Citation Nr: 1031335 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 05-16 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, for purposes of accrued benefits. 3. Entitlement to service connection for a heart disorder, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 4. Entitlement to service connection for an upper extremity disorder, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 5. Entitlement to service connection for a lower extremity disorder, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 6. Entitlement to service connection for a pulmonary disorder, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 7. Entitlement to service connection for a myoclonic seizure disorder, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 8. Entitlement to service connection for osteoporosis, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 9. Entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 10. Entitlement to service connection for angina, to include as due to diabetes mellitus, type II, for purposes of accrued benefits. 11. Entitlement to service connection for bilateral hearing loss, for purposes of accrued benefits. 12. Entitlement to service connection for tinnitus, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to April 1971. The Veteran died in May 2004, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) and Board remand. FINDINGS OF FACT 1. The Veteran died in May 2004; the immediate cause of death listed on his death certificate is arteriosclerosis. The death certificate also listed diabetes mellitus as a significant condition contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, service connection was not established for any disability. 3. The Veteran did not serve in Vietnam, and there is no competent evidence establishing that he was exposed to any herbicides, to include Agent Orange, during service. 4. The competent evidence fails to show that the Veteran's diabetes mellitus, type II, was incurred in or related to his military service. 5. The competent medical evidence does not show that a service- connected disability caused or substantially or materially contributed to the Veteran's death. 6. The Veteran filed claims for entitlement to service connection for an upper and lower extremity disorder, a pulmonary disorder, osteoporosis, angina, and bilateral hearing loss that were received by the RO on May 3, 2004; evidence of record at the time of the Veteran's death in May 2004 fails to show that he had a current diagnoses of an upper and lower extremity disorder, a pulmonary disorder, osteoporosis, angina, or bilateral hearing loss. 8. The Veteran filed claims for entitlement to service connection for diabetes mellitus, type II, a heart disorder, a myoclonic seizure disorder, hypertension, and tinnitus which were received by the RO on May 3, 2004; however, the evidence of record at the time of the Veteran's death fails to show that his diabetes mellitus, type II, heart disorder, myoclonic seizure disorder, hypertension, or tinnitus were related to his active military service, to include a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312(a), 3.313 (2009). 2. The criteria for entitlement to accrued benefits based on the Veteran's pending claims of service connection for diabetes mellitus, type II, a heart disorder, an upper and lower extremity disorder, a pulmonary disorder, a myoclonic seizure disorder, hypertension, osteoporosis, angina, bilateral hearing loss, and tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.313, 3.1000 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009). As an initial matter, the Board notes that in Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in her possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23,353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board observes that the appellant was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claim decided herein. May 2004, July 2004, and March 2009 letters expressly told her to provide any relevant evidence in her possession. See Pelegrini II, 18 Vet. App. at 120. The Court has prescribed more specific notice requirements for claims for dependency and indemnity compensation (DIC) based on whether a veteran was service connected for a disability during his or her lifetime. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Specifically, 38 U.S.C.A. § 5103(a) notice for a DIC case 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. Id. The Board finds that July 2004 and March 2009 letters satisfied VA's duty to notify provisions under the VCAA and Hupp. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the letters advised the appellant of what information and evidence was needed to substantiate her claim for the cause of the Veteran's death. Finally, these letters informed the appellant about what information and evidence must be submitted by her, including enough information for the RO to request records from the sources identified by the appellant, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. Although the March 2009 VCAA letter was sent to the Veteran after the initial adjudication of her claim in September 2004, the Board finds there to be no error because the appellant has not identified how failure to provide this notice prior to initial adjudication has prejudiced her. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Furthermore, the Board observes that any potential prejudice is rendered harmless by the fact that the March 2009 notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, the appellant was provided an additional opportunity to submit evidence and argument in support of her claim following receipt of the March 2009 letter, and the claim was readjudicated in a June 2010 supplemental statement of the case. See Pelegrini, 18 Vet. App. at 120; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). The Board observes that the appellant was not provided with notice as to the evidence and information necessary to establish an effective date should her claim for DIC be granted. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). However, because the Board has concluded that a preponderance of the evidence is against this claim, any questions as to the appropriate effective date to be assigned have been rendered moot, and the absence of notice on this element of the claim should not prevent a Board decision. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records, service personnel records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA medical opinion was not requested in conjunction with the appellant's claim, and the Board has determined that the evidence currently of record is sufficient to decide her claim. See Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (section 5103A(a), and not (d), applies to DIC claims, and requires that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit"). In the present case, the only theory advanced by the appellant that is plausible in light of the current record involves awarding service connection for the cause of the Veteran's death as due to herbicide exposure, which is not shown by the evidence of record. Absent any competent evidence that the Veteran's cause of death is otherwise related to his military service, no medical opinion would aid in substantiating the appellant's claim. Thus, no remand for a VA medical opinion is warranted. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield, 20 Vet. App. at 542-43; see also Dingess/Hartman, 19 Vet. App. at 473. Turning to the appellant's accrued benefits claims, the Board finds that a letter dated in March 2009 fully satisfied VA's duties to notify the claimant of information necessary to substantiate and develop her claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini, 18 Vet. App. at 120. As for VA's duty to assist, as will be explained in greater detail below, the outcome of an accrued benefits claim 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. I. DIC Claim The appellant is seeking entitlement to service connection for the cause of the Veteran's death. See 38 U.S.C.A. § 1310. The cause of a veteran's death will be considered to be 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). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of a veteran, including, particularly, autopsy reports. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or 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). Applicable law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In the present case, the immediate cause of the Veteran's death was reported on the death certificate as arteriosclerosis. Diabetes mellitus was listed as a significant condition contributing to death but not resulting in the underlying cause. The appellant asserts that the Veteran's diabetes mellitus, which contributed to his death, is the result of exposure to herbicide agents while serving in the Republic of Vietnam. As such, she contends that service connection for the cause of the Veteran's death is warranted. VA law and regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See also 38 C.F.R. § 3.309(e). Furthermore, VA has determined that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002). The Federal Circuit Court recently clarified that service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Service on inland waterways (also called "brown water" service) is also considered to be sufficient to invoke the presumption. "Veterans who served aboard large ocean-going ships that operated on the offshore waters of the RVN are often referred to as 'blue water' veterans because of the blue color of the deep offshore waters. They are distinguished from 'brown water' veterans who served aboard smaller river patrol and swift boats that operated on the brown- colored rivers, canals, estuaries, and delta areas making up the inland waterways of the RVN. Brown water Navy and Coast Guard veterans receive the same presumption of herbicide exposure as veterans who served on the ground in the RVN." VA Manual M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. The Board notes that, prior to his death, the Veteran submitted a claim for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure during service. A May 2004 report of contact reflects that the Veteran reported that, while onboard a ship for three weeks during active duty service in the U.S. Navy, he was exposed to herbicide agents. The Veteran's service treatment records are negative for any indication that he had in-country service in Vietnam, or that he was otherwise exposed to herbicides. The service treatment records are also negative for any complaints of or treatment for a arteriosclerosis or diabetes mellitus, type II. The Veteran's service personnel records reflect that he served onboard the USS ROBISON from January 1966 to April 1971. His Report of Separation, Form DD 214, shows that he was awarded the Armed Forces Expeditionary Medal for service in Korea, the National Defense Service Medal, the Vietnam Service Medal with two bronze stars, the Good Conduct Medal, and the Combat Action Ribbon. A memorandum within the Veteran's service treatment record indicates that the Veteran was awarded the Combat Action Ribbon in August 1969. In a separate document, the Veteran certified that he met the eligibility criteria for the award of a Combat Action Ribbon for participating in combat operations while onboard the USS ROBISON during the period of August 1967 to January 1968. The document also notes that, on separate occasions during August 1967 to January 1968, the USS ROBISON received a total of 180 rounds of hostile fire with many early rounds straddling the ship and that each time the ship maneuvered out of range of the offending enemy shore batteries while providing counter-battery fire. In support of her claim, the appellant submitted additional service personnel records which reveal that the Veteran served aboard the USS TOLOVANA from December 28, 1967 to January 1, 1968 and that the USS TOLOVANA was in the Vietnam Combat Zone from December 28, 1967 to December 31, 1967. In addition, she submitted "Captain's Cabin" letters dated in March 1966, April 1966, and January 1971. In pertinent part, the March 1966 letter notes that there were over fifty beard growers onboard the USS ROBISON, and that, while stationed off the coast of Vietnam, "all of our original growers are now enjoying my permission to go ashore with their shipmates. Permission to go ashore while we stay at sea isn't much of a privilege!" An April 1966 Captain's Cabin letter notes that the USS ROBISON provided gunfire support on numerous occasions from the coastal waters of South Vietnam for troops stationed in South Vietnam. Specifically, the letter notes that gunfire support was provided for the 101st Airborne Division and in support of OPERATION JACKSTAY. The USS ROBISON also bombarded Viet Cong positions near the southern tip of Vietnam. The January 1971 Captain's Cabin letter reflects that the USS ROBISON finished its tour by firing "Naval Gunfire Support missions for twenty four straight days off South Vietnam" and that during that time, "she actually fired in all four military regions from the DMZ down around the Mekong River Delta and up near the Cambodian border in the gulf of Siam." In June 2004, the RO requested that the National Personnel Records Center (NPRC) furnish the dates that the Veteran served in Vietnam. In a June 2004 response, the NPRC reported that they were unable to determine whether or not the Veteran had in- country service in Vietnam, noting that the Veteran served aboard the USS ROBISON which was in the official waters of the Republic of Vietnam from February 23, 1966 to March 14, 1966, from March 21, 1966 to April 29, 1966, from May 10, 1966 to May 23, 1966, from June 8, 1966 to June 20, 1966, from August 26, 1967 to September 26, 1967, from October 13, 1967 to October 21, 1967, from November 11, 1967 to December 21, 1967, from January 31, 1969 to February 28, 1969, from March 12, 1969 to April 5, 1969, and from April 17, 1969 to May 6, 1969. The NPRC was not able to provide any conclusive proof that the Veteran was physically in- country in Vietnam at any time during his active military service. In a May 2009 memorandum, the U.S. Army and Joint Services Records Research Center (JSRRC) issued a statement that, after reviewing numerous official military documents, ship histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents during the Vietnam era, JSRRC found no evidence that indicates that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. In addition, the statement notes that JSRRC cannot document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The statement concluded that JSRRC could provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. In a March 2010 letter, in response to the RO's March 2010 letter requesting copies of deck logs for the USS TOLOVANA, the National Archives and Records Administration (NARA) noted that the ship deck log for the USS TOLOVANA for the period of July 1967 through April 1971 "does not provide information placing individuals onboard the ship, nor indicate names of individuals who departed the ship and might have set foot in Vietnam, nor will it provide other personnel related information." After a thorough review of the Veteran's claims file, the Board concludes that the evidence of record is insufficient to establish a presumption of herbicide exposure because there is no evidence substantiating the appellant's contentions that the Veteran had in-country service in Vietnam. Although the Veteran's personnel records indicate that he received the National Defense Service Medal, Vietnam Service Medal, Combat Action Ribbon, Armed Forces Expeditionary Medal (Korea), and First Good Conduct Medal Award, there is no indication that he ever served in-country in Vietnam. See Haas, 525 F.3d 1168 (upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). See also 38 C.F.R. § 3.313. Despite the RO's attempts to confirm the appellant's contentions that the Veteran had in-country service in Vietnam, the NPRC has been unable to provide any evidence suggesting that the Veteran entered the Republic of Vietnam during his active duty service. The Board acknowledges that the Captain's Cabin letters reflect that the Veteran participated in direct support of the conflict in Vietnam; however, they do not confirm that the Veteran ever set foot in Vietnam. The Board also acknowledges that the Veteran was awarded an Armed Forces Expeditionary Medal during service; however, his personnel records clearly show that this award was given for service in Korea, and not Vietnam. Ultimately, the Veteran's service personnel records fail to show that the Veteran ever set foot in Vietnam, or that he was attached to a unit on the Demilitarized Zone (DMZ) in Korea, see M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C (DoD has acknowledged that herbicides were used in Korea from April 1968 through July 1969 along an area of the DMZ, and has provided a list of units affected by this usage). The appellant contends that the evidence of record is sufficient to show that the Veteran had in-country service in Vietnam during his active military service. Specifically, she argues that the April 1966 Captain Cabin's letter shows that the Veteran was in the coastal waters off of Vietnam and supported the 101st Airborne Division "in the mouth of the River (Mekong Delta) at Saigon." She also notes that the March 1966 Captain's Cabin letter states that many sailors who had beards were sent ashore and that the Veteran "did have a beard during that time." Further, she alleges that the January 1971 Captain's Cabin letter reflects that the USS ROBISON was "around the Mekong Delta Area, which would suggest that they were up the Mekong River to be able to reach these areas of fire support." Last, the appellant notes that a December 1967 document "puts the veteran in a combat zone and would show that he was directing fire for the USS Robinson [sic] in a combat zone in Vietnam. He was awarded a Combat Action Ribbon from the Navy for his actions." While the Captain's Cabin letters submitted by the appellant reflect that the Veteran participated in direct support of the conflict in Vietnam from the USS ROBISON which was stationed in the coastal waters of South Vietnam, including engaging in gunfire in support of troops ashore and directly against Viet Cong positions in Vietnam, the letters do not reflect that the Veteran was ever physically in-country in Vietnam. In addition, although the January 1971 letter indicates that the USS ROBISON was "around the Mekong River Delta," the letter does not indicate that the USS ROBISON entered the Mekong River Delta or the Mekong River, or otherwise entered the inland waterways of the Republic of Vietnam. In fact, the letter described a course around the Vietnam coast. Further, the April 1966 letter noted that the USS ROBISON operated in the coastal waters of South Vietnam. With regard to the March 1966 letter which reflects that "original" beard growers had "permission to go ashore with their shipmates," the letter also notes that "[p]ermission to go ashore while we stay at sea isn't much of a privilege," indicating that those service members who had permission to go ashore were not able to because the USS ROBISON remained at sea. Moreover, although the appellant noted that the Veteran had a beard during that time, there is no evidence that the Veteran was one of the "original" beard growers who had permission to go ashore, or that he ever went ashore even if he did have permission. The Board also acknowledges the appellant's argument that the Veteran received a Combat Action Ribbon which shows that he was in-country in Vietnam because there was no evidence that the USS ROBISON was under fire and that Combat Action Ribbons were given to military personnel who participated in a ground or surface combat fire or action during which they were under enemy fire. However, the Veteran's service personnel records show that he was awarded the Combat Action Ribbon for participating in combat operations "while serving on board USS ROBISON (DDG 12)" from August 1967 to January 1968. Thus, the Veteran's service personnel records specifically contradict the appellant's argument that the Veteran's Combat Action Ribbon shows that he was in-country in Vietnam. The Board recognizes the appellant's sincere belief that her husband had in-country service in Vietnam. However, in the absence of any additional evidence corroborating the appellant's assertions that the Veteran served in the Republic of Vietnam during active duty, the Board does not find these statements to be persuasive. Moreover, the Veteran's own statement in May 2004 expressly contradicts the appellant's contentions that he had in- country service in Vietnam. The Veteran reported that he was exposed to herbicide agents while on a ship. He did not indicate any in-country service in Vietnam. For the foregoing reasons, the Veteran is not presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307(a)(6), 3.313. Accordingly, service connection for the cause of the Veteran's death on a presumptive basis is not warranted. 38 C.F.R. § 3.309(e). Although the appellant has not asserted another theory of service connection for the Veteran's cause of the death, service connection may also be awarded if the competent evidence demonstrates that the Veteran's arteriosclerosis or diabetes mellitus, type II, is directly related to his active duty service. Unfortunately, none of the remaining competent evidence of record discusses the etiology of the Veteran's arteriosclerosis or diabetes mellitus, type II. Moreover, there is no competent medical evidence of record to suggest that arteriosclerosis or diabetes mellitus, type II, is otherwise related to service. In this regard, there is nothing in the Veteran's service treatment records that would indicate that arteriosclerosis or diabetes mellitus, type II, began during service or during the presumptive one-year period following service. The Board is sympathetic to the appellant's loss of her husband, but it must rely on competent medical evidence in making its determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the present case, the first medical evidence of record of diabetes mellitus was in 2004, over 33 years after the Veteran's discharge from military service. A February 2004 private treatment record notes that the Veteran's history was significant for diabetes mellitus, type II, for the preceding 17 years. This would place the initial diagnosis of diabetes mellitus in 1987, approximately 16 years after his discharge from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The first medical evidence of record of arteriosclerosis or coronary artery disease was in February 2004, over 33 years after the Veteran's discharge from service. Id. Thus, the evidence does not show that the Veteran's diabetes mellitus, type II, or arteriosclerosis which caused his death were directly related to service. Ultimately, there is nothing in the evidence of record to support the assertions advanced by the appellant and the Veteran during his lifetime that he was exposed to herbicides during service. Thus, service connection cannot be awarded on a presumptive basis. As the competent evidence does not show that the Veteran's death was directly due to military service, the preponderance of the evidence is against direct service connection for the cause of his death. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for the cause of the Veteran's death is not warranted. II. Accrued Benefits Claims At the time of his death, the Veteran had pending claims of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure; entitlement to service connection for a heart disorder, to include as due to diabetes mellitus, type II; entitlement to service connection for an upper and lower extremity disorder, to include as due to diabetes mellitus, type II; entitlement to service connection for a pulmonary disorder, to include as due to diabetes mellitus, type II; entitlement to service connection for a myoclonic seizure disorder, to include as due to diabetes mellitus, type II; entitlement to service connection for osteoporosis, to include as due to diabetes mellitus, type II; entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II; entitlement to service connection for angina, to include as due to diabetes mellitus, type II; entitlement to service connection for bilateral hearing loss; and entitlement to service connection for tinnitus. Under 38 U.S.C.A. § 5121(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." Accrued benefits include those that the 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). Thus, the appellant could not furnish additional evidence that could be used to substantiate her claim, and VA could not develop additional evidence that would substantiate the claims of entitlement to accrued benefits. "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. Hayes v. Brown, 4 Vet. App. 353 (1993); 38 C.F.R. § 3.1000(d)(4). As noted above, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). A. Diabetes Mellitus, Type II The Board has already considered whether the Veteran's diabetes mellitus, type II, was related to his active duty service, and determined that the evidence does not demonstrate that the Veteran's diabetes mellitus, type II, is related to active military service, to include herbicide agents. Consideration of the appellant's claim of entitlement to service connection for diabetes mellitus, type II, for the purpose of accrued benefits requires the same analysis as consideration of her claim for service connection for the cause of the Veteran's death. For the sake of brevity, the Board will not repeat its prior discussion and analysis of this issue. Accordingly, for the reasons discussed above, entitlement to service connection for diabetes mellitus, type II, for the purpose of accrued benefits, is not warranted. B. Heart Disorder, Myoclonic Seizure Disorder, Hypertension, Tinnitus In May 2004, the Veteran filed claims for entitlement to service connection for a heart disorder, myoclonic seizure disorder, hypertension, and tinnitus. At the time of his death later that same month, the evidence of record consisted of the Veteran's service treatment records, his service personnel records, private medical treatment records dated from February 2004 through April 2004, and the Veteran's May 2004 claim form. The May 2004 claim form reflects that the Veteran sought service connection for a heart disorder, myoclonic seizure disorder, and hypertension on a secondary basis, to include as due to a service-connected disorder. Specifically, as he was claiming entitlement to service connection for diabetes mellitus, type II, he alleged that those disorders were related to his diabetes mellitus, type II, which he believed to be service-connected. The Veteran's service treatment records are negative for any complaints or findings of a heart disorder, a seizure disorder, hypertension, or tinnitus. A July 1964 enlistment examination reflects that the Veteran's heart, head, and ears were normal. The report also notes a blood pressure reading of 128/72. In a report of medical history, completed at that time, the Veteran denied a history of ear, nose, and throat trouble, running ears, pain or pressure in the chest, palpitation or pounding heart, high or low blood pressure, and epilepsy or fits. A July 1964 chest x-ray was negative. A December 1967 discharge and reenlistment examination shows that the Veteran's heart, head, and ears were normal. The report also reveals a blood pressure reading of 122/74. The Veteran's April 1971 separation examination also reflects that the Veteran's heart, head, and ears were normal. The report notes a blood pressure reading of 100/70. Private medical treatment records from February 2004 through April 2004 reveal diagnoses of a heart disorder, a myoclonic seizure disorder, and hypertension. Specifically, a February 2004 treatment record reflects that the Veteran reported a history of multiple strokes, myoclonic seizure disorder, and coronary artery disease. The report also noted a blood pressure reading of 122/82. The diagnoses were hypertension and coronary artery disease. A March 2004 treatment record indicates a blood pressure reading of 144/80. In April 2004, the Veteran's blood pressure was 142/88. Another April 2004 treatment record notes that the Veteran's blood pressure was 152/84. The diagnoses were hypertension and seizure. After a careful review of the evidence of record, the Board concludes that service connection on an accrued basis is not warranted for coronary artery disease, a myoclonic seizure disorder, hypertension, and tinnitus. Current diagnoses of coronary artery disease, seizure disorder, and hypertension at the time of the Veteran's death are of record. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the medical evidence of record does not reflect a medical diagnosis of tinnitus, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The medical evidence of record does not show that hypertension or coronary artery disease were diagnosed within one year of service discharge; therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. § 1101, 1112, 1113; see also 38 C.F.R. § 3.307, 3.309. The Veteran's service treatment records are negative for any complaints of or treatment for coronary artery disease, seizures, hypertension, and tinnitus. Moreover, neither the Veteran nor the appellant has alleged that the Veteran's coronary artery disease, seizures, hypertension, or tinnitus began during active duty service. See Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury). The first evidence of record of coronary artery disease, seizures, hypertension, or tinnitus was in 2004, over 32 years after service discharge. See Mense, 1 Vet. App. at 356 (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Thus, the evidence does not show in-service incurrence of coronary artery disease, seizures, hypertension, or tinnitus. Hickson, 12 Vet. App. at 253. In addition, the medical evidence of record at the time of the Veteran's death does not show that the Veteran's coronary artery disease, seizures, hypertension, or tinnitus were related to his military service or to a service-connected disorder. See Hickson, 12 Vet. App. at 253; see also Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In fact, there is no medical evidence of record addressing the etiology of the Veteran's coronary artery disease, seizures, hypertension, or tinnitus. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin, 1 Vet. App. at 175. Accordingly, as there is no medical evidence of record linking the Veteran's coronary artery disease, seizures, hypertension, or tinnitus to service or a service connected disorder at the time of his death, service connection is not warranted. The Board acknowledges the Veteran's and appellant's arguments that the Veteran's coronary artery disease, seizure disorder, and hypertension were caused by his diabetes mellitus, type II. However, as discussed above, service connection for diabetes mellitus, type II, is not warranted in this case. 38 C.F.R. § 3.310; see Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). The Veteran's and the appellant's statements are competent evidence as to what they observed. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, neither the Veteran nor the appellant are competent to establish the medical etiology of the Veteran's coronary artery disease, seizure disorder, hypertension, or tinnitus. Espiritu, 2 Vet. App. at 495; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). Specifically, neither the Veteran nor his wife have the required specialized medical training and expertise to provide a competent opinion that the Veteran's coronary artery disease, seizure disorder, hypertension, or tinnitus are related to service or to a service-connected disability. Accordingly, as there was no probative medical evidence of record at the time of the Veteran's death that his coronary artery disease, seizure disorder, hypertension, or tinnitus were related to service or a service-connected disability, service connection is not warranted. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (noting that the question of whether a diagnosed disability is etiologically related to active service requires competent medical evidence). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the medical evidence of record at the time of the Veteran's death did not show that the Veteran's coronary artery disease, myoclonic seizure disorder, hypertension, or tinnitus were related to military service or to a service-connected disability, the doctrine is not for application. Gilbert, 1 Vet. App. 49. C. Upper and Lower Extremity Disorder, Pulmonary Disorder, Osteoporosis, Angina, Bilateral Hearing Loss As previously noted, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich, 104 F.3d 1328 (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). At the time of the Veteran's death, no competent medical evidence had been submitted indicating that the Veteran had current diagnoses of an upper or lower extremity disorder, a pulmonary disorder, osteoporosis, angina, or bilateral hearing loss. Although a February 2004 patient history form notes that the Veteran reported a history of hearing loss, there is no evidence that the Veteran was ever evaluated for or diagnosed with bilateral hearing loss. In addition, although an April 2004 treatment note reveals that the Veteran needed a prescription for a left foot brace, there is no evidence of a diagnosis of a lower extremity disorder. Rather, the only evidence of a diagnosis in the claims folder at the time of his death with respect to any of the above disorders consisted of the Veteran's own lay statements. To the extent that the Veteran reported that he had an upper extremity disorder, a lower extremity disorder, a pulmonary disorder, osteoporosis, angina, and bilateral hearing loss, as a layman, his statements are not competent evidence of the diagnosis of those disorders. Espiritu, 2 Vet. App. at 494. The evidence of record does not demonstrate that the Veteran possessed the ability, knowledge, or experience to provide a competent diagnostic opinion; nor does the evidence indicate that the Veteran was providing a contemporaneous medical diagnosis or that the Veteran's report of symptoms was supported by later diagnoses by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Espiritu, 2 Vet. App. at 494. Consequently, the lay assertion of a diagnosis of those disorders cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). As there is no indication that the Veteran was being treated for any of these disabilities at a VA facility, nor is there any evidence that any missing service treatment records might show a diagnosis of any of these disabilities, the Board concludes that the competent evidence of record at the time of the Veteran's death failed to show diagnoses of current disabilities of an upper or lower extremity disorder, a pulmonary disorder, osteoporosis, angina, and bilateral hearing loss. Under such circumstances, service connection for these disorders is not warranted and the appellant's claim of entitlement to service connection for these disorders for the benefit of accrued benefits purposes must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to service connection for diabetes mellitus, type II; a heart disorder, to include as secondary to diabetes mellitus, type II; an upper and lower extremity disorder, to include as secondary to diabetes mellitus, type II; a pulmonary disorder, to include as secondary to diabetes mellitus, type II; a myoclonic seizure disorder, to include as secondary to diabetes mellitus, type II; osteoporosis, to include as secondary to diabetes mellitus, type II; hypertension, to include as secondary to diabetes mellitus, type II; angina, to include as secondary to diabetes mellitus, type II; bilateral hearing loss; and tinnitus, for the purpose of accrued benefits is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs