Citation Nr: 1315282 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-25 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, L.B. and J.B. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1969 to March 1971. He died in September 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In March 2013, the appellant, L.B. and J.B. testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's death certificate states that he died in September 2006 as result of arteriosclerotic or atherosclerotic cardiovascular disease (ASCVD) due to or as a consequence of obesity. 2. At the time of the Veteran's death, service connection had been established for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling; and diabetes mellitus, evaluated as 20 percent disabling. 3. The Veteran did not have a confirmed diagnosis of ischemic heart disease or any other type of heart disease. 4. There is no competent medical evidence that PTSD and diabetes mellitus contributed substantially or materially, combined to cause, or aided or lent assistance to the production of death. 5. The Veteran was not continuously rated totally disabled due to service-connected disability for at least 10 years preceding his death, nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death. CONCLUSIONS OF LAW 1. A disability incurred in service did not cause, or contribute substantially or materially to the cause of, the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.101, 3.159, 3.312 (2012). 2. The criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Certain additional VCAA notice requirements may attach in the context of a claim for DIC benefits based on service connection for the cause of death. The Court of Appeals for Veterans Claims (Court) held that, for a DIC claim, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002) (VCAA not applicable where law, not the factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). As regards the claim of entitlement to DIC under 38 U.S.C.A. § 1318, the relevant facts are not in dispute. Therefore, as that claim is being decided as a matter of law, and not on the facts of the case, the claim is denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, no further discussion of the VCAA requirements is required for this claim. Regarding, the issue of service connection for the cause of the Veteran's death, the appellant was notified in a letter dated in November 2006 of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the appellant, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the appellant's behalf. Although the letter did not notify the appellant of the criteria for assigning a disability rating and an effective date, the appellant has not been prejudiced as a result, as the claim is being denied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). At the time of the Veteran's death, he was service-connected for PTSD and diabetes mellitus. Although, the notice did not inform the appellant of the disabilities the Veteran was service-connected for at the time of his death, the appellant's contentions during this appeal prove actual knowledge of what service-connected disabilities the Veteran had. The notice also sufficiently informed the appellant of the evidence necessary to substantiate a claim for a condition for which the Veteran was not yet service-connected but where service connection was warranted. Hupp at 342. She was told that DIC benefits could be awarded based on a demonstration that the Veteran died from a service-related injury or disease and she was asked to submit evidence of treatment of the Veteran, or sufficient information for VA to obtain treatment records. A 'service-related' injury or disease places in common language those conditions which service connection had not yet been granted but warrant service connection. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and also secured an opinion in furtherance of the appellant's claim. A pertinent VA opinion was obtained in August 2007. 38 C.F.R. § 3.159(c)(4). The VA opinion obtained in this case is sufficient, as the examiner conducted a complete review of the claims file and pertinent records, discussed all findings in the records considered relevant under the applicable law and regulations, and offered a well-supported opinion based on consideration of the full history of the Veteran's disorders at the time of his death. The Board finds that VA's duty to assist the appellant with respect to obtaining a VA opinion concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The appellant has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The appellant was also provided with a hearing related to her present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, but did not suggest the submission of additional evidence. However, the appellant fully described why she believed service connection was warranted for the cause of the Veteran's death and why she was entitled to DIC benefits under 38 U.S.C.A. § 1318. Accordingly, the appellant is not shown to be prejudiced on this basis. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). A. Service Connection for the Cause of Death The appellant contends that the Veteran's PTSD and diabetes mellitus contributed to death or that he had heart disease related to his military service, which caused his death. See, e.g., October 2007 notice of disagreement; March 2013 Hearing Transcript (T.) at 7-9. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). This question will be resolved by the use 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. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2012). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Issues involved in a claim for DIC are decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2012). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain chronic diseases (e.g., arteriosclerosis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In general, for service connection to be granted for most of the presumed diseases, they must be manifested to a degree of 10 percent or more at any time after service. Chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, however, must be manifest to a degree of 10 percent within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(ii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease [including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina], all chronic B-cell leukemias [including, but not limited to, hairy cell leukemia and chronic lymphocytic leukemia], multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Further, Note 2 under 38 C.F.R. § 3.309(e) states that, for the purposes of that section, "the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset." Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In the current appeal, the Veteran's DD 214 shows that he was stationed in the Republic of Vietnam from January 1970 to March 1971 during service. Therefore, his in-service exposure to herbicides is conceded. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the cause of the Veteran's death is related to his military service. In this case, at the time of the Veteran's death, service connection had been established for PTSD, evaluated as 70 percent disabling; and diabetes mellitus, evaluated as 20 percent disabling. The Veteran's death certificate indicates that he died from arteriosclerotic or atherosclerotic cardiovascular disease due to or as a consequence of obesity. The Board observes that the death certificate lists ASCVD, so it is unclear whether the "AS" stood for arteriosclerotic or atherosclerotic. The Veteran had not been service-connected for any heart disorder at the time of his death. As noted above, ischemic heart disease including atherosclerotic cardiovascular disease is presumptively related to herbicide exposure, and such exposure has been conceded. However, a review of the evidence does not support a finding that the Veteran actually had ischemic heart disease or that any other heart disorder was related to the Veteran's military service. The Veteran's STRS do not show the incurrence of ischemic heart disease, although several cardiac complaints are noted. The Veteran's May 1969 induction examination revealed a normal heart; he denied shortness of breath, pain or pressure in the chest and palpitation or pounding heart. He was evaluated for a murmur in October 1969 and was diagnosed with a functional systolic ejection murmur. The electrocardiogram (EKG) showed minimal ST changes consistent with a tachycardia; otherwise was within normal limits. The Veteran had what was known as a hyperdynamic heart and murmur. The evaluation report indicates that it was reinforced to the Veteran that he had no heart disease. He received a profile for heart disease. A November 1969 EKG was within normal limits with a borderline sinus tachycardia. A March 1970 consultation report shows that he was diagnosed with hyperdynamic heart and physiologic ejection murmur. The Veteran had no organic heart disease that would preclude service in Vietnam. He received a profile for hyperkinetic heart requiring tranquilization. The Veteran's March 1971 separation examination revealed a normal heart. He reported that he was "in good health." Although the Veteran's STRs show several cardiac complaints, no heart disease was shown. The Veteran's contemporaneous service records fail to show the onset of any heart disease during service. The totality of the evidence fails to show that the onset of any heart disease occurred during the Veteran's service. No medical professional has reported that the onset of any heart disease began during the Veteran's military service. Indeed, as discussed in detail below, no medical professional has indicated that the Veteran's in-service cardiac complaints resulted in a cardiovascular disability causing his death. The evidence also fails to show that the Veteran had heart disease at the time of his death, to include a diagnosis of arteriosclerosis within one year of his discharge from service. Diagnostic tests repeatedly showed no heart disease. An October 1980 EKG revealed nonspecific ST-T waves, but normal tracing. Chest X-rays showed that the appearance of the heart was within normal limits. No heart disease was diagnosed at the October 1980 VA examination. An August 1985 discharge summary indicates that an EKG revealed sinus tachycardia, nonspecific T-wave abnormality; no heart disease was diagnosed. The Veteran was shown to have a possible heart murmur in May 1990. A 1996 EKG indicated nonspecific ST abnormalities. The Veteran was hospitalized with pancreatitis in July 1996 through August 1996. A July 1996 treatment record shows that the Veteran had no prior medical history of heart disease; a systolic ejection murmur was heard. Chest X-rays in July 1996 and August 1996 revealed that the Veteran's heart was within normal limits and that there was no evidence of acute disease, respectively. The Veteran reported having a heart murmur, but not being treated for it, in September 2002. An EKG in December 2002 was normal. A May 2003 treatment record shows that his heart was within normal limits; a systolic ejection murmur was noted. At a June 2003 Board hearing in connection with a service connection claim for a heart disorder, the Veteran testified being diagnosed with an excessive heart murmur and that he had heart problems in service; his testimony did not indicate that he had ever been diagnosed with heart disease. Chest X-rays in January 2004 again revealed that the Veteran's heart size was within normal limits while X-rays in July 2004 showed that the cardiac silhouette was not grossly enlarged. An October 2004 treatment record mentions a catheterization and indicates that the Veteran was no longer followed by cardiology. The Board observes that in May 2005, the Veteran withdrew his pending service connection claim for a heart disorder. In June 2005, his heart rate and rhythm were shown to be regular with no murmur. A record in June 2006 also reveals no murmur. An August 2006 treatment record indicates that the Veteran had no diagnosis of heart disease. The record shows both aortic systolic murmur and no murmur. He reported seeing cardiology in the past and that an echo and a stress test were recommended, but he refused. The Veteran's terminal treatment records in September 2006 show that he had sudden cardiac arrest. A past medical history of diabetes mellitus, high blood pressure and coronary artery disease was noted. No opinion supporting the past medical history of coronary artery disease was provided. In other words, considering that the Veteran's numerous treatment records are devoid of any diagnosis of heart disease, it is unclear how the Veteran's past medical history was shown to include coronary artery disease in September 2006. As noted above, the Veteran's death certificate states that the immediate cause of death was arteriosclerotic or atherosclerotic cardiovascular disease due to or as a consequence of obesity. No autopsy was performed. The death certificate indicates that the physician who filled out the cause of death was the same physician who treated the Veteran when he died in September 2006. No rationale for the cause of death was provided. A VA medical opinion was obtained in August 2007. The examiner noted the cause of death listed on the Veteran's death certificate. The Veteran arrived at the emergency room in a cardiac arrest. He was status post full arrest, witnessed two and a half hours prior to arrival. The Veteran was asystole on arrival. Attempts at resuscitation were unsuccessful and he was signed out as cardiac arrest, sudden cardiac death. The Veteran had been last seen in August 2006 and there was no mention of any cardiac disease, coronary artery disease. He was not diagnosed to have coronary artery disease. Reviewing this records, there was one mention of a cardiac murmur, systolic ejection murmur in May 2003. There was no other mentioning of cardiac murmurs in his record. There was a note in October 2004 that appeared that it stated to have cardiac catheterization at CAMC. There was no record from CAMC present. Whether that was ever accomplished or not was not shown. The examiner noted that the Veteran had withdrawn his claim for service connection for a heart disorder. The examiner speculated that it may very well be that he knew that his cardiac catheterization was normal and initiated that action. [The Board observes that the pertinent evidence of record does not show the results of a cardiac catheterization, nor is there proof that the Veteran had such performed prior to his death.] It was less likely as not that the acute cardiac arrest was caused by or aggravated by his diabetes mellitus in that there were multiple causes of cardiac arrest including respiratory problems, of which he had been seen on several occasions, two hypoxia and three drug overdose. Therefore, it was less likely as not that without the additional proof of his cardiac catheterization that was mentioned that one could state that his cardiac arrest listed on the terminal report as the primary diagnosis cardiac arrest, secondary diagnosis of cardiac death. There was no question that he ultimately had a cardiac death, but it was mentioned that he was cyanotic when seen, which raised the probability of hypoxia as an initiating event. In this case, the probative medical evidence simply fails to adequately establish any confirmed diagnosis of any type of heart disease, to include ischemic, or that the Veteran's cause of death was directly related to his military service. The Board acknowledges the September 2006 treatment record showing a medical history of coronary artery disease as well as the death certificate listing arteriosclerotic or atherosclerotic cardiovascular disease as the immediate cause of death. As discussed above, atherosclerotic cardiovascular disease is considered a form of ischemic heart disease. Furthermore, arteriosclerosis is a chronic disease under 38 C.F.R. § 3.309(a). However, the totality of the probative evidence of record fails to show that the Veteran had any type of heart disease. As discussed above, the Veteran's copious treatment records, including several chest X-rays and EKGs, fail to show that he had heart disease. The most recent treatment record prior to his death in August 2006 did not indicate that the Veteran had heart disease, although several other diagnoses were reported. The terminal treatment records and death certificate do not contain any opinion supporting the diagnosis of heart disease. Also, there was no autopsy performed and as the Veteran was asystole when he arrived at the emergency room, clearly it was not the Veteran himself who reported having heart disease. The Board observes that "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Considering that the September 2006 records and death certificate do not contain supporting data or a reasoned medical opinion for why a diagnosis of heart disease was appropriate, the Board concludes that they lack probative value as to whether the Veteran had heart disease that caused his death. In this case, the August 2007 VA examiner reviewed the Veteran's treatment records and based upon such review, concluded that the Veteran was not diagnosed to have coronary disease. No medical professional has provided any opinion consistent with the medical evidence of record and supported by a rationale that the Veteran had heart disease, to include ischemic, causing his death. Without competent evidence of a confirmed diagnosis of heart disease, to include ischemic, the Board concludes that the evidence is not supportive of a finding that the Veteran died from heart disease presumed to have been incurred in service. Moreover, the evidence does not support a finding that the Veteran's in-service cardiac complaints resulted in a disability causing his death. No medical professional provided any opinion indicating that the Veteran had a heart disorder due to his military service that caused his death. The Board finds it highly probative that in 2005 the Veteran himself withdrew a pending claim seeking service connection for a heart disorder related to his in-service complaints. Furthermore, the evidence of record does not establish that the Veteran's PTSD and/or diabetes mellitus caused or contributed substantially or materially to his death. PTSD and diabetes mellitus were not listed on the death certificate. There is no indication in the Veteran's terminal treatment records when he had cardiac arrest in September 2006 that his PTSD and/or diabetes mellitus caused, contributed substantially or materially, combined to cause or that aided or lent assistance to the production of death. No medical professional has provided any opinion indicating that the Veteran's PTSD contributed to his death. Regarding his diabetes mellitus, the August 2007 examiner provided a negative opinion that such disability caused or aggravated the Veteran's cause of death. That opinion is uncontradicted and supported by a rationale. The probative medical evidence of record fails to show that the Veteran's PTSD and/or diabetes mellitus caused or contributed to his death. No medical professional has provided any opinion as to that effect. The totality of the pertinent evidence of record fails to show that the Veteran's PTSD and/or diabetes mellitus contributed substantially or materially to his death; combined to cause his death; or aided or lent assistance to the production of death. The evidence simply does not show a causal connection between the Veteran's PTSD and/or diabetes mellitus and his death. The Board does not doubt the sincerity of the appellant's belief that the Veteran's death was caused by his military service, to include being due to the service-connected PTSD and diabetes mellitus, and that he had heart disease incurred in his service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of the cause of the Veteran's death falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The appellant's own assertions as to etiology have no probative value. Accordingly, the Board finds that the competent evidence of record fails to establish that the Veteran's death was due to his active military service. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the appellant's claim of entitlement to service connection for the cause of the Veteran's death is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). B. DIC under 38 U.S.C.A. § 1318 A surviving spouse may establish entitlement to DIC in the same manner as if the veteran's death were service connected where it is shown that the veteran's death was not the result of willful misconduct, and the veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the veteran's lifetime, and without consideration of "hypothetical entitlement" to benefits raised for the first time after a veteran's death. See Rodriguez v. Nicholson, 511 F.3d 1147 (Fed. Cir. 2008) (the revised provisions of 38 C.F.R. § 3.22, as amended in 2000, may be applied to claims for DIC benefits filed by survivors before the amendment took effect). The Veteran was rated as totally disabled due to his service-connected disabilities from October 16, 1998; his 100 percent rating was not in effect for more than 10 years at the time of his death in September 2006. Furthermore, the Veteran died more than 50 years after his separation from active duty service and he was not a former POW. In essence, the facts of this case are not in dispute, and the law is dispositive. Here, none of the criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have been met. Accordingly, the claim will be denied because of the absence of legal merit. See Sabonis at 426. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs