Citation Nr: 1321245 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 12-33 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to enhanced DIC under the provisions of 38 U.S.C.A. § 1311(a)(2). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran had active service from August 1950 to April 1952. The Veteran died in July 2011. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over the Veteran's claims file was subsequently transferred to the Detroit, Michigan RO. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDINGS OF FACT 1. The Veteran's death certificate lists acute myocardial infarction as the immediate cause of death, with no underlying or contributory causes. 2. At the time of the Veteran's death, service connection was in effect for residuals of frostbite to the left hand, evaluated as 30 percent disabling; residuals of frostbite to the right hand, evaluated as 30 percent disabling; residuals of frostbite to the left foot, evaluated as 30 percent disabling; residuals of frostbite to the right foot, evaluated as 30 percent disabling; and residuals of shell fragment wounds above the left eye and back, evaluated as non-compensably disabling. 3. The Veteran did not have service connection for any cardiovascular condition at the time of his death. 4. The Veteran's cause of death is not etiologically related to a disease, injury, or event in service. 5. The Veteran's residuals of frostbite injuries and other service-connected disabilities were not principal or contributory causes of the Veteran's death. 6. The Veteran's myocardial infarction was not causally related to or permanently worsened by any service-connected disability. 7. A total disability rating was in effect for fewer than 10 years prior to the Veteran's death. 8. The appellant has not identified clear and unmistakable error in any prior decision with adequate specificity to raise a valid claim for DIC benefits under 38 U.S.C.A. § 1318. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 3.312 (2012). 2. The claim for DIC under the provisions of 38 U.S.C.A. § 1318 lacks legal merit. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. §§ 3.22, 3.105 (2012). 3. The claim for enhanced DIC under the provisions of 38 U.S.C.A. § 1311(a)(2) lacks legal merit. 38 U.S.C.A. §§ 1311, 1318 (West 2002); 38 C.F.R. §§ 3.22, 3.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for the Cause of Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the issue of secondary service connection, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of the veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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; see Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). 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, 7 Vet. App. at 39-40; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran died in July 2011. The Veteran's death certificate lists acute myocardial infarction as the immediate and only cause of death, with no contributing or underlying causes listed. At the time of the Veteran's death, service connection was in effect for residuals of frostbite to the left hand, evaluated as 30 percent disabling; residuals of frostbite to the right hand, evaluated as 30 percent disabling; residuals of frostbite to the left foot, evaluated as 30 percent disabling; residuals of frostbite to the right foot, evaluated as 30 percent disabling; and residuals of shell fragment wounds above the left eye and back, evaluated as non-compensably disabling. The Veteran was also awarded a total rating based on individual unemployability due to service-connected disabilities (TDIU) effective from June 19, 2003. The Veteran did not have service connection for any cardiovascular conditions at the time of his death. Further, the Veteran's service-connected disabilities were not a principal or contributory cause of the Veteran's death. The Board finds that there is no dispute as to the facts involving the cause of death, and the death certificate is accepted as accurate regarding the time and cause of death. The appellant contends that the Veteran's service-connected residuals of frostbite injuries to the extremities caused his death. In essence, the appellant asserts that the Veteran's myocardial infarction was caused or aggravated and accelerated by the Veteran's service-connected frostbite injuries. Although she is not claiming service connection for the cause of the Veteran's death on the basis of in-service incurrence or aggravation of the myocardial infarction which caused his death, the Board notes that service treatment records are entirely negative for symptoms, complaints, findings, treatment, or diagnoses of any cardiovascular conditions, and the first documentation of treatment for a cardiovascular disorder is in 1994, more than 40 years after service separation, when the Veteran underwent a percutaneous transluminal coronary angioplasty. Moreover, there is no medical evidence suggesting a relationship between the Veteran's cardiovascular condition (diagnosed as coronary artery disease) and active service. Thus, the question before the Board is whether the Veteran's non-service-connected myocardial infarction (or heart disease), which arose many years after service, was secondary to his service-connected disabilities, to include his frostbite residuals. As noted above, to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. Service connection was in effect for residuals of frostbite injuries since 1995. However, the Board finds that the weight of the evidence demonstrates no relationship between the Veteran's myocardial infarction and his service-connected frostbite injuries or any other service-connected disability. No medical evidence has suggested a relationship of either causation or aggravation between the Veteran's cardiovascular condition and his frostbite residuals. Indeed, the only evidence suggesting a relationship between the two is the appellant's statements. Regarding the appellant's statements as to the cause of her husband's myocardial infarction, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316 (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau, 492 F.3d 1372). However, in this case, the cause of the Veteran's myocardial infarction involves a complex medical etiological question because it deals with the origin and progression of the Veteran's cardiovascular system, and disorder of such internal and complex disease process is diagnosed primarily on clinical findings and physiological testing. The appellant is competent to relate symptoms of her husband's cardiovascular condition that she observed the Veteran experience at any time, but is not competent to opine on whether there is a link between the myocardial infarction that led to her husband's death and a service-connected disability, including the residuals of frostbite, because such diagnosis requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). In other words, the appellant's contentions regarding the relationship between the Veteran's myocardial infarction and service-connected frostbite residuals are simply not competent or persuasive evidence. There is absolutely nothing in the medical evidence suggesting that such a relationship is possible, and the appellant has never stated a doctor or any other medical professional has opined such. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's myocardial infarction was caused or aggravated by any service-connected disability. Thus, the weight of the evidence is against a finding that the service-connected residuals of frostbite injuries to the extremities were a primary or a contributory cause of the Veteran's death. Although the Board is sympathetic with the claimant's loss of her husband, who served his country bravely, there is a lack of competent evidence to warrant a favorable decision. For these reasons, service connection for the cause of the Veteran's death must be denied. As the preponderance of the evidence weighs against the claim for service connection for the cause of the Veteran's death, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. DIC Benefits Under 38 U.S.C.A. § 1318 Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected. A "deceased veteran" for the purposes of this provision is a veteran who died not as a result of his own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death; if continuously rated as totally disabling for at least 5 years after such veteran's separation from active service; or if the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22. The Board notes that application of a line of decisions of the Court and United States Court of Appeals for the Federal Circuit (Federal Circuit) has resulted in different approaches to the adjudication of DIC claims under 38 U.S.C.A. § 1318 depending on the date that the claim was filed. VA amended 38 C.F.R. § 3.22 as of January 21, 2000. The goal of the regulatory revision was to eliminate the judicial concept of hypothetical entitlement and clearly express VA's interpretation that an award of DIC under 38 U.S.C.A. §1318 essentially depended on whether the veteran was receiving total disability compensation for the requisite period of time, or was entitled to receive the benefit but for clear and unmistakable error (CUE) in the adjudication of a claim. In other words, the amendments essentially preclude survivors from re-litigating eligibility for disability benefits except in the case of CUE. Accordingly, if, based on the decisions that were issued during a veteran's lifetime, the veteran did not have the requisite level of disability for the requisite number of years, the claimant is required to show CUE in a decision rendered during the veteran's lifetime in order to retroactively revise the veteran's rate of disability. See Marso v. West, 13 Vet. App. 260 (1999). Such a determination must be made based solely on the evidence in the claims file or VA custody prior to the veteran's death. CUE is defined as a very specific and rare kind of error. It is the kind of error, of fact or of law that, when called to the attention of later reviewers, compels the conclusion to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). CUE is "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To determine whether CUE was present in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). As with all CUE claims, in cases in which the survivor seeks to establish entitlement to DIC under 38 U.S.C.A. § 1318 via CUE, she must provide the date or the approximate date of the decision or otherwise provide sufficient detail so as to identify the decision sought to be attacked collaterally, and establish how, based on the evidence of record and the law at the time of the decision, the veteran would have been entitled to receive a total rating. Cole v. West, 13 Vet. App. 268 (1999). In this case, the Veteran was in receipt of a total disability rating at the time of his death in July 2011. A TDIU was granted in a March 2004 rating decision, effective June 19, 2003. Thus, the total rating was in effect for less than 10 years prior to the Veteran's death. Moreover, there is no indication that the Veteran was a prisoner of war. In a March 2012 Statement in Support of Claim, the appellant contends that her husband was given a waiver of insurance premium payments effective in January 2001, and thus, was "on disability" for more than 10 years prior to his death. However, the question is whether a total disability rating was in effect for 10 years, and, as noted above, it was not in this case. Whether the Veteran paid life insurance premiums is simply not relevant here. Prior to June 19, 2003, when the TDIU was made effective, the Veteran had a combined disability rating of 50 percent, and none of his service-connected disabilities were evaluated as totally disabling. Next, the appellant has not identified any decision which contains CUE, and she has not described how, based on the evidence of record and the law at the time of the decision, the Veteran would have been entitled to receive a total rating prior to June 19, 2003. Indeed, the appellant has given no indication that she intended to raise a specific claim of CUE, pursuant to 38 C.F.R. § 3.105(a). See Fugo, 6 Vet. App. 40 and Damrel (emphasizing the pleading requirements for raising, and burden of proof for establishing, a CUE claim). For the foregoing reasons, the basic threshold criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1318 are not met. See Rodriquez v. Nicholson, 19 Vet. App. 275 (2005) (section 1318 DIC claims filed on or after January 21, 2000, are not subject to hypothetical entitlement analysis). While the Board regrets that the outcome to the appellant is not favorable, the claim must necessarily be denied as a matter of law. Enhanced DIC Benefits Under 38 U.S.C.A. § 1311 The appellant has also contended that she is entitled to $233.00 per month under the provisions of 38 U.S.C.A. § 1311(a)(2), as her late husband was in receipt of a total rating for more than 8 years prior to his death in July 2011. 38 U.S.C.A. § 1311(a)(2) provides that the rate of DIC benefits specified in paragraph (1) will be increased by $233.00 in the case of the death of a veteran who at the time of death was in receipt of or was entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. The benefits described in 38 U.S.C.A. § 1311(a)(2) are a subset of DIC benefits, and the application of 38 U.S.C.A. § 1311 presumes that eligibility for the base DIC rate has already been established under 38 U.S.C.A. § 1318 or 38 U.S.C.A. § 1310 (West 2002). For the reasons discussed above, the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318, and her claimed of entitlement to DIC under the provisions of 38 U.S.C.A. § 1310 has been denied. Thus, while the Board acknowledges that the Veteran was in receipt of a total rating for more than 8 years preceding his death, the 8 year requirement of 38 U.S.C.A. § 1311 is inapplicable to the appellant's claim because basic entitlement to DIC has not been established. This is not a separate benefit payable to a claimant, but an enhanced benefit once underlying entitlement to DIC is granted. As above, while the Board regrets that the outcome to the appellant is not favorable, the claim for enhanced DIC benefits under the provisions of 38 U.S.C.A. § 1311 must necessarily be denied as a matter of law. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. The Court held in Hupp v. Nicholson, 21 Vet. App. 342 (2007) that, when adjudicating a claim for dependency and indemnity compensation (DIC) (to include service connection for the cause of the veteran's death), VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. In a timely February 2012 letter, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate a claim for service connection for cause of death, what information and evidence must be submitted by the appellant, and what information or evidence VA will attempt to obtain. The letter also advised the appellant of the service-connected disabilities in effect at the time of the Veteran's death and described how VA determines effective dates. The Board notes that the letter did not provide any information concerning how disability evaluations would be assigned should service connection for the cause of death be granted. See Dingess, supra. However, there is no question regarding a disability rating in a cause of death case, and thus, the appellant was not prejudiced by lack of notice regarding disability ratings. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the appellant's statements. The Board acknowledges that a VA medical opinion has not been obtained with respect to the claim for service connection for the cause of the Veteran's death; however, the Board finds that a VA opinion is not necessary in order to fulfill the duty to assist. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 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 the 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 a medical opinion is not necessary in this case because there is no indication of any existing evidence establishing that a service-connected condition contributed to the cause of the Veteran's death. Aside from the appellant's unsupported assertions of a nexus between the service-connected residuals of frostbite and the cause of the Veteran's death, there is no competent medical or lay evidence underpinning her arguments. In the absence of such evidence, the Board finds that remanding the claim to obtain a VA medical opinion regarding the cause of the Veteran's death is not needed. Notably, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. 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). [Continued on Next Page] ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is denied. Entitlement to enhanced DIC benefits under the provisions of 38 U.S.C.A. § 1311 is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs