Citation Nr: 1320988 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-11 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service in the United States Army from April 1943 to October 1945; he was awarded the Combat Infantryman's Badge (CIB) and the Purple Heart Medal. The Veteran died in October 1994, and the appellant is seeking benefits as his surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded the case for additional development in September 2012; the case has now been returned to the Board for appellate review. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims files. The issue of entitlement to nonservice-connected death pension benefits has been raised by the appellant's February 2007 VA Form 21-534, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that matter, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died October 1994, and his death certificate lists the immediate cause of his death as cardiorespiratory failure due to or as a consequence of cancer of the liver; no other diseases are listed on the death certificate as underlying causes. 2. Competent medical evidence of record indicates that the primary cause of the Veteran's death was cancer that metastasized to the liver with the primary tumor being unknown. 3. At the time of the Veteran's death, service connection was in effect for residuals of a fracture of the left second rib and a deformity of the nose from a shrapnel wound; these disabilities were each rated as zero percent disabling. 4. Service medical records do not indicate that the Veteran had any chronic liver condition or any cancerous condition and there is no evidence of continuity of these conditions between the Veteran's discharge from service and his death nor were any such conditions documented within one year of the Veteran's discharge from service in October 1945. 5. A connection between the Veteran's fatal cardiorespiratory failure secondary to cancer that had metastasized to the liver and his military service has not been demonstrated. 6. The Veteran's service-connected disabilities did not cause, contribute to, or hasten, his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310, 5103A, 5103(a) (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. Duty to Notify and Assist VA's duty to notify and assist claimants in substantiating a claim for VA benefits is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has fulfilled the above VA notice and development assistance requirements in this case. The RO issued a letter in March 2007 that addressed the appellant's claim. That letter was followed by initial RO adjudication of the claim in November 2005. Then, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the appellant in January 2013 that fully addressed all the notice elements. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. She was also asked to submit evidence and/or information in her possession to the RO. Furthermore, the cause of death claim was readjudicated, and an SSOC was issued in March 2013. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that a proper VA notice for dependency and indemnity compensation (DIC) claim based on cause of death must also 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 claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The RO provided the appellant substantially compliant Hupp notice by means of a letter dated in January 2013. The January 2013 letter informed the appellant of her and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information, which would include that in her possession, to the RO. This letter also informed the appellant that in order to establish entitlement to DIC benefits the evidence need show that the Veteran died from a service-related disease or injury. She was told that to establish service connection for the cause of death the evidence must show that the condition causing the Veteran's death had its onset during service or was permanently aggravated by service. This notice conveyed in layperson's terms the requirements for establishing service connection for a disease that caused the Veteran's death. This notice also clearly informed the appellant of evidence needed to establish that the Veteran's death was caused by a service-connected disability. The Board notes that the appellant was also notified of effective dates for ratings in the letter issued in January 2013. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, any deficiencies in VA's duties to notify the appellant concerning degree of disability for the cause of death claim are harmless, as service connection for the cause of the Veteran's death has been denied thus rendering moot any issues with respect to implementing an award. Id. The appellant has had ample opportunity to respond/supplement the record and she has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated, the appellant bears the burden of demonstrating any prejudice from defective VA notice with respect to the downstream issues"). The United States Supreme Court has held that an error in VA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor her representative has alleged any prejudicial or harmful error in VA notice, and the Board finds, based the factors discussed above, that no prejudicial or harmful error in VA notice has been demonstrated in this case. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the RO reviewed the claims file, including the Veteran's service medical treatment records. The claims file contains post-service treatment records for the Veteran dated between 1976 and 1994. Moreover, the appellant's statements in support of the claim are of record. The appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and she was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available records that she wanted the RO to obtain for her that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave her notification of her rights under the pertinent statute and regulations. The record shows that VA did not obtain a medical opinion in this case. The United States Court of Appeals for the Federal Circuit has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. The Board finds that there is no reasonable possibility that such assistance would aid in substantiating this claim because, for the reasons discussed below, the evidence does not indicate that the Veteran suffered from any cancer in service, that his fatal cancer was or may have been related to service, or that any cancer arose within the one year presumptive period. As previously noted, the Board remanded the case for additional development in September 2012. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). On remand, VA treatment records for the Veteran, dated between 1976 and 1994, were added to the claims file and the appellant was sent a duty to assist letter in January 2013. In this case, the Board concludes that substantial compliance with the Board's remand instructions has been achieved. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (noting that a Court or Board remand confers upon a Veteran the right to substantial, but not strict, compliance with that order). In addition, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In sum, the record has been fully developed, and it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence she should submit to substantiate her claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the statutory duty to assist requirements and the implementing regulations and the record is thus ready for appellate review. II. The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Veteran died in October 1992. The death certificate listed the cause of death as cardiorespiratory failure due to, or as a consequence of, cancer of the liver. A review of the record reveals that the Veteran was first diagnosed with cancer in August 1994; the cancer was described as being from an unknown primary that metastasized to the liver. At the time of his death, the Veteran was service-connected for the residuals of a fracture of the left second rib and for the residuals of a shrapnel wound of the nose. Each of these two disabilities was evaluated as zero percent disabling during the Veteran's lifetime. The cause of a veteran's death may be service connected if a disability which the veteran incurred or aggravated in service was either the principal or contributory cause of his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, that disability must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, that disability must contribute substantially or materially to death; it must combine to cause death; it must aid or lend assistance to the production of death. 38 C.F.R. § 3.312(c)(1). See Harvey v. Brown, 6 Vet. App. 390 (1994). A service-connected disability may be a contributory cause of death if it results in debilitating effects and general impairment of health to the extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). A service-connected disability may be a contributory cause of death if it affected a vital organ and was of itself of a progressive or debilitating nature and was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). 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. 38 C.F.R. § 3.312(c)(2). 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 impairment of health to the extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). 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)(4). In such a 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. Id. The appellant contends that the Veteran was treated for pneumonia in service and that he had a lot of trouble with his lungs after service until he died. She argues that the Veteran's cardiorespiratory failure was in fact due to residuals from the in-service pneumonia. Review of the Veteran's service medical treatment records reveals that the Veteran was hospitalized for treatment of primary pneumonia of the left lower lobe in June 1943. The associated records state that the Veteran's mother and father had died of tuberculosis, as had two aunts and an uncle while another uncle was being treated for tuberculosis. The Veteran was noted to be cured of the pneumonia in July 1943, and he was returned to duty in August 1943. Thereafter the Veteran served in the European Theater and he participated in the battles in the Ardennes during the brutal winter of 1944-45 without incurring another bout of pneumonia. The Veteran underwent a service separation examination in October 1945. On physical examination, his lungs, abdominal wall and viscera were all described as normal. Radiographic examination of his chest was negative. Post-service, the Veteran underwent a number of chest x-rays at the James O. Parramore Hospital between 1951 and 1963; no active signs of disease were ever found. The April 1963 x-ray compared to the July 1959 x-ray revealed no significant change in either lung field. Private medical treatment records dated between September 1969 and July 1979, indicate that the Veteran was treated for bronchitis in February 1970, and May 1973. A June 1979 note states that the Veteran smoked two packs of cigarettes per day. In an August 1980 letter, the appellant stated that the Veteran had a breathing problem and that it had been proven that he did have tuberculosis with scars on the lungs. The Veteran was afforded a VA medical examination in November 1980; he complained of difficulty breathing, a cough with expectoration and chest pain. He complained of chest pain and shortness of breath when he walked two blocks. On physical examination, his lungs were clear and he did not exhibit any respiratory distress. Radiographic examination revealed the presence of calcific densities in both upper lung fields that were thought to be due to healed tuberculosis. Review of the Veteran's VA treatment records reveals that he had a chest x-ray in January 1983 that showed hyperaeration and diffuse moderate linear reticular fibrotic changes, but no acute or active process. There was pleural thickening involving the apices of both lungs. The impression was interstitial fibrosis. The associated physical examination report contains a finding of mild emphysema in the lungs. A July 1983 chest x-ray showed the presence of chronic interstitial inflammation and the impression was chronic bronchitis. The Veteran was hospitalized in a VA facility in October 1990; he was noted to have quit smoking five years before. On physical examination, his lungs were clear bilaterally and his abdomen was benign with no hepatosplenomegaly. The discharge summary from that hospitalization includes a diagnosis of chronic obstructive pulmonary disease (COPD). The report of an April 1992 chest x-ray states that the Veteran had mild COPD with minimal interstitial pulmonary scarring plus some apical pleural thickening bilaterally; the results were otherwise unremarkable and remained unchanged in comparison with the films of August 1991. The impression was mild COPD unchanged. In October 1992, the Veteran sought treatment for abdominal pain of sudden onset. Radiologic examination led to a finding of a normal abdomen on two occasions that month. The Veteran had another chest x-ray in October 1993; there were no active infiltrates and the chest was otherwise unremarkable and unchanged. The Veteran was hospitalized in a VA facility for treatment of a right inguinal hernia in January 1994. There were no findings of any liver disorder or any cancer during that hospitalization. The Veteran underwent a gallbladder ultrasound in May 1994; no abnormalities were visualized in the liver in conjunction with that testing. On August 15, 1994, the Veteran had another chest x-ray; the associated report states that there was no acute process present. The impression was mild pulmonary emphysema with minimal chronic interstitial changes. Two days later, an abdominal sonogram revealed the presence of multiple zones of hyperechoic structure in each lobe of the Veteran's liver. A liver biopsy revealed metastatic moderately differentiated adenocarcinoma liver disease. The primary tumor was never identified. The Veteran's last hospitalization took place in October 1994; the associated discharge summary states that the Veteran's cause of death was cancer with metastases to the liver and that the primary was unknown. Review of the evidence of record indicates that it was the cancer that was the cause of the cardiopulmonary failure that led to the Veteran's death. There is nothing in the 1994 VA treatment records to indicate any etiologic connection between the Veteran's in-service pneumonia, his healed tuberculosis or his COPD and the metastatic carcinoma that caused his death. In fact, a May 2007 medical opinion from a VA physician states that it was less likely than not that the Veteran's in-service pneumonia materially contributed to his death. In addition, the appellant does not contend, and the clinical evidence of record does not demonstrate, that the Veteran's eventually fatal cancer was initially manifested during his active service. The Veteran was first diagnosed with cancer in August 1994. This was more than 49 years after his separation from service in October 1945. Furthermore, the Veteran was not service-connected for any cancer or any liver disorder or any pulmonary or respiratory disorder in his lifetime. The appellant contends that the Veteran's pneumonia in service played a role in his death. The Board has considered the appellant's statements and those of her representative. 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, supra. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). In this case, carcinoma is not the type of disorder as to which a lay person can provide competent evidence on questions of etiology or diagnosis. See Robinson v. Shinseki, 557 F.3d 1355 (2009). The Board has also considered the appellant's claim on a direct service-connection basis but finds that there is no competent evidence of record to establish any etiological relationship between the Veteran's active military service, including in-service treatment for pneumonia, and the metastatic cancer that resulted in his death. In addition, the evidence does not show symptomatology related to cancer in service or for many years after service. It was not until the 1994, more than 49 years after he completed his military career, that the Veteran was first diagnosed with metastatic cancer. Further, the appellant does not allege, and the evidence of record does not otherwise indicate, that the Veteran incurred metastatic cancer in service or that symptoms of the metastatic carcinoma were continuous after service. Thus, the evidence does not support a finding that the Veteran's fatal cancer was related to his active duty based on continuity of symptomatology. The Board has also considered whether service connection for the cause of the Veteran's death is warranted under the theory of secondary service connection. Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, in this case there is no competent probative evidence of record to establish that the Veteran's service-connected left second rib disability or his nose deformity had any etiologic relationship, including by way of aggravation, to the metastatic carcinoma that led to the Veteran's demise. It is true that 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; Buchanan; both supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board has considered the appellant's statements asserting a relationship between the in-service pneumonia and the Veteran's death. As previously noted, competency of evidence differs from weight and credibility. See Cartright v. Derwinski, supra ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The appellant is competent to report symptoms that she observed during the Veteran's lifetime because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. However, the underlying cause of death of the Veteran's death, metastatic carcinoma, is not the sort of thing that a lay person can provide competent evidence on as to questions of etiology or diagnosis. Therefore, the Board cannot give decisive probative weight to the opinions of the appellant or her representative about the origins of the metastatic carcinoma which was the underlying cause of the Veteran's death, because they are not qualified to offer such opinions. The Board has scrutinized the record with a view towards ascertaining whether there is any basis (e.g., direct, presumptive or secondary) to indicate that the fatal cancer with metastases to the liver was incurred by any incident of military service, but it has gleaned no such supporting evidence or suggestion thereof. Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim, including direct service connection). See Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Roebuck v. Nicholson, 20 Vet. App. 307, 312-313 (2006). Thus, taking into consideration all the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Because the preponderance of the evidence is against this service connection claim, the benefit-of-the-doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service, for which the Board is grateful. The Board expresses its admiration for the Veteran's service, including his WW II combat service from Normandy to Central Europe. There also can be no doubt that the appellant is sincere in her belief that the Veteran's death was related to his military service. However, while the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which the claimed benefit may be granted. Although the Board is sympathetic to the appellant's claim, it is without authority to grant her claim and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104(c). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs