Citation Nr: 1315642 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 10-48 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for diabetes mellitus, type II ("DM II") for accrued benefit purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1968. The Veteran died in February 2008. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Nashville, Tennessee, which denied the appellant's claims. FINDINGS OF FACT 1. The Veteran died in February 2008. The death certificate shows that the immediate causes of death were failure to thrive and metastatic lung cancer. The secondary causes were hypercalcemia, acute renal failure, cardiomyopathy, chronic obstructive pulmonary disease ("COPD") and delirium. 2. At the time of his death, the Veteran was service-connected for degenerative disc disease of the lumbar spine and residuals of a meniscus repair of the left knee. 3. There is no probative evidence that the Veteran served within the Republic of Vietnam, thus, exposure to herbicides is not presumed. 4. The competent medical evidence of record does not establish that a disability of service origin, or a service-connected disability, caused or contributed to the Veteran's death. 5. At the time of his death, the Veteran had a claim pending for entitlement to service connection for DM II. 6. The appellant filed her claim for accrued benefits in March 2008, within one year of the Veteran's death. 7. The probative evidence of record does not demonstrate that the Veteran's DM II had its onset during service, manifested within one year of service, or is otherwise related to active military service, to include as a result of herbicide exposure. CONCLUSIONS OF LAW 1. A disability incurred in, or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1101, 1112, 1116, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307(a)(6), 3.309(e), 3.312 (2012). 2. Service connection for DM II for accrued benefits purposes has not been established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the appellant's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Court has held that, in general, 38 U.S.C.A. § 5103(a) notice for a claim of entitlement to dependency and indemnity compensation ("DIC") benefits must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his 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 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant, who submits a non-detailed application, of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id. Notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction ("AOJ"). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case ("SOC") or Supplemental Statement of the Case ("SSOC"). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). Here, a February 2009 pre-adjudication letter notified the appellant of the evidence and information necessary to substantiate a DIC claim based on service connection for the cause of the Veteran's death. Specifically, she was told that to support a claim for DIC benefits, the evidence must show that the Veteran died while on active duty, or that the Veteran died from a service-related injury or disease. The appellant was also advised of the information and evidence needed to support a claim for DIC based on the Veteran's previously service-connected conditions and what information and evidence was needed to support a claim for DIC based on a condition not yet service-connected. The letter also advised the appellant of her and VA's responsibilities under the VCAA. Because the Board has concluded that the preponderance of the evidence is against the appellant's claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). B.) Duty to Assist Under the VCAA, VA also has a duty to assist the appellant in the development of a claim. This includes assisting the appellant in procuring service treatment records, relevant post-service treatment records, and providing a VA examination or opinion when warranted. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The Board concludes that VA's duty to assist has been satisfied in this case. Of record are the Veteran's service and post-service treatment reports, his terminal hospital treatment reports and his death certificate. The claims folder also contains the appellant's statements via her Veteran's service representative. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability, and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, the February 2008 death certificate shows that the Veteran died of failure to thrive and metastatic lung cancer secondary to hypercalcemia, acute renal failure, cardiomyopathy, COPD and delirium. As will be discussed below, there is no competent evidence of record to support a finding that the cause of the Veteran's death is in any way related to a disability incurred in, or related to service. As the Board finds that there is not a reasonable possibility that a medical opinion would aid in substantiating the appellant's claim, it concludes that a medical evaluation or opinion is not required. See Daves, supra. With respect to the appellant's claim for accrued benefits, the Board only considers evidence in VA's possession at the time of the Veteran's death. See 38 C.F.R. § 3.1000. It follows that the appellant could not be prejudiced by any deficiency in the duty to notify or assist, as no further evidence can be accepted on this claim. Nevertheless, the February 2009 letter fully addressed all necessary notice elements under the VCAA and was sent to the appellant prior to the initial decision in this matter. The letter informed the appellant of the requirements for substantiating a claim for accrued benefits, and of the types of evidence VA will obtain on the appellant's behalf. Accordingly, the Board finds that VA's duty to assist has been met and no further development is necessary. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Discussion The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the 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." (footnote omitted). However, the Court has held that "[t]he 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." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002). 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 disease during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for those chronic diseases listed specifically at 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b) (2012); see Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after discharge, 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) (2012). In addition, certain chronic diseases, including lung cancer, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year of separation from active duty service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In order to establish service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in, or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). 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. Id. The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). The service-connected disability will be considered a contributory cause of death if it is shown that it contributed substantially or materially to death, combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2012). 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. Id. Medical evidence is required to establish a causal connection between service, or a disability of service origin, and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease, or have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). A. Entitlement to service connection for the cause of the Veteran's death. The appellant contends that the Veteran's death was the result of metastatic lung cancer as a result of herbicide exposure during service in the Republic of Vietnam. Although, at the time of his death, the Veteran was service-connected for degenerative disc disease of the lumbar spine and residuals of a meniscus repair of the left knee, neither the appellant, nor the competent evidence of record, suggests that either of these disabilities caused or materially contributed to his death. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . 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) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). These disease include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (including 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 leukemia (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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Ischemic heart disease (including coronary artery disease), Parkinson's disease and B-cell leukemias (such as hairy cell leukemia) were added to the list of diseases effective August 31, 2010. See 75 Fed. Reg. 53202-53216 (Aug. 31, 2010). The Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442 -449 (1996). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran's death certificate reveals that he died on February [redacted], 2008 as a result of failure to thrive and metastatic lung cancer. Secondary or contributing causes, but not resulting in the underlying cause of death, were hypercalcemia, acute renal failure, cardiomyopathy, COPD and delirium. The Veteran's private hospital discharge summary on the day of his death supports these findings. Review of the Veteran's service treatment records reveals no medical evidence that he was ever diagnosed with, or treated for any of the conditions that directly caused or contributed to his death; his November 1968 service separation examination revealed normal findings for the lungs and chest, and a chest x-ray was negative. Furthermore, there is no competent evidence to establish that lung cancer became manifest to a compensable degree within one year of his separation from service. As such, service connection for the cause of the Veteran's death as a result of this disease on a presumptive basis is not for application. With regard to establishing service connection on a presumptive basis for herbicide exposure, because the Veteran passed away prior to providing additional evidence to support his service connection claim, it is unclear how he claimed he was exposed to herbicides during service. According to 38 CFR § 3.307(a)(6)(iii), eligibility for the presumption of Agent Orange exposure requires that a veteran's military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975. This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam. However, this does not include service aboard a large, ocean-going ship that operated only on the offshore waters of Vietnam unless evidence shows that a veteran went ashore. Inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam. They do not include open deep-water harbors such as those at Da Nang, Nha Trang, Cam Ranh, or Vung Tau. These are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. Review of the Veteran's service personnel records reveals no evidence that he actually served or spent time within the land borders of Vietnam. Rather, these records demonstrate that he was assigned to the destroyer, USS Hawkins (DD 873) between July 1966 and December 1968. U.S. Navy and Coast Guard operations in the waters of Vietnam were primarily focused on providing gunfire support for ground troops and conducting interdiction patrols designed to disrupt the movement of enemy troops and supplies from North Vietnam into South Vietnam. Shipboard gunfire was directed at inland targets primarily by destroyers (designated by DD hull numbers) operating at varying distances off the Vietnam coast. It was used to protect U.S. Army and Marine ground forces and destroy enemy positions within gun range. The destroyers operated along the offshore "gun line" on a rotating basis for several days or weeks at a time and then returned to escorting larger ships at sea or to a safe port, such as Subic Bay in the Philippines, for replenishment. Support missions for ground troops and attacks on enemy positions were also conducted by U.S. Navy aircraft launched from aircraft carriers (designated by CV or CVA hull numbers) stationed at sea, generally from 30 to 100 miles off the Vietnam coast. The gun line ships and aircraft carriers, as well as their supply and support ships, are collectively referred to as the "Blue Water" Navy because they operated on the blue-colored waters of the open ocean. Veterans Benefits Administration (VBA) Training Letter 10-06 (September 9, 2010). The Board notes that "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam. 38 C.F.R. § 3.313 (2012). However, the VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that the term "service in Vietnam" does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. See VAOPGCPREC 7-93. A showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam. In this case, review of the official VA list of "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" fails to demonstrate that the USS Hawkins actually operated temporarily on Vietnam's inland waterways, docked to a shore or pier in Vietnam, operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore, or operated on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. Thus, it may not be presumed that the Veteran was exposed to herbicides during his service aboard ship. Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir 1994); see also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. 2000). Thus, under Combee, presumption based on herbicide exposure is not the only method for establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). With regard to establishing service connection on a direct basis for the cause of the Veteran's death, as noted above, his service treatment records are negative for any complaints suggestive of, treatment for, or diagnosis of lung cancer during service. Review of the post-service treatment reports shows that the Veteran was first diagnosed with lung carcinoma with bone metastasis in December 2007, when he presented to his local hospital complaining of worsening back pain. A needle biopsy revealed metastatic adenocarcinoma and further evaluation revealed a lung mass. In February 2008, the Veteran was admitted to the hospital, initially with mental status change and delirium. He was subsequently found to have hypercalcemia from his malignancy. He also had failure to thrive and was unable to eat or drink, eventually requiring a feeding tube. He had progressive renal failure and eventually passed away on February [redacted], 2008. Having reviewed the complete evidence of record, the Board concludes that the most probative evidence fails to support the appellant's contention that the Veteran's death was related to service, to include lung cancer as a result of herbicide exposure during service. In addition to the medical evidence, the Board has also considered the statements of the appellant and her representative. In this regard, the Board certainly finds that the appellant is competent to offer evidence as to facts within her personal knowledge, such as observable symptoms of the Veteran's disability prior to his death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges that there are instances in which lay testimony can serve to establish an association between service and the claimed disability. See Charles v. Principi, 16 Vet. App. 370 (2002). For example, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnose simple conditions such as a dislocated shoulder, and his or her lay testimony as to a continuity of symptomatology is probative. However, while the appellant, as a lay person, may be competent to describe having witnessed symptoms associated with her husband's illness, she has not been shown to be competent to offer an opinion on a matter clearly requiring medical knowledge, such as determining the etiology of metastatic adenocarcinoma diagnosed many years after active military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the lay opinions of the appellant may serve to establish any association between the Veteran's death and service. Accordingly, as the claims folder contains no competent, credible and probative medical evidence or opinion relating the Veteran's death directly or indirectly to his active duty service, the Board finds that service connection for the cause of the Veteran's death is not warranted. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not for application, as there is not an approximate balance of evidence. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Although the Board is sympathetic to the appellant's sincere belief that the Veteran died as a result of cancer due to herbicide exposure, the Board may not go beyond the factual evidence presented in this claim to provide a favorable determination. B. Entitlement to service connection for accrued benefits purposes. Section 5121 of title 38, United States Code, provides for payment of certain accrued benefits upon death of a beneficiary. Periodic monetary benefits under laws administered by the Secretary 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, shall, upon the death of a veteran, be paid to the living person first listed below: (A) The veteran's spouse; (B) The veteran's children (in equal shares); (C) The veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2) (West 2002 and Supp. 2012); 38 C.F.R. § 3.1000(a) (2012). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. Id. Applications for accrued benefits must be filed within one year after the date of death. See 38 U.S.C.A. § 5121(c) (West 2002); 38 C.F.R. § 3.1000(c) (2012). The Board notes that Congress amended 38 U.S.C.A. § 5121 to repeal a two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This change applies only to deaths occurring on or after the date of enactment, December 16, 2003, as is the case here. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003), codified at 38 U.S.C. § 5121(a). For a survivor to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death or have been entitled to benefits, accrued and unpaid, under an existing rating or decision. Jones v. West, 136 F.3d. 1296, 1299 (Fed. Cir. 1998). The Federal Circuit noted 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. In this case, the only claim pending before VA at the time of the Veteran's death was his claim of entitlement to service connection for DM II. At that time, the only apparent contention was that his DM II was due to herbicide exposure during service in Vietnam. Thus, the Veteran had an unadjudicated claim pending when he died. As noted above, because the appellant's accrued benefits claim was filed within one year after the Veteran's death, her claim was timely filed. An accrued benefits claim is, under the law, derivative of, and separate from, the Veteran's claims. See Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Thus, in the adjudication of a claim for accrued benefits, the claimant is bound by the same legal requirements to which the veteran would have been bound had he survived to have his claim finally decided. In evaluating the appellant's claims for accrued benefits, generally, only evidence contained in the claims file at the time of the Veteran's death may be considered. 38 U.S.C.A. § 5121 ; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the Court held that service department and certain VA medical records are considered as being constructively in the claims file at the date of death although they may not physically be in there until after that date. The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA and reports of autopsy made by VA on date of death. In this case, the pertinent service treatment and personnel records have been obtained. As noted above, in order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, supra. Additionally, service connection for certain chronic diseases, such as DM II, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As noted above, VA regulations also provide presumptive service connection for DM II on the basis of herbicide exposure for a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.309(e) (2012). In this case, there is no evidence that the Veteran complained of symptoms suggestive of, sought treatment for, or was diagnosed with DM II during service. There is also no evidence that he was diagnosed with DM II to a compensable degree within one year of separation from service. Accordingly, service connection for DM II on a presumptive basis is not for application. In addition, because there is no probative evidence that the Veteran served within the Republic of Vietnam during the Vietnam era, service connection for DM II based on herbicide exposure is not applicable. Post-service VA Medical Center ("VAMC") treatment records show that the Veteran was not diagnosed with DM II until approximately September 2003, some 35 years after active military service. Moreover, these records fail to provide a nexus between the Veteran's disease and active service. In this regard, the Board notes that a prolonged period without complaints or symptoms of a disability can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The amount of time that passed between service and the first symptoms or treatment of record is evidence that weighs against the Veteran's claim on both a direct and presumptive basis. The Board has also considered the appellant's assertions regarding her claim. Although the Board does not doubt she believes that the Veteran's DM II was attributable to some aspect of military service, she simply is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because she has not been shown to possess the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). As such, her statements are not competent. In short, the medical evidence in the claims folder at the time of the Veteran's death simply does not indicate a connection between his DM II and any incident of service, to include herbicide exposure. In light of the medical evidence, the Board concludes service connection for accrued benefits purposes is not warranted. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt rule does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for DM II for accrued benefit purposes is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs