Citation Nr: 1325569 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 12-19 908 ) 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 service connection for lung cancer, for the purpose of accrued benefits. 3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD), for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and the Veteran's daughter ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to January 1956. The Veteran died on August [redacted], 2009. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The appeal was certified to the Board by the RO in Detroit, Michigan. After the Veteran's death in August 2009, his widow submitted an October 2009 application for dependency and indemnity compensation (DIC), death pension, and accrued benefits. Under the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) which created 38 U.S.C.A. § 5121A (West Supp. 2012) (substitution in case of death of a claimant who dies on or after October 10, 2008), persons who would be eligible for accrued benefits may be substituted for a veteran who dies during the pendency of an appeal. Evidence associated with the claims file, including the Veteran's August 2009 death certificate and August 1955 marriage certificate, reflect that the appellant is his surviving spouse. As such, she is eligible to apply for accrued benefits and the Board infers her DIC and accrued benefits claim as a request for substitution as claimant in place of the Veteran. 38 U.S.C.A. § 5121A; see also 76 Fed. Reg. 8,666 -01 (Feb. 15, 2011) (Proposed Rule). In March 2013 the appellant testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. As a final preliminary matter, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they contain the testimony of the appellant's March 2013 Board hearing; all other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 issue of entitlement to a rating in excess of 30 percent for PTSD, for accrued benefits purposes, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for PTSD, rated as 10 percent disabling, and for gastroesophageal reflux disease (GERD), peptic ulcer disease, and gastrectomy, rated as 10 percent disabling. 2. The Veteran's Certificate of Death reflects that he died at the age of 75 on August [redacted], 2009. The immediate cause of death was lung cancer. There were no other underlying conditions contributing to death. 3. The Veteran's lung cancer was not demonstrated in service and the competent medical evidence preponderates against finding that his lung cancer was related to service, to include asbestos exposure therein. 4. There is no evidence of record indicating that the Veteran's service-connected PTSD or GERD, peptic ulcer disease, and gastrectomy were the immediate or underlying cause of his death, were etiologically related to the cause of his death, contributed substantially or materially to his death, or were of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered him materially less capable of resisting the effects of other disease causing death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lung cancer, for purposes of accrued benefits, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.1000 (2012). 2. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. In this case, the Veteran was service connected for two disabilities during his lifetime: PTSD, rated as 30 percent disabling, and GERD, peptic ulcer disease, and gastrectomy, rated as 10 percent disabling. In February and July 2010 the claimant was sent letters which explained VA's duty to assist her with developing evidence in support of her claims. This notice provided adequate explanatory notification, pursuant to Hupp, and informed the appellant that her husband was service connected for PTSD at the time of his death. The February and July 2010 notice letters failed to inform the appellant that the Veteran had also been granted service connection for GERD, peptic ulcer disease, and gastrectomy by the Board in June 2009. However, in February 2011, VA notified the appellant that a rating decision granted the Veteran's claim of entitlement to service connection for GERD, peptic ulcer disease, and gastrectomy with an evaluation of 10 percent, effective May 12, 2004. Furthermore, statements by the appellant made at her March 2013 hearing clearly show that she was aware that the Veteran had been granted service connection for a stomach disorder and she has not alleged, nor does the evidence show, that this condition contributed in any way to the Veteran's death. The Board finds that the duty to notify the appellant has therefore been adequately satisfied. The appellant has demonstrated actual knowledge of what type of information and evidence was needed to substantiate her claims, and the absence or deficiency of any particular notice letter in this case has been harmless error. The appellant has received all essential notice (or otherwise demonstrated actual knowledge of the pertinent contents of such notice), has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. Id. In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA also must make reasonable efforts to assist the appellant with obtaining evidence that is necessary in order 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; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the Veteran's service treatment records, private treatment records, and death certificate. A VA medical opinion was also obtained in September 2010. Also of record are the transcripts of Board hearings conducted in March 2013 and June 2007, various lay statements of the appellant, the Veteran, and the Veteran's daughter. The Board is not aware, and the appellant has not suggested the existence of, any additional pertinent and available evidence not yet received. The appellant was also provided an opportunity to set forth her contentions during the hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, at the March 2013 prehearing conference and during the hearing itself, the undersigned Acting Veterans Law Judge identified the issues on appeal (Transcript (Tr.), pg. 2). The undersigned explained the evidence needed to substantiate the appellant's claims (Tr., pgs. 6-7). Information was also solicited regarding the issues on appeal, including a description of the Veteran's in-service and civilian asbestos exposure (Tr., pgs. 4-6), and his diagnosed asbestosis and lung cancer, which led to his death (Tr., pg. 7). Furthermore, the record was left open for 60 days for submission of a medical nexus opinion (Tr., pgs. 8-9). The hearing discussion did not reveal any evidence that might be available that had otherwise not been submitted. Significantly, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the manner in which the Board hearing was conducted. As such, the Board finds that, consistent with Bryant, the undersigned Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims herein decided based on the current record. In conclusion, based on the foregoing, the Board finds that the appellant has not been prejudiced by any failure of VA in its duties to notify and assist her, and that any such violations could be no more than harmless error. See Conway, 353 F.3d 1369. Relevant Laws and Regulations The law provides that, upon the death of a veteran, a surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). An amendment to 38 U.S.C.A. § 5121 removed the two-year restriction upon payment of accrued benefits, providing that a claimant may recover the full amount due prior to the date of the veteran's death. This amendment applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Since in this case the Veteran died following the date of enactment, the revised provision is applicable. In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Therefore, in order for a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Jones, 136 F.3d 1299. Claims for accrued benefits are derivative in nature, such that a "claimant's entitlement is based on [a] veteran's entitlement" to service connection. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed Cir. 1996). The claim is based on evidence in the file at date of death, which means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). As indicated here, however, the appellant's DIC and accrued benefits claim have been inferred as a request for substitution as the eligible survivor of the Veteran. Unlike prior accrued benefits claims, where there has been substitution under 38 U.S.C.A. § 5121A the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated, by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be a disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regarding a claim for service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. 38 C.F.R. § 3.312. When it is determined that a veteran's death was service connected, his surviving spouse and/or children are generally entitled to dependency and indemnity compensation. See 38 U.S.C.A. § 101 (West 2002). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). The Board has reviewed all the evidence in the appellant'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 the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis In the current case, the appellant is claiming entitlement to service connection for lung cancer, for the purpose of accrued benefits, and entitlement to service connection for the cause of the Veteran's death due to lung cancer. A review of the record reveals that in May 2009, prior to his death, the Veteran filed a claim of entitlement to service connection for lung cancer. After the Veteran's death, the claim was denied by the Milwaukee RO in an October 2010 rating decision. The Veteran's widow, the appellant, submitted a notice of disagreement in December 2010 and perfected the appeal by filing a VA Form 9 in June 2012. The appellant also filed a claim for dependency and indemnity compensation in October 2009. The Veteran's August 2009 certificate of death indicates that the immediate cause of death was lung cancer, with no other underlying conditions contributing to his death. The appellant claims that the Veteran's lung cancer was caused by asbestos exposure during his naval service from 1952 to 1956. The appellant and her daughter have submitted several written statements describing the Veteran's in-service duties, including maintenance work and cleaning and painting in areas of the ship that were laden with asbestos. They assert that the Veteran was exposed to airborne asbestos fibers while in the Navy. At the March 2013 Board hearing, the appellant and her representative also reported that the Veteran was involved with refurbishment while the ship was in drydock and may have also been exposed to asbestos while loading missiles. They acknowledged that the Veteran worked at a General Motors factory from 1957 to 1996 and was exposed to asbestos, but argued that such exposure was minimal due to federal regulation of factory conditions. The appellant's daughter also testified at the March 2013 Board hearing that her father had described his tasks on board the ship as involving scraping paint, sweeping the floors, mopping the decks, and working in the laundry. She stated that she believed he was most exposed to asbestos in the laundry because of contact with asbestos-exposed clothes and asbestos-covered pipes. The appellant has also submitted information from the National Cancer Institute and other organizations which indicates that sailors had a heightened risk of exposure to asbestos and that asbestos exposure can put a person at risk for later developing asbestosis. The Veteran's service treatment records are silent for any complaints or treatment related to lung cancer, asbestosis, or other lung disorder. The Veteran's private medical records first show a pulmonary disorder in May 1994, when a chest X-ray revealed findings compatible with mild chronic obstructive pulmonary disease (COPD). In September 2000 the Veteran reported having chest discomfort and significant dyspnea, and stated that he had smoked two packs of cigarettes a day for 30 years, but quit 16 years ago. He was diagnosed with COPD. In October 2000 the Veteran again reported experiencing shortness of breath and stated that he had worked in asbestos 10-20 years ago. A CT scan was performed which showed minimal right lower lobe linear subsegmental atelectasis, and the Veteran's physician noted that there were no changes of asbestosis. The Veteran reported experiencing shortness of breath several times in 2001, and in May 2001 he described to a physician that he had "limited amounts of asbestos exposure" in service; it was noted that he did not work in the boiler or engine rooms on a regular basis. He stated that he had worked for General Motors from 1957 to 1996, where the majority of the time he worked in Plant 4 doing machining, assembly, and job setting. For 5-7 years he worked around clutch plates which contained asbestos and had tasks that involved grinding on asbestos. He reported that there were other exposures to asbestos and visible asbestos dust in the air throughout his employment. He said that the heaviest dust was discontinued by the mid-1980s, but there was still some asbestos in his environment even when he retired. The physician found that the Veteran had a long history of exposure to asbestos and that laboratory data showed the characteristic abnormalities of an interstitial fibrotic lung disease; he was diagnosed with asbestosis. In May 2009 the Veteran was diagnosed with bronchogenic adenocarcinoma (lung cancer). The Veteran's private medical records show that in July 2009 he was treated with chemotherapy, palliative radiation therapy, and medication for lung cancer. In August 2009 he passed away from this condition. An August 2009 letter from the Veteran's physician (Dr. M.A.) states that he had informed her that he had been exposed to asbestos as part of his occupation in the Navy. In September 2010 a VA medical opinion was requested from a VA physician examiner. The examiner reviewed the Veteran's private medical records and service treatment records, and stated that while the Veteran died of lung cancer, and asbestosis is linked to an increase in the occurrence of lung cancer, "the large majority" of the Veteran's exposure to asbestos occurred during his almost 40 year post-military employment with General Motors, and very little exposure occurred during his service. The examiner ultimately opined that it was less likely than not that the Veteran's death was caused by his in-service asbestos exposure. A March 2013 statement from another of the Veteran's physicians (G.K.) stated that he had been treated for advanced non-small cell lung cancer in July 2009, and that he had been exposed to asbestos, a known cause of lung cancer, in the Navy, and therefore it was at least as likely as not that his lung cancer resulted from his exposure to asbestos in service. In this case, competing medical opinions have been presented as to whether the Veteran's lung cancer, which led to his death, was caused by in-service asbestos exposure. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). On review, the Board finds the September 2010 VA opinion more probative than that provided by the Veteran's treating physician. The September 2010 VA examiner provided a rationale for her opinion, which was based on a full review of the Veteran's claims file and medical history, in order to provide a fully informed opinion regarding the connection between the appellant's service and lung cancer. Significantly, the examiner considered both the Veteran's in-service and civilian asbestos exposure, including his detailed accounts of asbestos exposure during decades of employment at General Motors, and came to the informed conclusion that it was less likely than not that his lung cancer was caused by his service. The only other medical evidence to offer an opinion regarding the possible nexus between the Veteran's lung cancer and his service is the March 2013 private physician's letter. While this physician came to the conclusion that the Veteran's lung cancer was as likely as not caused by in-service asbestos exposure, there is no indication that the physician considered the Veteran's civilian asbestos exposure. It does not appear that his opinion was made based on a full understanding of the Veteran's entire history. As a medical opinion can be no better than the facts alleged, an opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Because the physician's opinion did not address the full scope of the Veteran's asbestos exposure, it has little, if any probative value. Rather, the Board finds the VA examiner's opinion to be entitled to the greatest probative weight, as the opinion was based on a full review of the record and provided a rationale for the conclusion reached. The Board also notes that appellant has submitted information from the National Institute of Health and other organizations concerning a relationship between Naval service and asbestos exposure. However, such evidence, standing alone, does not address the facts that are specific to the Veteran's case and does not establish a relationship between the Veteran's lung cancer and service. Accordingly, it is of negligible probative value. Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board finds the opinions of the VA examiner, who considered the facts specific to the Veteran, to be of significantly greater probative value in this case. To the extent the appellant believes that the Veteran's lung cancer was caused by asbestos exposure in service, the Board finds the medical opinion of the VA examiner on this question to be of greater probative value than any lay assertions of record, those of the appellant and the Veteran's daughter. In this regard, there is no indication that the appellant or the Veteran's daughter have any specialized medical knowledge, and as laypersons, they are not competent to provide a medical opinion on the etiology the Veteran's lung cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The September 2010 VA examiner provided the most probative medical opinion of record which was based on a full review of the Veteran's history and medical records. The examiner considered the Veteran's full history of asbestos exposure and provided an adequate rationale for her opinion. Thus, this opinion is entitled to the greatest probative weight, and the Board finds it to be more probative than the lay assertions of the appellant or the Veteran's daughter regarding the etiology of his lung cancer. Additionally, although the appellant alleges the majority of the Veteran's exposure to asbestos occurred in service and not in his civilian employment, statements the Veteran made to his treating physicians in 2000 and 2001 directly contradict those assertions. During the Veteran's May 2001 private evaluation at which he was first diagnosed with asbestosis, he described his work in the General Motors factory at length, including very specific information regarding the types of asbestos exposure and over what period of time. The Veteran clearly stated then that his exposure to asbestos in service was "limited" and it was noted that he did not work in the boiler or engine rooms. Such histories reported by the Veteran for treatment purposes are of more probative value than any more recent assertions and histories given for VA disability compensation purposes after the current claim for service connection for lung cancer was initiated. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Pond v. West, 12 Vet. App. 341 (1999) (although Board must take lay statements into consideration, it may consider whether self-interest may be a factor in making such statements). The Board finds that recent lay assertions that the Veteran did not have significant exposure to asbestos during his civilian employment are not credible because they are inconsistent with the highly probative medical history that the Veteran himself provided to his treating physicians in October 2000 and May 2001. See, e.g., Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board also notes that regarding the claim for service connection for cause of death, it may alternatively be considered whether the Veteran's service-connected disabilities, PTSD and GERD, peptic ulcer disease, and gastrectomy caused or contributed substantially or materially to his death because these disabilities were of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered him materially less capable of resisting the effects of other disease causing death. However, there has been no suggestion or indication that this is the case in any of the medical records or the appellant's assertions. The terminal medical records and certificate of death record no other cause of death or contributing causes of death, other than the lung cancer. Thus, the Board concludes that the Veteran's service-connected disabilities were not the immediate or underlying cause of death and were not etiologically related to the cause of death. See 38 C.F.R. § 3.312(c)(1); see also Lathan, 7 Vet. App. 359. In sum, in order to establish service connection there must be evidence of an in-service incurrence or aggravation of a disease or injury, a present disorder, and a link between the two. In this case, lung cancer or other lung disorder was not shown in service, and the preponderance of the most probative evidence reveals no nexus between the Veteran's service and lung cancer. Without competent and probative evidence indicating that lung cancer was caused by or otherwise related to the Veteran's service that is of greater or at least equal weight to evidence to the contrary, service connection is not warranted. Although the Board is sympathetic to the appellant's assertions and by no means wishes to minimize the honorable period of service the Veteran provided, the claims for entitlement to service connection for the cause of Veteran's death and for entitlement to service connection for lung cancer, for the purpose of accrued benefits, must be denied. The preponderance of the evidence of record simply does not establish that the Veteran's lung cancer was caused by his military service. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for lung cancer, for the purpose of accrued benefits, is denied. Entitlement to service connection for the cause of the Veteran's death is denied. REMAND The appellant also contends that the Veteran's PTSD warranted a rating higher than 30 percent. The Veteran was granted service connection for PTSD in August 2004 and assigned an initial rating of 30 percent. In May 2009 the Veteran filed a claim for an increased rating for PTSD. In July 2009 the Veteran was scheduled for a VA psychiatric examination, but was unable to attend due to illness. The Veteran died in August 2009, and as mentioned above, his widow has been substituted as the appellant. 38 U.S.C.A. § 5121A. The appellant indicated at the March 2013 Board hearing that the Veteran had been undergoing psychiatric treatment at the VA Tennessee Valley Healthcare System in Nashville, Tennessee. However, other than the report of an August 2004 VA psychiatric examination, no VA records related to psychiatric treatment have yet been reviewed or associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Bell, 2 Vet. App. at 613. The Veteran's psychiatric treatment records during the period on appeal clearly have the potential to impact the evaluation of the appellant's current claim, and such records are therefore directly relevant to the issue on appeal and should be associated with the claims file. See 38 U.S.C.A. § 5103A(a), (b), (c); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should obtain from the VA Tennessee Valley Healthcare System all outstanding, pertinent records of psychiatric treatment of the Veteran. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records received should be associated with the claims file. 2. Following the completion of the above, the RO/AMC should review the evidence and determine whether the benefit requested may be granted. If not, the appellant and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs