Citation Nr: 1006281 Decision Date: 02/19/10 Archive Date: 03/02/10 DOCKET NO. 07-03 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for cystic lung disease for the purposes of accrued benefits. 2. Entitlement to service connection for a lung disorder for the purposes of accrued benefits. 3. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1953 to February 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2008, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it has returned to the Board for appellate review. In September 2007, the appellant testified at a hearing before a Decision Review Officer (DRO), sitting at the RO. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran's claim for service connection for a lung disorder was certified as a claim for cystic lung disease specifically. However, the post-service evidence contains diagnoses of other lung disorders, and as discussed herein, whether the Veteran's lung disorder at the time of his military service was properly diagnosed as cystic lung disease is uncertain. Accordingly, the Board has broadened the claim to entitlement to service connection for a lung disorder, to include cystic lung disease, for accrued benefits purposes, as reflected on the title page. FINDINGS OF FACT 1. In a June 1990 rating decision, the RO denied a claim of entitlement to service connection for cystic lung disease. 2. Evidence received since the prior final denial in June 1990 is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim. 3. In a March 2003 rating decision, the RO reopened the claim of entitlement to service connection for a lung disorder, to include cystic lung disease, and denied the claim on the merits. 4. The Veteran's timely appeal of the denial of the claim for service connection for a lung disorder was pending before the Board at the time of his death. 5. The Veteran is not presumed to have been sound upon entry into service. 6. The Veteran died in December 2004; the immediate cause of death was chronic obstructive pulmonary disorder (COPD), with cor pulmonale, obstructive sleep apnea, anemia, and type II diabetes mellitus listed as significant contributing conditions. 7. At the time of the Veteran's death, service connection was not in effect for any disability. 8. COPD was not present in service, or shown to be causally or etiologically related to any disease, injury, or incident in service, to include aggravation of a preexisting disability. CONCLUSIONS OF LAW 1. The June 1990 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for cystic lung disease for accrued benefits purposes. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2009). 2. The criteria for entitlement to accrued benefits based on the Veteran's pending claim for service connection for a lung disorder, to include cystic lung disease, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2009). 3. COPD was not incurred in or aggravated by the Veteran's active duty military service; a disability incurred in or aggravated by service did not cause or contribute to cause the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1310, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall Considerations In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. As noted above, the Board remanded the Veteran's claim for further procedural and evidentiary development. In the October 2008 remand, the Board ordered the AOJ to provide the Veteran with proper notice of the elements of a claim for DIC benefits, as outlined by the Court of Appeals for Veterans Claims (Court) in Hupp v. Nicholson, 21 Vet. App. 342 (2007), discussed below. The Board further ordered the AOJ to request a VA opinion with regard to a possible relationship between the Veteran's lung disorder at time of death and his military service. Finally, noting that the appellant had filed a timely appeal with the denials of claims of entitlement to death pension and accrued benefits, the Board ordered that a statement of the case (SOC) on these claims be provided to the appellant. The record reveals that the appellant was provided notice as required by Hupp in a December 2008 letter. Specifically, the letter advised her that the Veteran was not service- connected for any disability prior to his death and what the evidence must show for service connection for cause of death to be granted on the basis of a disability not yet service- connected. Additionally, a VA opinion was requested by the RO, and a response was received in January 2009. Further, an SOC on the issue of accrued benefits was sent in February 2009. The Board notes that an April 2009 Report of Contact documents a conversation with the appellant in which she indicated she was not claiming entitlement to death pension. Therefore, an SOC on that issue was no longer necessary. The Board acknowledges that the January 2009 VA examiner indicated that he could not offer an opinion due to the lack of imaging studies in the file. Thus, the examiner failed to provide the requested opinions. Although the AOJ is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). Nevertheless, in this case, the AOJ requested the opinion as ordered by the Board, but the response was inadequate. As a general rule, additional efforts to obtain the necessary opinion prior to re- certification of the appeal would be required; however, the need for a VA opinion has been satisfied by the Board through a specialist opinion obtained from the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2009). Thus, although the Board's December 2008 remand orders were not wholly met by VBA, any deficiency has been rectified by the Board's actions upon return of the claim to the Board. Therefore, the Board concludes that to remand for further effort on the part of the AOJ to comply with the December 2008 remand would only serve to unnecessarily delay adjudication of the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). With respect to the accrued benefits claim, the Board observes that further development of the appellant's claims is not necessary. The outcome of claims for accrued benefits hinges on the application of the law to evidence which was in the file at the time of the Veteran's death. As no additional evidence may be added to the file in regards to these issues, no evidentiary development is necessary for the claims decided herein. Thus, no discussion of whether VA has fulfilled its duty to assist the appellant with respect to this claim is necessary. As for the service connection claim for cause of death, VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. Further, the Board notes that, while the appeal was pending, the Court issued a decision with regard to the content of VCAA notices for DIC claims. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp¸ the Court held that a notice with regard to a claim for DIC benefits must include (1) a statement of the conditions (if any) for which the Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service- connected disability and (3) a explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service connected. Additionally, if the claimant raises a specific issue regarding a particular element of the claim, the notice must inform the claimant of how to substantiate the assertion, taking into account the evidence submitted in connection with the application. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant was provided with a VCAA notification letter in February 2005, prior to the initial unfavorable AOJ decision issued in March 2006. An additional letter was sent in December 2008. The Board observes that the pre-adjudicatory VCAA notice informed the appellant of the type of evidence necessary to establish service connection for the cause of the Veteran's death, how VA would assist her in developing her claim, and her and VA's obligations in providing such evidence for consideration. With regard to the notice requirements under Dingess/Hartman, the appellant was not provided notice as to disability ratings and effective dates. Nevertheless, the Board finds that no prejudice to the appellant has resulted from this lack of notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Disability ratings are not at issue in cause of death claims, and as the Board herein concludes that the preponderance of the evidence is against the appellant's claim, any questions as to the assignment of an effective date are rendered moot. As for the notice necessary under Hupp, as discussed above, the December 2008 letter advised the appellant that the Veteran was not service-connected for any disability prior to his death and what the evidence must show for service connection for cause of death to be granted on the basis of a disability not yet service-connected. Although untimely, the Board finds that no prejudice to the appellant has resulted from the delay in this notice. Id. 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 v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), (citing Mayfield v. Nicholson, 444 F.3d at 1328). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has 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. Id. In this case, subsequent to the December 2008 letter, the appellant was issued an SSOC. Thus, any timing deficiency was rectified by subsequent adjudication. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the appellant's claim and obtaining a VA opinion. The Veteran's service treatment records, private treatment records, VA treatment records, a March 2003 VA examination report, and a January 2009 VA opinion were reviewed by both the AOJ and the Board in connection with adjudication of the claim. Additionally, a September 2009 opinion from a pulmonologist with the Veteran's Health Administration (VHA) has been received by the Board. With respect to the VA and VHA opinions, the Board notes that once VA undertakes to obtain such opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board notes that the January 2009 VA examiner reviewed the claims file, but finding no imaging for personal review, he indicated that he could not draw any conclusions. Hence, the January 2009 VA examiner proffered no opinion, and as such, this report is not adequate for adjudication purposes. As for the September 2009 VHA opinion, the Board notes that the specialist reviewed the claims file and noted relevant information in service treatment records and post-service treatment evidence prior to offering a negative nexus opinion. The specialist also related known facts about the development of COPD and associated certain factors from the Veteran's medical history with the development of COPD. Therefore, the Board finds that this opinion provides an adequate basis for deciding the claim. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion for this issue has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claim without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini at 546. Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claim. II. Relevant Statutes and Regulations Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accrued benefits are defined as "periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as 'accrued benefits') and due and unpaid for a period not to exceed two years." 38 U.S.C.A. § 5121(a) (West 2002). Accrued benefits include those a veteran was entitled to at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). Parenthetically, the Board notes that the law pertaining to accrued benefits was amended in 2003 to remove the two-year limitation on accrued benefits so that a veteran's survivor may receive the full amount of an award for accrued benefits. See The Veterans Benefits Act of 2003, § 104, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). This amendment is applicable with respect to deaths occurring on or after December 16, 2003; thus, it is applicable in the present case. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). 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 causally 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 connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under section 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection). In evaluating a claim for aggravation of a preexisting disorder during service, the Board must first determine that the disorder preexisted service. When no preexisting disorder is noted upon entry into service, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a preexisting disorder is noted upon entry into service, the Veteran cannot claim service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). If a veteran is found to have had a preexisting disability and there is an increase in that disability during service, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be presumed to have been aggravated during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation will not be conceded where there was no increase in severity of the disability during service, based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. The Veteran has the responsibility to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Such increase must be shown through independent medical evidence. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). If there is no evidence of injury, complaints, or treatment of the preexisting disability in service, an increase in severity has not been shown. However, should such increase be established, aggravation is presumed to be the result of service, unless rebutted by clear and unmistakable evidence. 38 U.S.C.A. § 1111; Wagner; see also VAOPGCPREC 3-03 (July 16, 2003); 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the rebuttal standard attaches. Cotant v. Principi, 17 Vet. App. 116 (2003); see also VAOPGCPREC 3-03 (July 16, 2003). Any increase in severity must also be permanent. Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002); see Jensen v. Brown, 4 Vet. App. 304, 306- 307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). IV. Accrued Benefits The Veteran died in December 2004. In a March 2003 rating decision, the RO reopened a previously denied claim seeking service connection for cystic lung disease and denied the claim on the merits. At the time of the Veteran's death, an appeal of the March 2003 rating decision that was pending before the Board. New and material evidence In a June 1990 rating decision, the RO reconsidered a previously denied claim seeking service connection for a lung disorder on the basis that the complete service treatment records had been received. The claim had previously been denied in a March 1956 rating decision based on the proceedings of a Physical Evaluation Board (PEB). Nevertheless, after considering the Veteran's service treatment records, the RO again concluded that the Veteran had respiratory difficulties that preexisted service, were not aggravated by service, and did not result in a chronic lung disability. Accordingly, the RO denied reopening the Veteran's claim of entitlement to service connection for a lung disorder. The Veteran did not appeal this decision. The next communication from the Veteran with regard to this claim was his June 2002 application to reopen his service connection claim for a lung disorder, which is the subject of this appeal. Thus, the June 1990 decision is final. 38 U.S.C. § 4005(c) (1988) [38 U.S.C.A. § 7105 (West 2002)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1989) [§§ 3.104, 20.302, 20.1103 (2009)]. Since that decision and prior to the Veteran's death in December 2004, additional evidence had been received in the form of VA and private treatment records and a June 2003 letter from Dr. JH. This evidence is both new and material. The treatment records provide evidence as to the presence of a current respiratory disability, namely chronic obstructive pulmonary disorder (COPD), which was not yet diagnosed in June 1990. Dr. JH opined that the Veteran's current disease is a continuation of the disease process that was going on when he was in the military; therefore, the June 2002 letter supplies a relationship between the current chronic lung disability and the Veteran's service, which was missing at the time of the June 1990 denial. Thus, evidence received from the Veteran between June 1990 and December 2004 is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that evidence added to the record since the June 1990 denial is new and material and the requirements to reopen the claim of entitlement to service connection for cystic lung disease have been met. Therefore, the claim to reopen a previously denied claim seeking service connection for a lung disorder is granted for the purposes of accrued benefits. Service connection for a lung disorder The Board observes that at the Veteran's February 1953 entrance examination, the clinical examination was normal with the exception of a chest X-ray that showed some linear areas of increased density at the base of the right lung with slight irregularity of the right leaf of the diaphragm and of the right cardiac border, which the physician stated had the appearance of residual pleural thickening with old calcific deposits in the area and in the right and left hiler regions. The Board notes that the physician determined that the process was old and not disabling for military service and did not note any respiratory symptoms reported by the Veteran. The Board also observes that there is some question as to what disorder of the lungs the Veteran had at entrance. The diagnosis of congenital cystic lung disease was not assessed until July 1955; however, at that time the physician stated that the X-ray findings could represent a lung cyst or pneumothorax. A congenital lung cyst was diagnosed in an October 1955, but in November 1955, an interpretation of outside (non-military) chest films from July 1955 stated that there was a localized area of hydropneumothorax. Another July 1955 record states that the Veteran had chronic pleurisy. Thus, the Board finds that it is unclear exactly what disorder of the lung was present at entrance and, therefore, does not conclude that the Veteran had either the specific disorder of either congenital cystic lung disease or a pneumothorax prior to service. Nevertheless, the Board does not presume the Veteran was in sound condition upon entry into service with respect to his right lung tissue, as demonstrated by the August 1953 X-ray. 38 U.S.C.A. § 1111; Wagner. With regard to a post-service chronic lung disability, the Board notes that the Veteran developed lung cancer in this right lung, requiring a right upper lobectomy, and that he had COPD for many years prior to death. Thus, the criteria of a current disability are satisfied with regard to the claim. Thus, the claim turns on whether the Veteran's preexisting abnormality of the right lung underwent a permanent increase in severity, beyond the normal progression of the disorder, and resulted in a chronic lung disability. In this regard, the Board first notes that the Veteran's service treatment records do not contain any complaints that are documented as being associated with the X-ray findings at induction. The Veteran was hospitalized in May 1955 until discharge and underwent various tests of his lungs during that time. However, although he reported while hospitalized that he had had four to five colds per year with chest symptoms, no treatment evidence states that the chest symptoms were due to the right lung abnormality. Further, service treatment records show that the Veteran was evaluated for fitness for duty only after a routine pre-separation examination chest X- ray revealed the abnormality noted at entrance. These records do not demonstrate that complaints or requests for treatment by the Veteran led to concerns about his fitness for duty. Hospital records state that the hospital course was entirely asymptomatic except for a daily cough, and do not specifically relate that cough to the right lung abnormality. A July 1955 clinical summary reports that recent X-ray findings were identical to the findings on the August 1953 X- ray. A November 1955 clinical abstract states that there had been some progression of the chest X-ray findings, but does not elaborate on the changes noted. Finally, the line of duty assessments are in disagreement. In July 1955, a diagnosis of chronic pleurisy was assigned and indicated to be in the line of duty; however, no basis for this assessment of in-service occurrence of the current disorder was provided. A September 1955 PEB concluded that cystic lung disease was incurred in the line of duty, but also provided no basis for that determination. An October 1955 clinical record states that the congenital lung cyst was aggravated by service. However, a November 1955 PEB found that the changes in the X-ray findings were not a sign of aggravation, but a natural course of the disease. Additionally, a December 1955 medical board disposition states that the Veteran's cystic lung disease preexisted service and was not incurred in the line of duty. Thus, service treatment records show that physicians were in disagreement as to whether the Veteran's lung disorder was aggravated in service. Although there is a presumption of aggravation if any increase in severity is shown, the Board finds that the service treatment and hospital notes clearly and unmistakably indicate that the Veteran's right lung abnormality was not aggravated in service, thereby rebutting that presumption. In this regard, the Board observes that the Veteran did not seek in-service treatment for symptoms related to the X-ray findings and his hospital course was essentially asymptomatic. Also, only one of the several opinions on this subject in service states that the disorder was incurred in the line of duty. Further, the Board notes that the post-service evidence does not demonstrate that the Veteran sought treatment for a lung disorder until 1994, approximately 38 years after discharge. The lapse in time between service and the first complaints and diagnoses weighs against the claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Based on the above facts, the Board concludes that the Veteran's preexisting right lung abnormality was not aggravated during his military service. Additionally, post- service treatment evidence outside of those records specific to this claim do not discuss a diagnosis of cystic lung disease or pneumothorax or X-ray findings associated with the findings from the Veteran's time in service. Moreover, the Board notes a March 2003 VA examination report, in which the examiner opined that, given the extensive workup performed in service, the conclusion then that the Veteran had congenital lung disease, the lung abnormalities found at entrance, and the Veteran's history of cigarette smoking, the Veteran's lung disease is not as likely as not related to service, but is related to the factors above. Although the examiner appears to relate post-service lung disorders to the preexisting disorder, he does not suggest that any such disorder was due to aggravation of the preexisting disability. Finally, the Veteran submitted a June 2002 letter from Dr. JH, a family practitioner. Dr. JH noted the Veteran's history of smoking one pack per day from 1951 to 1968. He also summarized the Veteran's in-service treatment and diagnoses, indicating that the information was gleaned from the Veteran's VA treatment records. He then opined that, regardless of nomenclature, which had changed over the years, the Veteran had severe lung disease in service. In conclusion, he stated that, based on the Veteran's present diagnoses and his medical history, his disease today was a continuation of the disease process he experienced in the military in 1955. However, as with the March 2003 VA examiner, Dr. JH does not discuss aggravation of the preexisting disorder during military service. The mere fact that a post-service disorder is found to be related to a medical finding in service does not require a service connection if that finding existed prior to service; aggravation must be established. Even though the March 2003 VA examiner and Dr. JH opine that the current disorders are related to the preexisting disability, neither opinion discusses whether such relationship is due to aggravation in service as opposed to natural progression over decades. The in-service and post-service treatment evidence clearly and unmistakably shows that aggravation did not occur. Moreover, no competent medical professional has otherwise supplied a direct relationship between the Veteran's post-service lung disorders and his military service. Therefore, the competent evidence clearly and unmistakably establishes that the Veteran's post-service lung disorders were not the result of aggravation of his preexisting disability or were not otherwise related to his military service. The Board acknowledges the Veteran's and appellant's statements in support of the service connection claim for a lung disorder and is sympathetic to the appellant's position. The appellant can attest to factual matters of which she had first-hand knowledge, e.g., the fact that the Veteran received a medical discharge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nevertheless, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Contrary to the appellant's arguments, the simple fact that the Veteran was discharged due to a lung disorder that pre- existed his service does not demonstrate aggravation of the disorder. Here, the record shows that the discharge resulted essentially from a determination in service that the pre- existing lung disorder made the Veteran unfit for duty at enlistment; no actual change in the lung disorder was documented and the only change reported, in November 1955, was deemed to be due to natural progression. Absent competent evidence of a nexus between the post-service lung disorders and service, either based in aggravation or incurrence, service connection for a lung disorder is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lung disorder. Therefore, entitlement to service connection for a lung disorder for the purpose of accrued benefits must be denied. V. Service Connection for Cause of Death The appellant is seeking DIC benefits based on service- connected death of the Veteran. Service connection was not in effect for any disability. As reported on the Veteran's death certificate, he died in December 2004; the immediate cause of death was chronic obstructive pulmonary disorder (COPD), with cor pulmonale, obstructive sleep apnea, anemia, and type II diabetes mellitus listed as significant contributing conditions. The appellant contends that the Veteran's COPD was the result of in-service aggravation of his preexisting lung disorder. Such a relationship is discussed at length above; however, in addition to the aforementioned evidence, a September 2009 VHA opinion is of record with regard to this claim. The VHA pulmonologist opined that, based on his review of the file, it is less likely than 50 percent that the Veteran's cystic lung disease underwent a permanent increase in severity in service. The specialist also stated that COPD is a disorder caused or exacerbated by several environmental exposures, most commonly smoking. Further, he noted that research had shown that COPD may still develop many years after smoking cessation as the smoking had already initiated the inflammatory process in the lungs. He also stated that the record did not show any other toxic exposures that could have deteriorated the respiratory status of the Veteran. Finally, he opined that the Veteran's COPD was less likely related to his military service and more likely related to his smoking. Even if the Veteran began smoking in service, for claims filed after June 8, 1998, service connection is prohibited for disability or death on the basis that it resulted from disease or injury attributable to the use of tobacco products during the Veteran's active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300 (emphasis added). Thus, it remains that the competent evidence shows that there was no aggravation of a preexisting lung disorder resulting in the post-service COPD and that COPD is a disability that is not otherwise associated with the Veteran's military service. Accordingly, service connection for the cause of the Veteran's death is denied. ORDER New and material evidence having been received, the claim to reopen the previously denied claim seeking service connection for cystic lung disease is granted for the purposes of accrued benefits. Service connection for a lung disorder, to include cystic lung disease, is denied for the purposes of accrued benefits. Service connection for the cause of the Veteran's death is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs