Citation Nr: 1319785 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-34 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1942 to December 1945, from May 1947 to May 1950, and from October 1950 to March 1956. He died in October 2005 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2007 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2009, the appellant testified at a hearing before a Decision Review Officer (DRO). She testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2010. Transcripts of both hearings have been associated with the claims file. The case was remanded in December 2010 to obtain a VA medical opinion. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's death certificate states that he died in October 2005 as result of respiratory arrest secondary to severe chronic obstructive pulmonary disease (COPD) with coronary artery disease a significant condition contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, service connection had been established for spondyloarthrosis of the lumbar spine with spondylolisthesis and neurologic deficit, evaluated as 60 percent disabling; residuals of lichen planus of the lower extremities, evaluated as 10 percent disabling; and asymptomatic laceration of the left knee, evaluated as zero percent or noncompensably disabling. 3. The Veteran's severe COPD and coronary artery disease were not present during service and did not develop as a result of any incident during service. 4. There is no competent medical evidence that spondyloarthrosis of the lumbar spine with spondylolisthesis and neurologic deficit, residuals of lichen planus of the lower extremities, and asymptomatic laceration of the left knee 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. 6. The Veteran's COPD and coronary artery disease were not due to carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault on VA's part in furnishing medical treatment; nor were they the result of an event not reasonably foreseeable. 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). 3. The criteria for an award of compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (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, to include under the provisions of 38 U.S.C.A. § 1151, the appellant was notified in letters dated in July 2006, June 2008, July 2008 and June 2009 of what the evidence must show to establish entitlement to the benefits 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 letters 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 claims are 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 spondyloarthrosis of the lumbar spine with spondylolisthesis and neurologic deficit, residuals of lichen planus of the lower extremities, and asymptomatic laceration of the left knee. The June 2009 notice informed the appellant of the disabilities the Veteran was service-connected for at the time of his death. 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. Following the VCAA notice letters, the appellant's claim was readjudicated, most recently in a March 2012 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006) Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and also secured opinions in furtherance of the appellant's claim. Pertinent VA opinions were obtained in May 2010 and April 2011. 38 C.F.R. § 3.159(c)(4). The VA opinions obtained in this case are sufficient, as the examiners 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 well-supported opinions 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 issues 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 hearing before a VLJ 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. She also identified the Veteran as being treated at VA; those records were obtained by the RO. 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 service-connected lumbar spine disability contributed to death or that his COPD and coronary artery disease were related to his military service. See, e.g., July 2006 statement; April 2007 notice of disagreement (NOD). The appellant asserts that exposure to asbestos caused the Veteran's COPD. See April 2007 NOD; September 2010 Hearing Transcript (T.) at 5. 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even those evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2012). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3) (2012). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (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, 1131. 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). 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). Regarding asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases; nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999). See also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. In determining whether service connection for the cause of the Veteran's death is warranted, the Board will first address whether the disorders listed on the Veteran's death certificate are related to his military service, and will then address whether his service-connected disabilities contributed to his death. In the current appeal, the Veteran's personnel records show that his military occupational specialty (MOS) was that of a diesel mechanic. In the March 2012 SSOC, the RO indicated that exposure to asbestos was probably based on the Veteran's MOS. Therefore, his in-service exposure to asbestos is conceded. In this case, at the time of the Veteran's death, service connection had been established for spondyloarthrosis of the lumbar spine with spondylolisthesis and neurologic deficit, evaluated as 60 percent disabling; residuals of lichen planus of the lower extremities, evaluated as 10 percent disabling; and asymptomatic laceration of the left knee, evaluated as zero percent or noncompensably disabling. The Veteran's death certificate indicates that he died from respiratory arrest secondary to severe chronic COPD with coronary artery disease a significant condition contributing to death but not resulting in the underlying cause. The Veteran had not been service-connected for COPD or coronary artery disease at the time of his death. There is also no indication that he ever filed a claim seeking service connection for those disabilities during his lifetime. The Veteran's STRS do not show the incurrence of COPD or coronary artery disease. Examinations in May 1947, May 1950, October 1950, January 1951, October 1951 and March 1956 all fail to show that the Veteran had COPD, coronary artery disease, or any respiratory or cardiac complaints. Examinations in May 1950, October 1950, January 1951 showed no significant lung, chest and heart abnormalities. His lungs and heart or cardiovascular system were shown to be normal in May 1947, October 1951 and March 1956. The examination reports all indicate that chest X-rays were negative. Furthermore, the Board observes that the Veteran denied symptoms such as shortness of breath, pain or pressure to chest, and chronic cough in October 1950 and October 1951. The Veteran's contemporaneous service records fail to show the onset of COPD, coronary artery disease, or any other respiratory or cardiac disorder during service. The totality of the evidence fails to show that the onset of COPD and coronary artery disease occurred during the Veteran's service. No medical professional has reported that the onset of COPD and coronary artery disease began during the Veteran's military service. Indeed, the appellant does not contend such. Rather, the appellant contends that exposure to asbestos caused the later diagnosed COPD and coronary artery disease. See, e.g., T. at 5. According to post-service medical records, the earliest record of a diagnosis of COPD and a cardiac disorder was in October 1987; a history of COPD and congestive heart failure was indicated at that time. None of the Veteran's treatment records showing treatment for his COPD and coronary artery disease indicate that they were related to his military service, to include exposure to asbestos. An October 2000 COPD consultation indicates that the Veteran was a former smoker of two packs per day for 45 years and that he quit in 1985. He reported being first diagnosed with COPD in 1985 and that he had dyspnea on exertion since 1980. He denied an occupational history of asbestosis. A PET scan in January 2005 was normal. A VA medical opinion was obtained in April 2011. The examiner opined that the Veteran's death from end stage severe COPD with contribution from his coronary artery disease was less likely as not caused or aggravated by asbestos exposure. The examiner noted that the Veteran began developing dyspnea on exertion in 1980, when he was about 50 years old. He smoked two packs per day for 45 years according to the October 2000 treatment record. The examiner reported the information contained in the October 2000 record. The examiner opined that the Veteran's pulmonary status continued to decline with his advancing age. He worsened in 2005 and was found to have what was thought to possibly be lung cancer. A PET scan was performed which determined that there was no carcinoma. The PET scan report did not mention any evidence of asbestosis. The pulmonary consultation of 2000 documented "negative exposure to asbestos." Even if the Veteran did have asbestos exposure, there was no clinical evidence that he had asbestosis. The Veteran had many comorbid conditions to include coronary artery disease, obesity, diabetes mellitus with nephropathy, and congestive heart failure. Unfortunately, the aged Veteran who had end stage COPD since at least 2000 died from said end stage COPD. The Veteran's 90 pack year was the primary cause of his developing COPD. Based on a careful review of the record, Board concludes that the record is without sufficient evidence supportive of a finding that COPD and coronary artery disease were related to the Veteran's military service. In this case, the probative medical evidence simply fails to establish a nexus between the Veteran's military service, to include his conceded asbestos exposure, and his COPD and coronary artery disease. As noted above, none of the Veteran's treatment records for his COPD and coronary artery disease contain any opinion relating such disorders to his military service. The only medical opinion of record, that of the April 2011 VA examiner, shows that the Veteran's COPD was due to his smoking history. The evidence also does not indicate that the Veteran's coronary artery disease was due to his military service, to include asbestos exposure. As noted above, the April 2011 examiner opined that the Veteran's death from end stage severe COPD with contribution from his coronary artery disease was less likely as not caused or aggravated by asbestos exposure. No medical professional has provided any opinion indicating that the Veteran's military service caused his coronary artery disease, to include coronary artery disease being due to asbestos exposure. Without competent evidence of an association between the Veteran's military service and his COPD and coronary artery disease, the Board concludes that the Veteran's COPD and coronary artery disease were not related to his military service. Furthermore, the evidence of record does not establish that any of the Veteran's service-connected disabilities caused or contributed substantially or materially to his death. In this regard, the Board observes that the appellant's contentions have primarily focused on his lumbar spine disability. As discussed in detail below, the appellant contends that medication prescribed to treat his lumbar spine caused or contributed to his death. The Board will address such assertions under compensation under the provisions of 38 U.S.C.A. § 1151 discussed herein. In addition to contending that his medication caused his COPD and coronary artery disease, the appellant also contends that the Veteran's physical condition prevented him from being active, to the point that it made him more susceptible to the disease process that ultimately resulted in his demise. T. at 7. In this case, spondyloarthrosis of the lumbar spine with spondylolisthesis and neurologic deficit, residuals of lichen planus of the lower extremities and asymptomatic laceration of the left knee were not listed on the death certificate. No medical professional has provided any opinion indicating that the Veteran's service-connected disabilities contributed to his death. In this case, the Veteran's treatment records do not indicate that his service-connected lumbar spine, skin and left knee disabilities involved active processes affecting vital organs or that such conditions affected a vital organ and were of themselves of a progressive or debilitating nature. No medical professional has indicated that the Veteran's lumbar spine and left knee disabilities involved other than muscular or skeletal functions. Furthermore, the evidence does not show that the Veteran's lumbar spine, skin and left knee disabilities rendered him inactive. A June 1999 VA examination shows that the Veteran was confined to a wheelchair with 24 hour oxygen because of the poor condition of his lungs and difficulty on ventilation. In addition to being diagnosed with the service-connected lumbar spine disability, the examiner diagnosed the Veteran with cor pulmonale, which was the one that had confined the Veteran to a wheelchair. Although the Veteran's lumbar spine disability was severe as evidenced by the 60 percent rating, as well as the award of a TDIU based on that disability, the evidence shows that the Veteran was confined to a wheelchair, and therefore not active, due to cor pulmonale. The April 2011 examiner also opined that the Veteran's death was not caused by or related to or accelerated by his service-connected disabilities. The examiner noted that unfortunately, the aged Veteran who had end stage COPD since at least 2000 died from said end stage COPD. There was no correlation or nexus with his service-connected disabilities. The Veteran's extensive history of smoking, 90 pack year was the primary cause of his developing his severe COPD. This opinion is uncontradicted. The probative medical evidence of record fails to show that the Veteran's lumbar spine, skin, and left knee disabilities caused or contributed to his death. No medical professional has provided any opinion indicating that the Veteran's service-connected disabilities caused or contributed to his death. The totality of the pertinent evidence of record fails to show that the Veteran's spondyloarthrosis of the lumbar spine with spondylolisthesis and neurologic deficit, residuals of lichen planus of the lower extremities, and asymptomatic laceration of the left knee 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 service-connected disabilities 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 disabilities, and that COPD and coronary artery disease were due to 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 March 8, 1999; his 100 percent rating was not in effect for more than 10 years at the time of his death in October 2005. Furthermore, the Veteran died more than 50 years after his separation from active duty service and he was not a former POW. Although the appellant indicates that the Veteran's 100 percent rating should have been in effect since 1985 when he stopped working, see, e.g., December 2008 statement, the evidence shows that the claim which led to the 100 percent rating was received March 8, 1999. There is no indication that the Veteran disagreed with the effective date assigned to his 100 percent rating. Therefore, the Board reiterates that the Veteran's 100 percent rating was not in effect for more than 10 years at the time of his death in October 2005. 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. C. Compensation under 38 U.S.C.A. § 1151 The appellant contends that she entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. Specifically, she contends that medications, Cardizem and Soma, prescribed for the Veteran's service-connected disabilities caused his death. See, e.g., October 2007 substantive appeal. In order to warrant compensation under 38 U.S.C.A. § 1151, the appellant must demonstrate that the VA treatment in question resulted in an additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). To determine whether the veteran has additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2012). For claims received on or after October 1, 1997, as in the instant case, the claimant must establish actual causation. To meet causation requirements based on additional disability, the evidence must show that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. With regard to the former element, it must be shown that VA's care, treatment, or examination caused the veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such VA care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(c),(d) (2012). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c) (2012). The informed consent process must be appropriately documented in the health record. Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32(d) (2012). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2) (2012). According to post-service medical records, a record dated in October 1985 shows the Veteran was prescribed Cardizem in July 1985 when he was hospitalized for congestive heart failure. A September 1988 record reveals that the Veteran was diagnosed with Soma after he was hospitalized for management of chronic low back syndrome. A review of the Veteran's medication history dated back to February 1994 does not reveal any prescriptions for Soma. Regarding Cardizem, a January 2003 discharge summary indicates that the Veteran should remain on Cardizem and beta blocker indefinitely. A private opinion from the appellant's physician dated in October 2007 shows that as the Veteran apparently died from heart failure with underlying severe COPD, it was probable that his medications Cardizem and Soma contributed to his decline. He had been on those medications since 1988 according to his wife's records. The physician's only exposure to the Veteran was when he came in accompanying his wife for her visits. He was always short of breath when the physician saw him. A VA opinion was obtained in May 2010. The examiner opined that there was no medical evidence to support that the medication (short-term use of Soma in 1988) for the service-connected disabilities caused or contributed to the Veteran's death. No other specific medications were identified by that examiner based on recent VA treatment medication list to manage his service-connected disabilities. There was no documented medical evidence to support that there was carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing excessive medications, which caused or contributed to the Veteran's death, nor his death due to VA prescribed medication was not reasonably foreseeable. The death certificate showed that he died due to respiratory arrest secondary to severe COPD. Coronary artery disease also contributed to his death. The examiner noted the October 2007 positive nexus opinion. However, the appellant's physician acknowledged that he was not the Veteran's regular treating physician. The examiner noted that the Veteran's claims file shows that he was given Soma in 1988. However, the examiner failed to uncover that the Veteran was on chronic Soma treatment. Soma was not on his medication list per VA notations between September 19, 2005, to September 26, 2005. Reviewing a disc of the Veteran's VA treatment records failed to show that he was on chronic Soma use at least back to 2002. The claims file also showed that the Veteran had history of severe emphysema/severe COPD on home oxygen, obstructive sleep apnea, hypertension, coronary artery disease and atrial arrhythmia. The claims file also documented that the Veteran had been on Cardizem since 1985. Per Up to Date micromedes, FDA-labeled indications for Cardizem included atrial arrhythmia, hypertension and coronary artery disease. An additional VA medical opinion was obtained in April 2011. The examiner opined that there was no documented medical evidence to support that there was carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing excessive medications, which caused or contributed to the Veteran's death, nor his death due to VA prescribed medication was not reasonably foreseeable. The examiner repeated the April 2010 opinion, but added that the Veteran's coronary artery disease, hypertension and atrial fibrillation were all indications for the use of Cardizem. Based on a careful review of the record, the Board concludes that the record is without sufficient evidence supportive of a finding that the cause of the Veteran's death was related to VA treatment received. In this case, the evidence fails to show that the Veteran's medications resulted in additional disability of COPD or coronary artery disease. Nor is there any indication that his medications resulted in his death. As noted above, the Veteran was only prescribed Soma in 1988. To the extent that the appellant's physician provided a positive opinion, as such opinion was premised on the Veteran's taking of Soma since 1988, it lacks probative value. Furthermore, as for the physician's opinion regarding Cardizem, the April 2011 VA examiner indicated that coronary artery disease, hypertension and atrial fibrillation were all indications for the use of Cardizem. The physician also failed to provide a rationale for the opinion that Cardizem contributed to the Veteran's death. Therefore, the October 2007 positive opinion indicating that the Veteran's VA treatment caused his death lacks probative value. The VA medical opinions show that there was no carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing excessive medications, which caused or contributed to the Veteran's death, nor his death due to VA prescribed medication was not reasonably foreseeable. Here, the evidence does not show that the Veteran's VA treatment caused his COPD, coronary artery disease, or otherwise caused or contributed to his death. As noted above, the April 2011 examiner indicated that the Veteran's COPD was due to his smoking history; no medical professional has opined that medication caused COPD or coronary artery disease. In this case, the evidence fails to show that the prescriptions of Soma and Cardizem by VA were careless, negligent, lacked proper skill, were an error in judgment, or there was similar instance of fault on VA's part, or that the proximate cause of the Veteran's death was an event that was not reasonably foreseeable. Thus, the Board finds that the competent evidence of record fails to demonstrate that any additional disability from VA treatment was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in prescribing medications, or that the proximate cause of the Veteran's death was an event that was not reasonably foreseeable. The Board does not doubt the sincerity of the appellant's belief that the Veteran's death was caused by VA treatment. However, although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, 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. 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 compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. 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 compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318 is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs