Citation Nr: 1320196 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 07-24 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had active service from May 1965 to May 1967, with service in the Republic of Vietnam from December 1965 to December 1966. The appellant is the guardian/mother of an illegitimate minor child who claims relationship to the Veteran. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 2006 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The appellant requested a Travel Board hearing in connection with the current claim. The hearing was scheduled and subsequently held in March 2009. The appellant testified on behalf of the minor child before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. At that time, the record was left open for a period of 60 days for the appellant to submit additional medical evidence. Additional private records were received at the RO in April 2009, and forwarded to the Board in June 2009. The case was remanded back to the RO for additional development of the record and to ensure procedural due process in June 2009, September 2011, and October 2012. FINDINGS OF FACT 1. The Veteran died in October 2005. His death certificate lists his immediate cause of death as bladder cancer, diagnosed in September 2004, with no noted contributory cause or condition leading to the underlying cause. 2. At the time of the Veteran's death, service connection was established for prostate cancer due to Agent Orange exposure, evaluated as 100 percent disabling, effective from February 7, 2005. 3. Prostate cancer did not cause or materially contribute to the Veteran's death. 4. Bladder cancer is not a disorder presumed to be caused by exposure to herbicides used in the Republic of Vietnam, including Agent Orange. 5. Bladder cancer was not present during service or manifested to a compensable degree within one year after discharge from active duty; it was first diagnosed in 2004 and has never been attributed to any event, injury or disease incurred in service, to include exposure to Agent Orange. CONCLUSION OF LAW A disability incurred in or aggravated by active service was not a principal or contributory cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Certain additional notice requirements attach in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of death. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed.Cir. May 19, 2009). Generally, 38 U.S.C.A. § 5103(a) notice for a DIC case must include: (1) a statement notifying the appellant of the service-connected disabilities, if any, in effect at the time of the Veteran's 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. The content of the notice letter will depend upon the information provided in the claimant's application. A pre-rating letter was sent to the appellant in February 2006. The letter notified the appellant of the law and regulations governing claims for DIC benefits, but it was not compliant with all of the Hupp requirements. This defect was later cured subsequent to the Board's first remand associated with this claim, issued in June 2009. In that remand, the Board directed the RO to issue a Hupp compliant duty-to-assist letter to the appellant. The RO subsequently issued a duty-to-assist letter in compliance with Hupp in September 2010, and it adequately satisfies the notice requirements for a DIC claim, by providing notice of the service-connected prostate cancer that was established at the time of the Veteran's death; why service connection for bladder cancer was denied during the Veteran's lifetime; and the general requirements for establishing service connection for the cause of the Veteran's death based on a disability that was service-connected during the Veteran's lifetime, and/or based on a disability not yet service connected. The June 2009 remand also directed the RO to determine whether the illegitimate minor child had standing to bring the claim. In other words, it was unclear whether the illegitimate minor child met the threshold requirements for eligibility to receive DIC benefits because the appellant had not yet provided any corroborating information to show that her daughter was a proper claimant. The RO was directed to determine whether the appellant's daughter was the biological daughter of the Veteran. On remand, the appellant submitted lay statements, paternity test results, and affidavits which established the illegitimate minor child's relationship as the biological daughter of the Veteran. Finally, the June 2009 remand directed the RO to obtain the Veteran's hospital records from October 2005 at the time he was discharged to hospice. The appellant did not respond to that request; however, in December 2008 correspondence to the RO requesting to reschedule her personal hearing, the appellant specifically noted that the Veteran's widow would not let the [private] doctors release the Veteran's medical records to her. The matter was remanded again in September 2011 to clarify the appellant's representative, because a private attorney had submitted notice that he was retained to represent the appellant in this case, but that lawyer was not accredited to represent claimants before VA under the current regulations set forth in 38 C.F.R. § 14.629. The September 2011 remand also directed the RO to once again attempt to obtain the Veteran's hospice records from October 2005. Pursuant to the above remand directives, the RO issued a duty-to-assist letter in September 2011 which requested the appellant to submit outstanding medical records, not limited to hospice care records at the facility where the Veteran was treated; and, the letter notified the appellant that VA would attempt to obtain the records on her behalf with her appropriate authorization. In addition, the appellant was provided with a Form 21-22a and notice regarding the representation by private attorneys. The appellant did not subsequently return a completed VA Form 21-22a or otherwise appoint a Veterans Service Organization (VSO) to represent her in this matter before the Board, and she did not respond to the RO's September 2011 request for the October 2005 private hospice records. The RO readjudicated the issue of service connection for the cause of the Veteran's death in a Supplemental Statement of the Case (SSOC) issued in June 2012, and subsequently returned the case to the Board. Unfortunately, the June 2012 SSOC was mailed to an incorrect address, and the matter had to be remanded for a third time in October 2012 to correct this procedural defect. The record shows that the SSOC was subsequently mailed to the appellant's last address of record in March 2013. There has been no response from the appellant. For the foregoing reasons, there has been substantial compliance with all of the directives in the remands of June 2009, September 2011, and October 2012. The RO has provided adequate notice as to how to substantiate a claim of service connection for the cause of the Veteran's death pursuant to the holding in Hupp; has corrected all procedural defects, has verified that the illegitimate minor child has standing to bring this claim, and has obtained all outstanding records, to the extent possible. The appellant was asked to obtain the Veteran's hospice records and she did not respond to that request. Without a signed authorization to obtain private treatment records, the Board is without authority to obtain them, and the appellant has been duly notified that it is ultimately her responsibility to either obtain the records herself or authorize VA to obtain them. The agency of original jurisdiction (AOJ) substantially complied with the June 2009, September 2011, and October 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant an opportunity to give testimony before the Board. VA did not obtain a medical opinion in this case; however, no such opinion is necessary because the evidence currently of record is adequate to adjudicate this claim. The Veteran was afforded a VA examination in June 2005, just 4 months prior to his death, in conjunction with claims of service connection for bladder cancer and prostate cancer. The Veteran's claim of service connection for prostate cancer was granted, and the claim of service connection for bladder cancer was denied based on the medical opinion obtained from the June 2005 VA examiner; and there is not contradictory medical opinion of record. In fact, any medical evidence added to the claims file since that examination is consistent with that opinion. The appellant in this case is attempting to show that the Veteran's prostate cancer was materially related to his death. The June 2005 opinion and the private and VA records added to the file subsequent to that opinion provide adequate competent and credible medical evidence to properly adjudicate this claim, as noted below. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise. The undersigned finds that there was substantial compliance by the RO with the directives of the prior remands; that VA has complied with the notice and assistance requirements; and that the appellant is not prejudiced by a decision on the claim at this time. II. Service Connection - Cause of Death The Veteran had active service from May 1965 to May 1967, with service in the Republic of Vietnam from December 1965 to December 1966. The appellant is the guardian/mother of an illegitimate minor child who is the daughter of the Veteran. The Veteran's death certificate reveals that he died in October 2005 due to bladder cancer that was first diagnosed in November 2004. No additional disabilities or conditions were listed on the death certificate as contributing to the underlying cause of death. The appellant contends that the Veteran's service-connected prostate cancer materially contributed to cause the Veteran's death. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disability caused death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. 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 service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or 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). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). 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. 38 C.F.R. §§ 3.312(c)(3), (4). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some chronic diseases, such as malignant tumors, are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from active duty. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In addition, as to presumptive service connection, certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered 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). Prostate cancer is a listed as diseases that has been associated with Agent Orange exposure. As noted above, service connection for prostate cancer was established prior to the Veteran's death on the basis that it was presumed to be due to his in-service Agent Orange exposure. Bladder cancer is not, however, listed as a disease associated with herbicide exposure for purposes of the presumption. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). After having carefully reviewed the evidence of record, the preponderance of the evidence is against entitlement to service connection for cause of the Veteran's death. First, as bladder cancer is the primary cause of death, it must be determined as to whether bladder cancer is service connected. With regard to the question of entitlement to service connection on a presumptive basis due to herbicide exposure, bladder cancer, which was the cause of the Veteran's death, is not included on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Thus, the automatic presumption of service connection afforded for certain specific diseases associated with exposure to herbicides, specifically Agent Orange, is not for application. Turning now to whether entitlement to service connection for bladder carcinoma is warranted on a direct basis, if the claimed disease is not a presumptive disease listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, as is the case here, the appellant may establish service connection for the cause of the Veteran's death by (1) showing that the disease responsible for death actually was incurred in service; or (2) by submitting medical evidence of a nexus between the terminal disease, his exposure to herbicides during military service, and the cause of death. Combee, 34 F.3d at 1043-1044. The Veteran's service treatment records have been reviewed, and they are silent as to any complaints, treatment, or diagnosis of bladder cancer during service. The first showing of bladder cancer was more than 25 years following service discharge. Thus, the presumption of in-service incurrence for a chronic disease manifested to a compensable degree within one year of service (in this case malignant tumors), is not for application. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a). Furthermore, post-service, there is no evidence or even a lay allegation of continuity of symptomatology of bladder cancer since service discharge. 38 C.F.R. § 3.303(b). Prior to the Veteran's death, a claim of service connection for bladder cancer, to include on a direct basis, was denied in a February 2005 rating decision. The basis for the denial was a lack of evidence showing bladder cancer in service or within the one-year period following discharge from service, and there was no competent medical evidence of a nexus linking the current bladder cancer to service. Because the evidence received and obtained since the February 2005 decision supports that finding, service connection for bladder cancer is not warranted. The June 2005 examination report notes the history of the Veteran's bladder cancer and co-existing prostate cancer. The report indicates that the Veteran was first seen for left flank pain in August 2004. A bladder mass and evidence of hydronephrosis was identified on CT scan and the Veteran was admitted to the hospital in September 2004 for a cystoscopy procedure with left retrograde pyelogram, left ureteral stent placement and multiple bladder biopsies and fulguration. The pathology report revealed evidence of an "invasive poorly differentiated carcinoma" and the "tumor was negative by immunoperoxidase for PSA." The bladder biopsies were "compatible with invasive carcinoma" and the pathology report documents that "there is no evidence of prostatic origin" given the negative PSA stain. The Veteran was given the diagnosis of invasive poorly differentiated bladder carcinoma, and he underwent a bilateral pelvic lymphadectomy, radical cystoprostatectomy, appendectomy, ileal conduit urinary diversion and removal of a left ureteral stent in November 2004. The surgical pathological report noted that the Veteran was found to have "prostatic adenocarcinoma involving both lateral lobes with clear resection margins and no involvement of seminal vesicles." On the prostate gland evaluation, the Veteran was noted to have adenocarcinoma as stated, and the Gleason score was 3+3=6. Tumor was found to involve "about 20 percent of the prostate." The pathology state was T2cN0Mx and the margins were uninvolved by invasive prostatic adenocarcinoma. The June 2005 examiner also noted that Veteran was found to have "synchronous linitis plastic-type primary adenocarcinoma of bladder with histologic extension through the muscular wall and extension into the anterior muscular wall with histologic involvement of the posterior serosal surface underlying the zone of greatest tumor infiltration." Significantly, the June 2005 examiner pointed out that this particular comment in the pathology report was important in that the bladder cancer was a primary adenocarcinoma of the bladder, and was not a consequence of the adenocarcinoma involving the prostate gland. The examiner relied on the evidence as indicated above in coming to that conclusion. In addition, the examiner referred to records from Dr. Camps indicating that "the Veteran had a radical cystectomy with ileal conduit urinary diversion for an undifferentiated carcinoma of the bladder; he was incidentally found to have prostate cancer as well." In addition, Dr. Camps noted that it was "a very aggressive tumor. " Because of the Veteran's aggressive bladder cancer with muscle involvement, the Veteran underwent chemotherapy and radiation in January 2005 and March 2005. The examiner concluded that the Veteran had an aggressive, invasive, poorly differentiated bladder carcinoma diagnosed in September 2004. Secondary to that cancer, he experienced left kidney hydronephrosis and renal insufficiency given the elevation in his serum creatinine value. Given that cancer, the Veteran required a radical surgical intervention and chemotherapy with radiation. The examiner noted, however, that the Veteran did have a positive muscle wall invasion due to the invasive bladder cancer and it was for that reason that the chemotherapy and radiation were recommended. The examiner concluded therefore that the bladder cancer was not due to his prostate cancer. He reasoned that there was no histologic evidence that allowed a relationship between the two. He further indicated that immunohistochemical staining revealed negative prostate specific antigen on the histology specimen from the bladder wall. It was well documented in the pathology report that the Veteran's invasive poorly differentiated bladder cancer was primary and not of prostatic origin. The examiner pointed out that the Veteran was incidentally noted to have prostate cancer as he underwent radical surgical intervention for the bladder cancer. The prostate cancer was confined to the prostate gland as there was no evidence of involvement at the seminal vesicles. Further, resection margins were clear. The prostate cancer involved "about 20 percent of the prostate." In essence, the Veteran was found to have two primary synchronous tumors. Although the examiner indicated that it was difficult to recognize the residual effects and disabilities that are solely due to the prostate cancer from those solely due to the bladder cancer, the examiner once again pointed out that the radical prostatectomy procedure was performed in the context of a radical surgical intervention for invasive bladder carcinoma. He concluded that the Veteran had obvious and significant disability related to his urological condition. The Veteran died in October 2005 and additional records were added to the claims file, including medical records showing that the Veteran was admitted to a private hospital on September 30, 2005, and was discharged to hospice with terminal bladder cancer on October 12, 2005. The discharge summary indicates that the Veteran presented to the emergency room with complaints of abdominal pain and abdominal distention. A CT scan did not show a clear area demarked of bowel obstruction so the Veteran was treated medically for a possible ileus versus partial small bowel obstruction with NG tube drainage, parenteral analgesia. CT scanning did reveal a large volume ascities and bilateral hydronephrosis thought to be secondary to the Veteran's known tumor. The Veteran continued on the NG tube with intermittent abdominal discomfort, and no passage of flatus or bowel movement. After one week, a CT enteroclysis showed several areas of compression of the small bowel with bowel obstruction without a clear delineated area that would allow surgery. Thus, a gastroenterostomy tube was placed primarily for drainage of the stomach and the ability to remove the NG tube with less abdominal discomfort and distention. The GJ tube was initially placed on October 7, but the Veteran had difficulty with the placement and a replacement of the GJ tube was necessary after several days. During that time period, the Veteran had a fever which was treated with antibiotics with a positive paracentesis of fluid of Gram-negative rods. Meanwhile, the Veteran's creatinine level was gradually worsening. After consultation with several doctors, it was felt that the only option was hospice care without further intervention from metastatic disease. The October [redacted], 2005 discharge diagnosis was: 1) Metastatic bladder cancer with multiple area of bowel obstruction nonoperative candidate; 2) Placement of a GJ tube for gastric drainage; and, 3) history of prostate cancer, however prostate specific hormone has been quite low throughout hospitalization, not felt to be a cause of the current difficulties. The Veteran subsequently passed away approximately one week later. Based on the above medical evidence, the Veteran's prostate cancer was not the cause of the Veteran's death, and moreover, the Veteran's prostate cancer did not materially contribute to the cause of the Veteran's death. The October 2005 discharge summary specifically noted that the prostate specific hormone was quite low throughout the hospitalization, and as a result, the doctor opined that it was not the cause of the current difficulties. These difficulties involved metastatic bladder cancer which resulted in bowel obstruction and renal insufficiency. None of the medical records dated after the June 2005 VA examination show treatment for prostate cancer, and none of them provide an opinion linking the Veteran's prostate cancer to his bladder cancer, his principal cause of death. While the prostate cancer was shown to have co-existed with the bladder cancer, as they were both diagnosed at the same time, the prostate cancer and residuals of the prostatectomy have never been considered to have any bearing on the Veteran's metastatic bladder cancer. The only link between them is the fact that they were both discovered together. The medical findings in this case demonstrate that the service-connected prostate cancer did not cause death, or substantially or materially contribute to cause death. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the appellant is competent, as a lay person, to describe the Veteran's visible symptomatology, the issue of what caused his death and whether or not it has any relationship to service or to a service-connected disability involves medically complex issues. Thus, competent medical evidence is required to resolve these issues. Here, nothing on file shows that the appellant has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, her contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). There is no competent evidence to support the appellant's contentions and there is no medical evidence that contradicts the findings by the VA examiner in June 2005 or the private doctor in October 2005. The evidence of record suggests that the Veteran's primary cause of death (metastatic bladder cancer) was, by its very nature, so overwhelming that eventual death could be anticipated irrespective of the coexisting prostate cancer. The Board has nevertheless considered whether there may be a reasonable basis for holding that the service-connected prostate cancer was of such severity as to have a material influence in accelerating death; however, the evidence of record in this case overwhelmingly establishes that the prostate cancer played an insignificant role, if any, in the Veteran's death, and the events leading up to his death. See 38 C.F.R. §§ 3.312(c)(3), (4). For all the foregoing reasons, the preponderance of the evidence shows that the Veteran died of bladder cancer, which is unrelated to service, and unrelated to his service-connected prostate cancer. While the Veteran was treated for prostate cancer when he was first treated for the newly diagnosed bladder cancer in November 2004, the record shows that the primary bladder cancer had already metastasized and the primary prostate cancer was contained, with clear margins following prostatectomy. The Veteran's health continued to deteriorate until his death and the cause was always attributed to the metastatic bladder cancer (for which service connection is not warranted), and not the service-connected prostate cancer. Thus, the Veteran's prostate cancer did not cause or contribute to the Veteran's death. For these reasons, the preponderance of the evidence is against the claim and service connection for the cause of the Veteran's death is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. It is unfortunate that the Veteran suffered from debilitating and painful metastatic bladder cancer which subsequently took his life; and, while sympathetic to the appellant, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs