Citation Nr: 0916592 Decision Date: 05/04/09 Archive Date: 05/12/09 DOCKET NO. 92-02 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for liver cancer for purposes of accrued benefits. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The Veteran had active military service from February 1951 to February 1953; he died in March 1990. The appellant is his surviving spouse. This matter arises from a September 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied the benefits sought on appeal. The appellant appealed to the Board of Veterans' Appeals (Board) for appellate consideration. The Board originally denied the appellant's claims in August 1994. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 1995, the Court vacated the Board's decision, and remanded the case for further action and adjudication. Following further development, the Board again denied the appellant's claims in January 2000. The appellant again appealed the case to the Court. In March 2001, the Court again remanded the case to the RO for compliance with the Veterans Claims Assistance Act of 2000 (VCAA). In August 2001 and July 2003, the Board again remanded this case. This case is now ready for appellate review. FINDINGS OF FACT 1. During his lifetime, the Veteran did not establish service connection for any disabilities; he had a claim pending for service connection for liver cancer when he died in March 1990. 2. According to the Certificate of Death, the Veteran died in March 1990, due to multi system organ failure due to or as a consequence of liver cancer and sepsis. 3. Liver disease including cirrhosis and liver cancer were not manifest during service, liver cancer was not manifest within one year of separation, and post-service diagnosis of liver cancer is not attributable to service 4. Cirrhosis of the liver played a role in the development of the Veteran's liver cancer. 5. Exposure to ionizing radiation in service is not etiologically related to the Veteran's cirrhosis or liver cancer. CONCLUSIONS OF LAW 1. Liver cancer was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and was not due to exposure to radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 12002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309, 3.311 (2008). 2. A service-connected disability did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303. 3.304, 3.307, 3.309, 3.311, 3.312 (2008). 3. The criteria for payment of accrued benefits based on a claim for service connection for liver cancer which was pending at the time of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5121 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309, 3.311, 3.1000 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA With respect to the claimant'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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A letter dated in January 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although the notification letter was not sent prior to the initial adjudication of the claimant's claim, this was not prejudicial to the claimant since the claimant was subsequently provided adequate notice and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided in September 2007. If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Sanders v. Nicholson, 487 F. 3d 881 (2007); see also Simmons v. Nicholson, 487 F. 3d 892 (2007). In Sanders, the claimant was allowed a meaningful opportunity to participate in the adjudication of the claim and the essential fairness of the adjudication process was not affected. The claimant was provided VCAA notification and had knowledge in that regard. As further noted below, VA has obtained all relevant evidence. Thus, even though the initial VCAA notice came after the initial adjudication, there is no prejudice to the claimant. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton The Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores. If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Sanders; see also Simmons v. Nicholson, 487 F. 3d 892 (2007). The Court issued certain directives pertinent to cases where the issue is service connection for the cause of the veteran's death in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court held that there is no preliminary obligation on the part of VA to perform, what in essence would be, a predecisional adjudication of a claim prior to providing to the claimant section 5103(a) notice. Although section 5103(a) does not require a "predecisional adjudication" of the evidence in each case, the notice must be responsive to the particular application submitted. See Kent v. Nicholson, 20 Vet. App. 1 (2006), at 9 ("The legislative interest underlying the VCAA notice requirement is the intent of Congress to provide claimants a meaningful opportunity to participate in the adjudication of claims"). This means that there is a middle ground between a predecisional adjudication and boilerplate notice with regard to the amount of detail and degree of specificity VA must provide for section 5103(a)-compliant notice. The Court later stated that a more detailed notice potentially discourages a claimant from submitting additional or corroborative notice, and is contrary to the VCAA's purpose However, in dependency and indemnity compensation (DIC) cases where the veteran was service-connected during his lifetime, the Court found 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 or 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. However, where a veteran was not service-connected during his lifetime, the same did not apply. The Court held that in those cases, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Further, section 5103(a) preadjudication notice, the Secretary or VA is not required to inform a DIC claimant of the reasons for any previous denial of a veteran's service-connection claim. In this case, the Veteran was not service-connected during his lifetime. In this case, the claimant was provided pertinent information in the SOC as well as in the SSOCs and the VCAA letter. She demonstrated that she had actual knowledge of what was needed to establish her claim as she has submitted multiple items of medical evidence as well as written arguments. In addition, VA remanded this case several times to fully develop the claim. Thus, VA has obtained all relevant evidence. Accordingly, the Board finds that the essential fairness was maintained in this case as the claimant has demonstrated actual knowledge of the evidence which was needed to establish her claim since VA has obtained all relevant evidence. Thus, the Board finds that although there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice has been rebutted as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As noted, the Veteran's service treatment records and pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. Medical opinions are of record. The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that 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). Since the Board has concluded that the preponderance of the evidence is against the claim of service connection for the cause of death, any questions as to the effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Competency and Credibility The appellant as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Thus, while the appellant is competent to report what she has observed, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. However, although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the appellant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The issue does not involve a simple diagnosis. See Jandreau; see also Woehlaert. The appellant is not competent to provide more than simple medical observations. The current medical assessments are complex. Thus, the appellant's lay assertions are not competent or sufficient in this regard. Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). 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. 38 U.S.C.A. § 1310. To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In addition, service connection may be granted for a chronic disease, including a malignant tumor or cirrhosis of the liver, if manifested to a compensable degree with one year following service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (1997). There are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(ii). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311(a)(2). When it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the VA Under Secretary for Benefits for further consideration. The Under Secretary for Benefits is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the Under Secretary for Benefits determines that there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311. The list of radiogenic diseases found under 38 C.F.R. § 3.311(b)(2). The service treatment records do not reflect any complaints, findings, treatment or diagnosis of any liver disease or injury to include liver cancer. Likewise, there is no evidence of complaints, findings, treatment, or diagnosis of liver cancer or cirrhosis of the liver in the initial post- service year. Service records indicate that the Veteran participated in Operation BUSTER-JANGLE, an atmospheric nuclear weapons test conducted in 1951. Post service, VA medical treatment records show that the Veteran was treated on several occasions for chronic alcoholism which reportedly resulted in damage to his liver. A VA treatment record dated in December 1986 shows that the diagnoses included chronic alcoholism with cirrhosis of liver. In April 1989, a history of chronic alcoholism was noted. The Board also notes that a record dated in May 1989 shows that the Veteran was diagnosed with hepatitis B. This was diagnosed on the basis of a positive test for the hepatitis B surface antigen. The treatment record reflects that the Veteran was instructed regarding precautions which he must take in order to avoid spreading the disease. A record dated later in May 1989 shows that some members of his family had now been vaccinated against the disease. The earliest medical records containing any references to liver cancer are dated in June 1989 when liver cancer was diagnosed via biopsy. This occurred over three decades after the Veteran was discharged from service. The Veteran subsequently underwent a liver transplant. A pathology report from the Ohio State University dated in January 1990 shows that the resected liver was found on microscopic examination to have (1) cirrhosis, micro and macronodular, with mild activity; and (2) hepatocellular carcinoma, high grade. A discharge summary from the Ohio State Regional University shows that the Veteran had a one year history of hepatocellular carcinoma of the liver who presented for a liver transplant. It was noted that he also had a history of chronic obstructive pulmonary disease (COPD), chronic urticaria, noncontrolled diabetes mellitus, prostatitis, alcoholic cirrhosis, and a history of profound alcohol abuse, though he claimed to have had nothing to drink within the past three years. The report contains extensive details regarding the hospital course from the liver transplant surgery in January 1990 leading up to the Veteran's death in March 1990. An Ohio State University post-mortem report shows that an autopsy was conducted following the Veteran's death. It was noted that the Veteran had been diagnosed with hepatocellular carcinoma in June 1989. Complicating medical conditions included a history of chronic obstructive pulmonary disease, non-insulin dependent diabetes mellitus, and alcoholic cirrhosis of the liver. He had undergone a liver transplant on January 1, 1990, and this was complicated by repeated biliary leakage necessitating an exploratory laparotomy and multiple other surgical interventions were necessary. The Veteran's status deteriorated and he unfortunately died two months after the transplantation in March 1990. During the autopsy, no anatomical cause of death was noted. The most likely cause of death was multi-organ failure and shock in the setting of multiple operations following orthoptic liver transplant for hepatocellular carcinoma. The Veteran did not have any of the types of cancer that are presumptively service connected pursuant to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Primary liver cancer is one of the cancers; however, the statute specifically excludes liver cancer when cirrhosis or hepatitis B is indicated. In the present case, the Veteran clearly had cirrhosis of the liver prior to the time that he developed liver cancer. As noted above, there were also indications of hepatitis B. Accordingly, the Board finds that the presumption contained in 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is not applicable in this case. Thus, service connection is not warranted on that basis. Regarding the second method by which a disease may be shown to have been due to radiation exposure in service, the Board notes that liver cancer is listed as a "radiogenic disease" under 38 C.F.R. § 3.311. Accordingly, the RO referred the claim for a radiation dose estimate and an opinion with respect to the likelihood that the cirrhosis or liver cancer resulted from the Veteran's radiation exposure. A letter from the Defense Nuclear Agency dated in January 1990 shows that research and scientific dose reconstruction indicated that the Veteran's upper limit dose for the period of October 22, 1951 (the date of the first BUSTER-JANGLE detonation) to November 20, 1951 (the date of the Veteran's departure from the Nevada Test Site) was 0.14 rem gamma. No mean or lower limit doses were available. It was also stated that due to the distance of the Veteran's unit from ground zero, he had virtually no potential for exposure to neutron radiation. The dose estimate information was submitted to the Chief Medical Director of the VA for an opinion as to radiation exposure. In an opinion dated in July 1990, the Acting Associate Deputy Chief Medical Director offered the following comments: 1. As you requested, VHS&RA has reviewed the file of [the Veteran]. He received a maximal dose of 0.14 rem gamma, with virtually no neutron irradiation and less than 0.150 rem 50-year committed dose equivalent to bone and liver at age 21 while in military service. The rem gamma dose was reconstructed. He was a long-time smoker. [The Veteran] developed hepatocellular carcinoma of the liver 38 years after his exposure. 2. It is calculated that exposure to 1.2 rad or less at age 21 provides a 99 percent credibility that there is no reasonable possibility that it is as likely as not that the Veteran's liver cancer is related to his exposure to ionizing radiation. (CIRRPC Scientific Panel Report No.6, 1988). It appears that a higher dose of external gamma irradiation to the liver would be required since the risk the calculations are largely based on internal high-LET emitters. (Health Effects of Exposure to Low Levels of Ionizing Radiation, BEIR V, 1990, pages 303 to 306). 3. The Veteran's dose was lower than the cited value and it is unlikely that his disease can be attributed to exposure to ionizing radiation in the service. Similarly, an April 1999, opinion from the Chief Public Health and Environmental Hazards Officer concerning the relationship between the Veteran's disabilities and exposure to radiation in service contains the following information: 1. This is in response to your undated memorandum. 2. The Defense Threat Reduction Agency estimates the veteran was exposed to the following doses of ionizing radiation during military service: external neutron 0.00 rem; external gamma, total and upper bound - 0.2 rem; internal 50 year committed dose equivalent to the liver and all other organs - 0.0 rem (less than 0.001 rem). 3. It is calculated that exposure to 1.23 rads or less at age 21 provides a 99 percent credibility that there is no reasonable possibility that it is as likely as not that the Veteran's liver cancer is related to exposure to ionizing radiation (Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) Science Panel Report Number 6, 1988, page 29). The liver is considered to be moderately susceptible to radiation-induced cancer based on a number of epidemiological studies including studies of Japanese atomic bomb survivors (Mettler and Upton, Medical Effects of Ionizing Radiation, 2nd edition, 1995, pages 73, 184 and 185). 4. Damage to the liver other than neoplastic transformation, if caused by radiation, would be an example of a deterministic effect. Deterministic changes generally are considered to have a threshold. The probability of causing harm in most healthy individuals at doses of less than 10 rem as a result of deterministic effects is close to zero (Institute of Medicine Report, Adverse Reproductive Outcomes in Families of Atomic Veterans; The Feasibility of Epidemiologic Studies, 1995, pages 23- 24). Radiation therapy doses of hundreds or thousands of rads can result in significant liver damage and cirrhosis has been seen in patients who received thorotrast (Mettler and Upton, pages 249- 252). 5. The CIRRPC report does not provide screening doses for prostate cancer. The sensitivity of the prostate to radiation carcinogenesis appears to be relatively low and not clearly established (Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V), pages 316- 318; Mettler and Upton, page 168). 6. In light of the above, in our opinion it is unlikely that the Veteran's cirrhosis of the liver, cancer of the liver, or prostate cancer can be attributed to exposure to ionizing radiation in service. The appellant submitted a private medical opinion to counter the aforementioned opinions. In a June 2001 letter, C.N.B., M.D., stated that it was clear that the Veteran was exposed to internal and external radiation during service. He cited to a study, the National Research Councils Biological Effects of Radiation (Bear V), dated in 1990, that showed an induction of liver cancer in animals exposed to radiation. He also referred to the dose estimate studies and opined that they were inaccurate because the Veteran was not wearing a film badge and the dose that the Veteran received was therefore only an estimate based on population data and was therefore not very accurate, and because the dose estimate report did not show any error ranges. Dr. B. discussed that time and distance were two major components of radiation exposure and that any dose estimates based on concepts like "100-1000 yards" or "about 15 minutes" were very inaccurate and flawed. With regard to the VA opinions previously cited, Dr. B. asserted that neither physician had any special training in radiation physics or the short or long-term hazards of radiation exposure, neither physician addressed the inaccuracies of the dose estimates, neither physician discussed a private physician's (R.K., M.D.) letters (addressed below in this decision), and neither physician addressed the dose response curve or referenced the landmark article, Cancer Incidence in Atomic Bomb Survivors. In August 2001, the Board remanded this case. It was noted that the June 2001 report by Dr. B. disputed the validity of the dose estimate provided by the Defense Threat Reduction Agency. In his report, Dr. B. noted that he reviewed the record and it was his opinion that the Veteran's hepatocellular carcinoma was caused by his exposure to radiation during service. Specifically, Dr. B. noted that the dose estimate of 0.201 rem was flawed and likely inaccurate. Dr. B. indicated that evidence of record shows that film badges were inaccurate to +/- 100 percent to +/- 40 percent and therefore the dose estimate should have +/- percentages associated with it. The Board concluded that Dr. B. was a credible source and that his report required referral to an independent expert for reconciliation of a material difference between his dose estimate and the estimate provided by the Defense Threat Reduction Agency. Thereafter, the following was requested: Pursuant to 38 C.F.R. § 3.311, the RO should refer this matter to an independent expert selected by the Director of the National Institutes of Health, who shall prepare a separate radiation dose estimate for consideration in adjudicating the present appeal. In response, in September 2002, another opinion from the Chief Public Health and Environmental Hazards Officer was received. She provided the following information: 1. This is in response to your undated memorandum dated September 16, 2002. 2. The following comments are offered regarding factors considered with respect to the Board of Veterans Appeals remand: a. Probable dose: In accordance with instructions in your memorandum, the Veteran is considered to have received a radiation does of 0.402 rem. Discussion: Use of this radiation dose constitutes a 100 percent increase over the dose of 0.201 rem reported by the Defense Threat reduction Agency. This adjustment was made based on information from the National Bureau of standards cited by the claimant's expert. A dose of 0.402 rem was a low dose of ionizing radiation (for comparison, the current annual occupational limit set by the Nuclear Regulatory Commission was 5 rem (Mettler and Upton, Medical effects of Ionizing Radiation, 2nd Edition, 1995, page 12)). Most effects of ionizing radiation have been observed only at doses of generally 20 rads or more received over a brief period (Schull, Effects of Atomic Radiation, 1995, page 132). b. Relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology-Organ/tissue involved: liver. Specific pathology: hepatocellular carcinoma, high-grade; cirrhosis, micro and macronodular, with mild activity. Discussion: 1. Liver cancer: The liver is considered to have a comparatively moderate susceptibility to radiation- induced cancer based on a number of epidemiological studies including studies of Japanese atomic bomb survivors Mettler and Upton, Medical effects of Ionizing Radiation, 2nd Edition, 1995, pages 73, 184, and 185). It is calculated that exposure to 1.23 rads or less at age 21 provides a 99 percent credibility that there was no reasonable possibility that it is as likely as not that the Veteran's liver cancer is related to exposure to ionizing radiation (Committee on Onteragency Radiation Research and Policy Coordination (CIRRPC) Science Panel Report Number 6, 1988, page 29). For comparison purposes, the Interactive Radioepidemiological Program (IREP) of the National Institute of Occupational Safety and health (NIOSH) (which is available on the Internet at http://198.165.152/irep_niosh/) also was utilized. This computer software calculated a 99 percentile value for the probability of causation of 2.54 percent (attachment was provided). 2. Cirrhosis: The CIRRPC report does not provide screening doses for cirrhosis. Damage to the liver other than neoplastic transformation, if caused by radiation, would be an example of deterministic effect. Deterministic changes generally are considered to have a threshold. The probability of causing harm inmost healthy individuals at doses of less than 10 rem as a result of deterministic effects was close to zero (Institute of Medicine Report, Adverse Reproductive Outcomes in Families of Atomic Veterans: The Feasibility of Epidemiologic Studies, 1995, pages 23-24). Using data on pages 422 and 423 in the scientific paper by Wong, et al, Noncancer Disease Incidence in the Atomic Bomb Survivors: 1958-1986, Radiation Research 135 (1993), pages 418-429, included in the Veteran's claims file and cited by Dr. K., it is estimated that there is less than a 1 percent increased risk of chronic liver disease and cirrhosis after a radiation dose of less than 1 rad. c. The Veteran's gender and pertinent family history- Male; family history apparently negative for liver cancer. Discussion: Females generally tend to be at higher risk from radiation than males (Hendee and Edwards, Health Affects of exposure to Low-Level Ionizing Radiation, 1996, Table 8.5, page 247). Male rates are incorporated into the CIRRPC screening doses, except for breast cancer (page B-3). Family history non-contributory. d. The Veteran's age at time of exposure: Discussion: In general, adults tend to be less sensitive to radiation than children (Report of the National Institutes of Health (NIH) Ad Hoc Working Group to Develop Radioepidemiologic Tables 1985, page 18; Hendee and Edwards, Table 8.5, page 247; Ron, Ionizing Radiation and Cancer Risk: evidence from Epidemiology, Radiation Research 150 (Supplement), 1998, page S38). Age at exposure is incorporated into the CIRRPC screening doses (page B-3). e. The time-lapse between exposure and the onset of disease-Approximately 37 years. Discussion: The minimum latency period following radiation exposure for malignancies except for leukemia and bone cancer is felt to be 5-10 years (CIRRPC report, page 9). f. The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to the development of the disease-The Veteran is reported to have been a heavy smoker and to have been treated for alcoholism. Discussion: Tobacco and alcohol are recognized as risk factors for conditions predisposing to or associated with hepatocellular cancer (DeVita et al., Cancer, 6th edition, 2001, page 1162). Alcohol is recognized as a cause of micro and macronodular cirrhosis (Braunwald et al., Harrison's Principles of Internal Medicine, 15th edition, 2001, page 1754). 3. In light of the above, in our opinion, it is unlikely that the Veteran's cirrhosis of the liver or liver cancer can be attributed to ionizing radiation during service. The Board must weigh the credibility and probative value of the medical opinions, 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)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the 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). In the recent case of Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a veteran's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the veteran for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment. Certainly, the particular medical information contained in a claims file may have significance to the process of formulating a medically valid and well-reasoned opinion. The Court further held that a medical opinion that contains only data and conclusions is not entitled to any weight and a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes is derived. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In sum, in Nieves- Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. In this case, the Board finds that the VA opinions are more probative than the opinion of Dr. B. The Chief Public Health and Environmental Hazards Officer fully addressed the contentions of Dr. B. regarding the validity of the dose estimate provided in this case. The Board remanded this case for a more thorough opinion which was provided. She cited to numerous and persuasive medical authorities in her opinion and she fully explored the Veteran's background including inservice radiation exposure, his medical history, his gender, his family history, his age at the time of exposure, the time lapse between exposure and onset of disease, as well as the exposure to radiation and other carcinogens outside of service. Although Dr. B. is competent to provide a medical opinion, the most recent opinion of the Chief Public Health and Environmental Hazards Officer, taken in conjunction with the prior VA opinions cited above, is more comprehensive with regard to the facts of this case and the pertinent medical studies and authorities which have addressed relevant matters regarding radiation exposure. Further, the Board finds that the dose estimates in this case are valid, contrary to Dr. B.'s assertions to the contrary. In addition, certainly as the Chief Public Health and Environmental Hazards Officer, this physician has expertise in the area of medicine pertinent to this case. Thus, the opinion of the Chief Public Health and Environmental Hazards Officer is the most probative evidence regarding the inservice radiation exposure. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Because her opinion weighs against the appellant's claim and the Board finds that opinion to be the most probative evidence, service connection cannot be granted for the cause of the Veteran's death under 38 C.F.R. § 3.311. Finally, with respect the third method of establishing service connection for a disorder claimed to be due to radiation exposure in service, the Board notes that the appellant has presented medical opinions from one of the Veteran's treating physicians, R.K., M.D., which are to the effect that the Veteran's liver cancer was attributable to his radiation exposure in service. In a December 1990 letter, Dr. K. made the following comments: [The Veteran] was a patient of mine from 1989 to 1990. He underwent a liver transplant because of hepatocellular carcinoma. The hepatocellular carcinoma was not resectable except by transplantation and arose in a cirrhotic liver. Although the liver showed some components of both macro and some micronodular cirrhosis, the overall appearance of the liver was that of macronodular cirrhosis. The hepatocellular carcinoma probably arose in the cirrhotic liver. The etiology of the cirrhosis is unknown however, as you are probably aware, I understand that [he] was one of the "atomic veterans" and was within several miles of the atomic bomb test in the early 50's. As you know studies have shown that there is about a 1.2 to 1.25 increased incidence of cirrhosis, digestive malignancies, and overall malignancies in those veterans exposed to this amount of radiation. There is about a 62% excess rate of cancer in the atomic veterans. Additional studies of the atomic bomb survivors of Nagasaki also show that there is about a 10 percent incidence of liver cell cancer in those survivors. I think it is likely that the etiology of this cirrhosis is on the basis of his exposure. Although there is a history of alcohol use in [the Veteran], you would expect that the alcohol would give only micronodular cirrhosis. The appearance of the cirrhotic liver was that of a macronodular disease which is not what would be seen in alcoholic liver disease. In addition there were no histological components of the liver that would suggest it was on the basis of alcohol. Also, if there is an increased incidence of hepatocellular carcinoma on the basis of alcohol it is only slightly increased in amount. It is my feeling that although the etiology of his cirrhosis is not clear it probably arose on the basis of exposure to radiation and the hepatocellular carcinoma arose in the cirrhotic liver. There is no evidence of clear risk factors for hepatocellular carcinoma such as hepatitis B, hemochromatosis, or alpha 1 deficiency. In summary, [the Veteran] died of hepatocellular carcinoma arising in a cirrhotic liver. The etiology of the cirrhosis is unknown although this probably arose as a basis of radiation due to atomic testing and the cirrhosis then gave rise to the hepatocellular carcinoma. Based on the liver biopsy there is no evidence of alcohol causing his cirrhosis. The appearance of the liver biopsy suggests a macronodular cirrhosis which is not consistent with alcohol induced cirrhosis. I hope this has been helpful, do not hesitate to contact me if I can be of further assistance. In a September 1995 letter, he made the following comments: I am enclosing a copy of the pathology report on [the Veteran's] liver. The opinion that [the Veteran's] liver cancer arose in a cirrhotic liver on the basis of radiation is based on the fact that we have excluded viral hepatitis B, hemochromatosis, and alpha-1- antrypsin, which would be pre-existing risk factors. Therefore, we are left with a tumor in a cirrhotic liver not due to any of the common etiologic agents. In excluding these possibilities and given the fact that [the Veteran] was exposed to radiation in the early 1950's it is most likely that his liver cancer arose as a result of the radiation exposure. This opinion is based on the fact that we have excluded other possibilities and this is the most likely reason. I hope this has been helpful. Call me with any further questions. A letter dated in June 1997 from the same physician contains the following comments: [The Veteran] died of Hepatocellular carcinoma of the liver arising in a cirrhotic liver. The etiology of the cirrhosis did not suggest hepatitis B, hemochromatosis, or alpha-1-antitrypsin deficiency. [The Veteran] died prior to the availability of hepatitis C testing. A recent article in Radiation Research 135;418-439;1993 showed there was a higher incident of various non-cancer diseases in the atomic bomb survivors from 1958 to 1986 and this included increased mortality from liver cirrhosis. The article includes a dosimetry system 86 estimates for the subjects for which that was available. The absence of both sero-positivity to hepatitis B surface antigen and hepatitis B core IgG antigen mean that he was never infected with hepatitis B. I hope this has been helpful. The Board notes that a copy of the article cited by Dr. K. is contained in the claims file. In addition, Dr. B., in his June 2001 letter, supported the findings of Dr. K. In particular, he cited various portions of Dr. K.'s statements which he agreed with including the following: "The patient does not have any risk factors for HCC as described by Dr. K." In the Board's August 2001 remand, the Board also requested the following: "...an independent medical expert opinion for the purpose of obtaining an opinion regarding the etiology of the Veteran's fatal liver cancer. The medical expert should review the entire claims file and provide opinions as to whether (1) the Veteran's fatal liver cancer was caused by cirrhosis of the liver due to alcoholism or hepatitis B, and/or whether (2) the Veteran's fatal liver cancer was caused by radiation exposure. In October 2002, this opinion was sought from the Under Secretary for Health. In the request, it was noted that VA records diagnosed the Veteran as having alcoholism. In addition, he was diagnosed as having a history of hepatitis; however, a subsequent November 1989 record was negative for hepatitis B. The Veteran underwent a liver transplant in January 1990 as a result of being diagnosed with hepatocellular carcinoma of the liver. The request cited to the letters of Dr. K. who opined that the Veteran's liver cancer arose in a cirrhotic liver as a result of radiation exposure. The request noted that Dr. K. stated that he was able to exclude viral hepatitis B, hemochromatosis, and alpha-1-antitrypsin as causes of the cirrhosis of the Veteran's lever. However, the request indicated that Dr. K. did not address dose estimates or the Veteran's alcoholism and their roles as potential causes of the Veteran's liver cancer. The request also cited to the previous VA opinions which indicated that the Veteran's liver cancer was not the result of radiation exposure because the Veteran was exposed to such low doses of ionizing radiation. The request also referred to Dr. B.'s opinion that liver cancer was caused by inservice radiation exposure. The request noted that Dr. B. concurred with Dr. K.'s opinion; however, Dr. B. also did not address the Veteran's alcoholism or hepatitis B and their impact on the development of liver cancer. Based on the foregoing, an independent medical opinion was obtained in February 2003 from a physician from the Washington Hospital Center, Washington Cancer Institute. This physician, D.J.P., M.D., stated that the Veteran's files were reviewed. This physician accepted the upwardly revised dose estimate information although the Board notes that the RO later obtained a revised dose estimate as a result of a May 2003 report from the National Research Council on reconstructed radiation doses. Based on the Veteran's testimony before his death, the appellant's testimony, historical records and documents for the Veteran and Operation BUSTER-JANGLE, the Defense Threat Reduction Agency revised the Veteran's radiation dose estimate to 0.13 rem with an upper bound of 0.31 rem. See December 2007 letter from Defense Threat Reduction Agency. As noted by the RO in the September 2007 Supplemental Statement of the Case, both of the figures provided in the updated dose estimate report were lower than the 0.402 rem used to arrive at the medical opinion by the independent medical expert, Dr. P., and thus, a request for another opinion based on the lower estimate was noted to be of no probative value. In the February 2003 opinion, Dr. P. indicated that the Veteran entered alcoholic rehabilitation from December 12, 1986 to January 16, 1987. The summary stated that the onset of his alcoholism was at age 20. He also noted that the Veteran was a heavy smoker. A liver biopsy done on January 2, 1990 and reported as Pathology number 90-0,008 from Ohio State University Hospital, concludes that he had micro and macronodular cirrhosis and hepatocellular carcinoma. Dr. P. stated that there was abundant evidence that alcoholism leads to cirrhosis and cirrhosis to hepatocellular carcinoma. He cited to medical information which stated that 15 percent of those with alcoholic cirrhosis will develop hepatocellular carcinoma, and that tobacco smoking and heavy alcohol consumption are associated with increased risk of hepatocellular carcinoma, especially when these two exposures occur together. Therefore, Dr. P. concluded that it was very likely that alcohol and tobacco led to the liver cancer and very unlikely that the small amount of radiation to which he was exposed in 1953 was in any way etiologic. Again, VA must weigh the relevant evidence in this case. The Board finds that the most probative evidence of record is the recent medical opinion of Dr. P. from the Washington Hospital Center. The Board affords more probative value to this opinion than to the medical statements/reports of Dr. K. and Dr. B. because those physicians did not adequately discuss and address all of the Veteran's risk factors for developing liver cancer. In particular, alcoholism, as opposed to alcohol use, and tobacco were not adequately explored. Even accepting the disagreement between medical professionals regarding the use of alcohol as a risk factor in the Veteran's particular case, Dr. K. and Dr. B. did not rely on the accurate radiation information. As noted, the Board has herein determined that the dose estimate is adequate in this case. Since neither of those physicians relied on the accurate radiation information, the basis for each opinion is flawed. An opinion based on an inaccurate history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994). Conversely, Dr. P. addressed those issues in depth and provided a complete rationale for his opinion that the liver cancer was not etiologically related to any inservice radiation exposure. He was apprised of the accurate radiation dose information and relied on the accurate information. As such, that opinion is more probative than the converse opinions in this case. For the foregoing reasons, the Board finds that the preponderance of the evidence shows that exposure to ionizing radiation in service did not cause the Veteran's liver cancer or his cirrhosis of the liver. Accordingly, the Board concludes that service connected disability did not cause or contribute substantially or materially to cause the Veteran's death. Accrued Benefits Based on a Claim for Service Connection for Liver Cancer Pending at the Time of the Veteran's Death Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2008); 38 C.F.R. 3.1000 (a) (2008) (as amended 71 Fed. Reg. 78368 (effective Jan. 29, 2007)). Moreover, an "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000 (c) (2008). In Jones v. West, the Federal Circuit concluded that, "for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The Federal Circuit noted that "a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Id. at 1300. The Board notes that the statute governing accrued benefits was amended in January 2003 to eliminate the prior two-year restriction on the payment of accrued benefits. The revision to the statute applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). The Veteran died in March 1990, before the date of enactment. Therefore, the appellant's claim is not considered under the amended version of 38 U.S.C.A. § 5121(a) which repealed the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of an award for accrued benefits. An accrued benefits claim is, under the law, derivative of, and separate from, the veteran's claims. See Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Thus, in the adjudication of a claim for accrued benefits, the claimant is bound by the same legal requirements to which the veteran would have been bound had he survived to have his claims finally decided. The Veteran had a claim for service connection for liver cancer which was pending at the time of his death. However, for the reasons set forth above, the Board has herein determined that liver cancer was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and was not due to exposure to radiation in service. Accordingly, the Board concludes that the criteria for payment of accrued benefits based on a claim for service connection for liver cancer which was pending at the time of the Veteran's death are not met for the same reasons previously addressed above. ORDER Service connection for the cause of the Veteran's death is denied. Accrued benefits based on a claim for service connection for liver cancer pending at the time of the Veteran's death is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs