Citation Nr: 1312221 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 07-23 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits based on a claim for service connection for a low back disorder. 3. Entitlement to accrued benefits based on a claim for service connection for a lung disorder. ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to December 1966. He died in April 2003. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal was remanded for additional development in June 2008. By decision dated September 2009, the Board denied claims of entitlement to accrued benefits based on claims for service connection for a low back disorder, migraine headaches, delirium episodes due to trauma, a lung disorder, circulatory disturbance with shock, and anxiety and depression. The Board remanded the service connection claim for cause of the Veteran's death for further development. Thereafter, the appellant appealed the Board's September 2009 decision which denied entitlement to accrued benefits based on claims for service connection for a low back disorder and a lung disorder to the United States Court of Appeals for Veterans Claims (CAVC). In a Memorandum Decision dated April 1, 2011, the CAVC upheld the Board's denial of these claims. The appellant appealed the CAVC's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). By order dated July 20, 2012, the Federal Circuit Court vacated the CAVC's April 2011 Memorandum Decision, and remanded the claims to the CAVC. By order dated October 23, 2012, the CAVC remanded the accrued benefit claims to the Board. The claim for service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran died in April 2003 and, in September 2003, VA received the appellant's application for accrued benefits. 2. The evidence of file at the time of the Veteran's death was limited to 1) the Veteran's service treatment records (STRs); 2) a March 1967 RO Administrative Decision on character of discharge; 3) a VA Form 10-7131 identifying the Veteran's admission to the Atlanta VA Hospital (VAH) on December 19, 1966; 4) the Veteran's original application for VA compensation benefits (VA Form 21-526 received in January 1967); 5) a discharge summary from the Atlanta VAH for a December 1966 hospitalization; 6) a statement from the Veteran's father received in March 1967; 7) an application for VA compensation benefits (VA Form 21-526) with written statement (VA Form 21-4138) and an authorization and consent to obtain records (VA Form 21-4142) received in April 2002; 8) a written statement from the Veteran (VA Form 21-4138), an authorization and consent to obtain records (VA Form 21-4142) and two newspaper articles received in June 2002; 9) an award letter from the Social Security Administration (SSA); 10) additional authorizations and consent to obtain records (VA Form 21-4142s) received in June 2002; 11) a June 25, 2002 RO notice of administrative decision; 12) a Privacy Act records request received in July 2002; and 13) an August 2002 RO Privacy Act response. 3. The evidence of file at the time of the Veteran's death showed that the Veteran did not manifest a chronic low back disability upon his discharge from service, and did not show that any chronic low back disability manifested after service was related to an event during active service. 4. The evidence of file at the time of the Veteran's death showed that the Veteran did not manifest a chronic pulmonary disability upon his discharge from service, and did not show that any chronic pulmonary disability manifested after service was related to an event during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits based on a claim for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5121, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.306, 3.309, 3.1000 (2012). 2. The criteria for entitlement to accrued benefits based on a claim for service connection for a lung disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5121, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.306, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veteran's claims were previously denied by the RO in June 2002 due to the character of his discharge. Subsequent to the Veteran's death, the Navy upgraded the character of the Veteran's discharge to "general." Therefore, the character of discharge is not at issue and will not be discussed herein. I. Duties to Notify and Assist The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See Holliday v. Principi, 14 Vet. App. 280 (2000) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The Veteran died in April 2003 and, in September 2003, VA received the Appellant's application for accrued benefits. As the Veteran's death occurred prior to October 10, 2008, this claim is controlled by the accrued benefit provisions of 38 U.S.C.A. § 5121 which provide that the outcome of an accrued benefits claim hinges on the application of the law to evidence which was in the file at the time of the Veteran's death. For claims filed after October 10, 2008, a revised 38 U.S.C.A. § 5121A authorizes substitution of a surviving spouse for purposes of processing to completion a deceased claimant's claim and allows development of evidence. See 76 Fed. Reg. 8666, 8669 (Feb. 15, 2011). This provision was not given retroactive effect, and does not apply to the case at hand. Id. The Board must also clarify that, since the appellant filed her application for accrued benefits after November 27, 2002, this claim is controlled by the version of 38 C.F.R. § 3.1000 currently in effect rather than a more liberal version of 38 C.F.R. § 3.1000 which had been in effect prior to November 27, 2002. See generally Castellano vs. Shinseki, 25 Vet. App. 146, 152-53 (2011). As such, the outcome of these accrued benefit claims hinge on the application of the law to the evidence which was in the file at the time of the Veteran's death which may include records which were under VA's control 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); Hyatt v. Shinseki, 566 F.3d 1364, 1371 (Fed.Cir. 2009). Here, the Veteran submitted service connection claims for low back and lung disorders in April 2002. The Veteran died prior to development of his claim. There is no dispute that the appellant is an eligible person for accrued benefits. As such, there is no further duty to assist the appellant in the completion of her application. See 67 Fed. Reg. 9638-01 (Mar. 4, 2002); 67 Fed. Reg. 65707-02 (Oct. 28, 2002). The only potential development which may be conducted by VA consists of ensuring that any records deemed in constructive custody of VA have been associated with the claims folder. The appellant has alleged that VA has failed to obtain treatment records of the Veteran at the Atlanta VAH from January 1, 1967 through July 31, 1967. See VA Form 21-4138 received July 2007. This is based upon a VA Form 21-4142 submitted by the Veteran in June 2002, wherein he reported treatment for a spontaneous lung collapse at DeKalb Medical Center from December 9, 1966 until December 31, 1966, and an admission to the Atlanta VAH from January 1, 1967 to July 31, 1967. However, the Veteran's recollections provided on this VA Form 21-4142 are clearly incorrect. In a VA Form 21-4142 signed in January 1967, the Veteran reported being treated at DeKalb Medical Center from December 9, 1966 to December 17, 1966 which correlates the treatment records received from this facility. The recollection of being discharged on December 31, 1966 is clearly incorrect, as the Veteran was a patient at the Atlanta VAH from December 19, 1966 to February 1, 1967. Additionally, the Veteran has reported only one hospitalization at the Atlanta VAH, and VA has obtained the available records from this facility. Hence, the Board finds that the Veteran's reference to being treated at the Atlanta VAH from January 1, 1967 to July 31, 1967 is clearly incorrect, and that it would be futile to remand this case on the basis of faulty memory recollections almost 4 decades after the events in question. Based on the limited issue at hand, the Board finds that there is no further duty to notify or duty to assist the appellant in this case. Under the circumstances of this case as it applies to the claims for accrued benefits, "the record has been fully developed," and it is difficult to discern what additional guidance VA could have provided to the Appellant regarding what further evidence she should submit to substantiate her claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. With respect to general due process considerations, the Appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103. Accordingly, the Board will proceed to a decision on the merits as to the accrued benefit issues. II. Eligibility for Accrued Benefits Accrued benefits are defined as periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years. 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a) (in effect on or after November 27, 2002). The Federal Circuit court has concluded that, "for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). It was explained that "a consequence of the derivative nature of the surviving spouse's entitlement to a Veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Id. at 1300. Important for this decision, an accrued benefits claimant cannot, subsequent to the claimant's death, submit for consideration records or evidence not contained in the claims file at the time of death. Hyatt v. Shinseki, 566 F.3d 1364, 1371 (Fed.Cir. 2009). The current version of 38 C.F.R. § 3.1000 does not allow for consideration of additional classes of evidence which had not been of file but which could help to identify, corroborate or verify information from the death certificate. 67 Fed. Reg. 9638-01 (Mar. 4, 2002); 67 Fed. Reg. 65707-02 (Oct. 28, 2002). However, "evidence in the file at date of death" includes "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). This is a narrow exception for evidence deemed constructively of file such as records located at VA regional offices, insurance centers, medical centers, outpatient clinics, veterans' centers, and the Records Management Center. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA records are deemed to be constructively in the possession of VA adjudicators and must be obtained). See generally Dunn v. West, 11 Vet. App. 462, 466-67 (1998). This may not include, however, VA records generated after the claimant's death. See, e.g., Castellano, 25 Vet. App. at 153. After a review of the evidence, the Board finds that the Veteran had a pending claim of entitlement to service connection for a low back disorder, migraine headaches, delirium episodes due to trauma, a lung disorder, circulatory disturbance with shock, and anxiety and depression at the time of his death. Specifically, he filed a claim in April 2002. The RO denied the claim in June 2002. The Veteran died in April 2003, prior to the expiration of the one-year time period in which he could have filed a timely notice of disagreement (NOD). Therefore, because the June 2002 decision was not yet final in April 2003, at the time of death, it was still "pending" for purposes of the regulations. 38 C.F.R. § 3.160(d). Moreover, although the Veteran's claim terminated with his death, the regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased Veteran's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121; see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits 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 the appellant takes the Veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones, 146 F.3d 1296 (Fed. Cir. 1998). In the instant case, the Veteran died in April 2003, and the claim for accrued benefits was received in September 2003. The Veteran's widow has sought service connection for a low back disorder, migraine headaches, delirium episodes due to trauma, a lung disorder, circulatory disturbance with shock, and anxiety and depression for the purpose of receiving accrued benefits. As addressed in the Introduction above, the low back and lung disorder claims are the only remaining accrued benefit claims remaining on appeal. 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 wartime service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.309(a). In general, service connection requires a claimant to satisfy a three element test: (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). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Potentially pertinent to the case at hand, arthritis and malignant tumors are among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). 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 benefits claim 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). In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify a medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." 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 the presence or absence of the claimed symptomatology. 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, footnote 4 (Fed. Cir. 2007) (noting that a layperson is competent to describe a simple matter such as a broken leg but not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R § 3.159(a)(1). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R § 3.159(a)(2). Although the Federal Rules of Evidence do not apply to veterans' jurisprudence, recourse to the Federal Rules of Evidence is appropriate, where the Rules assist in the articulation of the Board's reason. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). As reflected in Fed.R.Evid 701, lay witness testimony is permissible in the form of opinions or inferences when (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. 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. III. Analysis The appellant contends that the Veteran had a low back disorder at the time of his death which first manifested during service. She also contends that he had a chronic lung disorder which either first manifested during active service, or is causally related to an event in service. As discussed above, the Board may only consider the evidence of file at the time of the Veteran's death, either actual or constructively. 38 C.F.R. § 3.1000(d)(4). A. Evidence of file at the time of the Veteran's death The evidence of file at the time of the Veteran's death was very limited. The evidence included 1) the Veteran's STRs; 2) a March 1967 RO Administrative Decision on character of discharge; 3) a VA Form 10-7131 identifying the Veteran's admission to the Atlanta VAH on December 19, 1966; 4) the Veteran's original application for VA compensation benefits (VA Form 21-526 received in January 1967); 5) a discharge summary from the Atlanta VAH for a December 1966 hospitalization; 6) a statement from the Veteran's father received in March 1967; 7) an application for VA compensation benefits (VA Form 21-526) with written statement (VA Form 21-4138) and an authorization and consent to obtain records (VA Form 21-4142) received in April 2002; 8) a written statement from the Veteran (VA Form 21-4138), an authorization and consent to obtain records (VA Form 21-4142) and two newspaper articles received in June 2002; 9) an award letter from the Social Security Administration (SSA); 10) additional authorizations and consent to obtain records (VA Form 21-4142s) received in June 2002; 11) a June 25, 2002 RO notice of administrative decision; 12) a Privacy Act records request received in July 2002; and 13) an August 2002 RO Privacy Act response. Additionally, after the Veteran's death, the RO received a July 2004 letter from the Department of the Navy notifying her that the Veteran's undesirable discharge had been upgraded to a general discharge, a General Discharge Certificate, a corrected Department of Defense Form 214, and service personnel records. These records are deemed in the possession of VA at the time of the Veteran's death. See generally 38 C.F.R. § 3.156(c). In pertinent part, the Veteran's STRs first reflect treatment for an upper respiratory infection (URI) in May 1965. That same month, he was evaluated for left groin pain which was assessed as probably of muscular origin. On July 21, 1965, the Veteran reported to the dispensary with a history of developing mid-low back pain while on liberty leave. He denied a history of trauma. Examination was unremarkable except for limitation of motion in all planes. An x-ray examination was interpreted as showing no abnormalities. Thereafter, the Veteran had multiple follow-up clinic visitations for low back pain in July and August 1965. On August 11, 1965, the Veteran was referred for an orthopedic consultation due to a several week history of low back pain with a recent finding of diminished response to pinprick from the inguinal area as well as some question of diminished S1 strength. An orthopedic consultation, dated August 20, 1965, reflected a history that the Veteran had a 1-month history of low, midline back pain which was aggravated with extension. There was no radiation. Examination was significant for tenderness of the S1-S2 area with no positive neurologic findings. X-ray examination was interpreted as within normal limits (WNL). The examiner offered an impression of mild lumbosacral strain. The next relevant record consists of the Veteran's December 1966 discharge examination. At that time, a chest x-ray was interpreted as normal. The Veteran's lungs, chest and spine were clinical described as normal. The Veteran's service personnel records (SPRs) reflected his only shipboard service aboard the USS LITTLE ROCK (CLG4) from August 12, 1966 to September 26, 1966, at which time he had an unauthorized absence while stationed in Norfolk, Virginia. He missed the October 17, 1966 sailing of the USS LITTLE ROCK (CLG4) to the Caribbean for extended exercises. The Veteran was officially discharged on December 6, 1966. The Veteran was admitted to the Atlanta VAH on December 19, 1966 due to a spontaneous pneumothorax in the right upper lobe. The discharge summary included the following recitation of prior medical history: On the day of sudden onset of abdominal pain and shortness of breath he was admitted to DeKalb General Hospital where a fifth interspace tube was inserted. Later this was removed and an anterior second interspace tube was inserted. He was discharged from there three days prior to being admitted here. At the Atlanta VAH, the Veteran underwent thoracentesis with subsequent chest x-ray examination demonstrating a 30 to 40 percent pneumothorax on the left. The Veteran was advised to return in two months for follow-up x-ray before any decision was made as to the necessity of a thoracotomy procedure for recurrent thrombophlebitis. An addendum noted that the Veteran was to be followed in the outpatient clinic at least one or two times for repeat x-rays "to see if there is any evidence of etiology for this described illness." The Veteran filed his original application for VA compensation benefits, via a VA Form 21-526, in January 1967. He reported treatment for a collapsed lung at DeKalb General Hospital from December 9-17, 1966, and the same condition at the Atlanta VAH on December 19, 1966. He also reported having a back ailment in 1965. This claim was not developed as the Veteran was administratively denied benefits due to an undesirable discharge. A statement from the Veteran's father, received in March 1967, described picking the Veteran up at the airport on December 7, 1967. When they arrived home, the Veteran had complained of having a small pain in his chest. He stayed home the following day, and initially reported feeling better. Later that morning, the Veteran had been taken to the hospital due to a collapsed lung. During his lifetime, the Veteran had argued the onset of a recurrent lower back pain/strain during active service. With respect to his lung disorder, he stressed that he was treated for a lung collapse only 2 days after service discharge. He described being subject to a racial attack while stationed in Norfolk, Virginia. He also theorized that he had been subject to chemical and biological weapons testing during Project SHAD. See VA Form 21-4138 received in June 2002. In support of his claims, the Veteran submitted a newspaper article from the Atlanta Journal-Constitution, entitled Toxic Tests on Navy Admitted, which reported that the military sprayed two kinds of nerve gas and a biological toxin on ships stationed in the Pacific from 1964 to 1968. This testing, conducted as part of a project called SHAD (Shipboard Hazard and Defense), involved either the deadly nerve agent sarin, the nerve gas known as VX, or a biological toxin which caused flu-like symptoms. Another article, entitled Mayor Aided Integration, described the death of a former Norfolk, VA, mayor who had been the lone vote against closing the city's schools rather than submit to racial integration during a statewide movement called Massive Resistance. The Veteran died on April [redacted], 2003. B. Evidence of file after the time of the Veteran's death The evidence of record after the Veteran's death includes a statement from the Veteran signed prior to his death, but received by VA in May 2003. He expressed disagreement with the RO's June 2002 decision. Evidence and argument from the Veteran's spouse includes her description of the Veteran as being severely injured in a racial attack which occurred during active service. She also describes the Veteran as incurring and/or aggravating severe back pain during active service, and reporting back pain immediately upon his release from active service. The appellant has also argued that the Veteran's treatment for a collapsed lung within two days of his service discharge raises a reasonable possibility that his lung disease was incurred in service. She opines that chest x-ray examinations in 1966 showed that he had a persistent infiltrate. In support of her allegations, the appellant has submitted treatise articles discussing the difficulties in diagnosing the origin of adenocarcinomas with 60 percent of all metastatic tumors being of unknown primary origin (MAUP). She also claims that the Veteran's lung disease may be attributable to asbestos exposure aboard the USS LIBERTY. She claims that the Veteran's STRs reflected symptomatology and manifestations of metastatic adenocarcinoma and/or mesothelioma, such as complaints of anxiety, depression, dizziness, headache, nausea, concentration difficulty, confusion, poor sleep, disorganization, severe stomach pains and decreased appetite. A statement from the Veteran's daughter, signed by a notary in February 2004, reflects her recollections that the Veteran had always complained of back pains. Additional medical records reflect the Veteran's treatment for recurrent URIs/bronchitis beginning in 1994. A May 1996 x-ray examination of the hips and femur described degenerative changes at the lumbosacral joint. A September 1996 chest x-ray examination was interpreted as showing prior granulomatous disease. The Veteran was treated for lumbosacral pain in September 1999. A February 2001 hospitalization record reflected a history of "low back pain, arthritis." A July 2001 treatment evaluation for left hip pain suspected that the source of the Veteran's pain was from his lower back. In 2003, the Veteran was diagnosed with metastatic adenocarcinoma of unknown primary. However, there were varying assessments that the primary lesion may have been from the lungs, the colon, the abdomen or the gastrointestinal tract. Finally, the Veteran's death certificate listed a cause of death of metastatic adenocarcinoma, primary unknown. There were no other diseases listed as a contributing factor. The approximate onset between the onset of adenocarcinoma and death was listed as three months. An autopsy was not performed. C. Accrued benefit determination At the outset, the Board must stress that an adjudication of the appellant's claim for accrued benefits based on service connection for a low back disorder and a lung disorder must be constrained to the evidence of file, either actual or constructively in VA's possession, at the time of the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(d)(4). Technically, the Board erred in its September 2009 decision, which has been vacated, to the extent that it considered the lay statements offered by the appellant and her daughter which were received after the Veteran died. With respect to the low back disability claim, the evidence of file at the time of the Veteran's death indeed reflected his treatment for a mild lumbosacral strain in July and August 1965. Notably, x-ray examination of the lumbar spine was interpreted as negative and there is no further lay or medical evidence of low back symptoms for his remaining 16 months of active duty service. The only evidence that the Veteran manifested a chronic low back disorder, that had been of record at the time of the Veteran's death in April 2003, was limited to the Veteran's assertion that he had a back ailment treated in 1965 and/or had recurrent lower back pain/strain during active service. There was no postservice evidence of record showing treatment for back pain, and the lay statement from the Veteran's father did not address a low back disability. Clearly, the Veteran was competent to describe recurrent low back pain but his statements were of limited probative value. In this respect, the evidence after the initial treatment for lumbosacral strain in 1965 reflected no description from the Veteran regarding the frequency, location or intensity of his low back symptoms, if any, to identify the a diagnosable medical condition. His postservice assertion of having a chronic low back disability which started in service is not shown to be derived from a physician diagnosis provided after service, and there was no medical professional opinion of record which assessed the Veteran's symptoms as being a chronic low back disability which began in service. Additionally, the Board finds that the diagnosis of the cause of low back pain, or more appropriately whether a chronic low back disability exists, is beyond the competence of a lay person who holds no training or expertise to evaluate an orthopedic disorder. In this respect, the STRs reflect that military physicians could not determine the nature and etiology of the Veteran's low back complaints which necessitated an x-ray examination and orthopedic consultation. The issue as to whether the Veteran had a chronic muscular, bony or discogenic defect, or some other nonobservable etiology for his back pain, is clearly beyond the competence of a lay claimant as contemplated by 38 C.F.R § 3.159(a)(1), Fed.R.Evid 701 and Fed.R.Evid 701. Moreover, the record includes opinion from a military examiner at the time of the Veteran's separation from service that the Veteran manifested a normal spine. To the extent that the Veteran's personal self-diagnosis held any probative weight, the Board places significantly greater probative weight to the opinion of the December 1966 military examiner who found no evidence of a chronic low back disability upon service separation, as this examiner possessed greater training and expertise than the Veteran in evaluating and diagnosing orthopedic disorders. In summary, the Board finds that the evidence of file at the time of the Veteran's death showed that the Veteran did not manifest a chronic low back disability upon his discharge from service, and did not show that he manifested a chronic low back disability after service which was related to an event during active service. In so holding, the Board acknowledges that subsequent private medical records reported a finding of degenerative changes of the lumbosacral joint in 1996, and later reflect treatment for low back pain. However, these records were not in the possession of VA at the time of this death, and cannot be deemed constructively of record. Thus, the evidence of file at the time of the Veteran's death did not demonstrate a chronic disease entity, such as arthritis, to allow application of 38 C.F.R. § 3.303(b). With respect to the lung disorder claim, the evidence of file at the time of the Veteran's death only reflected an instance of treatment for URI in May 1965. Otherwise, there was no lay or medical evidence of recurrent lung symptoms for the remaining 19 months of active duty service. The history provided by the Veteran's father reported the onset of chest pain on December 7, 1966, which is the day after separation from service. Neither the Veteran nor the Veteran's father reported persistent or recurrent symptoms of lung disability which began in service. The medical records reflect that the Veteran's lung abnormality was diagnosed as a spontaneous pneumothorax. No cause for the spontaneous pneumothorax was identified, such as an underlying chronic lung disease. There was no medical evidence that the Veteran's spontaneous pneumothorax either first began in service, or was due to an event during active service. The only evidence tending to show that the Veteran's spontaneous pneumothorax had anything to do with active service consisted of the lay assertions that the spontaneous pneumothorax must have begun in service due to the proximity of onset to discharge from service. Clearly, the Veteran and his father were competent to describe chronic lung symptoms since service but they did not allege chronicity. The theory of inservice onset is not shown to be derived from a physician opinion provided after service, and there was no medical professional opinion of record which assessed the Veteran's symptoms demonstrated after service as a chronic lung disorder which began in service or was related to an event during active service. Additionally, the Board finds that an etiological opinion regarding the cause of the spontaneous pneumothorax is beyond the competence of a lay person who holds no training or expertise to evaluate a pulmonary disorder. In this respect, the examining physicians for pneumothorax found no etiology for this disorder explaining that repeat x-rays were necessary "to see if there is any evidence of etiology for this described illness." The Veteran did theorize that his lung disorder was attributable to toxin exposures during Project SHAD. Unfortunately, this theory of causation was not developed due to his untimely death. However, the Veteran's SPRs clearly reflect that he only had shipboard service on the USS LIBERTY from August 12, 1966 to September 26, 1966. The Board takes judicial notice that the USS LIBERTY did not participate in Project SHAD during this time period. See http://mcm.fhpr.osd.mil/cb_exposures/project112_shad/shadassociatedShips.aspx. See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute) In any event, the issue as to whether the Veteran had a chronic underlying lung disorder during active service, whether the origin for his "spontaneous" pneumothorax could have been during active service, or whether he had a chronic lung disorder related to events during active service is clearly beyond the competence of a lay claimant as contemplated by 38 C.F.R § 3.159(a)(1), Fed.R.Evid 701 and Fed.R.Evid 701. Additionally, the Veteran's December 1966 discharge examination reflected a normal clinical evaluation of the lungs as well as normal chest x-ray examination. To the extent that the personal self-diagnosis and etiology opinions from the Veteran and his father held any probative weight, the Board places significantly greater probative value to the opinion of the December 1966 military examiner who found no evidence of a chronic lung disability upon service separation. In summary, the Board finds that the evidence of file at the time of the Veteran's death showed that the Veteran did not manifest a chronic pulmonary disability upon his discharge from service, and did not show that he manifested a chronic pulmonary disability after service which was related to an event during active service. In so holding, the Board again acknowledges that subsequent private medical records showing a diagnosis of adenocarcinoma of unknown primary just prior to the Veteran's death. One physician opined a primary lung lesion. However, these records were not in the possession of VA at the time of this death, and cannot be deemed constructively of record. Thus, the evidence of file at the time of the Veteran's death did not demonstrate a chronic disease entity, such a malignant tumor, to allow application of 38 C.F.R. § 3.303(b). Additionally, a spontaneous pneumothorax is not deemed a chronic disease under 38 C.F.R. § 3.309(a) to allow for application of 38 C.F.R. § 3.303(b). The Board, in its consideration of appeals, is bound by applicable statutes, VA regulations and precedent opinions of the General Counsel of the Department of Veterans Affairs. 38 U.S.C.A. § 7104(c); 38 C.F.R. 19.5. As addressed above, the Board's September 2009 decision included a discussion of the probative value of lay statements provided by the appellant and her daughter, which served as the basis for the remand by the Federal Circuit. Technically, the Board erred in this discussion as it had no jurisdiction to evaluate evidence which had not been of file, or in VA's possession, at the time the Veteran died. 38 C.F.R. § 3.1000(d)(4) (in effect November 27, 2002). However, in light of the order by the Federal Circuit, the Board will evaluate the probative weight to be assigned to the statements made by the appellant and her daughter. The appellant and her daughter essentially argue that the Veteran had manifested a chronic low back disability which began in service, and that a chronic lung disorder also began during active service. Clearly, the appellant and her daughter are competent to describe the outwardly visible manifestations of disability such as wincing due to low back pain, painful movement, and respiratory symptoms. However, the Veteran's December 1966 separation examination included opinion from a qualified military examiner that the Veteran did not manifest a chronic low back or lung disorder upon service discharge. The probative value of this opinion, which was based upon physical examination and chest x-ray examination, greatly outweighs the self-diagnoses and opinions provided by the appellant and her daughter, who possess substantially less expertise, training and experience than the military examiner in addressing medical questions involving diagnosis of orthopedic and pulmonary disorders. Additionally, it is not shown that the opinions of the appellant or her daughter are derived from a physician diagnosis provided after service, and or that any of the information from the appellant and her daughter has been used by a medical professional to support an opinion that the Veteran manifested a chronic low back or lung disorder which began in service, or is causally related to event(s) in service. Thus, as it pertained to the medical question of diagnosis and etiology of an orthopedic disability of the low back or underlying pulmonary disorder, the Board finds that none of the information provided by the appellant and her daughter was derived from a source competent to speak to the medical issues at hand. Additionally, the appellant also raised several service connection theories, such as asbestos exposure and the correct diagnosis of adenocarcinoma primary lesions, which were not of record at the time of the Veteran's death and may not be considered in the accrued benefit claim. 38 C.F.R. § 3.1000(d)(4). Thus, the Board must find that, based upon review of the evidence of record at the time of the Veteran's death, the criteria for entitlement to accrued benefits based on a claim for service connection for a low back disorder or a lung disorder have not been met. There is no doubt of material fact to be resolved in the appellant's favor. 38 U.S.C.A. § 5107(b). As such, the claims must be denied. ORDER The claim of entitlement to service connection for the cause of the Veteran's death is denied. The claim of entitlement to accrued benefits based on a claim for service connection for a low back disorder is denied. REMAND The Veteran died on April [redacted], 2003. His death certificate listed a cause of death of metastatic adenocarcinoma, primary unknown. There were no other diseases listed as a contributing factor. The approximate onset between the onset of adenocarcinoma and death was listed as three months. An autopsy was not performed. There were varying assessments from the Veteran's treating physicians that the primary lesion may have been from the lungs, the colon, the abdomen or the gastrointestinal tract. The appellant has argued that the Veteran's metastatic carcinoma stems from asbestos exposure during active service. In support of her allegation, the appellant has submitted materials asserting that the USS LIBERTY contained asbestos-products for piping, insulation and fire-retardance. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The Veteran's corrected Department of Defense Form 214 listed a military occupational specialty as a seaman (SN). He served aboard the USS LIBERTY from August 12, 1966 to September 26, 1966. The duties that he performed are not clear. A December 2010 RO deferred rating decision (VA Form 21-6789) reflects that the RO was to conduct additional development to determine the Veteran's asbestos exposure, and to obtain a medical opinion as to whether his adenocarcinoma was at least as likely as not related to asbestos exposure. The RO obtained service personnel records, but took no further action on this theory of causation. In light of the materials submitted by the appellant reporting asbestos materials aboard the USS LIBERTY, the Board finds that a medical opinion is necessary to decide this case. 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Conduct any evidentiary development deemed necessary to assess the probability of the Veteran's asbestos exposure aboard the USS LIBERTY from August 12, 1966 to September 26, 1966 while serving duties as a Seaman. 2. Upon completion of the above, forward the claims folder to an appropriately qualified medical doctor for opinion as to whether the cause of the Veteran's death, metastatic adenocarcinoma, is causally related to asbestos exposure during active service. The RO should inform the examiner of the Veteran's probability of exposure to asbestos as a Seaman, if known. Following review of the claims folder, the examiner is requested to provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the cause of the Veteran's death, metastatic adenocarcinoma of unknown primary, is causally related to asbestos exposure aboard the USS LIBERTY from August 12, 1966 to September 26, 1966? The examiner is requested to write a clear rationale for any opinion expressed. If an opinion cannot be provided without resort to speculation, the examiner is requested to explain why such an opinion cannot be provided (e.g., due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disorder). 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs