Citation Nr: 1320974 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-11 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for lung disability, diagnosed as chronic obstructive pulmonary disease (COPD) and interstitial lung disease/pulmonary fibrosis, for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had approximately 20 years of active service ending in February 1976. He died in May 2006. The appellant is advancing her appeal as the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in June 2010 and in July 2012, when it was remanded for additional development. The Board observes that the appellant's April 2007 substantive appeal originally expressed a desire to testify at a Board hearing. However, the appellant expressly withdrew this request in correspondence submitted to VA later in April 2007. The Board finds that there has been compliant completion of the actions directed by the Board's remands. In particular, the Board notes that the appellant was provided with requisite VCAA notice in June 2010, a new VA medical expert opinion was obtained in November 2010, and the Veteran's pertinent VA treatment records from January and February 2006 have been obtained and made available for review in "Virtual VA" (VA's electronic data storage system). FINDINGS OF FACT 1. In February 2005, the RO received the Veteran's claim for service connection for lung disability, the RO denied the claim in a June 2005 rating decision, and the Veteran filed a timely notice of disagreement with the denial in May 2006. 2. The Veteran died in May 2006 from respiratory failure due to or as a consequence of end stage COPD, with interstitial lung disease as another significant condition contributing to death. 3. At the time of the Veteran's death, service connection was in effect for arteriosclerotic heart disease (rated 30 percent disabling), bilateral hearing loss, and psoriasis. 4. The Veteran's terminal COPD was due to tobacco use. 5. The Veteran's terminal lung disabilities, diagnosed as COPD and interstitial lung disease, were not caused or aggravated by the Veteran's active duty service, to include exposure to herbicides and other toxic chemicals. 6. The Veteran's terminal COPD and interstitial lung disease were not caused or permanently aggravated by any service-connected disability. 7. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. CONCLUSIONS OF LAW 1. Service connection for COPD due to tobacco use in service, to include as the cause of the Veteran's death, is barred by law. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2012). 2. The Veteran's terminal COPD and interstitial lung disease were not otherwise incurred in or aggravated by the Veteran's military service, nor were they proximately caused by or permanently aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. The Veteran's death was not caused by or substantially or materially contributed to by a disability incurred in or aggravated by his active duty service. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2012). 4. At the time of his death, the Veteran was not entitled to compensation benefits based on his claim of service connection for lung disability. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (as in effect in May 2006). 5. The criteria for entitlement of the appellant to accrued disability compensation based on the Veteran's pending claim of service connection for lung disability have not been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify 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). The RO provided the appellant notice by letter dated in June 2010; such notice has been prior to the most recent RO-level readjudication of the claims in connection with the December 2012 supplemental statement of the case. In aggregate, the notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While some of the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated, most recently in the December 2012 supplemental statement of the case. In Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), the United States Court of Appeals for Veterans Claims (the Court) held that with regard to Dependency and Indemnity Compensation (DIC) claims, section 5103(a) notice 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. In the instant case, the record shows that the June 2010 VCAA letter informed the appellant of the information and evidence necessary to substantiate her claim, specifically including an explanation of the evidence and information required to substantiate the issue of DIC as required by Hupp. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of this 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 not demonstrated any prejudice with regard to the content of the notice. 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). Duty to Assist The claims file contains service treatment records as well as private and VA post-service treatment records; VA has assisted the appellant in obtaining evidence. VA has also developed two VA expert medical opinions addressing the key medical question involved in this appeal in September 2006 and November 2010. The Board finds that the September 2006 and November 2010 VA expert medical opinions present thorough and complete discussion of the pertinent history, current findings, medical principles, and prior evidence. The September 2006 and November 2010 opinions address the essential medical questions with expert determinations informed by review of the claims file and consideration of the testimony and contentions of the Veteran and the appellant; these reports present adequate and probative evidence in this case. All known and available records relevant to the issues on appeal have been obtained and associated with the claims file; the appellant has not contended otherwise. VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the appellate issues at this time. Service Connection for the Cause of Death Legal Criteria The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). 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. 38 C.F.R. § 3.312(a). 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). 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). Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a). Service connection, however, will not be prohibited if the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or if the disability became manifest or death occurred during service. See 38 C.F.R. § 3.300 (b); 38 U.S.C.A. § 1103(a). Because the appellant's claim was received after June 9 1998, the amended law and regulations apply directly in this case. Applicable law also provides that a veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In this case, the evidence of record establishes that the Veteran served in the Republic of Vietnam during the Vietnam era, and the Veteran's exposure to herbicide agents is conceded. Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; Type II diabetes mellitus; Hodgkin's disease; Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes the following: adult fibrosarcoma; dermatofibrosarcoma protuberans; malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; and malignant ganglioneuroma. For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 38 C.F.R. § 3.309(e); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). The Secretary of Veterans Affairs 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, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, leukemia (other than CLL), abnormal sperm parameters and infertility, Parkinson's disease and parkinsonism, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, light chain-associated (AL) amyloidosis, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). Failure to establish presumptive service connection based on herbicide exposure does not preclude the appellant, however, from establishing direct service connection. In Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam and elsewhere, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran died in May 2006; the death certificate lists respiratory failure as the immediate cause of death, due to or as a consequence of end stage COPD; interstitial lung disease was listed as another significant condition contributing to death (but not resulting in the underlying cause). The death certificate also shows that the medical doctor who certified the cause of death also checked the box to indicate that tobacco use by the decedent "[p]robably contributed to the cause of death." At the time of his death, service connection was not in effect for any respiratory disability. Service connection was in effect for arteriosclerotic heart disease, bilateral hearing loss, and psoriasis. The appellant does not contend that any disability beyond what was indicated on the death certificate was a cause of the Veteran's death. The appellant's claim is clearly focused upon the contention that the Veteran's terminal respiratory disabilities were due to the Veteran's military service. One of the appellant's key contentions is that the Veteran's terminal illness was etiologically linked to chemical exposures that were typical of his military service as an aircraft fuel systems mechanic, including during time stationed in Vietnam. The Board notes that the Veteran's service records confirm that he served in this capacity and served in Vietnam. These facts are not in dispute, and the Board further accepts, for the purposes of this analysis, that the Veteran was exposed to the toxic chemicals typically associated with aircraft fuel systems in that era. The Veteran is also presumed to have been exposed to tactical herbicides such as Agent Orange by virtue of the fact that he was stationed in Vietnam. The critical question in this case, then, is whether any of the Veteran's terminal lung disabilities are etiologically linked to his military service, including the cited chemical exposures. The Board finds that the preponderance of the evidence is against finding that the lung disabilities are linked to his military service in a manner permitting a grant of service connection. The Board notes that COPD, emphysema, interstitial lung disease, and pulmonary fibrosis are not included on the list of diseases associated with exposure to certain herbicide agents; nor are any other relevant lung conditions diagnosed in this Veteran included on the list. See 38 C.F.R. § 3.309(e). As discussed above, there is no positive association between exposure to herbicides and any disability for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586- 57589 (1996). Therefore, service connection for the Veteran's lung disabilities cannot be granted on the basis of the presumptive regulations relating to exposure to Agent Orange. Nevertheless, VA must consider whether there is a direct basis for service connection regardless of the fact that presumptive service connection is not available. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir. 1994). The Board first finds that the Veteran's lung disability was not manifested during the Veteran's service. Service treatment records are silent for any complaints, treatments or diagnosis of any lung disability. The Veteran's October 1975 service retirement examination report presents a thorough and substantial set of medical findings and symptom history which show that the Veteran was medically found to be clinically normal in all pertinent respects, specifically including the lungs and chest, and the comprehensive account of symptom history did not include any indication of respiratory problems. Overall, lung disability was not shown in service. Post-service medical evidence presents no indication of symptoms or diagnosis of respiratory problems proximately following service. Pertinent private medical records include a medical report from January 2002 showing a medical impression that the Veteran complained that "his shortness of breath has been present for the last four to five months." This indicates that the Veteran's chronic symptoms did not manifest during service or for many years after his February 1976 separation from service. There has been some suggestion, including as discussed and contemplated in the VA expert opinions of record (discussed below), that the Veteran reported a history of dyspnea on exertion dating back to 1970s leisure activities; however, there is no indication of record that symptoms of lung disability had onset during service or at the time of separation from service. The Board notes that a March 2006 VA medical treatment report (documented in Virtual VA) indicates that the Veteran "suffered a myocardial infarction in the 1970's," and a February 2005 private medical record describes that the Veteran had heart disease since 1976; this cardiac medical history prevents the Board from considering the Veteran's exertion problems and chest symptoms in the 1970s as clear symptoms of lung disease in the absence of competent medical evidence to this effect. An April 2002 private medical report shows a medical impression of "chronic lung disease" with the doctor's opinion that "I think he has a component of underlying emphysema as a result of his long history of tobacco use. He also has some fibrotic changes." Multiple respiratory findings and diagnoses were discussed in subsequent private and VA medical records, including COPD, hypoxia, pulmonary fibrosis, interstitial markings, and lung mass. An April 2005 VA medical report shows that the Veteran complained of "continued severe shortness of breath" and the "primary diagnosis has been pulmonary fibrosis." Amongst a significant quantity of private medical records discussing the Veteran's respiratory diagnoses and decline, one October 2005 private medical report lists a principal diagnosis of pneumonia with a secondary diagnosis of "Chronic Respiratory Condition Due To Fumes And Vapors." No further discussion or explanation of this etiological comment is provided in connection with that report. A January 2006 VA treatment report (of record in Virtual VA) shows that the Veteran's treating physicians noted: Occupational exposures: air force '56-76: aircraft mechanic, fuel system mechanic (ammonia hydroxide, JP4, methyl ethyl ketone, AV gas). Subsequently worked in precision measurement equipment lab. Believes he may have had asbestos exposure during FSM job. Brief exposure trichloroflouromethane. The Board observes that this note suggests that the Veteran may have been exposed to asbestos, but the entry does not appear to indicate that such potential exposure occurred during military service. The reference to asbestos lacks clarity; it is not specific in identifying a time and place of such exposure other than that it appears to have been associated with activity that occurred "subsequently" following his previously described Air Force service and detailed chemical exposures. Without more, this does not raise a contention of pertinent in-service asbestos exposure in this case, and no such contention has been featured in the arguments presented during this appeal; the contentions on appeal have been framed in very specific terms identifying the pertinent chemical exposures asserted to be pertinent to this claim. The Board finds that there is no contention or indication of in-service asbestos exposure raised by the record as potentially pertinent to the etiology of the disabilities for consideration in this appeal. In several documents of record, including February and March 2006 VA treatment reports and a June 2006 submission from the appellant, the Veteran and the appellant have repeatedly directed the attention of medical professionals and VA adjudicators to a list of chemicals the Veteran recalls having been exposed to during his duties: methyl ethyl ketone, methyl isobutyl ketone, acetone, naphtha, alcohol methyl and ethyl, stoddard solvents, nitrous oxide gas, ammonia hydroxide (industrial strength), phenol crystals, jet fuel JP-4/JP-7, AVGAS 115/145 octane, and MOGAS 87 octane. The February 2006 VA treatment report (of record in Virtual VA) shows that the attending pulmonologist reviewed the Veteran's "list of his occupational exposures from his work as an aircraft fuel systems mechanic," with the VA report specifically listing the cited chemicals, and the pulmonologist commented that "[t]he solvents noted above should not cause ILD [interstitial lung disease]." In May 2006, the Veteran submitted a written statement expressing: "I have not worked with harsh chemicals at any other time than the specified time" during his military service. In aggregate, the contentions in this case assert that the Veteran's duty during service, particularly that involving working with aircraft fuel systems and his service in Vietnam, exposed him to toxic chemicals which should be considered causally linked to his eventual development of the terminal lung disease. In June 2006, the appellant submitted her own statement together with a copy of the written statement prepared by the Veteran that includes a list of chemicals he recalled were used in the normal course of work with aircraft equipment (the list is as indexed above). The Veteran's statement conveyed his recollection that his only exposure to toxic chemicals took place during a 10 year period within his period of military service. The Veteran's statement also clearly states his recollection that "[t]he earliest indication of a breathing problem was noticed during the early 1990s." The Veteran explained that he believed that his respiratory problems were casually linked to "Chemical burns," and the Veteran expressed that this conclusion was presented to him by unspecified "doctors." The Board acknowledges the Veteran's statement to the effect that he recalled unspecified doctors telling him that his respiratory problems were caused by chemical exposure. However, although a layperson is competent to relay what he or she has experienced or heard first hand, the Board declines to assign probative value to such statements when considered against the backdrop of the overall record in this case. The opinions of record by medical professionals outweigh the Veteran's statements regarding what he remembered being told. For the purposes of this analysis, the Board assigns significantly more weight to the documented opinions of qualified medical professionals as competent medical evidence on questions requiring medical expertise, such as determinations of etiology. In October 2006, the appellant submitted information featuring Material Safety Data Sheets for chemicals to which the Veteran recalled being exposed; this information indicates that cited chemicals can be harmful if inhaled and can cause irritation to the respiratory tract. The appellant has also submitted a fact sheet documenting the toxic hazardousness of the pertinent type of jet fuel the Veteran described working with. An October 2006 statement from the appellant includes her discussion directing attention to her observation that some of the chemicals the Veteran was exposed to during his duty are now either banned from military use or require the use of safety equipment to limit exposure, whereas she asserts that the Veteran was exposed to such chemicals without the benefit of any comparable safety equipment. In September 2006, the claims-file was forwarded to a VA medical expert for the purpose of developing an expert medical opinion addressing whether the Veteran's terminal lung disabilities were etiologically linked to his military service. The examiner noted that the Veteran had passed away prior to VA being able to provide a direct medical examination in connection with the evaluating these contentions. The examiner reviewed the claims-file and noted a history exposure to fuel and chemicals during part of his military service from 1962 to 1972 and onset of mild dyspnea on exertion in the 1970s, becoming worse in the early 1990s. The examiner noted that the Veteran reported using full-face respirators when they were available, but that they were not always available. The examiner noted that the Veteran had been diagnosed and treated for pulmonary fibrosis and COPD in his final years. The examiner found that no family history of lung disease was noted in the reviewed records. The expert examiner commented that the Veteran's 50-pack per year smoking history, although concluding when the Veteran quit smoking in the year 2000, nevertheless "would most likely account for his COPD diagnosis." With regard to the question of the etiology of the pulmonary fibrosis, the September 2006 examiner noted that the Veteran was scheduled for a lung biopsy but that his health deteriorated such that the biopsy was never performed. The September 2006 VA examiner specifically acknowledges the October 2005 private medical record "with what looks like a Medicare diagnosis of 'chronic respiratory condition due to fumes and vapors.'" The examiner commented that it is unclear which doctor formed the diagnosis. The examiner also notes that VA treatment records refer to the Veteran being "exposed to fuels and paint thinners and subsequently developed pulmonary fibrosis," and the examiner notes that this simply "appears to be a history obtained from the patient and does not establish causation." (The Board notes that evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence." LeShore v. Brown, 8 Vet. App. 406, 409 (1995).) Following consideration of all the pertinent information of record, the September 2006 VA examiner concluded that the Veteran's terminal lung disabilities were not related to the chemical exposure associated with his in-service work with jet equipment. The examiner explained that the idiopathic pulmonary fibrosis diagnosis is, by its very nature, not attributable to a specific identified etiology. The examiner commented that a biopsy would have helped to identify whether the disability may be linked to chemical exposures, but that "from the pulmonary notes, we can probably get a pretty good idea." The September 2006 VA examiner discusses that a January 2006 VA treatment record noted that the Veteran had an extensive occupational exposure history that could explain the fibrotic disease, but that this was prior to the Veteran presenting a list of specific chemicals for the medical professionals to more specifically consider; the VA examiner noted that the January 2006 record commented that the Veteran's swamp cooler and farming history put him at risk for hypersensitivity pneumonitis. The September 2006 VA examiner particularly notes that a February 2006 VA treatment record shows that a pulmonology expert treating the Veteran reviewed the list of the cited chemical exposures and expressly noted at that time that the identified solvents should not cause interstitial lung disease. The September 2006 VA examiner concludes: (1) that the Veteran's COPD was less than 50 percent likely (less likely than not) related to exposure to the cited chemicals during his work involving jet equipment and "more likely caused by his 50-pack year smoking history," and (2) that the Veteran's pulmonary fibrosis was less than 50 percent likely (less likely than not) caused by the cited chemicals during his work involving jet equipment. The September 2006 VA examiner's medical opinion was that "[h]is problems are likely tobacco-related." In accordance with the Board's June 2010 remand directives, the claims-file was forwarded to another VA medical expert to review for the purpose of developing another medical opinion further addressing the etiological questions in this case with clear consideration of whether any of the Veteran's lung disabilities may have been related to exposure to tactical herbicides during service or may have been related to his service-connected heart disease. The resulting November 2010 VA examination report is informed by review of the pertinent evidence and contentions in the claims-file. The November 2010 VA examiner discussed that the Veteran "was exposed to fuel and chemicals from 1962 to 1972" in the Air Force, notes the Veteran's specific identification of chemical exposures, and notes that the Veteran was exposed to Agent Orange during service. The November 2010 VA examiner discussed that the Veteran "had a 50-pack-year smoking history as he started smoking at 11 years old and quit in the year 2000." The examiner discusses that the Veteran had onset of dyspnea on exertion in the 1970s when he was hunting and fishing, that this became more severe in the early 1990s, and that the Veteran was diagnosed with pulmonary fibrosis and COPD with VA treatment starting in 2005; the examiner noted that the Veteran had been diagnosed specifically with "idiopathic pulmonary fibrosis with a usual interstitial pneumonitis pattern." The November 2010 VA examiner discusses the fact that the Veteran's VA treatment records show that his "pulmonologist did entertain initially the possibility of chemical exposures as the etiology of his pulmonary fibrosis." The examiner notes that a biopsy that could have revealed pertinent information could not be performed because of the Veteran's deteriorating health. The November 2010 VA examiner discusses, however, that the VA pulmonologist who treated the Veteran provided an important etiology opinion when he reviewed the Veteran's list of chemical exposures in February 2006 and found that the solvents should not cause interstitial lung disease. The November 2010 VA examiner also discusses the indication in the VA treatment records that the Veteran's history of swamp cooler exposures and farm history put him at risk for hypersensitivity pneumonitis. The November 2010 VA examiner emphasizes the importance of the February 2006 note from the VA pulmonologist, pointing out that the note shows that the "most expert pulmonary attending physician" at the facility clearly believed that the identified solvents should not cause interstitial lung disease. Additionally, the November 2010 VA examiner also conducted a literature search "using the PubMed data base available from the National Institute of Health" to further consider to extent to which the Veteran's exposure to Agent Orange may be considered a cause of his lung disabilities. The examiner found: There is one article reporting a single case that suggested that Agent Orange might be responsible for interstitial lung disease in one patient. The authors attributed the lung disease to Agent Orange exposure because they were not able to identify any other likely cause of interstitial lung disease in the one patient. Therefore the evidence linking Agent Orange to interstitial lung disease is not very strong.... In general, one could not attribute a causal relationship between any 2 conditions based on one case report. The examiner goes on to conclude that it is less than 50 percent likely (less likely than not) that the Veteran's COPD or his pulmonary fibrosis were etiologically linked to his in-service chemical exposures including Agent Orange. The examiner's rationale regarding the COPD was that this diagnosis was most likely related to the Veteran's significant long-term tobacco smoking, which was also the opinion of his treating pulmonologist during his lifetime, and that such smoking is the leading cause of COPD generally. The examiner's rationale regarding the pulmonary fibrosis was that this idiopathic diagnosis could not be sufficiently medically linked to the cited jet-mechanic chemical exposures nor to Agent Orange exposure with reference to established medical principles and research. The November 2010 VA examiner goes on to also opine that the Veteran's service-connected arteriosclerotic heart disease cannot be medically considered as caused or permanently aggravated by the Veteran's respiratory disabilities, citing (1) that the extent of the arteriosclerotic heart disease is unclear from the available evidence, and (2) that coronary artery disease does not cause chronic obstructive pulmonary disease or pulmonary fibrosis. The examiner explained that the arteriosclerotic heart disease was not documented in the medical records with a stress test or angiogram, nor was there evidence of ischemic heart disease, that might otherwise allow for further informed discussion of the question. The examiner also observed that there is no information on the Veteran's death certificate indicating that a heart condition contributed to the Veteran's death. In sum, the November 2010 VA examiner ultimately opines that his review of the available evidence and the medical literature leads to the conclusion that the Veteran's lung disabilities were less than 50 percent likely (less likely than not) caused by or etiologically linked to the Veteran's military service or to the service-connected heart disability. In June 2011, the appellant submitted a written statement (on a post-it note attached to submitted medical records) requesting that the Board not deny this appeal "just because my husband used tobacco." The Board emphasizes that its analysis in this case has not denied the claim strictly on the basis of the fact that the Veteran smoked tobacco. To the extent that any respiratory disabilities medically shown to have caused the Veteran's death have been attributed to tobacco use during service, then service connection for such disability is indeed barred by law. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300. However, the appellant's contention that the cause of the Veteran's death was etiologically linked to in-service chemical exposure raises a valid legal basis for a grant of service connection if the evidence supports finding that such contention is correct. The Board has considered the evidence on the key medical etiological questions at issue in this case and the Board finds that the evidence weighs against finding that any cause of the Veteran's death is etiologically linked to the Veteran's service or to a service-connected disability. The appeal in this case must be denied not because the Veteran used tobacco, but because the evidence of record weighs against finding that the causes of the Veteran's death are related to service (or service-connected disability). In February 2007, the appellant submitted a written statement explaining her belief that the medical doctor who certified the Veteran's death certificate knew little of the Veteran aside from what could be reviewed in his medical records. The Board's analysis does not rely upon any contested conclusions presented on the Veteran's death certificate. The Board has obtained multiple medical opinions to address the key medical questions in this case. The appellant does not appear to contest the finding that the Veteran's death was caused by his respiratory disabilities, nor does any evidence of record suggest an alternative cause of death. The appellant appears to dispute the death certificate's indication that tobacco smoking contributed to the cause of the Veteran's death; however, the other medical opinions of record also indicate that the Veteran's tobacco smoking contributed to his terminal respiratory disability of COPD. More significantly, however, the preponderance of the probative medical evidence of record indicates that the Veteran's terminal lung disabilities were not etiologically linked to his in-service chemical exposures; that is the leading reason that service connection cannot be granted in this case. The appellant's April 2007 statement, among others, emphasizes her argument that the Veteran's smoking history may only account for some of the terminal lung disabilities, while other components of the terminal lung disabilities should be attributed to his in-service chemical exposures. The Board has found that the competent medical evidence in this case does support the appellant's contention that the Veteran's tobacco smoking may not be the only cause of the Veteran's terminal lung disabilities. However, once again, the Board must emphasize that service connection can only be granted if the disability in question is etiologically linked to military service. Because the competent medical evidence of record preponderates against a finding that the Veteran's lung diagnoses were attributable to his in-service chemical exposures, and because the evidence supports no other basis for linking the lung disabilities to service, service connection must be denied in this case. The Board finds that the only probative competent medical opinions presented with discussion of the pertinent facts and evidence and explanation of rationale indicate that the Veteran's terminal lung disabilities were not medically attributable to his military service (or to service-connected disabilities). The evidence establishes that the Veteran's lung disabilities were the cause of his death, and no contrary contentions or evidence has been presented on this point. The Board must then conclude that the probative evidence preponderates against the claim of entitlement to service connection for the cause of the Veteran's death, as the evidence weighs against finding that his terminal lung disabilities were etiologically linked to his military service. Conclusion The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. In reaching this decision, the Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to this issue. The Board acknowledges that the claims file contains a quantity of other documents, but none of the information in these records substantially supports the appellant's claims or otherwise contradicts the evidence deemed to be most probative in the discussion above. Here, the evidence weighs against finding that the Veteran's death was caused by any disability etiologically linked to service or to a service-connected disability. This appeal has been afforded the development of VA expert medical opinions and the evidence now presents adequate medical information and opinion in connection with this claim; the September 2006 and November 2010 VA medical opinions, in aggregate, provided clear findings and opinions with persuasive discussions of rationale weighing against the claim on all pertinent bases. The examiners' pertinent findings and opinions address, with persuasive rationale, the contrary suggestions of record and the contentions of the appellant and the Veteran; the Board finds that the September 2006 and November 2010 VA examination reports are more probative evidence than any contrary evidence of record. The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Although not entirely clear, some of the medical reports of record suggest that the Veteran reported a history of some dyspnea on exertion dating back to the 1970s. However, there is no suggestion in any testimony, contention, or evidence, of onset of continuity of symptomatology during service or at the time of separation from service. The Veteran's service treatment records are negative for pertinent symptoms and the Veteran's October 1975 service separation/retirement examination is specifically negative for any pertinent lung symptoms or diagnoses (lungs were clinically normal at that time). There is no clear indication of continuity of symptoms associated with a chronic disability from the time of service to the time of this appeal. The evidence in this case does not show continuity of symptomatology associated with a chronic disability for the purposes of application of 38 C.F.R. § 3.303(b). The Board acknowledges that the Veteran and the appellant have expressed their belief that his lung disabilities were related to his military service. However, there is no evidence of record showing that the Veteran or the appellant has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability. The Board finds that questions of identifying the specific etiology of particular classifications of lung disabilities is a medical question requiring specialized knowledge and expertise; such questions are not generally resolvable through information available to lay senses. Consequently, the Veteran's and the appellant's own assertions as to diagnosis and etiology of a disability have no probative value. Lay statements may be competent 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), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology). However, a determination concerning diagnosis of a specific disease or a determination concerning the possibility of a causal relationship between two different disease pathologies or between a chemical exposure and a chronic disability requires specialized training, and may therefore not be established by lay opinions on etiology. As the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death, the benefit-of-the-doubt rule does not apply and this claim is denied. See 38 U.S.C.A § 5107. Accrued Benefits A claim by a surviving spouse for DIC will also be considered to be a claim for accrued benefits. 38 C.F.R. § 3.152(b). Accrued benefits are defined as "periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid for a period not to exceed two years." See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits may be paid upon the death of a Veteran to his or her spouse. 38 C.F.R. § 3.1000(a)(1)(i). The entitlement of the accrued benefits claimant is derived from the Veteran's entitlement, and the accrued benefits claimant cannot be entitled to a greater benefit than the Veteran would have received had he lived. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). By statute, entitlement to accrued benefits must be based on evidence in the file at the time of death, or evidence, such as VA records, deemed to be of record at that time. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 6 Vet. App. 483 (1994). The Board notes that the statute was amended in January 2003 to eliminate the two-year restriction on the payment of accrued benefits. The revision to the statute applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Because the Veteran's death occurred in May 2006, the appellant's claim must be considered under the version of 38 U.S.C.A. § 5121(a) currently in effect, which eliminates the two-year restriction on the payment of accrued benefits. The record reflects that the Veteran died in May 2006. The Veteran filed a claim of entitlement to service connection for lung disability in February 2005. Over the period of time during which he advanced this claim, he contended that his lung disabilities were causally linked to his exposure to specified chemicals during military service (as discussed in the Board's cause of death analysis, above). This claim of entitlement to service connection was denied in a June 2005 RO rating decision. The Veteran filed a timely notice of disagreement with this denial in May 2006, initiating an appeal that remained pending at that time of his death later that month. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. (The legal criteria and considerations in analysis of entitlement to service connection are further detailed in the section addressing the claim of entitlement to service connection for the cause of the Veteran's death, above.) The Board has reviewed all the evidence delineated at the outset of the instant decision and finds that service-connection for lung disability must be denied. As previously determined, the preponderance of the evidence is against a finding that the Veteran's lung disabilities were etiologically linked to his military service (aside from tobacco smoking). The preponderance of the medical evidence, as previously discussed, is against a finding that his lung disabilities were the result of chemical exposures during service. Notably, the September 2006 and November 2010 VA examiners reviewed all of the evidence that was of record or constructively of record at the time of the Veteran's death; the VA examiners concluded that the medical evidence did not support finding an etiological link between the Veteran's lung disabilities and his military service. The September 2006 and November 2010 VA examination reports are the only probative etiology opinions of record. The evidence of record at the time of the Veteran's death did not feature favorable probative evidence sufficient to otherwise establish entitlement to service connection for lung disability. For the reasons stated above, the Board finds that the evidence is against the claim the Veteran had pending at the time of his death, and, as such, the benefit of the doubt doctrine is not for application in the instant case. Gilbert, 1 Vet. App. at 54. Consequently, there is no basis to award accrued benefits to the Appellant as there were no benefits that were due and unpaid to the Veteran at the time of his death. ORDER Entitlement to service connection for the cause of the Veteran's death is not warranted. Entitlement to accrued benefits is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs