Citation Nr: 1212516 Decision Date: 04/05/12 Archive Date: 04/11/12 DOCKET NO. 09-04 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a pulmonary disability for accrued benefit purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1969. He died in January 2005. The appellant is the surviving spouse of the Veteran. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2012, the appellant testified before the undersigned Veterans Law Judge at a video-conference hearing. Her son was present but did not testify. A copy of the hearing transcript is associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran had a claim of entitlement to service connection for a pulmonary disorder pending at the time of his death in January 2005. 2. The appellant filed a claim for accrued benefits within a year of the Veteran's death. 3. The evidence in the possession of VA at the time of the Veteran's death did not include a November 2004 opinion from Dr. C.L.G. 4. The evidence in the possession of VA at the time of the Veteran's death did not establish that the Veteran manifested a pulmonary disorder which manifested during active service or was causally related to an event in active service, to include asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a pulmonary disability for purposes of accrued benefits have not been met. 38 U.S.C.A. § 5121(c) (West 2002); 38 C.F.R. § 3.1000 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks to establish her entitlement to accrued benefits on the basis that, prior to his death in January 2005, the Veteran had submitted sufficient evidence to VA to establish his entitlement to service connection for a pulmonary disability which ultimately contributed to the cause of his death. The Veteran served on active duty from October 1965 to September 1969 with the United States Navy. He had a military occupational specialty as an electrician. His service treatment records (STRs) are negative for lay or medical evidence of a chronic pulmonary disability. A chest x-ray examination at the time of his separation from service was interpreted as essentially normal. The Veteran filed his original service connection claim for pulmonary disability in November 2003. Associated with that claim, the Veteran claimed exposure to asbestos during active service as a result of duties aboard the U.S.S. William M. Wood. He had worked as an electrician and slept in close proximity to asbestos-covered pipes. He denied a post-service history of asbestos or chemical exposure. He was a non-smoker. In support of his claim, the Veteran submitted private medical records reflecting an evaluation for hypoxia and dyspnea in 2003. An August 2003 pulmonary function test (PFT) was interpreted as showing severe restriction. In November 2003, the Veteran provided his physician Dr. S.K. information pertaining to his history of asbestos exposure aboard the U.S.S. William M. Wood. In pertinent part, a November 2003 clinical record from Dr. S.K. stated as follows: IMPRESSION: 1. Interstitial lung disease. 2. Hypoxia. PLAN: [The Veteran] gave me a strong history of asbestos exposure. The patient also has findings consistent on CT scan of interstitial disease based on previous CT. The patient's history of exposure to asbestos, along with findings of interstitial disease and hypoxia without a history of smoking, could certainly be consistent with asbestosis. I will probably want to have him do follow-up studies and pulmonary functions etc. so that we can check his diffusion capacities etc. Continue with other meds, supportive care and oxygen therapy. The Veteran underwent VA examination in April 2004. He reported a history of the onset of shortness of breath in approximately 1996. At that time, a lung lesion discovered by x-ray examination was biopsied but cancer was not found. The examiner initially offered a diagnosis of "[s]evere lung disease, requiring oxygen, etiology not diagnosed as yet." A final diagnosis was pending x-ray examination and PFT testing. The VA examiner also noted that a letter in the claims folder from a physician who performed a magnetic resonance imaging (MRI) scan stated that the disease of the lung could be consistent with asbestosis. Thereafter, the Veteran underwent a chest x-ray examination which was interpreted as follows: No previous. The chest reveals low lung volume. The cardiac silhouette is unremarkable. Question whether or not there may be bibasilar atelectasis and/or infiltrates present with small bibasilar pleural effusions. With low lung volume, the vessels may be crowded given the appearance of interstitial edema. Cannot say for sure whether or not the patient has pulmonary interstitial edema due to the low long volume. The patient may have pulmonary congestion and suggest correlate with clinical history. The bony thorax is unremarkable. Specifically, no radiographic evidence of asbestos exposure complex. Thereafter, the VA examiner revised the diagnosis section as follows: 1. Severe lung disease requiring oxygen, etiology not diagnosed as yet. [N]o x ray evidence of asbestos exposure. 2. Severe restrictive lung disease. In a rating decision dated May 2004, the RO denied a claim of service connection for a lung condition claimed as due to asbestosis exposure. In so doing, the RO held that the "MRI" report referred to by Dr. S.K. was not of record and that Dr. S.K.'s statement that the "MRI" evidence of "could certainly be consistent with asbestosis" was speculative in nature. In a VA Form 21-4138 filed on December 20, 2004, the Veteran's representative filed a timely Notice of Disagreement (NOD with respect to the RO's May 2004 decision which stated as follows: Ref your RD dtd 5-22-04. The vet disagrees with your decision. Dr. [K] has stated that the symptoms could be consistent with a diagnosis of asbestosis. Dr. [C.J.G.] (statement attached) has been unable to determine the etiology of the lung condition without biopsy that cannot be done due to the advanced stage of his illness. The request for a VA exam included directions for the examiner to "opine as to whether it is at least as likely as not his interstitial lung disease is due to asbestos exposure aboard ship while in service." The examiner did not offer any opinion on whether or not the interstitial lung disease is due to asbestosis exposure but did reference Dr. [K's] statement saying that the disease of the lung could be consistent with asbestosis. He concluded with a request to see Dr. [K's] report in the file. In reviewing the C&P exam, other meds and the rating decision several discrepancies are obvious. One, the examiner did not comply with the request regarding an opinion. Two, the examiner appears to defer his opinion in favor to Dr. [K's] opinion. Three, if the examiner's concession of an opinion to Dr. [K's] statement is not recognized as agreement with the statement a second opinion should be requested. Due to the complexity of the vet's disease and ongoing failure of a definitive diagnosis we request you reschedule the vet for a C&P exam with a pulmonary specialist at Baptist Hospital with the same request for an opinion as to "whether it is at least as likely as not ... due to asbestos exposure. Unfortunately, the statement by Dr. C.L.G. referred to in the December 2004 NOD was not attached to the record. A "Post-It" note attached to the NOD by the RO stated "No attached statement." Also unfortunate, the RO received notice of the Veteran's death on January [redacted], 2005. Thereafter, the RO received a copy of the Veteran's death certificate revealing that the Veteran died on January [redacted], 2005 due to pulmonary fibrosis. In a rating decision dated May 2005, the RO denied a claim of entitlement to service connection for the cause of the Veteran's death. The RO determined that there was no basis in the available evidence of record to establish service connection for the cause of the Veteran's death from pulmonary fibrosis. The RO only referenced the Veteran's STRs and death certificate as the evidence reviewed in rendering the decision. In April 2006, the appellant submitted an NOD with respect to the RO's May 2005 denial of entitlement to service connection for the cause of the Veteran's death. At this time, the appellant submitted a copy of a November 17, 2004 letter from Dr. C.L.G. which in pertinent part stated as follows: To Whom It May Concern: This letter is in regard to [the Veteran], whom I have been following since January of 2004. [The Veteran] has been seeing me because of chronic respiratory failure on the basis of hypoxemia related to pulmonary fibrosis. The patient apparently has a significant asbestos exposure. To date, the patient has undergone numerous tests to determine the etiology of his pulmonary fibrosis. The diagnosis cannot be made with certainty without an open lung biopsy. The patient is, unfortunately, in such an advanced stage in his illness that an open lung biopsy would be too risky to perform. The patient, again, has had a significant history of asbestos exposure. I cannot provide a diagnosis of asbestosis with certainty, but again, the patient cannot undergo any of the definitive testing to try to exclude other potential causes for his pulmonary fibrosis... In a rating decision dated May 2007, the RO granted service connection for the cause of the Veteran's death. In pertinent part, the RO provided the following analysis: The opinions of Dr. [K], Dr. [C.L.G.], and the (April 2004) VA examination do not definitively rule in or rule out the cause of the [V]eteran's death. As a result, this case is recognized as being in equipoise. Under the benefit of the doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the [V]eteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Under the circumstances of this case, resolving all reasonable doubt in the [V]eteran's favor, the weight of the evidence supports the claim for service connection for the cause of death. Benefits to which a beneficiary was entitled at his death, based on evidence on file at the date of death or under existing ratings or decisions, i.e., accrued benefits, will be paid to survivors as provided by law. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). Further, a "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5). At the time of the Veteran's death in January 2005, the Veteran had initiated an appeal with respect to a May 2004 RO rating decision which had denied a claim of entitlement to service connection for a pulmonary disability. Additionally, the appellant filed an application for DIC and accrued benefits within one year from the Veteran's death. As such, the appellant has proper standing to seek accrued benefits for the cause of the Veteran's death due to pulmonary disability. Accrued benefits include those the veteran was entitled to at the time of death under an existing rating or the evidence physically or constructively of record at the time of the veteran's 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 cannot furnish additional evidence that could be used to substantiate her claims, 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. 38 C.F.R. § 3.1000(d)(4); see also Hayes v. Brown, 4 Vet. App. 353 (1993). Evidence in VA's possession means evidence physically located at any VA facility, including, but not limited to VA regional offices, VA insurance centers, VA medical centers, VA outpatient clinics, Vet Centers, and the Records Management Center. Adjudication Procedures Manual M21-1MR, VIII.1.4.c. Dependency and Indemnity Compensation (DIC) may be awarded to a Veteran's spouse for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A service-connected disability will be considered 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 service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. §§ 1110, 1131. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. The Board notes that the DVB circular was subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). Subsequently, VA has reorganized and revised this manual into its current electronic form as M21-1MR. While the form has been revised, the information contained therein has remained the same. "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). With asbestos related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, VI.ii.2(C)(9)(h). VA must also ensure that proper development of the evidence is accomplished to determine whether or not there is pre-service and/or post-service asbestos exposure. Id. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1MR, VI.ii.2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, VI.ii.2(C)(9)(e). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, 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. M21-1MR, VI.ii.2C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 4-2000. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, 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, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). As reflected in Fed.R.Evid 701, lay witness testimony is permissible in the form of opinions or inferences when it is (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. As reflected in the May 2007 RO rating decision, the RO granted the claim of service connection for pulmonary fibrosis based upon three pieces of evidence: the medical records of Dr. K, the April 2004 VA examination report, and the November 2004 opinion from Dr. C.L.G. The RO, however, has determined that the November 2004 opinion from Dr. C.L.G. was not within VA's possession at the time of the Veteran's death and, thus, cannot be considered. The appellant contends that this opinion had been submitted to the RO but must have been misplaced or lost. It is clear to the Board that the November 2004 opinion from Dr. C.L.G. was in existence at the time of the Veteran's death in January 2005. The document itself is dated prior to the Veteran's death, and the Veteran's December 2004 NOD specifically references this opinion and cites to language contained within. However, the Board can find no reliable evidence that this document was in the possession of VA on or before the date of the Veteran's death on January [redacted], 2005. The December 2004 NOD clearly stated that the November 2004 statement from Dr. C.L.G. was attached to the filing. Yet, the claims folder does not include any evidence that this opinion was actually submitted. The Board can find no copy of this opinion date stamped in December 2004. The NOD itself contains a "Post-It" note from RO personnel that no statement had been attached. The rating decisions prior to the Veteran's death did not reference this opinion as evidence considered. Chronologically, the November 2004 statement first appears in the record with an NOD submitted by the appellant after the Veteran's death in April 2006. Important for this claim, the Board finds no irregularities in claims folder handling by the RO and the appellant has not cited any specific fact or action which would overcome the presumption that the RO properly handled the Veteran's mail in December 2004. See generally Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (there is a presumption that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations). In fact, the RO has attached a note to the December 2004 NOD specifically asserting that a statement had not been attached. As such, the Board must conclude on this record that the November 2004 statement from Dr. C.L.G. was not in the possession of VA at the time of the Veteran's death in January 2005. Overall, it appears that the Veteran's representative failed to submit this record as claimed. As such, the Board cannot consider the actual contents of this document in adjudicating this accrued benefits claim. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(d)(4); Ralston, 13 Vet. App. at 113. Notably, the November 2004 statement is not a VA-generated document which may be deemed to have been constructively of record. Thus, in deciding this accrued benefits claim, the Board may only consider the actual evidence of record as the date of the Veteran's death in January 2005, which included lay statements from the Veteran, his STRs, his medical records from Dr. K., and a VA examination report dated April 2004. The Veteran's STRs provided no direct evidence in support of his claim. However, the Veteran's testimony established his probable exposure to asbestos during active service. An important consideration for this claim concerns the evidentiary value of the clinical records of Dr. K. A November 2003 clinical record from Dr. S.K. stated as follows: IMPRESSION: 1. Interstitial lung disease. 2. Hypoxia. PLAN: [The Veteran] gave me a strong history of asbestos exposure. The patient also has findings consistent on CT scan of interstitial disease based on previous CT. The patient's history of exposure to asbestos, along with findings of interstitial disease and hypoxia without a history of smoking, could certainly be consistent with asbestosis. I will probably want to have him do follow-up studies and pulmonary functions etc. so that we can check his diffusion capacities etc. Continue with other meds, supportive care and oxygen therapy. In the opinion of the Board, Dr. K. provides a clear diagnosis of interstitial lung disease. According to M21-1MR cited above, interstitial pulmonary fibrosis (asbestosis) is the most common disease caused by asbestos exposure. The terms interstitial lung disease, pulmonary fibrosis and interstitial pulmonary fibrosis refer to the same disease process. See American Lung Association article submitted April 2006. However, the fact that the Veteran had been diagnosed with interstitial pulmonary fibrosis does not, in and of itself, establish that such disorder was due to asbestos exposure. See, e.g., American Lung Association article submitted April 2006 (citing 5 potential known causes for interstitial lung disease). This distinction appears to be acknowledged by Dr. K who, after providing the diagnosis of interstitial lung disease, went on to state that the Veteran's findings of 1) history of exposure to asbestos, 2) interstitial disease, 3) hypoxia and 4) negative history of smoking "could certainly be consistent with asbestosis." The latter received opinion from Dr. C.L.G. also indicated that the etiology of pulmonary fibrosis was not clear. While Dr. K. did consider a multitude of factors for his determination that the Veteran's history and findings "could certainly be consistent with asbestosis," the language used by Dr. K. is speculative in nature and is insufficient to substantiate a service connection claim. See McClendon v. Nicholson, 20 Vet. App. 79, 85 (stating that a speculative medical opinion as to causation cannot establish a medical nexus to service). See generally Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of the term "could," without other rationale or supporting data, is too speculative to support award of benefits); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"); 38 C.F.R. § 3.102 (Board may not award benefits when the award would be based upon pure speculation). The Board next considers the probative value of the April 2004 VA examination report. For the most part, this examination report was inadequate for rating purposes. In this respect, the examiner never provided a specific diagnosis other than severe restrictive lung disease and no x-ray evidence of asbestosis. This examiner does not offer any opinion supportive of the claim. Looking at the examination report, the Board cannot concur with the appellant's argument that the VA examiner deferred to Dr. K's diagnosis of asbestosis. Prior to performing x-ray examination, the VA examiner prepared a typewritten report noting that Dr. K reported that radiographic findings could be consistent with asbestosis. After x-ray examination was performed, this physician annotated the report in hand-writing two separate diagnoses which included 1) severe lung disease requiring oxygen, etiology not diagnosed as yet, with no x ray evidence of asbestos exposure and 2) severe restrictive lung disease. The examiner never performed PFT testing or discussed the potential etiology of the Veteran's pulmonary disorder. The Board next reviews the representative's summarization of the November 2004 Dr. C.L.G. examination report in the December 2004 NOD. It was asserted that Dr. C.L.G. could not determine the etiology of the Veteran's lung condition without biopsy. This recitation of the contents of the November 2004 letter does not provide any non-speculative evidence supportive of the claim. The Board next considers the lay opinions of the Veteran and his representative. In general, the ability to diagnose asbestos-related disease requires specialized medical training which neither the Veteran nor his representative is shown to posses. To the extent their opinions hold any probative value, they are greatly outweighed by those opinions and diagnoses provided by Dr. K. and the April 2004 VA examiner, who possess greater training and expertise to speak to the medical issues at hand. The Board next notes that there are potential duty to assist failures on the part of VA in developing the Veteran's claim prior to his death in January 2005. For example, the RO could have informed the Veteran and his representative that Dr. C.L.G.'s opinion had not been attached to the NOD. However, approximately 3 weeks had passed between the receipt of the December 2004 NOD and the Veteran's unfortunate death. Additionally, as indicated above, the April 2004 VA examination report was inadequate for rating purposes. Notably, the statute authorizing accrued benefits and the implementing regulation do not provide a basis of entitlement premised on a duty to assist failure. Thus, the Board cannot entertain an award of accrued benefits based upon a failure on the part of VA in properly developing the claim during the Veteran's lifetime. Finally, the Board is clearly cognizant of the unfortunate circumstance that the appellant may have been entitled to the benefits currently being sought on appeal if an existing private medical opinion intended to have been submitted in December 2004 had actually been submitted. However, the Board is bound by the applicable law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. § 503, 7104(c); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In sum, the Board finds that the Veteran had a claim of entitlement to service connection for a pulmonary disorder pending at the time of his death in January 2005. The appellant filed a claim for accrued benefits within a year of the Veteran's death. The evidence in the possession of VA at the time of the Veteran's death did not include a November 2004 opinion from Dr. C.L.G. And, finally, that the evidence in the possession of VA at the time of the Veteran's death did not establish that the Veteran manifested a pulmonary disorder which manifested during active service or was causally related to an event in active service, to include asbestos exposure. The claim for accrued benefits, therefore, must be denied. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The issue on appeal involves an accrued benefit claim which is limited to review of the evidence of record at the time of the Veteran's death. A pre-adjudicatory RO letter dated February 2005 generally informed the appellant of the evidence and/or information necessary to substantiate her entitlement to DIC. Notably, a specialized notice was not necessary due to the fact that service connection had not been effect for any disease or disability. Otherwise, there is no additional evidentiary development to be performed and the ultimate issue on appeal involves the fact that the evidence of record at the time of the Veteran's death is legally insufficient to establish the appellant's entitlement to the benefits being sought. In such a situation, VA has no further notice or assistance obligation to the appellant. VAOPGCPREC 5-2004 (June 23, 2004) (VA not required to provide VCAA notice where there is no legal basis for claim or where undisputed facts render the claimant ineligible for the benefit sought). ORDER The claim of entitlement to service connection for pulmonary disability for accrued benefit purposes is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs