Citation Nr: 1128045 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 04-38 524A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death as a result of medical treatment provided by a VA medical center (VAMC). 4. Whether a December 1945 rating decision's denial of service connection for combat fatigue was the product of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Appellant and her son ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from April 1939 to October 1945. He died in February 2003. The appellant is the Veteran's surviving spouse. The record reflects that the appellant testified at a decision review officer hearing in April 2005 at the RO. In February 2008, the appellant testified at a hearing at VA's Central Office in Washington, D.C., before the undersigned Veterans Law Judge. In August 2008 the Board remanded this matter to the RO, via the Appeals Management Center (AMC), in Washington, DC. Because the appellant was provided notice as outlined in Hupp v. Nicholson, 21 Vet. App. 342 (2007), and VA treatment records were obtained from 1994 through 1998, the Board is satisfied that there has been substantial compliance with the remand directives set out in August 2008. Stegall v. West, 11 Vet. App. 268 (1998). In January 2010, this matter was again remanded, by the Board, to the RO, via the AMC, in Washington, DC, for further evidentiary development. Because VA treatment records dated from 1999 through 2002 were obtained; a decision was made to not obtain another medical opinion regarding the 38 U.S.C.A. § 1151 claim; and a Statement of the Case (SOC) was issued addressing the CUE claim; the Board is satisfied that there has been substantial compliance with the remand directives set out in January 2010. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that in March 2011, the appellant and her son again testified at a hearing, at VA's Central Office in Washington, D.C., before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. A death certificate shows the Veteran died in February 2003, and the immediate cause of death was listed as metastatic adenocarcinoma of the colon. 2. At the time of the Veteran's death, service connection was in effect for PTSD, rated as 100 percent disabling, effective from July 12, 1999; for degenerative changes, right great toe, rated as 10 percent disabling, effective from July 12, 1999; and for malaria, which was assigned a 0 percent (noncompensable) disability rating, effective from April 1, 1946. A combined service-connected rating of 100 percent was effective from July 12, 1999. 3. Competent medical evidence does not reveal that the Veteran's metastatic adenocarcinoma of the colon was causally related to his active military service or any incident thereof, or that such disability was manifested within one year of service separation. 4. The disabilities for which service connection was in effect during the Veteran's lifetime did not cause or worsen his fatal metastatic adenocarcinoma of the colon, nor did those disabilities otherwise play a material causal role in his death. 5. The Veteran was rated totally disabled, due to PTSD, in July 1999, approximately three and a half years prior to his death. 6. The preponderance of the competent evidence of record does not demonstrate that the Veteran's death was actually caused by VA hospitalization or medical or surgical treatment, or was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or that it was proximately caused by an event not reasonably foreseeable. 7. In a final rating decision dated in December 1945, the RO denied service connection for combat fatigue. The December 1945 RO rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311, 3.312 (2010). 2. The criteria for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.22, 3.159 (2010). 3. The criteria for entitlement to compensation under 38 U.S.C.A. § 1151, for the cause of the Veteran's death, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. 38 C.F.R. § 3.361 (2010). 4. The December 1945 RO rating decision was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a SOC or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the United States Supreme Court (Supreme Court) has reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the appellant in April 2003, October 2008, and April 2009 that fully addressed the notice elements in this matter. These letters informed the appellant of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. To the extent that it applies, the Board notes that certain additional notice requirements attach in the context of a claim for DIC benefits based on service connection for the cause of death. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009). Generally, 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. The record reflects that a letter including the required information set out in Hupp was sent to the appellant in April 2009. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection for the cause of death is being denied, and hence no effective date will be assigned. Dingess, 19 Vet. App. at 473. The Board also finds that the appellant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. The Board concludes that all required notice has been given to the appellant. The Board also finds VA has satisfied its duty to assist the appellant in the development of the claims. VA has obtained all identified and available service and post-service VA and private treatment records for the Veteran. In addition, VA sought two medical opinions with regard to the appellant's claims- including in May 2003 (regarding her claim for DIC benefits under the provisions of 38 U.S.C.A. § 1151) and in October 2009 (regarding her claim for service connection for the cause of the Veteran's death), and the Board finds that the opinions rendered by the VA physicians in this regard, are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). It appears that all obtainable evidence identified by the appellant relative to her claims has been obtained and associated with the claims folder, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. With regard to the appellant's CUE claim, the Board notes that a CUE claim must be based on the record and law that existed at the time of the prior adjudication in question, and the VCAA is not applicable. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). In addition, the VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002). In this case, there is no evidentiary development which could substantiate the claim. See VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25,180 (2004). The appellant is not prejudiced by the Board proceeding to the merits of the claim based on CUE. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board therefore concludes that VA has satisfied its duty to notify and assist the appellant in apprising her as to evidence needed, and in obtaining evidence pertinent to her claims. No useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection for the Cause of the Veteran's Death The appellant essentially contends that service connection should be granted for the cause of the Veteran's death. In a July 2010 letter, her representative indicated that she was claiming that the Veteran's cause of death, metastatic cancer of the colon, was due to in-service asbestos exposure, as the Veteran was a machinist in the Navy, aboard several different ships. To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. 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; 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). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as malignant tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In this case, the death certificate shows that the Veteran died in February 2003 and the immediate cause of death was listed as metastatic adenocarcinoma of the colon. At the time of the Veteran's death, service connection was in effect for PTSD; degenerative changes, right great toe; and for malaria. On initial review, it appears clear that none of the service-connected disabilities listed above was the immediate or underlying cause of the Veteran's death or etiologically related thereto. The Veteran's service treatment records (STRs) do not show any treatment, diagnosis, or history of adenocarcinoma of the colon, or any other cancer. Rather, the record shows that adenocarcinoma of the colon was diagnosed initially in September 1998, after which the Veteran underwent surgery and was subsequently found, on a colonoscopy conducted in February 1999, to be cancer-free. Thereafter, the record reflects that he died of metastatic adenocarcinoma of the colon, which was diagnosed just prior to his death. With regard to asbestos exposure in service, the record reflects that the Veteran served aboard multiple ships while in the Navy, as a motor machinist mate. VA determined that a person in this occupational specialty had "probable" exposure to asbestos while performing duties aboard Navy vessels. The RO obtained a medical opinion with regard to the appellant's claim that the Veteran's colon cancer was due to asbestos exposure during his service in the Navy. In that regard, in October 2009, a VA physician (Board certified in occupational and environmental medicine), reviewed the claims folder and opined that colon adenocarcinoma was less likely as not caused by or the result of asbestos exposure. The VA physician explained that colon adenocarcinoma is the third most common cancer in the United States, and that because there were multiple etiologies for colon adenocarcinoma, it was virtually impossible to pinpoint a single one. The VA physician indicated that if an individual had a high enough exposure to asbestos such that they were ingesting enough to cause a colon adenocarcinoma, it would be expected that they would also have inhalation exposure and show signs on a chest x-ray of asbestos exposure, but that in this case the Veteran had a normal chest x-ray and no medical evidence of asbestosis or asbestos exposure. The Board finds the VA physician's opinion to be persuasive and probative, and with supporting rationale. Moreover, a review of the record shows no competent evidence to the contrary. The Board also notes that there is also no competent medical evidence that establishes a nexus between the cause of the Veteran's death and service, or showing that the Veteran incurred an injury or disease in service that substantially or materially contributed to the cause of his death. In conclusion, the Board finds that the preponderance of the competent evidence of record is against a finding that the cause of the Veteran's death was linked to service, or to asbestos exposure in service. The Veteran died over 58 years after his discharge from active service due to metastatic cancer of the colon, which was not present in service or for many years afterward. A basis for direct or presumptive service connection for the cause of death has not been presented. In addition, no contributory causes of his death have been identified by competent medical evidence, and his service-connected disabilities were not shown to have caused or contributed to the cause of his death. The Board recognizes that the appellant has sincerely contended that the Veteran's cause of death was related to service. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Board does not believe that the etiology of metastatic cancer is subject to lay diagnosis. Jandreau, supra. That is to say, the Board finds no basis for concluding that a lay person would be capable of discerning whether the Veteran's cancer, which caused his death, had an onset in service or is related to any service-connected disability, in the absence of specialized training, and the appellant has not established any such qualifications. Therefore, although the Board is sympathetic with the appellant's loss of her husband, we find a lack of competent and probative evidence to warrant a favorable decision. In summary, and for reasons and bases set forth above, the Board finds that the preponderance of the competent and probative evidence is against the appellant's claim for service connection for the cause of the Veteran's death. Because the record preponderates against a finding that the Veteran's death was due to service-connected disability or otherwise related to service, the reasonable-doubt/benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Entitlement to DIC under 38 U.S.C.A. § 1318 The appellant essentially claims that she should be entitled to DIC benefits under 38 U.S.C.A. § 1318 based on a theory that had the Veteran been granted service connection for battle fatigue in December 1945 (at which time an RO rating decision denied service connection for battle fatigue), then the battle fatigue diagnosis would have later been changed to PTSD, and the 100 percent rating for his PTSD would have been in effect prior to July 12, 1999 (and for at least 10 years prior to his death). VA will pay DIC benefits pursuant to 38 U.S.C.A. § 1318 if the veteran's death was not the result of willful misconduct and, at the time of death, any one of the three following circumstances existed: 1) the veteran was receiving or entitled to receive compensation for service-connected disability that was rated by VA as 100 percent disabling for at least 10 years immediately preceding death; 2) the veteran had been rated 100 percent disabled since release from active duty and for at least five years immediately preceding death; or 3) the veteran was rated as 100 percent disabled for a continuous period of not less than one year immediately preceding death and was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. §§ 1318, 5312; 38 C.F.R. § 3.22. The phrase "entitled to receive" means that, at the time of death, the Veteran had a service-connected disability rated by VA as totally disabling, but was not actually receiving compensation because: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation to offset an indebtedness of the Veteran; (3) the Veteran had not received total disability compensation solely because of clear and unmistakable error in a VA decision; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C.A. § 1174(h)(2); (6) VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to receive continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22(b). The appellant essentially contends that the Veteran's service-connected PTSD should have been considered as 100 percent disabling for at least 10 years prior to his death in 2003. However, a review of the record reveals that the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318 because the Veteran did not meet any of the criteria in the applicable statute and regulation at the time of his death. He was not in receipt of a total rating for at least 10 years immediately preceding his death. Rather, the Veteran was in receipt of a total rating for approximately three and a half years prior to his death. In addition, there is no evidence or contention that the Veteran was a prisoner of war. The applicable statute and regulation are clear in requiring that a total rating be in effect for ten years prior to death. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that payment of government benefits must be authorized by statute). While the appellant has essentially argued that the Veteran should have been receiving a 100 percent disability rating for PTSD prior to July 1999, there has been no showing that the Veteran was entitled to receive compensation for a service-connected disability rated totally disabling but was not in receipt of such due to one of the reasons listed in 38 C.F.R. § 3.22(b). The record reflects that by February 2002 rating decision, the Veteran was granted a 100 percent disability rating for PTSD, effective from July 12, 1999. The Veteran did not appeal the effective date, and that decision therefore became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. While the appellant has alleged that there was CUE in a December 1945 RO rating decision that denied service connection for combat fatigue, the Board will find, as explained below, that there was no CUE in the December 1945 RO rating decision. Thus, for reasons stated above, there is no basis under the applicable statute and regulation for entitlement to DIC benefits under 38 U.S.C.A. § 1318. The appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318 must therefore be denied as a matter of law. Sabonis v. Brown, supra. IV. Entitlement to DIC under 38 U.S.C.A. § 1151 for the Cause of the Veteran's Death The appellant also seeks DIC benefits pursuant to 38 U.S.C.A. § 1151, essentially claiming that the cause of the Veteran's death was due to improper VA medical treatment, and that the Veteran's life may have been extended if the Minneapolis VAMC had diagnosed his metastatic cancer in a timely manner. With regard to her claim for DIC under the provisions of 38 U.S.C.A. § 1151, the Board notes that she has posited basically two theories of entitlement. First, she has claimed that the Minneapolis VAMC failed to notify and schedule the Veteran for a colonoscopy three years after a February 1999 letter advised him that he was cancer free and needed another colonoscopy in three years and that VA would notify him at that time. Second, the appellant has claimed that the Minneapolis VAMC failed to diagnose her husband's metastatic cancer in November and December 2002, but that he was then diagnosed just weeks later (with metastatic cancer) when they went to Hawaii in January 2003. With regard to the claim for DIC benefits under 38 U.S.C.A. § 1151, DIC shall be awarded for a qualifying veteran's death if the death was not the result of the veteran's willful misconduct and the death was caused by hospital care or medical treatment furnished by the VA and the proximate cause of the death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran died does not establish cause. 38 C.F.R. § 3.361(c) (1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c) (2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's death and VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d) (1). Whether the proximate cause of a veteran's death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable healthcare provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d) (2). After reviewing the record, however, the Board must conclude that the competent medical evidence of record does not demonstrate that the Veteran's death was actually caused by VA hospitalization or medical or surgical treatment, or was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or that it was proximately caused by an event not reasonably foreseeable. In that regard, the Board will address the appellant's first theory of entitlement, whereby she claimed that the Minneapolis VAMC failed to notify and schedule the Veteran for a colonoscopy three years after a February 1999 letter advised him that: he was cancer free, would need another colonoscopy in three years, and VA would notify him at that time. The record reflects that the Veteran was hospitalized in September 1998, for treatment for colon cancer in the transverse and descending colon, verified by colonoscopy and biopsy. He underwent left low anterior resection and left hemicolectomy, with primary anastomosis. The appellant has acknowledged that the Veteran underwent a colonoscopy in February 1999, but never received another one from VA after that. She claims that the Veteran should have been scheduled for a colonoscopy in February 2002, which would have been three years after the February 1999 one, but he never received notice of this. The Board notes that there is a pathology report and letter to the Veteran, both dated in February 1999, which indicated that the Veteran underwent a colonoscopy which showed no evidence of cancer, and that he therefore was scheduled to have a repeat colonoscopy in three years and would be notified by letter approximately one month prior to that appointment. Of record also is a VA treatment record which appears to show that thereafter, the Veteran underwent a colonoscopy in July 2000. The appellant disputes the validity of this document, claims that the Veteran never underwent a colonoscopy in July 2000, and claims that the July 2000 VA record is false and/or fabricated. She maintains the Veteran underwent a colonoscopy in February 1999, and no other one subsequent to that. She has pointed to the fact that the Veteran's VA physician, Dr. G., upon seeing the Veteran in November 2002 for follow-up for colon cancer, and complaints of diarrhea and constipation, noted in the VA treatment record dated November 22, 2002, that the Veteran was "to have a colonoscopy this year but it has not been done". She also has asserted, and provided detailed testimony, to the effect that the Veteran would not have and could not have had a colonoscopy on July 21, 2000, because she had her colonoscopy just two days earlier - on July 19, 2000. She claims that with the preparation involved for a colonoscopy in the days prior, and with the inability to drive after the colonoscopy procedure, and the need for time to recover, that she and the Veteran would never have scheduled or conducted their colonoscopies within two days of each other. In support of her contentions, the appellant also submitted a copy of a medical invoice pertaining to treatment she received on July 19, 2000, and claims this was the invoice for her colonoscopy. In addition, the appellant and her son both testified that the Veteran was always structured and organized, and never would have scheduled his colonoscopy within two days of the appellant's own colonoscopy. In considering the appellant's assertions regarding the July 21, 2000 colonoscopy report, the Board finds her assertions and testimony in this regard to be forthright and credible. However, after reviewing the record, the Board can find no basis for discrediting, discounting, or not considering the VA treatment record which appears to show that the Veteran underwent a colonoscopy on July 21, 2000. First, the Board notes that a review of this document does not reveal any discrepancies. The documents shows that the Veteran's name, date of birth, and social security number are correct, and the reason for the colonoscopy was listed as hematochezia - which relates to VA treatment records dated in May 2000, which show that the Veteran complained of bloody stools. Also, the impression was colitis and the recommendation was to do a repeat colonoscopy in three years -- which would have been in July 2003 (well after the Veteran's death). In addition, the Board finds that there are several VA treatment records dated in May 2000, which relate to the purported July 21, 2000 colonoscopy. A May 10, 2000 VA record showed that the Veteran called and reported he had a new hemorrhoid and his bowels were not working, and he was noted to be status-post bowel resection and was doing well until he began straining at stool again. His chart was to be sent to his PCP, who was due in the clinic on May 11th. On a May 11, 2000 VA record, it was noted that the Veteran complained of bloody stools, constipation, and straining on bowel movements, and there was a notation (in larger handwriting) to schedule him for a colonoscopy within two months, along with another notation (also in larger handwriting) that this was done on July 21, 2000. Thereafter, a VA treatment record dated in August 2000, showed that the Veteran reported his colon problems were much improved. Finally, in July 2010, a complete list of the Veteran's appointments at the Minneapolis VAMC, from October 1992 through February 2003 was printed out, which also shows that on July 21, 2000, he underwent a colonoscopy. While the Board has considered the appellant's contentions in this regard, as well as the notation by Dr. G. that he was to have a colonoscopy in 2002, but this was not done, for the reasons set forth above, the Board can find no reason to question the validity of the July 21, 2000 VA report of a colonoscopy for the Veteran. Thus, in accepting this document, the Board notes the Veteran would not have been due for another colonoscopy until July 2003, and, therefore, it appears that the Minneapolis VAMC would have had no reason to schedule the colonoscopy in February 2002 (as would have been necessary if the colonoscopy in February 1999 had been the only one the Veteran received after surgery). The Board therefore concludes that the appellant's theory of entitlement, whereby she claimed that the Minneapolis VAMC failed to notify and schedule the Veteran for a colonoscopy three years after a February 1999 letter advised him he would be scheduled for another colonoscopy in three years, does not comport with the objective evidence of record - which primarily includes VA treatment records. In addition, the Board notes that the appellant has also disputed notations in VA treatment records that the Veteran at one point refused radiation therapy and chemotherapy. She has essentially contended that these are false notations in the record, and that the Veteran would never have refused such treatment, and that this further shows that some of the VA treatment records are false. Both the appellant and her son also claim that they were in the room after the Veteran underwent surgery on his colon, and that they were told by the Veteran's doctor that they got all the cancer and that he would not need further treatment. However, the record contains a VA treatment record, dated in November 1998, which shows that after his surgery in September 1998 for colon cancer, the Veteran was apparently found to have a rectal lesion, and he was offered chemotherapy and radiation therapy, but, after a 30 minute discussion, he refused all treatment, stating he was already older than all his brothers were at their deaths, and understood that chemotherapy and radiation therapy would decrease the chances of a recurrence, but still opted against treatment. The assessment included rectal cancer with extension into pericolonic tissue, status post resection, currently with NED (no evidence of disease), and patient refusing radiation therapy and chemotherapy. The Board finds the November 1998 treatment record speaks for itself, and finds no reason in the record to dispute the notations in this record. Moreover, it appears that the radiation and chemotherapy were being offered to decrease the chance of a recurrence of cancer in the Veteran, rather than as treatment for any current cancer, and that though this matter was discussed with him several times, in the end he refused the treatment. The Board will next consider the appellant's other theory of entitlement, whereby she claims that the Minneapolis VAMC failed to diagnosis her husband's metastatic cancer in November and December 2002, but that he was then diagnosed just weeks later (with metastatic cancer) when they went to Hawaii in January 2003. First, the Board notes that there are VA treatment records in the claims folder, dated from approximately 1987 through 2003. The Board has reviewed all of these records, and will focus on the VA and private medical records from the four months prior to the Veteran's death in February 2003. It appears that the chain of medical treatment leading up to the Veteran's death started in early December 2002 when he was admitted to the Minneapolis VAMC for evaluation of complaints of rib pain and numbness, and presyncopal and syncopal episodes. The discharge diagnoses included pain, noncardiac in origin, and orthostasis. He had a chest CT, to evaluate for pulmonary embolus, which was negative. He was scheduled for follow-up with his primary care physician in two weeks. Subsequent VA treatment records showed that he continued to experience pain after the hospitalization. VA treatment records show that approximately three weeks later, on December 27, 2002, the Veteran was again admitted for vague symptoms of generalized pain, malaise, and decreased appetite. In the discharge summary, it was noted that he had hemorrhoidal bleeding, and was scheduled for a follow-up colonoscopy at the beginning of January, which he had canceled himself. He underwent colon prep, but did not have successful bowel movements after this, and a rectal examination revealed gross blood, maroon colored, mixed with stool. A long discussion was had with the Veteran and his family because he was still hoping to go to Hawaii. It was noted that the findings of the rectal examination were discussed, and although recurrent colon cancer was extremely rare, this was certainly a possibility given his weight loss, elevated alkaline phosphatase, and bloody stools. A CEA level came back elevated at 55.93. Given the poor response to colon prep, and elevated alkaline phosphatase, a CT scan of the abdomen was recommended for evaluation of metastatic colon cancer. The Veteran was reluctant to perform these procedures on Monday, as it was the weekend and he was still wanting to go to Hawaii for his annual trip. He eventually made the decision to leave for his trip and be seen at the VAMC in Hawaii for further evaluation and management. It was noted that the Veteran was under complete understanding of the consequences of leaving the hospital without further workup, and he was willing to undergo the risk of traveling to Hawaii on a long plane trip and be seen at the Hawaii VAMC for further management. He was discharged on December 29th, and the discharge diagnoses included gastrointestinal bleeding of unknown etiology, anorexia, weight loss, hypnotremia, and dehydration. Private treatment records showed that the Veteran was admitted to the Queens Medical Center in Hawaii on January 11, 2003, after being seen in the emergency room with intractable pain. After workup, the impressions included history of adenocarcinoma of colon with elevated CEA and lumbosacral films suggestive of metastatic disease. He was discharged on January 15th to return to Minneapolis. A VA discharge summary shows that the Veteran was admitted on January 17, 2003, after returning from the airport from Hawaii, for further work up of his metastatic cancer. He was noted to have painful colon cancer metastases to the cervical and thoracic spine. He underwent Strontium therapy and radiation, and was discharged home on January 29th, with hospice care. His discharge diagnoses included metastatic cancer to bone and abdomen and gastrointestinal bleed. The Board notes that in May 2003 a VA opinion was obtained in which a VA physician was asked to review the claims folder and provide an opinion regarding whether there was any evidence of fault or carelessness on the part of the VAMC or any event not reasonably foreseeable during any time of treatment of the Veteran, and whether the Veteran's death was a result of failure to timely diagnosis his cancer. The VA physician provided a detailed narrative of summary of the Veteran's treatment received from December 2002 through February 2003, noting that prior to that in October 1998 the Veteran underwent a hemicolectomy for colon cancer and in July 2000 a colonoscopy was negative, including a biopsy of the anastamosis. The VA physician indicated that normally, the Veteran would not have been scheduled for another colonoscopy for three years. It was also noted that the appellant had submitted a statement in April 2003 in which she argued that if VA had properly diagnosed the Veteran's cancer when he first went to them, they could have begun treatment immediately and perhaps have extended his life. Further, in the May 2003 letter, in rendering an opinion, the VA physician assumed that the "admission" the appellant referred to in her statement was the one in late December 2002, since the admission in early December 2002 was related to cardiac problems. The physician indicated that review of the discharge summary from December 29th indicated that the doctors actually had significant concerns about the possibility of the Veteran having metastatic cancer, but that the Veteran and his family reportedly declined further work-up at that time, which was entirely their right. The physician opined that even if a diagnosis was made at that time, it was unlikely that it would have allowed any life-extending treatment for the Veteran. Finally, based on a review of the available documentation, the physician did not find any evidence of fault, carelessness, or accident on the part of the VAMC. The Board finds that the opinion rendered by the VA physician in May 2003, regarding the care provided by the Minneapolis VAMC to the Veteran, is adequate for evaluation purposes. See Barr, supra. Specifically, this was a records only evaluation and the claims folder was available for review, the physician discussed the relevant findings in the claims folder and provided a rationale for the opinion. Moreover, the VA treatment records reviewed show that the Veteran and his wife were aware of the possibility of a recurrence of cancer prior to leaving on their trip to Hawaii, and there is no competent medical evidence of record to the contrary of the May 2003 VA opinion. Therefore, the Board finds the VA physician's opinion to be persuasive and of great probative value. The Board also acknowledges that the appellant has submitted extensive documentation in this case, including her testimony and statements, chronological timelines of the Veteran's treatment, as well as excerpts from the internet regarding medical errors, including an excerpt regarding errors committed at the Minneapolis VAMC. With regard to all of these documents, the Board notes that while these timelines and excerpts may appear to bolster the appellant's arguments and assertions, such documents are simply not supported by the objective record before the Board, which includes extensive VA and private treatment records. While it is understandable that the appellant is upset at the loss of her spouse, the evidence does not, on its face, suggest any fault on the part of VA treating personnel. The Board has considered the appellant's numerous contentions in this regard, but finds that her contentions regarding the Minneapolis VAMC being negligent in rendering or not rendering medical services to the Veteran, to be unsupported by the record. There is simply no competent medical evidence or opinion of record that demonstrates that VA was negligent in rendering (or not rendering) medical services to the Veteran, which proximately caused his death. The Board recognizes that lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); See Jandreau, supra; see Buchanan, supra. However, the issue in this case is a complex matter which requires specialized training for a determination as to causation, standard of care, foreseeability, etc., and it is therefore not susceptible of resolution by lay opinions. The Board does not doubt the appellant's sincerity; however, the record does not contain any competent probative medical evidence to support her assertions. Simply put, the appellant has submitted no competent evidence which tends to substantiate her contentions that the Veteran suffered additional disability or death due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment to the Veteran, or an event not reasonably foreseeable. In the absence of competent evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, the Board concludes that entitlement to DIC pursuant to 38 U.S.C.A. § 1151 is not warranted. The preponderance of the evidence is therefore against the appellant's claim, the benefit-of-the-doubt rule does not apply, and the appellant's claim for DIC benefits, pursuant to 38 U.S.C.A. § 1151, for the cause of the Veteran's death must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. V. CUE Claim The appellant basically contends that the RO committed CUE in the December 1945 rating decision by not granting service connection for combat fatigue to her husband (the Veteran). She claims that she should be entitled to DIC benefits under 38 U.S.C.A. § 1318 based on a theory that had the Veteran been granted service connection for combat fatigue in 1945, then the battle fatigue diagnosis would have later been changed to PTSD, and the 100 percent rating for his PTSD would have been in effect prior to July 12, 1999 (and for at least 10 years prior to his death). An individual whose VA claim is denied by an RO has one year in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, the decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); see 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Such a final decision may, however, be reversed or amended where evidence establishes that it was a product of CUE. 38 C.F.R. § 3.105(a). Judicial precedent has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). In addition, "[c]lear and unmistakable error requires that error, otherwise prejudicial . . . must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell, 3 Vet. App. at 313-14. In order to determine whether a previous final VA rating decision contained CUE, a review of the law and evidence which were before the rating board "at that time" must be undertaken. See 38 C.F.R. § 3.104(a). In other words, the Board cannot apply the benefit of hindsight to its evaluation of the RO's actions in December 1945 in determining whether CUE existed at that time. In addition, a CUE claim "is not a generalized assertion of entitlement to benefits. Rather, it is an assertion that the [Board] committed a particular clear and unmistakable error." Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2001). Generally, the appellant contends that there was CUE in the December 1945 RO rating decision and that such rating decision should be revised based on the RO's denial of service connection for combat fatigue. She contends that service connection for combat fatigue should have been granted in December 1945. The record reflects that at the time of the RO's December 1945 rating decision, the only evidence of record, other than the Veteran's contentions, were his service treatment records (STRs). STRs showed that in January 1944, the Veteran was found to be suffering from symptoms of combat fatigue, having seen a great deal of serious battle action in the South Pacific. In March 1944, the Veteran complained of insomnia, nightmares, and fatigue, and the diagnosis was combat fatigue. It was noted that when the Veteran returned to the States, after nearly two years in the South Pacific with a great deal of battle experience, he had horrible nightmares, insomnia, startle reaction, and fatigue, and when they tried to put him back to sea he was unable to face it and went AWOL. He had been transferred to the U.S. Naval Hospital in New Orleans for treatment and disposition. In April 1944 the diagnosis was still combat fatigue, but he was found to be doing very well, and was returned to duty. In May 1944 he was found to be free of mental or neurological illness. STRs further show that in July 1945, the Veteran was again treated for combat fatigue. It was noted that he suffered similar complaints in March 1944 and the recovery was satisfactory. It was noted that he had extensive combat experience, especially on former sea duty, and was admitted to sick list in March 1944 with a diagnosis of combat fatigue. He was discharged to duty in April 1944, and returned to Pacific duty. In July 1945, it was noted that he now had return of the same symptoms and on the last mission was unable to take his battle station below decks. It was noted that he was anxious, tremulous, depressed, and would be of no further use to the service in this area. He was transferred to the U.S. Naval Hospital at Great Lakes, and admitted for treatment for combat fatigue. Thereafter, in August 1945 he was noted to have mild depression. In September 1945, it was noted that the Veteran had shown an almost complete subsistence of complaints, and that most of his complaints were based on a prolonged overseas duty tour, hazardous duty, and situational tension. It was also noted that a return to the States had relieved the situational condition, and the period of hospitalization had led to stabilization physically. The examiner opined that the Veteran could be reassigned to full duty, as there was no tension, no complaints, no psychosis, and no depression. In September 1945, it was noted that there was a change of diagnosis from combat fatigue to no disease. On discharge examination in October 1945, it was noted that he had history of combat fatigue in July 1945, but on examination for discharge, the Veteran's nervous system was found to be normal. By December 1945 rating decision, the RO denied service connection for combat fatigue, nothing that it was not found on the last examination in service records. In the rating decision, the RO cited to VR 1(a), Part I, Par. 1, in its decision. As in effect at that time, Veterans Regulation (VR) 1(a), Part I, I(a) provided that monetary benefits will be paid to persons suffering from disabilities "resulting from personal injury or disease contracted in line of duty, or for aggravation of a preexisting injury or disease contracted or suffered in line of duty." The Board notes that the STRs cited above were before the RO in December 1945 and were considered by the RO, as shown by a review of the December 1945 rating decision. While the STRs did show at one point diagnoses of and treatment for combat fatigue during the Veteran's naval service, after his second round of treatment he was found to have no psychosis and no depression, and the diagnosis was changed to no disease. The Board also notes that the STRs were the only competent medical evidence of record at that time and there were no other post-service treatment records of record. Thus, it appears that the correct facts, as they were known then, were before the RO. In addition, it appears that the law in effect at the time for granting service connection was correctly applied, as there was no showing of a current disability or of "combat fatigue" on the last examinations in the service records - namely the September 1945 and October 1945 records. Finally, there was no showing that but for the "error", the outcome would have been manifestly different. The Board concludes that CUE is not warranted on those bases. Moreover, although the Veteran was eventually granted service connection for a psychiatric disorder (PTSD) much later - this was based on the facts (evidence) at that time which showed he had a current psychiatric disability related to service, whereas in December 1945 the evidence of record did not show this. Accordingly, the Board concludes that there has been no showing of CUE in the December 1945 RO rating decision, which denied service connection for combat fatigue, and the appellant's CUE claim is therefore denied. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is denied. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied. The December 1945 rating decision was not clearly and unmistakable erroneous, and the appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs