Citation Nr: 1323357 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-00 225A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Basic eligibility for Dependents' Educational Assistance (DEA) under the provisions of Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Harold G. Caldwell, Attorney WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to November 1945. He died in August 2006. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from an June 2007 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the Veteran's death and eligibility for Dependents' Educational Assistance. In July 2012, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In November 2012, the Board requested a Veterans Health Administration (VHA) opinion. This requested opinion was provided in January 2013. The appellant and her attorney were issued a copy of the opinion and were provided an opportunity to respond. In addition to the paper claims file, there is an electronic claims file associated with the appellant's appeal. The electronically filed documents have been reviewed and are found to be duplicative or irrelevant to the issues on appeal. 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 died in August 2006 as a result of cardiomyopathy. Alzheimer's dementia was also listed as a significant condition. 2. Before his death, service connection was in effect for residuals of a shrapnel wound to the left thigh with a scar and muscle injury, a scar on the scalp due to shrapnel, residuals of cold injuries to the right and left feet, residuals of bilateral trench feet, left ear hearing loss, and tinnitus. 3. The Veteran engaged in combat with the enemy. 4. The Veteran was not a former prisoner of war (POW). 5. The Veteran's service-connected disabilities did not cause, contribute substantially or materially to cause, or aid or lend assistance to, his death. 6. The cause of the Veteran's death, cardiomyopathy or Alzheimer's dementia, did not begin in service and is in no way related to service or any event of service, to include any B-1 deficiency. 7. He was not in receipt of any permanent and total service-connected disability rating. CONCLUSIONS OF LAW 1. The cause of the Veteran's death was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service, and the Veteran's service-connected disabilities did not cause, combine to cause, or contribute substantially or materially, to the cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). 2. Eligibility for DEA benefits under 38 U.S.C., Chapter 35 is not established. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In claims for dependency and indemnity compensation (DIC) benefits, including cause of death, VA must provide: (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Veterans Claims Assistance Act (VCAA) notice applies to all five elements of a service-connection claim - including the downstream disability rating and effective date elements. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Additionally, it must be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004), but see Prickett v. Nicholson, 20 Vet. App. 370 (2006) (VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC). With regard to the appellant's claim of entitlement to DEA benefits, the facts are not in dispute. Accordingly, statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply. The resolution of this claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Because no reasonable possibility exists that any notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. Wensch v. Principi, 15 Vet. App. 362 (2001). With respect to the appellant's cause of death claim, in January 2007, January and July 2008, and November 2011, the AOJ advised the appellant of the evidence needed to substantiate her claim and explained what evidence VA was obligated to obtain or to assist her in obtaining and what information or evidence she was responsible for providing. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The January 2007 and January 2008 letters also provided the additional, claim-specific, information required by Hupp. The November 2011 letter discussed the downstream effective date element of her claims in accordance with Dingess/Hartman, supra. These claims were last adjudicated in February 2012. VA has fulfilled its duty to assist. The Veteran's service treatment records and post-service VA and private treatment records were obtained and associated with the claims file. The appellant has not identified any additional evidence that has not been requested or obtained. Additionally, a VHA medical opinion was obtained in January 2013. At this time, the Board points out that it misidentified the pertinent vitamin deficiency as B-12, as opposed to B-1, in its request for a VHA opinion. However, the VHA specialist, in providing his opinion, noted the misidentification and discussed the relevant issue of causation using a vitamin B-1 deficiency, as the appellant asserts. The January 2013 VHA opinion is adequate and the appellant has not been prejudiced in this regard. Veterans Law Judges (VLJ) who chair hearings are required to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned specifically clarified the issues on appeal. Additionally, throughout the hearing, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. The hearing focused on the elements necessary to substantiate the claim and the appellant and her attorney, through testimony, argument and questions, demonstrated actual knowledge of the elements necessary to substantiate the claim. The undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Additionally, neither the appellant nor her attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the July 2012 Board hearing. VA has fulfilled its duties to notify and assist. The Board will proceed to adjudicate the claims based on the current evidence and information of record. II. Entitlement to Service Connection for the Cause of the Veteran's Death The Veteran died in August 2006 as an immediate result of cardiomyopathy. Alzheimer's dementia was also listed as a significant condition. At the time of his death, service connection was in effect for residuals of a shrapnel wound to the left thigh with a scar and muscle injury, a scar on the scalp due to shrapnel, residuals of cold injuries to the right and left feet, residuals of bilateral trench feet, left ear hearing loss, and tinnitus. The appellant seeks entitlement to service connection for the cause of the Veteran's death. When a Veteran dies from a service-connected disability, the Secretary shall pay DIC for such Veteran's surviving spouse, children or parents. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The death of a Veteran will be considered as having been 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). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the 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. Id. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category, there would be included service-connected diseases or injuries of any evaluation (even 100 percent evaluations) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Regulations 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 disease was incurred in service. 38 C.F.R. § 3.303(d). In cases where it is asserted that service connection is warranted for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Additionally, if a Veteran is a former POW, certain enumerated diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after discharge or release from active service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. The enumerated diseases include psychosis, any of the anxiety states, dysthymic disorder, organic residuals of frostbite, atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease and their complications (including myocardial infarction, congestive heart failure and arrhythmia)). See 38 C.F.R. 3.309(c)(1) (2012); cf. 38 U.S.C.A. §§ 1112(b)(1)(B), (b)(2)(L) (2012) (requiring that the former POW be interned or detained for not less than 30 days for presumptive service connection for heart disease). If a Veteran is a former POW and was interned or detained for not less than 30 days, certain enumerated diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after discharge or release from active service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied. The relevant enumerated diseases include Beriberi, malnutrition and other nutritional deficiency. See 38 C.F.R. 3.309(c)(2) (2012). For VA benefits purposes, a POW is a person who, while serving in the active military, naval or air service, was forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force. 38 U.S.C.A. § 101(32) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1(y) (2012). In determining whether an individual may be recognized as a POW, VA shall accept the findings of the appropriate service department regarding whether the individual was a POW during a period of war unless a reasonable basis exists for questioning it. 38 U.S.C.A. § 101(32) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1(y)(1) (2012); Manibog v. Brown, 8 Vet. App. 465 (1996); Young v. Brown, 4 Vet. App. 106 (1993); Duro v. Derwinski, 2 Vet. App. 530 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As previously noted, the appellant seeks entitlement to service connection for the cause of the Veteran's death. Specifically, she maintains that the cause of the Veteran's death is directly attributable to his military service - his participation in the Battle of the Bulge. She maintains the Veteran was isolated with his unit and suffered greatly from cold, malnutrition, depression and other Battle of the Bulge problems. The appellant further stated that based on the Veteran's participation in combat, for which he received the Combat Infantryman's Badge and a Purple Heart, and due to the isolation of his unit during the Battle of the Bulge, he qualifies as a former POW. Finally, she maintained that, during this time, he suffered from a B-1 deficiency, which caused Beriberi, and Beriberi ultimately led to the cause of his death - cardiomyopathy and Alzheimer's dementia. A review of the record does not support the appellant's assertions. The probative and persuasive evidence does not establish a link between the cause of the Veteran's death and his military service. For the reasons set forth below, service connection for the cause of the Veteran's death must be denied. As an initial matter, the Board notes the Veteran engaged in combat with the enemy during service, as evidenced by his receipt of a Purple Heart and his service-connected disabilities. 38 C.F.R. § 3.304(f); see 38 U.S.C.A. § 1154(b). However, there is no evidence in the claims file to support the appellant's assertions that the Veteran was a POW as a result of his participation in combat during the Battle of the Bulge. While service connection for residuals of cold injuries to the feet, trench feet, and shrapnel wounds of the left thigh and scalp were in effect, there is no evidence to suggest the Veteran was ever "forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force." 38 U.S.C.A. § 101(32) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1(y) (2012). As such, service connection for a psychosis, any of the anxiety states, dysthymic disorder, atherosclerotic heart disease or hypertensive heart disease, Beriberi, malnutrition, or any other nutritional deficiency, on a presumptive basis is not established. A review of the record also fails to establish that the cause of the Veteran's death was incurred in, aggravated by, or in any other way related to the Veteran's service. The Veteran's service treatment records are completely silent regarding a diagnosis of Beriberi, or even an indication of a B-1 deficiency due to malnutrition. Additionally, there is no indication of a cardiac disorder or Alzheimer's dementia in service. Following service, a September 1991 printed Compensation and Pension Master Record Rating Date lists service connection for Beriberi. However, there is no rating decision to reflect this award of service connection either prior to or after this printed record. In fact, the Veteran filed a claim of entitlement to service connection for Beriberi and other conditions in May 2006, prior to his death. In the June 2007 rating decision, the AOJ noted, in pertinent part, that the file did not support the grant of service connection for a cardiac condition, beriberi, and posttraumatic stress disorder. VA medical records dated from the 1980s through June 2006 show the Veteran was diagnosed with and treated for a multitude of disabilities. At the time of his death, his current health problems included cardiomyopathy, coronary artery disease, Alzheimer's dementia, diabetes, and atrial fibrillation. However, a diagnosis of Beriberi was not recorded. The Veteran's private treatment records from Bradford County Manor show he was admitted in June 2006 due to increasing confusion and difficulty with his family being able to care for him. The record then shows that the Veteran complained of malaise one evening, and was found unresponsive early the next morning. The Veteran was declared dead. In November 2007, the Veteran's VA primary care physician provided a written statement indicating the Veteran was treated for cardiomyopathy and dementia. She determined that these disorders were as likely as not a result of his Beriberi. The VA treating physician did not provide any rationale for this determination. In November 2012, the Board requested clarification from a neurologist through the Veterans Health Administration concerning whether the Veteran may have suffered from a B-1 deficiency during his military service, which in turn, resulted in Beriberi, or a substantially similar disorder, also attributable to a B-1 deficiency. In January 2013, the requested opinion was received by the Board. Dr. R.S., a neurologist, reviewed the Veteran's claims file. Dr. R.S. noted the Veteran's medical history, including his treatment for cardiac and psychiatric disorders. Dr. R.S. also noted that the Veteran was treated with high doses of thiamine (vitamin B-1) during the last year of his life. Dr. R.S. ultimately concluded that there is no evidence the Veteran suffered from a vitamin B-1 deficiency during his military service, although it is likely he was malnourished while serving during the Battle of the Budge, and may well have suffered from such vitamin deficiency during that time. Dr. R.S. added, however, there is also no evidence that a B-1 deficiency contributed to the Veteran's cardiomyopathy or dementia, or to his death. He continued it is unlikely that the cause of the Veteran's death, cardiomyopathy, with a significant condition of Alzheimer's dementia, is in any way attributable to the Veteran's military service, or is the result of a vitamin B-1 deficiency. Finally, Dr. R.S. stated that it is unlikely the cause of the Veteran's death was in any way attributable to, proximately caused by, or aggravated by any service-connected disability. By way of rationale, Dr. R.S. stated there is no mention that the Veteran suffered from symptoms of Wernicke's encephalopathy, which is due to a vitamin B-1 deficiency, which would cause acute confusion and usually involve opthalmoplegia and truncal ataxia. Dr. R.S. also noted the Veteran did not suffer from significant amnestic syndrome around the time of, or soon after, his military service to presume a diagnosis of Korsakoff Syndrome that is also believed to be due to a vitamin B-1 deficiency. Moreover, symptoms of dementia were not noted until about 2005 and, if the Veteran had suffered from malnutrition and vitamin B-1 deficiency during his military service, it is highly likely that he was nourished to the point where this was no longer a factor in his later cognitive function. Finally, Dr. R.S. admitted he is not a cardiologist, but he noted that the most common cause of congestive heart failure in the United States is due to ischemia and added that it seems most likely the Veteran's cardiomyopathy was ischemic in nature, since he was known to suffer from coronary artery disease since 1992. The VHA opinion is of great probative value because it is factually accurate, fully articulate, objective, and it contains reasons and bases for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). Indeed, while the Veteran's VA treating physician stated in November 2007 that the Veteran was treated for cardiomyopathy and dementia, which she determined were as likely as not a result of his Beriberi, this notation was conclusory and not supported by relevant facts, medical reasoning or other objective data. The VHA physician, a neurologist, thoroughly reviewed the Veteran's entire file, accurately summarized the facts and explained his opinions which were based on medical science and the specific facts of the Veteran's case. Moreover, the VHA opinion is consistent with the Veteran's service treatment records and the post-service evidence of record. Therefore, the VHA opinion outweighs the persuasive value of the treating physician's opinion and the appellant's assertions. It is acknowledged that the appellant has submitted medical treatise information concerning disorders of nutrition and metabolism. This information specifically refers to vitamin B-1 deficiencies and describes the relevant symptoms and treatment for such a deficiency. Indeed, a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, the medical treatise information provided by the appellant does not specifically relate to the facts and circumstances surrounding the Veteran's particular case, nor is it in any way referenced by the Veteran's treating physician. Rather, the information is general, without any specific reference to this particular case. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Thus, this medical information, alone, is of little or no probative value. Although the appellant no doubt sincerely believes in the viability of her claim, the Board has "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The determination is based on an analysis of all the evidence of record, both lay and medical, and the evaluation of its competency and credibility, which in turn determines its ultimate probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). While the appellant and her daughter are competent to testify as to the Veteran's observable symptomatology, such as difficulty digesting food or confusion, they are not competent or qualified, as laypersons, to render an opinion as to whether the Veteran suffered a vitamin B-1 deficiency during service, which led to Beriberi and ultimately resulted in the Veteran's death. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay testimony could, in certain circumstances, constitute competent nexus evidence, see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); however, in the instant case, the question regarding the potential relationship between any alleged vitamin B-1 deficiency and the Veteran's cardiomyopathy and Alzheimer's dementia is highly complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The impact of any vitamin B-1 deficiency, if it existed, on the Veteran's body, to include his other disabilities, involves a discussion of how such deficiency may interact with various systems within the body. A determination that requires medical expertise, which the appellant and her daughter do not have. Therefore, the Board finds the appellant's and her daughter's statements regarding a nexus between the Veteran's military service and the terminal diagnoses of cardiomyopathy and Alzheimer's dementia are not credible and are of no probative value. Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Ultimately, even when considering the Veteran's combat status, the probative evidence of record demonstrates that neither cardiomyopathy nor Alzheimer's dementia were present during service or for many years thereafter, and there is no probative evidence relating such disabilities to service, any event of service or to any service-connected disability. Moreover, as indicated previously, there is no probative or persuasive evidence demonstrating that the Veteran's service-connected disabilities caused, combined to cause, contributed substantially or materially to cause, or aided or lent assistance to, his death. Thus service connection for the cause of the Veteran's death is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine, but that doctrine is not applicable in this appeal. The preponderance of the evidence is against the appellant's claim. Entitlement to service connection for the cause of the Veteran's death is thereby denied. III. Basic Eligibility for DEA Educational assistance is available to a child or surviving spouse of a Veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C.A. §§ 3500, 3501(a)(1); 38 C.F.R. § 3.807, 38 C.F.R. §§ 21.3020, 21.3021. As noted above, the cause of the Veteran's death was not due to service or any service-connected disability. Additionally, no service-connected disability was evaluated as total and permanent at the time of the Veteran's death. Accordingly, the appellant is not eligible to receive educational benefits. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. § 3.807; 38 C.F.R. § 21.3021(a). With regard to this matter, the law is dispositive. Where the law is dispositive, the claim must be denied based on the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In conclusion, the Board truly emphasizes with the appellant's plight and is cognizant of the Veteran's honorable and heroic service, to include his receipt of the Combat Infantryman's Badge and Purple Heart. In rendering its decisions however, the Board is bound by regulations of the Department, instructions of the Secretary, and precedent opinions of the chief legal officer of the Department. 38 U.S.C.A. § 7104 (West 2002). The probative and persuasive evidence fails to show that the cause of the Veteran's death is in any way related to service or to any of the Veteran's service-connected disabilities. Additionally, because a permanent total disability rating was not in effect prior to the Veteran's death, entitlement to DEA benefits is denied by operation of law. CONTINUED ON THE NEXT PAGE ORDER Service connection for the cause of the Veteran's death is denied. Eligibility to Dependents' Educational Assistance is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs