA has given the appellant every opportunity to express her opinions with respect to the issues now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Here, the appellant is not prejudiced by the Board's consideration of her claim as VA has already met all notice and duty to assist obligations to the appellant under the VCAA. In essence, the appellant in this case has been notified as to the laws and regulations governing cause of death and DIC claims. She has been advised of the evidence considered in connection with her appeal and what information VA and the appellant would provide. She has been told what the VA would do to assist her with her claim and the VA has obtained all documents it has notice thereof that would assist in the adjudication of the appellant's claim. Thus, the Board finds that there has been no prejudice to the appellant that would warrant further notification or development. As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, at 393 (1994). The veteran served in the US Army during the Vietnam War Era. The record indicates that as a result of this service, he was stationed in the Republic of Vietnam. While there, he stepped on a booby trap that caused extensive shell fragment wounds of the feet, the left and right legs, and the buttocks. He underwent intensive care for approximately six months and upon completion of the treatment, he was released from active duty. Subsequently, upon being released from the Army, the veteran applied for VA compensation benefits. The veteran underwent a VA examination that was sent to the RO for review. Upon completion of the review, the RO granted service connection for the following: Shell fragment wound, left foot with foreign body 30 percent Shell fragment wound, left lateral thigh 20 percent Shell fragment wound, left leg 10 percent Shell fragment wound, right foot 20 percent Shell fragment wound, right medial thigh 10 percent Shell fragment wound, right leg 10 percent Shell fragment wound, left buttock 0 percent Combined rating 80 percent The rating action was dated February 26, 1969. The veteran was notified of this rating decision; the veteran did not appeal that decision. Twenty-one years later, in February 1990, service connection was granted for post-traumatic stress disorder (PTSD). A 30 percent disability rating was assigned. The effective date assigned was September 29, 1989. The veteran was notified of the action and he appealed the decision claiming that his PTSD was more disabling. In a Hearing Officer's Decision of December 1990, a 50 percent rating was assigned. The veteran was notified and he continued his appeal, claiming that the 50 percent was inadequate. At approximately the same time of the Hearing Officer's Decision, the veteran applied for a total disability evaluation based on individual unemployability due to the veteran's service-connected disorders (TDIU). The RO denied the veteran's request for a TDIU in January 1991. He appealed that decision. Thus, the issues on appeal were for a TDIU and an increased evaluation for PTSD. After additional development, the RO granted a 70 percent disability rating via a rating action dated February 1992. The effective date of the rating was September 29, 1989. A TDIU was also assigned with the same effective date. Approximately six years later, the appellant, the veteran's spouse, notified the RO that the veteran had died. She submitted a copy of the veteran's death certificate which showed that the veteran had passed away on December [redacted], 1996. A further review of the Certificate of Death shows that the veteran's immediate cause of death was pulmonary edema due to or as a consequence of hypertrophic cardiomyopathy due to years of cocaine abuse. The manner of death was listed as accidental. As reported, after notifying the VA that the veteran had passed away, the veteran's widow submitted a claim for benefits. She specifically asked that the veteran's cause of death be service-connected. She also requested that DIC benefits be awarded to her. She contended that as a result of the veteran's exposure to chemical dioxins during his assignment to Vietnam, he developed pulmonary and heart conditions which she attributed to said exposure. The appellant's request for benefits was denied and she did not appeal that decision. Approximately four years later, the appellant once again came to the VA asking that she be awarded VA benefits. She maintained that although the veteran abused alcohol and drugs during his lifetime, such abuse was the result of his PTSD and his service-connected physical disabilities. The appellant submitted a written letter from the veteran's former psychiatrist, a Doctor M. M. B. That letter was dated October 2003. In that letter, Dr. B. stated that the veteran's PTSD was "complicated by chemical dependency". It was noted that the veteran started using drugs when he was stationed overseas and continued to use drugs and alcohol after he left the service. The doctor did not, however, specifically state that the veteran's alcohol or drug abuse was caused by or the result of any of his service-connected disabilities (either physical or mental). The appellant has provided testimony before an RO Hearing Officer. A transcript of that hearing is of record; the date of the hearing was January 28, 2004. During her hearing, the appellant stated that the veteran used drugs and alcohol to self-medicate. That is, in order to cope with pain and remembrances, the veteran used drugs and alcohol to forget or to handle his intrusive thoughts and pain produced by his service-connected physical ailments. After providing testimony, the appellant then submitted a written statement to the RO. In that statement, the appellant wrote: My husband was unable to maintain himself due to his severe PTSD. He should have been [rated] 100% years prior to his TDIU grant. He was unable to work since 1971. His physicians indicated to me his drug abuse was a result of his PTSD. . . . In conjunction with the appellant's claim for benefits, the RO forwarded the veteran's claim folder to a VA doctor. The examiner was asked to express an opinion as to whether the veteran's service-connected PTSD caused or induced the veteran to use drugs. After reviewing the claims folder, the examiner wrote: . . . the patient died of either the effects of chronic cocaine use or an acute episode of intoxication, per the report from the coroner. He was found with white powder near him and the coroner's report evidently says that he had cardiac abnormalities consistent with frequent cocaine abuse. . . . Neither . . . statements suggest that the patient was using cocaine because he had been in Vietnam (the cocaine abuse was NOT due to the post traumatic stress disorder). They both agreed that the patient had severe post traumatic stress disorder and might be self-medicating but no one went so far as to suggest that post traumatic stress disorder caused the substance abuse. Evidently the patient was a polysubstance abuser and had been detoxed at least on two occasions and he had been taking quite a few different medications . . . . He was using cocaine and he was drinking on top of this per the report. While the patient may have been self- medicating, I do NOT believe that the statement, that the post traumatic stress disorder caused the cocaine use that probably killed him, is accurate. I do not think that there is any doubt that he was in a lot of pain from his post traumatic stress disorder but his mechanism for coping is more likely than not that which was responsible for his death, as opposed to the illness itself. Despite the assertions made by the appellant (and her representative), she has not provided any medical records that would support her contentions. Although she has asserted that her husband's physicians have attributed the veteran's drug and alcohol use to his service-connected disabilities, she has not proffered letters or statements from the doctors that would corroborate her hypotheses. The surviving spouse of a veteran who has died of a service- connected or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); Wray v. Brown, 7 Vet. App. 488 (1995). The death of the 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. 38 C.F.R. § 3.312(a) (2007). The appellant will be entitled to service connection for the cause of death if it is shown that the service-connected disabilities contributed substantially or materially to cause death; that they combined to cause death; or that they aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2007). However, service-connected disabilities of a static nature involving muscular or skeletal functions and not materially affecting other vital body functions will not be held to have contributed to death resulting primarily from some other cause. 38 C.F.R. § 3.312(c)(2) (2007). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Issues involved in a claim for Dependency and Indemnity Compensation [DIC] are decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2007). Additionally, in Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992), the United States Court of Appeals for Veterans Claims, hereinafter the Court, stated the following: Further, in cases where the primary cause of death is so "overwhelming" that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a "material influence in accelerating death" because it "affected a vital organ and was of itself progressive or debilitating [in] nature". Service connection may be established for a current disability in several ways including on a direct basis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2007). Direct service connection may be established for a current disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2007). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and, (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d) (2007); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. §§ 501(a), 1116(a)(3) (West 2002 & Supp. 2006); 38 C.F.R. § 3.307(a)(6)(iii) (2007). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, diabetes mellitus, and soft- tissue sarcomas. 38 C.F.R. § 3.309(e) (2007). As a part of the analyzing whether service connection may be granted based on 38 C.F.R. §§ 3.307 and 3.309 (2007), it must be shown that the veteran actually served in Vietnam. The veteran's service records indicate that he did serve in Vietnam - he was actually wounded by a booby trap while in Vietnam and was subsequently service-connected for the residual wounds of that incident. Second, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e) (2007). See Brock v. Brown, 10 Vet. App. 155, 162 (1997). If a disorder is not listed in 38 C.F.R. § 3.309(e) (2007), the presumption of service connection related to Agent Orange is not available. See McCartt v. West, 12 Vet. App. 164 (1999). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, the presumption is not the sole method for showing causation, and thereby establishing service connection. The veteran's service medical records are negative for any findings or treatment for any of the disabilities, diseases, and disorders listed in 38 C.F.R. § 3.309 (2007). The veteran's private medical records fail to show treatment for any of the disabilities, disease, and disorders listed in 38 C.F.R. § 3.309 (2007). Moreover, the appellant, while claiming that the veteran was exposed to chemical dioxins, has not been specific with her claim. That is, she has not, with any specificity, indicated what conditions the veteran suffered therefrom as a result of his exposure to chemical dioxins. Additionally, the medical records are negative for any medical opinions that would link the veteran's death with his military service or with exposure to chemical dioxins. Alternatively, the appellant has opined that the veteran's death was caused by his PTSD, or more specifically, by the methods the veteran used to cope with his mental disorder. As noted above, as a result of her assertions, the VA sent the veteran's records to a medical doctor and asked that he review the appellant's assertions. He specifically wrote that the veteran's death (heart failure due to the ingestion of cocaine) was not related to or caused by the veteran's PTSD. He further concluded that the veteran's coping mechanism might have been a cause of the veteran's death but the veteran's methods could not be directly attributed to his military service. The Board notes that the appellant has not submitted any medical opinions from private doctors that would corroborate her assertions. Special considerations apply to claims involving alcohol and/or drug abuse. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse, effective for claims filed as in the instant case after October 31, 1990. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d) (2007). The VA'ss General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). The Board observes that the United States Court of Appeals for the Federal Circuit has held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol (drug) abuse disability incurred during service or for any secondary disability that resulted from primary alcohol (drug) abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). There can be service connection for compensation purposes for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. However, a veteran (appellant) can only recover if able to "adequately establish that their [the veteran's] alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen, 237 F.3d at 1381. Such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Ibid. The critical issue in this case, and the question raised by one of the appellant's contentions, is whether the cocaine usage which was a cause of the veteran's death was caused by the veteran's service-connected PTSD and his service- connected shrapnel wound injuries. Upon a careful review of the evidence, the Board is compelled to find that the preponderance of the evidence is against such an etiological link between the veteran's cocaine usage and his service- connected disabilities. Most significantly, there is a medical opinion, as noted above, which directly addresses this question. In that opinion, the doctor stated that the veteran's PTSD did not cause the veteran to use cocaine. This statement must be accorded some probative weight as it reflects a competent medical opinion informed by review of the medical records. The Board further notes that the opinion is very probative because the examiner reviewed all of the veteran's records and he detailed the veteran's pre-service abusive behavior up to the time of the veteran's death. To provide substantial clarity on this question, the examiner further reported that the veteran had gone through two detoxification episodes. Additionally, the examiner was careful to report that the veteran's private care givers did not believe that the veteran's drug or alcohol use was caused by the veteran's service-connected PTSD. In VAOPGCPREC 11-96, the VA General Counsel made the following holdings: Section 8052's amendment of 38 U.S.C. § 105(a) precludes an injury or disease resulting from a veteran's own alcohol or drug abuse from being deemed to have been incurred or aggravated in line of duty. Consequently, in claims filed after October 31, 1990, disability resulting from a veteran's own alcohol or drug abuse cannot be service connected and therefore cannot form the basis of a DIC award under either section 1310 or 1318. In other words, per the above, even if the VA medical doctor had found that there was some relationship between the veteran's cocaine abuse and his PTSD, service connection for the cause of his death (along with DIC benefits) could not be granted by law. Alternatively, while the appellant has submitted statements involving various diseases and disabilities that are related to chemical dioxin exposure, those statements have not been written by medical doctors. Nor do those statements specifically attribute the veteran's diseases with his military service or due to chemical dioxin exposure. In other words, they do not specifically link the veteran's conditions with his personal exposure to Agent Orange. As such, the presumption of service connection related to Agent Orange is not available. In support of her appeal, the appellant has written that the veteran's death was somehow related to his service. This evidence is considered lay evidence, and it is certainly deemed credible. 38 C.F.R. § 3.159(a)(2) (2007). She, however, has not shown, nor claimed, that she is qualified, through education, training or experience, to offer medical diagnoses, statements, or opinions. Therefore, her opinion, while offered in good faith, cannot be considered competent medical evidence and, as such, it is insufficient for purposes of establishing nexus, or causation. 38 C.F.R. § 3.159(a)(1) (2007); also, see Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While the record indicates that the veteran was being treated for disabilities and conditions since his release from active duty, there is no evidence that any of the veteran's service- connected disabilities contributed to or resulted in or caused the veteran's death. Moreover, the clinical medical evidence does not support the assertions of the appellant that her husband's PTSD led to his death. Also, the records are negative for any findings or medical suppositions that would corroborate any other assertions made by the appellant. Thus, despite the appellant's contentions, medical evidence showing that the veteran's death was caused by or related to his service or exposure to chemical dioxins or due to a service-connected disability has not been presented. Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the appellant's claim. As the evidence is not in equipoise, the appellant is not afforded the benefit-of-the-doubt, and the Board concludes that the veteran's service did not cause or contribute to the veteran's death. Hence, service connection for the cause of the veteran's death is denied. DIC benefits may be awarded to a surviving spouse upon the service-connected death of the veteran. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5(a) (2007). If, as here, the veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a) (West 2002), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for a service- connected disability(ies) rated totally disabling. 38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (2007). The service-connected disability(ies) must have been either continuously rated totally disabling for 10 or more years immediately preceding death, or continuously rated totally disabling for at least 5 years from the date of the veteran's separation from service. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22 (2007). Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 (West 2002) and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2007). Interpreting 38 U.S.C.A. § 1318(b) (West 2002) and 38 C.F.R. § 3.22(a)(2) (2007), the Court found that a surviving spouse can attempt to demonstrate that the veteran hypothetically would have been entitled to a different decision on a service-connected related issue, based on evidence in the claims folder or in VA custody prior to the veteran's death and the law then applicable or subsequently made retroactively applicable. Green v. Brown, 10 Vet. App. 111, 118-19 (1997). In such cases, the claimant must set forth the alleged basis for the veteran's entitlement to a total disability rating for the 10 years immediately preceding his death. Cole v. West, 13 Vet. App. 268, 278 (1999). In January 2000, in response to the above-referenced Court decisions, 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. 65 Fed. Reg. 3,388 (Jan. 21, 2000). The regulation, as amended, specifically prohibits "hypothetical entitlement" as an additional basis for establishing eligibility. In Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that for the purpose of determining whether a survivor is entitled to "enhanced" DIC benefits under 38 U.S.C.A. § 1311(a)(2) (veteran required to have been rated totally disabled for a continuous period of eight years prior to death), the implementing regulation, 38 C.F.R. § 20.1106, does permit "hypothetical entitlement." In Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001) (NOVA I), the Federal Circuit addressed a challenge to the validity of the amended 38 C.F.R. § 3.22. Initially, the Federal Circuit found that VA's amendment of 38 C.F.R. § 3.22 constituted an interpretive rule that did no more than interpret the requirements of 38 U.S.C.A. § 1318 and clarified VA's earlier interpretation of the statute. 260 F.3d at 1376-77. Upon consideration of 38 U.S.C.A. § 1318, the Federal Circuit found that the statutory language was ambiguous as to whether a "hypothetical" claim was allowed. Id. at 1377. It noted that 38 U.S.C.A. § 1311(a), which also has "entitled to receive" language, as interpreted in Hix, was virtually identical to 38 U.S.C.A. § 1318, but that VA interpreted them differently. Id. at 1379. Moreover, it found that the pertinent regulations, 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106, were in conflict with respect to interpreting 38 U.S.C.A. §§ 1311(a) and 1318. Id. The Federal Circuit remanded the case for VA to undertake expedited rulemaking to explain the rationale for interpreting the statutes differently or to resolve the conflict between 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106. Id. at 1379-81. On April 5, 2002, VA amended 38 C.F.R. § 20.1106 to provide that there would be no "hypothetical" determinations under 38 U.S.C.A. § 1311(a) on the question as to whether a deceased veteran had been totally disabled for eight years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit. See 67 Fed. Reg. 16,309-17 (Apr. 5, 2002). In Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II), after reviewing its holding in NOVA I, the Federal Circuit observed that VA had determined that the "entitled to receive" language 38 U.S.C.A. § 1311(a) and 38 U.S.C.A. § 1318 should be interpreted in the same way and that 38 C.F.R. § 3.22 provided the correct interpretation. It held that VA could properly do so and had adequately explained its rationale. Id. at 1378. The Federal Circuit also held that VA provided a permissible basis and sufficient explanation for its interpretation of the statutes as a bar to the filing of new claims posthumously by the veteran'' survivor, i.e., claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening - "hypothetical entitlement" claims. Id. at 1379-80. The appellant was married to the veteran at the time of his death. As noted above, during his lifetime, the veteran had established service connection for a number of disabilities. He had been assigned a 100 percent rating (for a TDIU) via a rating decision of February 1992. The effective date of that rating was September 29, 1989. The veteran died on December [redacted], 1996. The 100 percent disability evaluation was in effect for seven years, two months, and twenty-three days. As such, a 100 percent disability evaluation was not in effect for ten years prior to the veteran's death as required by 38 C.F.R. § 3.22 (2007). The appellant's claim must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). The record does not indicate that the appellant has specifically alleged that there was clear and unmistakable error in any final rating or Board decision. As the appellant has not raised this issue, the Board concludes that no further action or consideration is warranted as to this particular portion of the 38 U.S.C.A. § 1318 (West 2002) analysis. The Board acknowledges that the appellant generally argues that the veteran's various service-connected disabilities in some manner caused the veteran's death. To the extent the appellant might argue that these disorders rendered him totally disabled for at least 10 years before his death if a claim had been filed earlier, such an allegation is tantamount to a "hypothetical claim" for entitlement, which is excluded from consideration. NOVA II, 314 F.3d 1379-80. Accordingly, the appellant's appeal is denied. The Board notes that the RO received the appellant's claim for DIC in January 2002. Some of the evolution of analysis for 38 U.S.C.A. § 1318 claims occurred after receipt of her claim. However, as discussed above, the Federal Circuit found that VA's actions in amending the regulations in question was interpretative, rather than substantive, in nature. That is, the amendments clarified VA's earlier interpretation of the statute, which was to bar "hypothetical entitlement" claims. NOVA I, 260 F.3d at 1376-77. In addition, the Federal Circuit found that VA was not bound by the prior Court decisions, such as Green and Cole, that construed 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 in a way antithetical to the agency's interpretation and was free to challenge them, to include through the route of rulemaking. Id. at 1374. Thus, to the extent there has been any change in the law or regulations relevant to the claim, the changes are not of the material type that altered the appellant's rights, but rather clarified those rights. Accordingly, for the reasons stated above, the Board finds that entitlement to DIC benefits is not warranted, and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER 1. New and material evidence has been received to reopen the claim for entitlement to service connection for the cause of the veteran's death and entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. To this extent, the appeal is granted. 2. Entitlement to service connection for the cause of the veteran's death is denied. 3. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318 is denied. REMAND As noted on the front page of this action, there are two other issues on appeal. However, after further review of the claims folder, it is the Board's opinion that these two issues must be further developed before further action may occur on them. The record reflects that in March 1974, the veteran submitted a claim for benefits for a right knee disability. Specifically, he stated in a letter to the RO that because of his service-connected left leg disabilities, additional pressure and strain was being exerted on his right knee. He suggested that service connection should be established for a right knee disability secondary to his various service- connected disabilities. Although the veteran submitted this claim in 1974, a review of the record reveals that the RO never adjudicated this issue. That is, the rating decision issued after the RO received the March 1974 letter from the veteran does not address the issue of entitlement to service connection for a right knee disability secondary to the veteran's service-connected disabilities. Also, none of the subsequent rating decision addressed this issue. Therefore, this issue must be referred back to the RO for additional development and action. Additionally, the Board notes that after the RO issued the rating decision of February 1992, the RO informed the veteran that the rating decision granted all of the benefits sought by the veteran. It is important to note that the February 1992 rating granted a 70 percent disability evaluation for PTSD and a 100 percent rating for a TDIU. Notwithstanding the assertions made by the RO, pursuant to 38 C.F.R. Part 4, Diagnostic Code 9411 (1991), a 70 percent rating was not the highest rating that could have been assigned to the veteran's disability. A 100 percent schedular evaluation could have been assigned. Regarding a claim for an increased rating, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in appellate status where a subsequent rating decision awarded a higher rating, but less than the maximum available benefit. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As this issue was in appellate status, the RO should not have short-circuited the appealed process and should have forwarded the claim to the Board for further review. This is especially true because if a 100 percent disability rating had been assigned for the psychiatric disorder, that would have been the "better" rating in comparison to the 100 percent assigned for the TDIU. The Board thus finds that this issue is remains on appeal. A review of the VCAA notification letter sent to the appellant indicates that the appellant was informed of the requirements of establishing cause of death and DIC benefits. However, the RO did not inform the appellant of what was necessary in order to prevail on a claim involving accrued benefits. That is, the letter did not spell out what the evidence was required to show in order to obtain accrued benefits. This was contrary to the VBA Fast Letter of 04-08 (May 10, 2004), hich states that the following information should be provided in claims involving accrued benefits: To support your claim for accrued benefits, the evidence must show: 1. Benefits were due the claimant based on existing ratings, or decisions, or evidence in VA's possession at the time of death; but, the benefits were not paid before the claimant's death AND 2. You are the surviving spouse, child of the veteran, or dependent parent of the deceased veteran OR 3. You paid the expenses of the deceased claimant's last sickness and burial. Because the RO has not addressed the two issues involving accrued benefits claims, to include the providing of VCAA notice, the claim must be remanded so that this can be accomplished. Accordingly, further appellate consideration will be deferred and the case is REMANDED for the following development: The RO must review the entire file and ensure for the issues on appeal that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2006) and 38 C.F.R. § 3.159 (2007)), as well as VAOPGCPREC 7-2004, is fully satisfied. In particular, the RO must inform the claimant: (1) about the information and evidence that is necessary to substantiate entitlement to accrued benefits flowing from her deceased husband's service-connection claim for a right knee disability and for an increased evaluation for PTSD; and (2) about the information and evidence that VA has, or will seek to provide, in support of her claims. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issues on appeal. Thereafter, if otherwise in order, the claims file should be returned to the Board for appellate review. The Board intimates no opinion as to the outcome of this case. No action by the appellant is required until she is so informed. The purposes of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs