Citation Nr: 1018764 Decision Date: 05/20/10 Archive Date: 06/04/10 DOCKET NO. 06-26 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for bladder cancer, for purposes of accrued benefits. 3. Entitlement to service connection for prostate cancer, for purposes of accrued benefits. 4. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD), for purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. The Veteran died in August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The appellant's claims were remanded by the Board in October 2009 for further development. The Board notes that the appellant requested a Travel Board hearing on her VA Form 9, but indicated that only her representative could attend. Per 38 C.F.R. § 20.700(b), hearings are generally not held for requests for appearances by representatives alone, unless good cause is shown. In this case, the representative thereafter submitted written correspondence to the Board and did not present any argument regarding good cause. See also November 2007 Report of Contact wherein the appellant's representative stated "Please note that I spoke with the widow today and we would like to ask the VA to forward her appeal directly to the BVA in Washington, D.C. The widow is not able to travel and would not be able to make any personal appearances at this time." Thus, no hearing has been scheduled. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in August 2005 and the Certificate of Death lists the immediate cause of death as azotemia due to transitional cell cancer of the bladder; and the other significant conditions contributing to death as COPD, prostate cancer, and hypertension. 2. The evidence of record does not show that transitional cell cancer of the bladder; COPD, prostate cancer or hypertension were incurred as a result of any established event, injury, or disease during active service, to include as the result of exposure to asbestos. 3. Claims for entitlement to service connection for COPD, prostate cancer, and bladder cancer were pending at the time of the Veteran's death. 4. Prostate cancer was not manifest during service, was not manifest within one year of separation, and any post-service diagnosis of prostate cancer is neither attributable to service nor to exposure to asbestos during his period of active service. 5. Bladder cancer was not manifest during service, was not manifest within one year of separation, and any post-service diagnosis of bladder cancer is neither attributable to service nor to exposure to asbestos during his period of active service. 6. A lung disability, to include COPD, did not have its onset in nor is it otherwise attributable to service, to include exposure to asbestos. CONCLUSIONS OF LAW 1. A disability of service origin, to include as the result of in-service asbestos exposure, did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2009). 2. Prostate cancer was not incurred in or aggravated by service, may not be presumed to have been incurred in or aggravated by service, and was not due to exposure to asbestos in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5121 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). 3. Bladder cancer was not incurred in or aggravated by service, may not be presumed to have been incurred in or aggravated by service, and was not due to exposure to asbestos in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5121 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). 4. A lung disability, to include COPD, was not incurred in or aggravated by active service, nor is it the result of in- service asbestos exposure. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2009). 5. The criteria for payment of accrued benefits based on claims for service connection for a lung disorder, prostate cancer, and/or bladder cancer, which were pending at the time of the Veteran's death, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5121 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309, 3.311, 3.1000 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). 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 inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The Board notes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008, and several portions of the revisions are pertinent to the claim at issue. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. Regarding the appellants accrued benefits claims, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Court held that in the context of a claim for dependency and indemnity compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). A letter dated in September 2005, prior to the initial adjudication of her claims, informed the appellant of the information necessary to substantiate her claim for service connection for cause of the Veteran's death. She was also informed of the evidence VA would seek on his behalf and the evidence she was expected to provide. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. Since the Board has concluded that the preponderance of the evidence is against the appellant's claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the September 2005 letter did not specifically provide an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected, the Board finds that such deficiency in VCAA notice was harmless. In this regard, the Board observes that throughout the course of the appeal, the appellant has specifically contended that the Veteran's death was caused by illnesses, to include COPD and bladder cancer, which resulted from exposure to asbestos during his period of active service. Correspondence from the appellant and her representative demonstrates that she believed these disorders were the result of his active service, and that these disorders lead to the Veteran's death. In light of the foregoing, the Board finds that the appellant had actual knowledge that of the requirements necessary to establish service connection for cause of the Veteran's death. Therefore, any error as to the third element of Hupp notice is harmless. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and post- service medical records are in the file. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). In the present case, VA obtained VA opinions in December 2005 and January 2010 addressing the question of whether COPD, prostate cancer, and/or bladder cancer were incurred or aggravated during the Veteran's period of active service, to include as the result of exposure to asbestos. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinions obtained in this case are adequate, as each is predicated on a full reading of the medical records in the Veteran's claims file. Both opinions considered all of the pertinent evidence of record, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. See 38 C.F.R. § 3.159(c) (4) (2009). Further examination or opinion is not needed on the claim because there is no competent evidence to suggest that these opinions are not adequate. The VA opinions are thorough and supported by the record and are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection for the Cause of the Veteran's Death The appellant seeks service connection for cause of the Veteran's death. She essentially contends that asbestos exposure during the Veteran's period of active service led to bladder cancer which contributed substantially or materially to the production of death. She also contends that exposure to asbestos resulted in COPD which hastened his death, and has stated that the Veteran's hypertension was diagnosed by VA and was related to the Veteran's military service. The Certificate of Death lists the immediate cause of death as azotemia due to transitional cell cancer of the bladder; and the other significant conditions contributing to death as chronic obstructive pulmonary disease (COPD), prostate cancer, and hypertension. Service connection may be established for the cause of a Veteran's death when a service-connected disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a) (2009). A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b) (2009). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2009). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2009). As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. See M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 also contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. As noted in the prior remand, the record reflects that the Veteran was likely exposed to asbestos during his period of service as an aviation support equipment technician. However, even if exposure to asbestos during service is conceded, there is no medical evidence that such exposure caused the Veteran's bladder cancer, prostate cancer, or COPD decades after separation from service. The Board also notes that there is no competent evidence of record relating hypertension to the Veteran's service. The appellant's conjecture that the disorders listed on the Veteran's death certificate other than hypertension were caused by exposure to asbestos during his naval service is not probative because, as set forth below, there is no evidence that she has the requisite medical training or qualifications to render an expert opinion as to the etiology of any medical condition. Further, there is no presumption of service connection for asbestos-related diseases. See VAOPGCPREC 04- 00. Although the Veteran's private and VA treatment records were reviewed, demonstrating multiple diagnoses and treatment for prostate cancer, bladder cancer, and COPD, the record does not contain a medical opinion which links any possible in- service asbestos exposure to these disorders. Neither is there medical evidence linking the Veteran's hypertension to service. A VA medical opinion was obtained in December 2005 in order to obtain an opinion as to whether the Veteran's in-service asbestos exposure was related to his bladder cancer, characterized as squamous cell cancer of the urinary bladder. According to the examiner, the Veteran was most likely exposed to asbestos on the basis of his military occupational specialty. A remote history of prostate cancer was noted, treated with external beam radiation and a radical cystoprostatectomy. Regarding the Veteran's diagnosis of bladder cancer, a March 2005 report noted that the cancer was squamous cell cancer. Following an "extensive" review of the medical literature available, the examiner stated that he was unable to identify any connection between asbestos exposure and transitional cell or squamous cell cancer of the bladder. Instead, the examiner noted that several articles indicated increased incidents of squamous cell cancer following external beam radiation therapy. Therefore, the examiner opined that the Veteran's primary cancer, squamous cell cancer of his urinary bladder, was less likely than not related to asbestos exposure. While the Veteran's diagnosis of COPD was noted, the examiner was unable to identify whether the Veteran had pulmonary asbestosis. With regard to COPD, the examiner stated that, "it could not be identified whether or not the Veteran had pulmonary asbestosis, the most common form of asbestos related disease, however, he did have chronic obstructive pulmonary disease." The examiner did not opine as to whether that statement is meant to provide an etiological nexus between asbestos exposure and COPD, and, if so, whether COPD had a causal connection to death. See VA examination report, December 16, 2005. Following an October 2009 Board remand, an additional VA opinion was obtained in January 2010. A prior smoking history was noted. Although the examiner was unable to determine how much the Veteran smoked, or for how long, it was noted that the most common cause of COPD was smoking. After a review of the prior chest x-rays of record, the examiner was unable to locate any evidence of asbestosis (or any suggestion thereof). None of the chest x-rays of record demonstrated any findings "even remotely consistent" with asbestos-related pulmonary disease. There were no pulmonary plaques within the lungs, no was there any evidence of pleural thickening. Either would be indicative of asbestosis. Further, the examiner stated that, following a review of applicable medical literature, available information did not support the determination that asbestos exposure caused COPD. Instead, the examiner noted that smoking history was the primary cause. See VA examination report, January 13, 2010. As to the appellant's assertions that the Veteran's death was causally related to in-service asbestos exposure, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency, a legal concept determining whether testimony may be heard and considered, and credibility, factual determination going to the probative value of the evidence to be made after the evidence has been admitted). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, the Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record. See Robinson v. Shinseki, 2008-7096 (Fed. Cir. March 3, 2009) (not selected for publication); 312 Fed.Appx. 336, 2009 WL 524737 (C.A.Fed.). Here, the Board does not find that the appellant is competent to determine the etiology of any disorder which ultimately contributed to and/or caused the Veteran's death. With respect to hypertension, the Board notes that the appellant has made no specific contention other than to state that the Veteran was diagnosed with cancer of various organs and hypertension initially through the VA; that all of the illnesses that the Veteran suffered with and died from were diagnosed by VA; and that they knew the illnesses were incurred in or aggravated by the Veteran's military service. See VA Form 9, received in August 2006. However, a review of the record does not show hypertension in service and the record includes no competent medical evidence relating the Veteran's hypertension to service. Further, while the Veteran was certainly competent to report details of in- service asbestos exposure, the appellant has not been shown to be competent to link any disorder listed on the Veteran's death certificate to exposure to asbestos during his period of active service. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Therefore, although the statements of the appellant offered in support of her claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish entitlement to service connection for cause of the Veteran's death. In contrast, the VA medical examiners of December 2005 and January 2010, each a medical professional, supported their opinions with the discussion of the medical evidence of record and provided detailed rationales in support of their opinions. Not only was a definitive opinion proffered by each examiner, but both etiological opinions were supported by a rationale. The examiners also rebutted the opinions of the appellant. Therefore, the examiner opined that the Veteran's primary cancer, squamous cell cancer of his urinary bladder, was less likely than not related to asbestos exposure. See VA examination report, December 16, 2005. The January 2010 examiner noted that chest x-rays did not demonstrate any evidence of asbestosis or any findings "even remotely consistent" with asbestos-related pulmonary disease. There were no pulmonary plaques within the lungs, nor was there any evidence of pleural thickening. Either would be indicative of asbestosis. Further, the examiner stated that, following a review of applicable medical literature, available information did not support the determination that asbestos exposure caused COPD. See VA examination report, January 13, 2010. As such, the Board places greater probative weight on the October 2005 and January 2010 VA medical opinions. Accordingly, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death; there is no doubt to be resolved; and service connection is not warranted. See Gilbert, supra. III. Accrued Benefits The Veteran served on active duty from February 1943 to January 1946. At the time of the Veteran's death, claims for service connection for a lung disorder, prostate cancer, and bladder cancer were pending. Upon the death of a veteran, periodic monetary benefits to which he or she was entitled, on the basis of evidence in the file at date of death (accrued benefits) and due and unpaid for a period of not more than two years prior to death, may be paid to certain parties. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. 3.1000 (2009). An application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000 (c) (2009). The Federal Circuit has held that, "for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The Federal Circuit noted that "a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Id. The Board notes that a new revision to the law regarding accrued benefits claims, enacted by Congress and signed by the President as the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, on December 16, 2003, amends 38 U.S.C.A. § 5121(a) by repealing the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits; this revision only relates to cases where the Veteran's death occurred on or after the date of enactment, December 16, 2003. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2009). Service connection may 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) (2009). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred or aggravated during service if such diseases become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309 (2009). The Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board notes the Veteran's service medical records are negative for any diagnosis or treatment for a chronic lung disorder, to include COPD, bladder cancer, or prostate cancer. Further, the Veteran's separation examination in January 1946 was negative for any chronic lung, prostate, or bladder disorder. As discussed in detail above, although multiple post-service private treatment records and VA outpatient treatment records note diagnoses and treatment for each claimed disorder, the Veteran's claims file does not contain an etiological opinion linking any claimed disorder to his period of active service, or to exposure to asbestos during his period of active duty. While the appellant has asserted a causal connection between asbestos exposure and COPD, prostate cancer, or bladder cancer, she is not competent to establish a probative medical nexus. See Espiritu. In sum, the competent evidence does not establish that the Veteran's COPD, prostate cancer, or bladder cancer had their onset in service, or in the case of prostate and bladder cancer, within a year following service, or are etiologically related to service or in-service asbestos exposure. The record establishes that the Veteran filed a claim for service connection for a lung disorder, prostate cancer, and bladder cancer nearly six decades after separation, and there is no competent evidence linking such disorders to the Veteran's military service. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). Based on the foregoing, the Board finds that service connection for a lung disorder, prostate cancer, and/or bladder cancer, for purposes of accrued benefits, is not warranted. Accordingly, the appellant's claims for accrued benefits must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for bladder cancer, for purposes of accrued benefits, is denied. Entitlement to service connection for prostate cancer, for purposes of accrued benefits, is denied. Entitlement to service connection for a lung disorder, to include COPD, for purposes of accrued benefits, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs