Citation Nr: 1008599 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 09-25 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1981, and subsequently served in the Puerto Rican National Guard from December 1977 to October 1989. During his time in the National Guard, he had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Veteran died in May 2008. The appellant is his widow (surviving spouse). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. At the time of his death, the Veteran had an appeal pending for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities and entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or on account of being housebound. However, in an October 2009 decision, the Board dismissed this appeal due to the death of the Veteran. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2009). In this vein, as a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Therefore, these issues are no longer before the Board. Based the appellant's statements in the July 2009 Substantive Appeal, it appears the appellant may be raising the additional issue of entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151 for the death of the Veteran as caused by VA hospitalization or medical or surgical treatment. The Board may not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 2002). The RO has not fully adjudicated any other issue and the Board may not unilaterally take jurisdiction of any additional claim. The RO should request the appellant to clearly indicate what additional claim, if any, she wishes to pursue. The RO should then take appropriate action to adjudicate this claim, if any. In any event, no other issue is before the Board at this time. FINDINGS OF FACT 1. The Veteran died in May 2008. The death certificate lists the immediate causes of death as respiratory arrest, central nervous system astrocytoma (brain cancer), diabetes mellitus, and uncontrolled high blood pressure (hypertension). No contributory causes of death are listed. No autopsy was performed. 2. At the time of his death, the Veteran had one service- connected disability: post-traumatic headache disorder, rated as 50 percent disabling. 3. There is no probative evidence of the causes of the Veteran's death - i.e., respiratory arrest, brain cancer, diabetes mellitus, and hypertension during his military service, National Guard service, or for many years thereafter, and there is competent medical evidence against a link between the Veteran's brain cancer and his military service. 4. There is no probative evidence that his service-connected post-traumatic headache disorder was a principal or contributory cause of death. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, an injury or disease incurred in or aggravated by active military service, to include on a presumptive basis. 38 U.S.C.A. §§ 101(16), 1101, 1103, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Review of the claims folder reveals limited compliance with the VCAA. The duty to notify was accomplished by way of a VCAA letter from the RO to the appellant dated in May 2008. This letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing her about the information and evidence not of record that was necessary to substantiate her cause of death claim; (2) informing her about the information and evidence the VA would seek to provide; (3) informing her about the information and evidence she was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, the Board acknowledges that the May 2008 VCAA notice letter is not fully compliant with the U.S. Court of Appeals for Veterans Claims (Court's) decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In Hupp, the Court held that § 5103(a) notice in a cause of death claim must include 1) a statement of the conditions (if any) for which a 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 condition; and 3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp, 21 Vet. App. at 352-53. The May 2008 letter only partially complies with Hupp, in that it did provide an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition. However, as to other Hupp elements, there is a content error in the VCAA notice provided to the appellant. In any event, the Board is satisfied that the content error did not prejudice the appellant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). That is, the record reflects that the appellant had actual knowledge of precisely what evidence she would need to submit to substantiate her claim. See Mlechick v. Masfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim); Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (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.) In this regard, the appellant has demonstrated that she has knowledge that the Veteran was only service-connected for one disability during his lifetime - a post-traumatic headache disorder. In addition, the appellant is clearly aware of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See September 2008 Notice of Disagreement (NOD); July 2009 Substantive Appeal. Specifically, she argues that the Veteran's service-connected headache disorder was misdiagnosed, in that his headaches symptoms were actually attributable to a brain tumor, which should have been service-connected instead of the post- traumatic headache disorder. In her Substantive Appeal, she requests a medical opinion to establish this assertion. Furthermore, the Board concludes that a reasonable person in the appellant's position would have known from the information she received what she was required to submit in order to substantiate her claim. See Mlechick, 503 F.3d at 1344 (VCAA notice error not prejudicial when a reasonable person could be expected to understand from the notice what was needed). That is, the July 2009 Statement of the Case (SOC) provided the appellant with a summary of the pertinent evidence as to her cause of death claim, a citation to the pertinent laws and regulations governing her cause of death claims, and a summary of the reasons and bases for the RO's decision to deny her cause of death claim. Overall, the appellant was afforded a meaningful opportunity to participate effectively in the adjudication of her DIC claim. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). In short, there is no prejudice to the appellant due to the lack of compliant Hupp notice. The RO did not, however, provide VCAA notice that an effective date for the award of benefits will be assigned if DIC benefits are awarded, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Regardless, since DIC benefits are being denied, no effective date will be assigned on this basis, so not providing additional notice concerning this downstream element of the claim is moot and, therefore, at most harmless error. See, too, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As such, the Board concludes prejudicial error in the content of VCAA notice has not been demonstrated. See again Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). As to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the August 2008 rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's National Guard records, VA treatment records, private records as identified and authorized by the appellant, and Social Security Administration (SSA) records. In addition, the appellant has also submitted several written personal statements and a death certificate. In addition, VA had previously obtained several medical opinions pertaining to the etiology of the ultimate cause of the Veteran's death (brain cancer), in compliance the requirement of 38 U.S.C.A. § 5103A(a). See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Consequently, based on the VA medical opinions already of record, there is no reasonable possibility of substantiating this claim on any basis, such that yet another medical opinion is not warranted. See 38 U.S.C.A. § 5103(A)(a)(2). As to the Veteran's service treatment records (STRs), the RO has secured relevant Puerto Rican National Guard records and examinations from the 1980s. However, the RO was not able to secure STRs dated during the Veteran's initial period of service from June 1978 to June 1981. When STRs are lost or missing, VA has a heightened obligation to satisfy the duty to assist. Under these circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In any event, despite the missing STRs, there is no allegation by the appellant or any other evidence that the Veteran experienced any of the causes of death listed on his death certificate during his initial period of military service. In fact, subsequent National Guard and post-service VA and private treatment records document the onset of his uncontrolled hypertension, diabetes mellitus, respiratory arrest, and brain cancer (i.e., the causes of his death) to several years after service. Consequently, the fact that STRs from his initial period of service are missing does not affect the appellant's cause of death claim. See 38 U.S.C.A. § 5103A(c) (VA is only required to obtain "relevant" service records). Therefore, the Board is satisfied that all relevant evidence identified by the appellant has been secured, and that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). Governing Laws and Regulations - Cause of Death When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, his surviving spouse is generally entitled to DIC. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2009); 38 C.F.R. § 3.5(a) (2009); see generally 38 U.S.C.A. Chapter 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303. Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In such case, the physician must relate the current condition to the period of service. Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some chronic diseases, such as brain tumors, diabetes mellitus, and hypertension are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service- connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice- connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries 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 diseases or injury primarily causing death. Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death that, 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, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4); Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for death benefits. 38 U.S.C.A. §§ 1154(a) (West 2002). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in- service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). Therefore, a medical opinion is not always required to establish such a nexus. See id. As pertinent to this holding, the Federal Circuit has also previously rejected as "too broad" the proposition that competent medical evidence is always required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). On this point, 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, (e.g., a broken leg), (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. Jandreau, 492 F.3d at 1377 (footnote omitted). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Cause of Death In this case, the Veteran died on May [redacted], 2008. He was 48 years old. His death certificate lists the immediate causes of death as respiratory arrest, central nervous system astrocytoma (brain cancer), diabetes mellitus, and uncontrolled high blood pressure (hypertension). No contributory causes of death are listed. No autopsy was performed. At the time of his death, the Veteran had one service-connected disability: post-traumatic headache disorder, rated as 50 percent disabling. The appellant contends that the Veteran should be service- connected for his brain cancer cause of death, since it was actually misdiagnosed as a post-traumatic headache disorder. In other words, she believes the VA previously service- connected the Veteran for the wrong disorder, and should now grant service connection for the Veteran's brain cancer. She adds that the severe headaches the Veteran suffered from up to the time of his death were due to his brain tumor, not a post-traumatic headache disorder. In essence, she contends that the onset of his brain cancer dates to his already service-connected January 1987 head injury from a motor vehicle accident (MVA) that occurred in the National Guard during a period of INACDUTRA. She asserts his brain tumor with headaches led to his respiratory arrest resulting in his death in May 2008. See September 2008 NOD; July 2009 Substantive Appeal. With regard to the already service-connected post-traumatic headache disability, there is no competent and credible evidence of record that this disability was a principal or a contributory cause of his death. 38 C.F.R. § 3.312(a). That is, the Board finds no competent evidence of a connection between any of the causes of his death listed on the death certificate and the Veteran's service connected post- traumatic headache disability. 38 C.F.R. §§ 3.1(k), 3.303, 3.310; Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Stated another way, the evidence does not demonstrate that his service-connected post-traumatic headache disability caused or aggravated the brain cancer that ultimately led to his death. See 38 C.F.R. § 3.310. Specifically, as to his already service-connected post- traumatic headache disability, the death certificate does not mention this disability either as principal or contributory cause of his death. In fact, the box for contributory causes of death was left blank. The physician who signed the death certificate indicated that he treated the Veteran in the two weeks prior to his death from April 24, 2008 to May [redacted], 2008, such that he would have been familiar with the Veteran's medical conditions and history. Moreover, there is competent medical evidence in the claims folder against a relationship between the Veteran's brain cancer and his service connected post-traumatic headache disability. 38 C.F.R. §§ 3.1(k), 3.303, 3.310; Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). That is, in a September 1996 VA opinion, a VA physician opined that the Veteran's fourth ventricle lesion with hydrocephalus (i.e., brain cancer), first diagnosed post-service in 1995, was not related to the Veteran's service-connected head trauma from 1987. In addition, a VA neurological examiner in February 2001 concurred with the September 1996 VA opinion. Further, a September 2006 VA neurological examiner, after a review of the claims folder, opined that the Veteran's service-connected post-traumatic headache disorder with onset in 1987 secondary to an in- service MVA, was not related to his brain cancer, onset around 1995. Of significance is the fact that the September 2006 VA neurological examiner provided strong reasons and bases for his opinion. The examiner explained that the rationale for the lack of relationship between the two conditions is mainly the timeframe of eight years between them. The examiner added that if the clinical onset of the brain tumor had been earlier than 1995, it would have produced symptoms, particularly papilledema, very early in its onset and never eight years later than the 1987 in- service MVA. The examiner also noted that the relationship between brain cancer and head trauma has not been established with medical certainty in the medical literature by consensus. Overall, the VA medical opinions and examinations of record, when considered together, provide strong evidence against the claim. That is to say, the evidence does not show that the Veteran's service-connected post-traumatic headache disability contributed substantially or materially, combined, aided, or lent assistance to the cause of his death. 38 C.F.R. § 3.312(c). No medical profession has indicated as such, and his medical records preceding death do not make any such implication. The Board emphasizes that it is not sufficient to show that a disorder casually shared in producing death, but rather it must be shown there was a causal connection. 38 C.F.R. § 3.312(c)(1). The Board has also made this determination based on the evidence of record, keeping in mind that service-connected diseases or injuries affecting vital organs such as the brain 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 diseases or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There is no probative evidence of record suggesting that the Veteran's service-connected post-traumatic headache disability rendered him materially less capable of resisting the effects of other diseases or injury primarily causing death. Finally, with regard to the nonservice-connected actual causes of death listed on his death certificate - specifically respiratory arrest, central nervous system astrocytoma (brain cancer), diabetes mellitus, and uncontrolled high blood pressure (hypertension), there is no competent and credible evidence of a relationship between these disorders and the Veteran's active duty and National Guard service. 38 C.F.R. §§ 3.1(k), 3.303; Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). That is, service connection is not warranted for the principal causes of death listed on his death certificate. His National Guard records are negative for any complaint, treatment, or diagnosis for these disorders. Although his STRs from his initial period of service from June 1978 to June 1981 are missing, neither the Veteran nor the appellant has ever asserted symptoms of the causes of his death during this initial period of service. Post-service, since there is no documented evidence of these disorders until the mid- 1990s, such that the Veteran is not entitled to application of the presumptive provisions for brain cancer, hypertension, or diabetes mellitus. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In particular, VA, private, and SSA records dated in the 1990s and thereafter, as well as numerous VA examinations of record do not mention any of these disorders until the mid-1990s. Therefore, service connection for these disorders may not be established based on chronicity in service or continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In any event, the appellant- widow never specifically contended, and evidence does not otherwise establish, that the respiratory arrest, diabetes mellitus, or uncontrolled high blood pressure disorders listed on the death certificate began during the Veteran's initial period of service or latter National Guard service. In short, service connection is not warranted for the principal causes of death listed on the Veteran's death certificate. Most importantly, as to brain cancer, even though this is clearly one of the causes of the Veteran's death, there is no competent evidence of a nexus between the Veteran's brain cancer and his military service. 38 C.F.R. §§ 3.1(k), 3.303; Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). His VA examinations and opinions discussed above, as well as VA, SSA, and private treatment records document that although the Veteran has experienced headaches since the time of his in-service MVA in 1987, his headaches did not worsen until late 1994 and early 1995, at which time he was diagnosed with brain cancer. He thereafter underwent several post-service brain surgeries. But the essential point is that his SSA disability determination dates the onset of his brain cancer to February 1995, many years after service. And of greater significance are the September 1996, February 2001, and September 2006 VA medical examinations and opinions that date the onset of his brain cancer post-service to 1995, rather than 1987 during his National Guard service. The Board acknowledges that there is competent and credible lay and medical evidence of record revealing that the Veteran experienced additional, worsening headaches in 1995 until his death in 2008 due to his nonservice-connected brain cancer. See May 1995 VA examination; January 2003 VA neurological examination; November 2004 VA hospital report; September 2005 VA neurological examination; and June 2008 VA neurosurgery note. However, the Board does not see how this fact helps substantiate the appellant's claim. That is, it is still not shown that the Veteran's brain cancer is service connected or that his service-connected post-traumatic headache disability was a principal or a contributory cause of his death. With regard to lay evidence, as noted above, in certain instances lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in-service disease or injury. Davidson, 581 F.3d at 1315-16. But in the present case, although the appellant is indeed competent to report her observations on the Veteran's medical symptoms and discomfort during his lifetime, she is not competent to render an etiological opinion as to the medical etiology of his brain cancer, absent evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159(a)(1), (2); Jandreau , 492 F.3d at 1377. She does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. She is also not competent to attribute his earlier head injury symptoms in service to brain cancer, a diagnosis necessitating medical education and training. Moreover, her lay assertions are outweighed by the well-reasoned medical findings of the September 2006 VA neurological examiner. Accordingly, even in consideration of the heightened duty due to missing STRs, the Board finds that the preponderance of the evidence is against service connection for the cause of the Veteran's death, so there is no reasonable doubt to resolve in the appellant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs