Citation Nr: 0907657 Decision Date: 03/02/09 Archive Date: 03/12/09 DOCKET NO. 05-13 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, B.K., C.K. ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1944 to June 1946, and from January 1952 to December 1955. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In an April 2003 rating decision, the RO denied entitlement to service connection for the cause of the veteran's death, to DIC pursuant to 38 U.S.C.A. § 1318, and to Dependant's Educational Assistance (DEA). Although the appellant did not appeal that decision, in October 2003, she submitted another claim for service connection for the cause of the veteran's death, again claiming his death was due to asbestos exposure. This new claim, for the same benefit based on the same theory as the prior claim, may be said to implicitly dispute the outcome of that decision, and to express a wish for further review. In addition, it was received within a year of the April 2003 determination; under these circumstances, it is the Board's judgment that the current appeal is properly construed as stemming from the April 2003 rating decision. See Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). Thus, there was no prior final denial, and the appellant need not submit new and material evidence to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105 (West 2002). The certified appeal also included the issue of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. This issue was denied in the April 2003 rating decision, but not raised in the appellant's statements of October 2003 or August 2004. The issue was not mentioned in the April 2004 rating decision; however, the issue was listed in the statement of the case (SOC), although the discussion was limited to stating that the April 2003 decision as to that issue was incorporated by reference. In addition, in her substantive appeal, the appellant indicated that she was appealing all issues listed in the SOC. Therefore, that issue must be considered as part of the appeal. The appellant was afforded a Board hearing, held by the undersigned, in January 2007. A copy of the transcript has been associated with the record. The appellant's claim was remanded by the Board for further development in March 2007. As a result, the claim has been transferred to the Appeals Management Center (AMC) in Washington, D.C. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). See 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in August 2002 at the age of 75; lymphoma was certified as the immediate cause of death on his death certificate. At that time, no other disorders were listed as other significant conditions contributing to death. The death certificate was amended, however, to include asbestosis as an underlying cause of the Veteran's death. 2. The Veteran had established service connection for residuals of a right ankle fracture, evaluated at 40 percent disabling, residuals of a total right knee replacement, status post fracture of the right tibia, evaluated at 30 percent disabling, lumbosacral strain evaluated at 20 percent disabling, and non-compensable evaluations for left elbow bursitis and residuals of a fracture to the left index finger at the time of his death; he was not service-connected for any other disabilities, to include asbestosis, at the time of death. 3. The preponderance of the evidence is against a finding that the asbestosis was incurred or aggravated by active service, or that asbestosis contributed substantially or materially to cause the Veteran's death. 4. The veteran was rated totally disabled from September 2001 until his death in August 2002; he was not continuously rated as totally disabled since his release from active duty in 1955. 5. The veteran was not a former prisoner of war (POW). 6. The appellant has not alleged that there was clear and unmistakable error (CUE) in any VA decisions issued during the veteran's lifetime; nor has she identified or submitted additional, previously unconsidered service department records that would provide a basis for reopening a previously decided claim. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1310, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2008). 2. The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. §§ 1310, 1318, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.22 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Service connection for the cause of the Veteran's death Applicable law provides that service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2008). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. See 38 C.F.R. § 3.303(d) (2008). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by military service either caused or contributed substantially or materially to cause the veteran's death. For a service-connected disability to be the cause of a death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related to the cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2008). A contributory cause of death is inherently one not related to the principal cause. In determining whether a 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. See 38 C.F.R. § 3.312 (c)(1). Therefore, in order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. A service-connected disorder is one which was incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131, 1310 (2008). In this case, the evidentiary record shows that the immediate cause of the Veteran's death in August 2002 was lymphoma. At that time, no other disorders were listed as other significant conditions contributing to death. The death certificate was amended, however, to include asbestosis as an underlying cause of the Veteran's death. An August 2002 discharge summary noted that the Veteran's final pathology consisted of diffuse non-Hodgkin's lymphoma, pancytopenia, an intra-abdominal mass, secondary lymphoma, and pulmonary nodules most likely secondary to metastatic disease. At the time of death, the Veteran was not service connected for asbestosis, and a claim for entitlement to service connection for asbestosis was not filed during the Veteran's lifetime. While the Veteran was not service connected for asbestosis at the time of his death, a CT scan in March 2002 noted asbestos-related pleural changes. Other respiratory disorders included chronic obstructive pulmonary disease (COPD) and pseudomonas pneumonia. See Discharge report, August 2002. To begin, the Board will first determine whether, as claimed by the appellant, the Veteran suffered from a pulmonary disorder as a result of asbestos exposure during his period of active duty. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, 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 sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id at 7.21(b)(1). 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 id at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from naval military service or from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. The first question that must be answered is whether the Veteran likely was exposed to asbestos during service. Turning to the applicable section of Manual M21-1, the Veteran's record is silent as to evidence that his duties included any asbestos-related activity as enumerated above. A review of the Veteran's personnel records associated with the claims file does not reveal any instance of asbestos exposure, nor is there any indication that the Veteran performed duties typically associated with asbestos exposure. It is also noted that the Veteran's service treatment record is negative for complaints, treatment, or diagnosis of a pulmonary disorder. Further, the Veteran's lungs and chest were normal upon separation in December 1955. The only defect noted at that time was a swollen right knee. See Standard Form 88, December 16, 1955. After a thorough review of the claims file, the Board finds that there is not sufficient evidence to establish that the Veteran was exposed to asbestos while in service. While the Veteran was a seaman, as noted above, the fact that the Veteran served in the Navy in the 1940's and 1950's does not create a presumption of asbestos exposure. See Dyment. The Veteran's DD-214 does not specify a military occupational specialty aside from "seaman." During her Board hearing, the appellant testified that the Veteran may have slept under pipes that were wrapped in asbestos, but specific duties or assignments which may have resulted in asbestos exposure were not noted. See Board hearing transcript, p. 7. As noted above, development must be accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service in order to properly adjudicate a claim for service connection for a disability resulting from asbestos exposure. Here, the appellant's claim was remanded by the Board in March 2007 for the purpose of obtaining a VA opinion as to the cause of the Veteran's death. As per the remand instructions, the RO was instructed to verify the likelihood of in-service asbestos exposure, using current department guidelines, had the VA opinion yielded a positive correlation between asbestos-related lung disease and the Veteran's death. In a September 2008 opinion, following a review of the claims file, the VA examiner indicated that the Veteran died from multiple, significant medical issues. While it was noted that the Veteran was felt to have asbestosis lung disease while alive, presumed on the basis of a CT scan showing pleural disease, the Veteran had a 40 pack year smoking history. It was further noted that asbestosis was not listed on the Veteran's discharge summary. It was noted that the Veteran had complications metabolically from his hematologic cancers. The examiner stated that hematologic cancers no doubt contributed to his defective immune system from battling pneumonia. The examiner went on to state that the Veteran's primary respiratory problem was obstructive pulmonary disease secondary to smoking. There was no evidence that pleural thickening played any role in the Veteran's development of pneumonia or failure to respond to treatment. Therefore, the examiner opined that it was unlikely that the Veteran's asbestosis contributed in any fashion to his demise. Rather, it was his multiple significant underlying medical conditions which resulted in his death. As noted in the September 2008 VA opinion, a March 2002 CT scan noted bilateral calcified pleural plaque, greatest in the mid-left lung. The impression was asbestos-related pleural changes accounting for chest x-ray abnormalities. There was no evidence of significant interstitial disease. In a letter reporting these findings, L.F.D., M.D., did not include an opinion linking the Veteran's asbestos-related pleural changes to the Veteran's period of service. A letter from a private physician, B.B.D., M.D., dated April 2002, stated that the Veteran was seen in April 2002 with complaints of coughing for the past two months. Since that time, the Veteran reported with a persistent cough, difficulty hearing, severe shortness of breath, generalized weakness, and chest wall discomfort. Though the Veteran's 40 pack year smoking history was noted, the physician also noted possible asbestos exposure while onboard a Navy vessel. In a May 2002 medical report, the Veteran was diagnosed with asthmatic bronchitis, persistent, with no evident pneumonia. It was noted that the Veteran was a former smoker, and it was suspected that this was a significant underlying cause of his airway disease. The Board further notes that the Veteran reported no asbestos exposure by history, and that his memory was poor. In August 2003, B.B.D., M.D,. stated that the Veteran had clear-cut evidence of asbestos-related lung disease in April 2002. The physician further stated that, "Clearly, some of his respiratory symptoms were indeed related to exposure which, according to his history, occurred during his time spent in the Navy. While I understand he expired recently due to other causes, there is no question in my opinion that he did have asbestos related lung disease as noted above." In February 2007, the same physician wrote another opinion, in which she stated that, "[The Veteran] clearly had asbestos-related pulmonary disease. Within a reasonable degree of medical certainty, I believe this asbestos-related lung disease would have reduced his life expectancy. I believe no one could say exactly by how much." As noted, when the Veteran died in August 2002 at the age of 75, lymphoma was certified as the immediate cause of death on his death certificate. At that time, no other disorders were listed as other significant conditions contributing to death. The death certificate was amended, however, to include asbestosis as an underlying cause of the Veteran's death. In response to a VA inquiry, the physician who amended the death certificated, S.D.G., M.D., noted that, as per page two, line five, of the Veteran's last hospital discharge summary, the Veteran had respiratory failure, which resulted in his death, as he chose not to have mechanical ventilation. The physician stated that the Veteran's CT scan from July 2002 showed asbestos-related pleural disease, which would restrict his lung capacity, thus contributing to his respiratory failure. Thus, according to the physician, asbestos exposure contributed to the respiratory failure, which combined with his lymphoma likely led to his death. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. See Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the appellant is competent to supplement the record with unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. As to the medical opinions within the record, the Board notes that, when faced with conflicting medical opinions, the Board must weigh the credibility and probative value of the each opinion, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at 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). While private medical evidence does demonstrate asbestos- related lung disease, the Board does not find the private medical opinions of record to be probative in this case with regard to whether asbestos-related lung disease contributed substantially or materially to cause the Veteran's death. In April 2002 and August 2003, B.B.D., M.D., stated that the Veteran had clear-cut evidence of asbestos-related lung disease, and that some of his respiratory symptoms were related to in-service exposure. The Board notes that a review of the Veteran's claims file was not noted and that the physician relied upon the Veteran's own history to formulate her opinion. Further, the Board notes that this appeal hinges on the question of the causal relationship between lung disease and the Veteran's death. To that end, the physician opined that asbestos-related lung disease would have reduced the Veteran's life expectancy, within a reasonable degree of medical certainty. The physician also stated in August 2003 that the Veteran expired due to other causes. Therefore, not only is this opinion equivocal in nature, but it is also self-contradictory and therefore afforded little probative value. As to the physician who amended the Veteran's death certificate to reflect asbestosis as an underlying cause of the Veteran's death, S.D.G., M.D., noted that a CT scan demonstrated asbestos-related lung disease, restricting the Veteran's air capacity, and thus contributing to his respiratory failure because the Veteran and his family refused the assistance of a ventilator. This, according to the physician, combined with lymphoma (listed as the primary cause of the Veteran's death), likely led to his death. The Board notes that this opinion is also, ultimately, equivocal in nature. Further, the physician amended the Veteran's death certificate to list asbestos-related lung disease as an underlying condition of the Veteran's death, even though the same provider failed to list a diagnosis of asbestosis on the Veteran's August 2002 discharge summary. Finally, the Board notes that the amended death certificate, in itself, has little probative value, in that S.D.G., M.D., amended the Veteran's death certificate only after the appellant's claim was denied. In contrast, the VA examiner in this case provided an unequivocal opinion stating that the Veteran did not die due to asbestos-related lung disease. It was noted that the examiner reviewed the claims file, as was evident in the opinion and rationale. Instead of relying only on a history from the Veteran, the examiner analyzed the record and discussed prior evidence of record in the opinion. In September 2008, the examiner indicated that the Veteran died from multiple, significant medical issues. While it was noted that the Veteran was felt to have asbestosis lung disease while alive, he also had a 40 pack-year smoking history. It was further noted that asbestosis was not listed on the Veteran's discharge summary. The examiner stated that hematologic cancers no doubt contributed to his defective immune system from battling pneumonia, and that the Veteran's primary respiratory problem was obstructive pulmonary disease secondary to smoking. There was no evidence that pleural thickening played any role in the Veteran' development of pneumonia or failure to respond to treatment, and that it was unlikely that the Veteran's asbestosis contributed in any fashion to his demise. As such, the Board attaches the most probative value to the VA opinion dated in September 2008. This opinion was well- reasoned, detailed, and consistent with other evidence of record, including prior medical opinions of record and laboratory findings, and included a review of the claims file. See Nieves-Rodriguez v. Peake, No. 06-312 (U.S. Vet. App. Dec. 1, 2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The VA examiner reviewed the claims file, discussed pertinent medical findings, and described the opinion in detail. As noted, the examiner specifically addressed the prior evidence of record. The opinion is also consistent with the documentary record as set forth above. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). To the extent that the appellant contends that the Veteran was exposed to asbestos in service, or that in-service asbestos exposure led to the Veteran's death, it is now well established that lay persons not shown to have medical training, such as the appellant, are not competent to comment on medical matters such as date of onset or cause of a disability, or how medical professionals should weigh medical evidence in rendering opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); 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 statements of the appellant offered in support of her claim are not considered competent medical evidence and do not serve to establish a medical nexus. Accordingly, the Board finds that the most probative evidence of record establishes that the Veteran's asbestos-related lung disease was not related to his period of service, as evidence of in-service asbestos exposure has not been demonstrated. In fact, as noted above, a medical report from May 2002 noted that the Veteran himself denied a history of asbestos exposure. Further, the Board notes that, even if the Veteran had been service connected for an asbestos- related lung disease at the time of his death, the most competent evidence of record finds that asbestos-related lung disease did not substantially or materially contribute to cause the Veteran's death. The probative nature of the death certificate itself is called into question in this case, as the amendment to include asbestosis was not listed as an underlying cause of death until after the appellant's claim was denied. Also, while the positive opinions of record are either equivocal, contradictory, or based solely upon the Veteran's own history, the VA opinion of record is probative in nature, unequivocal, and included an in-depth review of the record. Therefore, the most probative medical evidence within the record does not demonstrate an etiological connection between the Veteran's asbestos-related lung disease his period of active duty, nor a substantial or material causal relationship between the Veteran's asbestos- related lung disease and his death. Although the Board is sympathetic to the appellant and her claim, and certainly respects the service the Veteran provided to his country, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, the preponderance is against the appellant's claim, and it must be denied. II. Dependency and Indemnity Compensation Under 38 U.S.C.A. § 1318 (West 2002), VA will pay DIC to the surviving spouse of a veteran if the Veteran's death was not the result of his own willful misconduct and if at the time of death the Veteran was receiving, or entitled to receive, compensation for service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (2) rated by VA as totally disabling continuously since the veteran's release from active duty and for at least five years immediately preceding death; or (3) 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 (POW) who died after September 30, 1999. See 38 C.F.R. § 3.22(a) (2008). For purposes of 38 U.S.C.A. § 1318, "entitled to receive" means that the Veteran filed a claim for disability compensation during his lifetime and one of the following circumstances is satisfied: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified but for CUE committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) for the relevant period specified; or (3) at the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified, but was not receiving compensation because: (a) VA was paying the compensation to the veteran's dependents; (b) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (c) the veteran had not waived retired or retirement pay in order to receive compensation; (d) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (e) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (f) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22(b) (2008). In the present case, the Board finds that the preponderance of the evidence is against the appellant's claim for DIC under the provisions of 38 U.S.C.A. § 1318 (2008). The evidence of record shows that the Veteran was rated totally disabled from September 2001 until his death in August 2002; a continuous period of less than 10 years. Specifically, the Veteran was service-connected for the following conditions: residuals of a right ankle fracture, evaluated at 40 percent disabling, residuals of a total right knee replacement, status post fracture of the right tibia, evaluated at 30 percent disabling, lumbosacral strain evaluated at 20 percent disabling, and non-compensable evaluations for left elbow bursitis and residuals of a fracture to the left index finger. The Veteran's combined disability rating was 70 percent from August 31, 1999. Moreover, the record reflects that he had been granted a TDIU rating since September 2001. The record does not show, and the appellant does not allege, that the Veteran was a former POW or that he was continuously rated as totally disabled since his release from active duty in 1955. Nor has she identified or submitted additional, previously unconsidered service department records that would provide a basis for reopening a previously decided claim. Moreover, the appellant has not alleged that there was CUE in any VA decisions that were issued during the Veteran's lifetime that would have entitled the Veteran to a total rating at any time prior to 2001. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) [any claim of CUE must be pled with specificity]. Simply put, the record provides no basis for an award of DIC under 38 U.S.C.A. § 1318. Accordingly, the claim must be denied. While the Board remains sympathetic to the appellant and her claim, and certainly respects the service the Veteran provided to his country, there is no basis in VA law to allow the benefits sought in this case. Under these circumstances, the appellant does not meet the basic eligibility requirements for entitlement to DIC under 38 U.S.C.A. § 1318, and her claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). III. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), Court held that VA 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) request that the claimant provide any evidence in his or her possession that pertains to the claim. Prior to the initial adjudication of the appellant's claim, a letter dated in February 2003 satisfied the duty to notify provisions for the appellant's claims for entitlement to service connection for cause of the Veteran's death and DIC. The Board notes that an additional letter, which addressed the elements necessary to substantiate a claim for DIC, was sent to the appellant in December 2003. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2008); Quartuccio, at 187. The Board notes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008, and several portions of the revisions are pertinent to the claim at issue. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. Despite this change in the regulation, the aforementioned notice letter informed the appellant that it was ultimately her responsibility to give VA any evidence pertaining to the claims and to provide any relevant evidence in her possession. See Pelegrini II, at 120-21. In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310 DIC, the Court held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non- detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id. The February 2003 letter informed the appellant what information and evidence was needed to support a claim for DIC based on the cause of the Veteran's death, including "a relationship between the cause of death and the injury, disease, or event in service." This letter was provided to the appellant prior to the Hupp decision, so it did not take the form prescribed in that case. However, that decision does not mandate remand by the Board for every DIC claim; remand is only required where the notice provided was inadequate and not otherwise shown to be non-prejudicial. Cf. Medrano v. Nicholson, 21 Vet.App. 165, 170-71 (2007) (Board is not prohibited from evaluating for harmless error, however, the Court gives no deference to any such evaluation, which is subject to the Court's de novo review). Although no Court cases have been decided explicitly addressing prejudicial error within the context of Hupp and DIC cases, guidance can be obtained from the line of cases concerning VCAA notice for increased rating cases. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). This is not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Actual knowledge can also be established by statements or actions by the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). It is clear from the appellant's statements that she had actual knowledge of (a) what the veteran's service-connected disabilities were at the time of his death, and (b) that she needed medical evidence to establish a link between the cause of his death and an injury, event, or disease in service. In her April 2005 substantive appeal, the appellant explicitly argued that the Veteran should have been service connected for asbestosis and that this condition caused or materially contributed to his death. At her hearing before the undersigned in January 2007, the appellant testified as to the Veteran's post-service lung problems, possible in-service asbestos exposure, and her belief as to the reasons for his death. Through her testimony, it was clear that she knew the nature of the Veteran's possible in-service asbestos exposure, and she also discussed her efforts to obtain medical opinions for her claim. Moreover, the claimant's knowledge can be imputed to her through her representative. In this case, she is represented by a veteran's group well-versed in veterans' benefits law. The Disabled American Veterans (DAV) advanced arguments on her behalf throughout this appeal, which showed that the organization clearly knew what was needed to prevail in this case. In light of the foregoing, the Board finds that despite the fact the Hupp notice requirements were not explicitly met, that error was not prejudicial to the appellant. The Board, therefore, finds that VA has discharged its duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service medical records and relevant VA and private medical records are in the file. All available records identified by the appellant as relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With a service connection claim, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2008). The Board notes that the appellant's representative, in a February 2009 brief, alleged a violation of the directives of Stegall v. West, 11 Vet. App. 268, 271 (1998). In that case, the Court held that a remand by the Board confers upon the appellant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. Specifically, the appellant's representative alleged that the Board's March 2007 remand requested that a specialist review the claims file and provide an opinion. Although an opinion was provided by a physician who specializes in VA compensation and pension examinations, the representative argues that the opinion does not meet the Stegall criteria, as the examiner is not a pulmonary specialist. To that end, the Board notes that under 38 C.F.R. § 3.159(a)(1) (2008), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." Id. In this instance, a compensation and pension physician fits squarely into the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Therefore, the Board finds that the directives of Stegall have not been violated, as the examiner is competent to render an opinion as to the cause of the Veteran's death. With respect to the claim currently on appeal, an examiner offered an opinion in September 2008 regarding the cause of the Veteran's death. This opinion is thorough and complete. The examiner noted that the claims file had been reviewed. Therefore, the Board finds this opinion is sufficient upon which to base a decision. The appellant's representative also argued that further medical inquiry should be conducted in this case, in particular by an independent medical examiner (IME). When, in the judgment of the Board, an additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board will obtain an IME. 38 C.F.R. § 20.901(d). A claimant or his/her representative can request that the Board obtain an IME, and the request will be granted upon a showing of good cause, such as the identification of a complex or controversial medical or legal issue involved in the appeal that warrants obtaining such an opinion. 38 C.F.R. § 20.902. The Board concludes that referring this case for an IME is not warranted for the following reasons. First, the appellant has not shown good cause, in that a complex or controversial medical or legal issue involved in this appeal was not identified in conjunction with the request. Her representative has proffered no valid reason to suggest that such a measure is necessary, given the well-settled law that the intra-VA claims adjudication process is non-adversarial. See e.g., Moore v. Gober, 10 Vet. App. 436 (1997); In the Matter of the Fee Agreement of James W. Stanley, Jr., 10 Vet. App. 105 (1997); Villeza v. Brown, 9 Vet. App. 353 (1996). Absent some cognizable information (i.e., not mere surmise) that would suggest that the medical opinions are tainted by bias, further medical inquiry is not warranted. Winsett v. West, 11 Vet. App. 420 (1998); see Boutwell v. West, 11 Vet. App. 387 (1998). Second, the Board's own review of the record does not disclose that there is a complex or controversial medical or legal issue in this case. Rather, there is medical evidence in favor of the appellant's claim that is outweighed by the negative evidence, as described above. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318 is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs