Citation Nr: 1303445 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 08-02 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for cirrhosis of the liver, for purposes of accrued benefits. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), for purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from March 1957 to February 1961. The Veteran died in October 2006. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions issued in February 2007 by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. Additional evidence not considered by the RO was submitted by the Appellant in June 2012, in December 2012, and in January 2013. VA regulations require that pertinent evidence submitted by the Appellant must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedure right is waived. The Appellant provided a written waiver of review. 38 C.F.R. §§ 19.37, 20.1304 (2012). Appellate review may proceed. FINDINGS OF FACT 1. The Veteran died in October 2006 at the age of 66 as a result of intracerebral hemorrhage; cirrhotic liver disease was listed as a significant condition contributing to the Veteran's death but not resulting in an underlying cause of death. 2. At the time of his death, the Veteran had been granted service connection for tinnitus and hearing loss. 3. Claims for service connection for cirrhosis of the liver and for COPD were pending at the time of the Veteran's death. 4. The medical evidence and opinions of record establish that cirrhosis of the liver was not causally linked to the Veteran's service or any incident of service, to include exposure to jet fuel. 5. The medical evidence and opinions of record establish that COPD was not causally linked to the Veteran's service or any incident of service, to include exposure to jet fuel. 6. The medical evidence and opinions of record establish that intracerebral hemorrhage that led to the Veteran's death was not causally linked to the Veteran's service or any incident of service, to include exposure to jet fuel. CONCLUSIONS OF LAW 1. A service-connected disability or disease did not contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2012). 2. Service connection for cirrhosis of the liver for accrued benefits purposes is not warranted. 38 U.S.C.A. §§ 1131, 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). 3. Service connection for COPD for accrued benefits purposes is not warranted. 38 U.S.C.A. §§ 1131, 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in October 2006, at the age of 66. At the time of death, he had been awarded service connection for tinnitus and hearing loss. Service connection had not been awarded for any disorder other than tinnitus and hearing loss, but the Veteran had submitted claims for service connection for cirrhosis and COPD. The Veteran's certificate of death reflects that the immediate cause of his death in October 2006 was intracerebral hemorrhage. No underlying cause of death was identified by the provider who completed the death certificate. Cirrhotic liver disease was listed as a significant condition contributing to the Veteran's death but not resulting in an underlying cause of death. No autopsy was performed. The Appellant maintains that the cause of the Veteran's death was the result of his exposure to jet fuel during service. Before addressing the merits of the Appellant's request to reopen the claim, the Board will address its duties to notify and assist the Appellant. The Veterans Claims Assistance Act (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2102). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Duty to notify Proper VCAA notice 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of a Veteran's death, the VCAA requires notice to include a statement of the conditions (if any) for which the Veteran was service-connected at the time of his or her death; an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition; and, an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Notice complying with these requirements was provided to the Appellant in a November 2006 letter. The November 2006 letter also set forth the criteria for establishing entitlement to accrued benefits. The letter advised the Appellant that evidence to establish entitlement to accrued benefits must be of record at the time of the Veteran's death. No information was provided to the Appellant regarding the criteria governing the assignment of degree of disability or criteria governing assignment of an effective date, if service connection for any disorder or for the cause of the Veteran's death were granted. However, as her claims have not been granted, the lack of information applicable if any claim for service connection were to be granted does not prejudice the Appellant. The Appellant has not alleged that there was any defect in the content or timing of notice to her. The Board also notes that the Appellant was represented by an attorney for a portion of the pendency of this appeal. No defect in the content or timing of notice is apparent from the record. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (prejudice due to defective notice is not automatically assumed, but must be established in individual case). VA's duty to notify has been satisfied, and appellate review may proceed. Duty to assist a claimant The Veteran's service treatment records (STRs) and available personnel and administrative records were associated with the claims file prior to the Veteran's death. VA treatment records which reflect the Veteran's treatment at the time of his death are associated with the claims files. No additional clinical records are associated with the electronic (Virtual VA) file. As to the claim for accrued benefits, there is no duty to obtain additional evidence or opinion, as the Board is prohibited from considering medical evidence received after the date of the Veteran's death. Additional evidence and opinion was obtained to address the claim for service connection for the cause of the Veteran's death. Because the Appellant alleged that the disorders for which she was seeking accrued benefits were causes of the Veteran's death, an opinion discussing the etiology of COPD and of cirrhosis were obtained. Thus, the duty to assist as to the accrued benefits claims was more than met. As to the claim for service connection for the cause of the Veteran's death, additional development in the form of an expert medical opinion from the Veterans Health Administration (VHA opinion) was solicited. This opinion has been received and the Appellant was provided a copy of the decision and an opportunity to respond. The Appellant has not identified any pertinent evidence that remains outstanding, although she does contend that the medical opinion obtained is not adequate. That contention is discussed below. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Appellant in developing the facts is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Claim for service connection for the cause of the Veteran's death Applicable law and regulations The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). 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 the 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)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). 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 means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); see Baldwin v. West, 13 Vet. App. 1 (1999). The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to testify as to a condition within his or her knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony can be rejected only if found to be mistaken or otherwise deemed not credible). Facts The Veteran's military occupational specialty (MOS) is not specified on his DD Form 214 or in the service treatment records associated with the claims files. The Veteran asserted during his lifetime that his duties included fueling jets and that he was exposed to jet fuel. The Board assumes, for purposes of this decision, that the Veteran was exposed to jet fuel. The Veteran's service treatment records disclose that he was treated for a "cold," a "head cold," or bronchitis several times in service, including in August 1957, August 1959, December 1959, and May 1960. No diagnosis of COPD was assigned in service. The Veteran was treated for gastroenteritis in service, but no diagnosis of a liver disorder was assigned during service. The Veteran's lungs, chest, abdomen, and viscera were described as normal at the time of his service separation examination in January 1961. A June 2002 treatment note reflects that the Veteran had a history of cirrhosis, diagnosed in 1996, of "uncertain etiology," thought to be "related to paint and other exposures in his occupation and service." The provider did not specify whether the opinion that cirrhosis was "thought" to be related to paint and other occupations and in-service exposures was the provider's opinion or the Veteran's belief as relayed to the provider, or was an opinion of another provider as related by the Veteran. The provider restated the opinion, in the impression and plan portion of the treatment note, stating that cirrhosis was "probably due to paint and other exposures reported, no clear etiology." In October 2006, another provider indicated that autoimmune hepatitis "likely" caused the Veteran's cirrhosis. The provider stated that treatment for autoimmune hepatitis might be warranted if there was an active hepatitis process on biopsy. However, in an addendum to that note, another provider stated that the likelihood of autoimmune hepatitis, and particularly of active disease, was low, such that biopsy was not warranted, given the Veteran's overall condition. The provider stated that the Veteran "likely has NASH which led to his cirrhosis." The Board sought expert medical opinion from the Veterans Health Administration (VHA opinion). The reviewer who rendered an April 2012 opinion summarized the Veteran's service treatment records, noting that, during the service period from 1957 to 1961, the Veteran was treated for skin lesions, lacrimal duct inflammation, ear infections, upper respiratory tract infections, and a gastrointestinal disorder. The reviewer summarized the Veteran's post-service occupational and medical history. The reviewer concluded that the Veteran's COPD was not due to or aggravated by the Veteran's exposure to jet fuel in service, that cirrhosis of the liver was not due to or aggravated by the Veteran's exposure to jet fuel in service, and that intracerebral hemorrhage was not due to or aggravated by the Veteran's exposure to jet fuel in service. The reviewer provided a list of 11 items of scientific and medical literature he reviewed, among others, in reaching his conclusion. The reviewer commented that, because of the extensive use of jet fuel in the military and in private industry, the acute and chronic toxicities of jet fuel have been extensively studied. In particular, the reviewer noted that respiratory effects of exposure to jet fuel usually occur after acute exposure to high-dose exposure, and usually resolve within several months after the exposure ceases, whether massive doses or chronic exposure. The reviewer noted that, in this case, the Veteran's chest x-ray was normal at the time of separation, leading to the conclusion that the Veteran did not incur COPD as a result of in-service exposure to jet fuel. The reviewer also noted that hepatic effects of exposure to jet fuel usually resolved within weeks or months after the exposure ceases. In a June 2012 statement, the Appellant contended that the Veteran was exposed to JP4 jet fuel, which was 50 percent gasoline, rather than JP5 or JP8, which has a kerosene base. The Appellant contended, in a June 2012 letter and in December 2012 and a duplicate January 2013 reiteration of the December 2012 statement, that the reviewer's opinion was inaccurate and not adequate for review of her claim because the reviewer assumed that the Veteran was exposed to a kerosene-based jet fuel, but the jet fuel used when the Veteran was in service was at least 50 percent gasoline. However, although the reviewer stated that jet fuel is comprised of kerosene and additives, the reviewer also specifically noted that jet fuel is a petroleum hydrocarbon, and that all petroleum-based hydrocarbons share similar toxicities and physical properties. The Appellant's contention that the percentage of kerosene in JP-4 varies from the percentage of kerosene in later jet fuels does not change the fact that all jet fuels are, as the reviewer stated, petroleum-based hydrocarbons. Thus, the reviewer's opinion appears to be equally probative regardless of whether the Veteran was exposed to JP-4, JP-7, JP-8, or other jet fuel formulation. Moreover, the literature reviewed by the VHA reviewer included information about the health effects of JP-4 as well as other jet fuels. The abstract of the article, "Past, present, and emerging toxicity issues for jet fuel," (Mattie and Sterner), listed as among the articles reviewed by the reviewer who provided the April 2012 opinion, states that the article is a review of the comparison of toxicity data of the current fuel, JP-8, as compared to JP-4, the first hydrocarbon-based jet fuel used by the military. A lengthy article (more than 90 pages long) was submitted by the Appellant to support her contention that the reviewer's opinion addressed the "wrong" type of jet fuel. That article, "Toxicological Profile for Jet Fuels JP-4 and JP-7," discusses and contrasts the similarities and differences in effects of the two types of jet fuel. The article specifies that JP-4 smells like gasoline or kerosene, while JP-7 smells like kerosene. See "Toxicological Profile for Jet Fuels JP-4 and JP-7," pages 1, 2. The article reflects that both formulations of jet fuels are petroleum products. This is consistent with the April 2012 VHA reviewer's report. The article sets forth the health effects on the respiratory system, hematologic effects, and hepatic effects of JP-4 as compared to JP-7. The articles compared the health effects of both fuels, finding little difference in the data, but noting that more data about certain health and environmental effects is available for JP-4 fuel than for JP-7. Id. at 42-49. Thus, the primary article submitted by the Appellant contradicts the Appellant's assertion that review of a different formulation of jet fuel could result in a different opinion. The article submitted by the Appellant supports the adequacy of the reviewer's VHA opinion. The Appellant submitted a Material Safety Data Sheet (MSDS) for JP-4. That document shows that JP-4 varies from 35 percent kerosene to 65 percent kerosene. The MSDS states that inhalation of JP-4 can cause respiratory irritation, or, with aspiration, cause severe lung damage. This information does not affect the probative value or weight of the VHA reviewer's conclusion that the Veteran did not incur COPD in service, as the reviewer noted the negative chest x-ray at the time of the Veteran's service separation. The Appellant stated that the literature shows that exposure to jet fuel may affect the liver and blood cells. The MSDS discloses that exposure to JP-4 may cause cancer and blood disease, including anemia and leukemia. However, the Veteran in this case had no diagnosis of cancer, anemia or leukemia. The MSDS does not include cirrhosis as a possible effect of exposure to JP-4, so this information does not diminish the probative value or evidentiary weight of the VHA opinion. The reviewer concluded that the Veteran's cirrhosis was likely caused by NASH. The Appellant's statements and the scientific and medical literature are consistent with the reviewer's conclusion that known hepatic effects of exposure to JP-4 usually occur quickly and resolved within weeks or months. This statement is unfavorable to the claim, since no diagnosis of a hepatic disorder was assigned until more than 30 years elapsed after the Veteran's service separation. The literature supplied by the Appellant does not contradict the reviewer's conclusion, but, rather, is consistent with and supports that conclusion. The Appellant also submitted a medical article which explains that intercerbral hemorrhage is bleeding in the brain, which can be caused by liver disease. However, as liver disease has not been shown to the related to the Veteran's service or his exposure to jet fuel, this article is of little persuasive weight to establish the Appellant's claim, and does not diminish the probative value or evidentiary weight of the VHA opinion. It is the Board's responsibility to consider and weigh all evidence, including the clinical records, medical evidence, medical opinions, lay statements, and scientific and medical literature submitted by the Appellant. See Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). The Board has specifically considered the Appellant's lay statements that her spouse's COPD and cirrhosis were due to his service, and that cirrhosis caused the bleeding in the Veteran's brain which was the immediate cause of his death. The possible etiologic relationship between exposure to jet fuel and COPD or cirrhosis alleged to have been incurred during the Veteran's service is not observable by a lay person. The claim at issue is not one for which a lay person is competent to provide evidence of nexus, in the absence of medical evidence or opinion to support the lay evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (outlining the situations where lay evidence is competent and sufficient to establish a diagnosis of a condition); Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006) (holding that the Board cannot find that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical records). There is no such evidence in this case. The Appellant's lay statements are not competent to establish a nexus between the Veteran's service and COPD, cirrhosis, or intracerebral hemorrhage. As discussed above, the scientific and medical literature submitted by the Appellant does not diminish the probative value to evidentiary weight of the April 2012 opinion. That opinion is based on a review of the records for the Veteran and medical and scientific literature. The Board finds that the weight of the VHA opinion places the preponderance of the evidence against the claim for service connection for the Veteran's death, when compared to the probative value and minimal favorable evidentiary weight of the Appellant's statements and the scientific and medical literature she has provided. The Appellant does not contend, nor does the record suggest, that the Veteran's service-connected hearing loss or tinnitus contributed to his death. There is no evidence that any disorder or disability linked to the Veteran's service caused or contributed materially and substantially to the Veteran's death. There is no reasonable doubt which may be resolved in the Appellant's favor. The claim of entitlement to service connection for the cause of the Veteran's death must be denied. Claim for service connection for accrued benefits Upon the death of a beneficiary who is entitled to receive periodic monthly benefits, certain survivors, including the Veteran's spouse, may be entitled to accrued benefits to which the Veteran was entitled at death. The accrued benefits are those payable to a beneficiary under existing ratings or decisions or those based on evidence in the file at the date of death. 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 the instant case, the Appellant filed a claim for accrued benefits in October 2006, the month of the Veteran's death. Therefore, her claim was timely filed. In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his or her death or must have been entitled to accrued benefits under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The claim must have been filed on or behalf of the Veteran prior to his or her death in the specific form prescribed by the Secretary in accordance with 38 U.S.C.A. § 5101(a). Jones, 136 F.3d at 1299. 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); Jones, 136 F.3d at 1299. Although a Veteran's claim terminates with that Veteran's death, a qualified survivor may carry on, to a limited extent, the deceased Veteran's claim by submitting a timely claim for accrued benefits. See 38 U.S.C.A. § 5121; Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits filed in this case by the Appellant, the Veteran's surviving spouse is separate from the claim for service connection filed by the Veteran prior to his death, the accrued benefits claim is derivative of the Veteran's claim and his spouse takes the Veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). In a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death. Service treatment records and VA records, as existing at the time of the Veteran's death, are considered to be in the constructive possession of VA. See 38 C.F.R. § 3.1000(a), (d)(4). Claim for service connection for COPD for purposes of accrued benefits The evidence of record at the time of the Veteran's death included the service treatment records, which as discussed above, discloses that the Veteran was treated for episodes described as "a cold," a "head cold," or bronchitis, but no diagnosis of COPD was assigned in service, and the Veteran's respiratory system was normal at the time of service separation. The medical evidence in the claims file does not relate the Veteran's service or any incident thereof to his COPD. The Veteran provided no statement as to the basis for the claim for COPD. His July 2006 claim stated only that he would "like to make a new claim" for COPD. There is no evidence at the time of the Veteran's death that he had COPD in service or that COPD was linked to his service. Based on the lack of evidence during the Veteran's lifetime suggesting that the Veteran's COPD may have been related to his service, the Board can find no basis upon which to award service connection for COPD for accrued benefits purposes, as a crucial element of service connection has not been shown. Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability). As noted above, the Appellant has claimed, after the Veteran's death, that his death was due to exposure to jet fuel, but her contention does not constitute evidence of record at the time of the Veteran's death. As discussed above, the evidence obtained after the Veteran's death, if considered as to the claim for accrued benefits, would be unfavorable to the Appellant's claim. In any event, as discussed at length above, the evidence associated with the claims file after the Veteran's death is unfavorable to the claim that COPD was incurred in service, and is consistent with the denial of service connection for COPD for purposes of accrued benefits. Claim for service connection for cirrhosis for purposes of accrued benefits A June 2002 treatment note reflects that the Veteran had a history of cirrhosis of "uncertain etiology," thought to be "related to paint and other exposures in his occupation and service." The examiner did not specify whether the opinion that cirrhosis was "thought" to be related to paint and other occupations and in-service exposures was the examiner's opinion, the Veteran's opinion, or an opinion of another provider related by the Veteran. The provider restated the opinion, in the impression and plan portion of the treatment note, stating that cirrhosis was "probably due to paint and other exposures reported, no clear etiology." In October 2006, another provider indicated that autoimmune hepatitis "likely" caused the Veteran's cirrhosis. The provider stated that treatment for autoimmune hepatitis might be warranted if there was an active hepatitis process on biopsy. However, in an addendum to that note, another provider stated that the likelihood of autoimmune hepatitis, and particularly of active disease, was low, so that biopsy was not warranted, given the Veteran's overall condition. The provider stated that the Veteran "likely has NASH which led to his cirrhosis." For purposes of information only, non-alcoholic steatohepatitis (NASH) is an inflammatory disorder of the liver of unknown pathogenesis in which fat builds up in the liver and eventually causes scar tissue. This disorder is similar to that of alcoholic liver disease but the individual does not have an alcohol history. Biopsy is needed for diagnosis. Dorland's Illustrated Medical Dictionary 1794, 1251 (31st ed. 2007); see also Wikipedia, "Non-alcoholic fatty liver disease," http://en.wikipedia/wiki/Non-alcoholic_fatty_liver_disease (as of 10 January 6:34 GMT). The Veteran did not undergo biopsy before his death. Therefore, the medical evidence establishes only that the Veteran's cirrhosis was of uncertain etiology or unknown pathogenesis. The evidence reflects that several possible causes, including exposures to substances at work, during the Veteran's service, autoimmune disease, and NASH, were considered. However, the continuing consideration of several possible etiologies by the providers who were treating the Veteran, including at the time when the Veteran died, establishes that the cause of the Veteran's cirrhosis was not known. This evidence is unfavorable to the Appellant's claim. No treatment or diagnosis of a liver disorder is reflected in the Veteran's service treatment records. After service, the Veteran worked for Firestone Tire and Rubber as a bias cutter for two years, and then worked for a power company for 30 years. In 1996, a diagnosis of cirrhosis was assigned. Given the length of time between the Veteran's 1961 service discharge and the diagnosis of cirrhosis more than 40 years later, the record is unfavorable to a finding that cirrhosis was linked to exposure to a substance during service. The preponderance of the medical opinions of record at the time of the Veteran's death establishes that the cause of the Veteran's cirrhosis was unknown. There is no statutory or regulatory provision which authorizes a presumption of service connection in this case. See 38 C.F.R. §§ 3.307, 3.309(e). As discussed above, the evidence obtained after the Veteran's death, if considered as to the claim for accrued benefits, would be unfavorable to the Appellant's claim. The Board can find no basis upon which to award service connection for cirrhosis for accrued benefits purposes, as a crucial element of service connection has not been shown. Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability). The benefit of the doubt is therefore not for application in resolution of the essential medical nexus element of the Veteran's claim for service connection and, in turn, the Appellant's claim for accrued benefits. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As a result, entitlement to accrued benefits based on the Veteran's claim pending at the time of his death is not warranted. ORDER The appeal for service connection for the cause of the Veteran's death is denied. The appeal for service connection for cirrhosis of the liver, for purposes of accrued benefits, is denied. The appeal for service connection for COPD, for purposes of accrued benefits, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs