Citation Nr: 1327019 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-32 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. 3. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 for the death of the Veteran. 4. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the lung and esophagus caused by VA radiation therapy, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from April 1953 to April 1956 and from August 1958 to March 1961. The Veteran died in June 2007. The appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2013, the appellant presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. After this hearing, the appellant was given 60 days to submit additional evidence. See 38 C.F.R. § 20.709 (2012). She submitted additional private medical records in April 2013. In an August 2013 memorandum, the appellant's representative waived her right to have the RO initially consider this additional evidence. See 38 C.F.R. §§ 20.709, 20.800, 20.1304(c) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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). The Board is adjudicating the cause of death and section 1318 issues on appeal. However, the remaining section 1151 issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran died in June 2007. The death certificate lists the immediate cause of death as lung cancer. The death certificate states that lung cancer had been present for one year. No contributory cause of death was listed, but it was noted that tobacco use contributed to the Veteran's death. 2. At the time of his death, the Veteran had service-connected disabilities: a low back injury with chronic muscular strain and degenerative changes, rated as 40 percent disabling; left lower extremity postoperative radiculopathy, rated as 40 percent disabling; and right lower extremity postoperative radiculopathy, rated as 40 percent disabling. 3. There is no evidence that the Veteran's service-connected lumbar spine and bilateral lower extremity disabilities were a principal or contributory cause of his death. 4. Lung cancer was not manifest during service or within one year of separation. Lung cancer is not attributable to service. 5. The Veteran was not evaluated totally disabled for service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war (POW). 6. The Veteran was not "entitled to receive" total service-connected disability compensation by way of the eight possible exceptions listed under 38 C.F.R § 3.22(b). CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially to the cause of death. 38 U.S.C.A. §§ 101(16), 1101, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2012). 2. The criteria are not met for DIC pursuant to 38 U.S.C.A. § 1318. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.22, 20.1106 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist For the cause of death and § 1318 issues being denied, review of the claims folder reveals limited compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The RO sent the appellant VCAA notice letters in August 2007 and March 2008. These letters provided some guidance for the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing her about the information and evidence not of record that was necessary to substantiate her cause of death and § 1318 claims; (2) informing her about the information and evidence the VA would seek to provide; (3) informing her about the information and evidence she was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO did not, however, provide VCAA notice that an effective date for the award of benefits will be assigned if DIC benefits are awarded, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Regardless, since DIC benefits are being denied for both the cause of death and § 1318 issues, no effective dates will be assigned on this basis, so not providing additional notice concerning this downstream element of the claim is moot and, therefore, at most harmless error. See, too, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Both VCAA notice letters are not fully compliant with the Court's decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In Hupp, the Court held that § 5103(a) notice in a DIC 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. 21 Vet. App. at 352-53. Both VCAA notice letters did not provide any statement listing the Veteran's service-connected conditions and only partially satisfied the other Hupp elements as well for the cause of death and § 1318 claims at issue. As such, there is a content error here. In any event, the appellant's personal statements and hearing testimony demonstrate she has actual knowledge of what evidence is required to establish service connection for the cause of the Veteran's death and entitlement to DIC pursuant to 38 U.S.C.A. § 1318. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (any notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). Specifically, at the March 2013 hearing, for the cause of death issue, the appellant was advised that to establish cause of death, there must be evidence that the fatal disease process was due to service or a service-connected disability. For the § 1318 issue, the appellant was advised that to establish a § 1318 claim, there must be compensation in effect at the 100 percent rating for 10 years prior to death. Despite this discussion, the appellant did not offer any evidence or argument with respect to either claim. Significantly, the appellant's representative stated he was not sure why either the cause of death or section 1318 issues were on appeal, as the appellant's claim centered rather on the § 1151 issues. The actions of the Veterans Law Judge supplement the VCAA and comply with 38 C.F.R. § 3.103. Furthermore, the Board concludes that a reasonable person in the appellant's position would have known from the information she received what she was required to submit in order to substantiate her claim. See Mlechick, 503 F.3d at 1344 (VCAA notice error not prejudicial when a reasonable person could be expected to understand from the record what was needed). That is, the May 2010 SOC provided the appellant with a summary of the pertinent evidence as to her cause of death and § 1318 claims, a citation to the pertinent laws and regulations governing these claims, and a summary of the reasons and bases for the RO's decision to deny her cause of death and § 1318 claims. This SOC provided copies of the pertinent statutes and regulations for establishing both cause of death and compensation under § 1318. So overall, the Board is satisfied the appellant was afforded a meaningful opportunity to participate in the adjudication of her claims. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). As such, the Board concludes prejudicial error in the content of VCAA notice has not been established as any alleged error was not outcome determinative. See Shinseki v. Sanders, 556 U.S. 396 (2009) (An error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA treatment records, VA examinations, and private treatment records as identified and authorized by the appellant. The appellant has provided the RO with written argument, hearing testimony, personal statements, additional private terminal medical records prior to death, and a death certificate. There was no autopsy report. The Board finds that the duty to assist does not require that a VA medical opinion be obtained with respect to the appellant's claim for cause of death benefits. This is so because no reasonable possibility exists that a medical opinion would aid in substantiating her claim: the record contains no lay allegation or medical evidence that the lung cancer which caused the Veteran's death was related to service or to a service-connected disability, or that any service-connected disability (such as the lumbar spine) caused or contributed to the Veteran's death. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (38 U.S.C.A. § 5103A(a) does not require the VA to assist a claimant in obtaining a medical opinion in a DIC claim when no reasonable possibility exists that such assistance would aid in substantiating the claim). With regard to the March 2013 hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012). At the March 2013 hearing, the undersigned Veterans Law Judge, representative, and appellant outlined the cause of death and § 1318 issues on appeal and engaged in a colloquy as to substantiation of these claims. For the cause of death issue, the appellant was advised that to establish cause of death, there must be evidence that the fatal disease process was due to service or a service-connected disability. For the § 1318 issue, the appellant was advised that to establish a § 1318 claim, there must be compensation in effect at the 100 percent level for 10 years prior to death. The undersigned suggested what evidence would be favorable for both issues. In any event, for both issues, the appellant and her representative did not offer any substantive argument. Rather, their testimony was focused on the § 1151 issues currently being remanded. See hearing testimony at pages 2, 7-8. The file was also left open for 60 days for the submission of additional evidence. The actions of the Veterans Law Judge supplement the VCAA and comply with any duty that is owed during a hearing under 38 C.F.R. § 3.103. In short, the Travel Board hearing was legally sufficient. There has been no allegation to the contrary from either the appellant or her representative. In summary, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Cause of Death When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, the Veteran's surviving spouse is generally entitled to DIC. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.5(a) (2012); see generally 38 U.S.C.A. Chapter 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), are not held to have contributed to a death that is primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) 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). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was incurred or aggravated by service. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. With regard to service connection, Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some diseases on the other hand are chronic, per se, such as malignant tumors, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). Therefore, a medical opinion is not always required to establish such a nexus. Id. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Cause of Death Upon review of the evidence of record, the Board denies the claim for service connection for the cause of the Veteran's death. In this case, the Veteran died in June 2007. The Veteran was 71 years of age. The death certificate lists the immediate cause of death as lung cancer. The death certificate states that the lung cancer had been present for one year. No contributory cause of death was listed, but it was noted that tobacco use contributed to death. No autopsy was conducted. At the time of his death in June 2007, the Veteran had several service-connected disabilities: a low back injury with chronic muscular strain and degenerative changes, rated as 40 percent disabling; left lower extremity postoperative radiculopathy, rated as 40 percent disabling; right lower extremity postoperative radiculopathy, rated as 40 percent disabling. The combined service-connected disability rating was 80 percent at death. See 38 C.F.R. § 4.25 (combined ratings table). At the time of death, the Veteran was also in receipt of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective from December 14, 2004. The appellant has submitted no specific allegation or evidence as to how the Veteran's death was service-connected or the result of service-connected disability. Significantly, the appellant's representative stated he was not sure why either the cause of death or section 1318 issues were even on appeal, as the appellant's claim centered rather on the § 1151 issues. See March 2013 hearing testimony at pages 2, 7-8. In any event, there is no clinical evidence or lay allegation the Veteran's service-connected lumbar spine or lower extremity disabilities were a principal or a contributory cause of death. 38 C.F.R. § 3.312(a). In addition, the Board finds no probative evidence or allegation of a secondary connection between the lung cancer cause of his death listed on the death certificate and the Veteran's service-connected lumbar spine or lower extremity disabilities. 38 C.F.R. §§ 3.1(k), 3.303, 3.310. Private medical evidence and VA treatment records do reflect that the Veteran was treated for his service-connected low back and lower extremity disabilities from 2004 to 2007, just prior to his death in June 2007. However, this evidence does not reveal that his service-connected lumbar spine or lower extremity disabilities contributed substantially or materially, combined, aided, or lent assistance to his death. 38 C.F.R. § 3.312(c). No medical professional or layperson has stated as such. Mere treatment for the Veteran's low back and lower extremities prior to death is not equivalent to a causal connection. In addition, the evidence does not demonstrate that his service-connected lumbar spine or lower extremity disabilities caused or aggravated the lung cancer cause of death listed on the death certificate. See 38 C.F.R. § 3.310. No such theory has been alleged by the appellant nor demonstrated in the present case. With regard to the presently nonservice-connected cause of death listed on his death certificate (lung cancer), there is also no probative evidence of a nexus between lung cancer and the Veteran's periods of active service in the 1950s and early 1960s. 38 C.F.R. §§ 3.1(k), 3.303; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). That is, service connection is not warranted for the immediate cause of death listed on the Veteran's death certificate - lung cancer. The appellant-widow has never specifically contended, and evidence does not otherwise establish, that the lung cancer cause of death listed on the death certificate has its onset during the Veteran's active service many years ago or within one year of separation. Rather, the evidence establishes that lung cancer first manifest long after service. Specifically, STRs are silent as to any complaints, treatment, or diagnosis of lung cancer during service. Post-service, there is also no probative evidence or allegation of a malignant tumor within one year after the Veteran's separation from service in 1961 or 1962. Therefore, the presumption of in-service incurrence is not for application. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Post-service, although lung cancer (a malignant tumor) is an enumerated "chronic disease," there is no probative evidence of lung cancer until the mid-2000s, decades after discharge from service. Thus, in the present case, service connection by way of chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b) for an enumerated "chronic disease" such as lung cancer is not warranted here. Walker v. Shinseki, 708 F.3d 1331, 1336-40 (Fed. Cir. 2013). Moreover, there also is no probative medical or lay evidence (no nexus evidence) linking the Veteran's lung cancer with his periods of active service. Holton, 557 F.3d at 1366. With regard to lay evidence, as noted above, in certain instances lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in-service disease or injury. Davidson, 581 F.3d at 1315-16. However, the appellant has not offered any probative lay evidence on this issue in the present case. In any event, any such allegation would be clearly outweighed by the evidence of record discussed above. The Board acknowledges that the death certificate indicates that tobacco use contributed to the Veteran's death. In this regard, for claims filed after June 9, 1998, the law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a Veteran during active duty service. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2011). In any event, it does not appear from the record that the appellant made such an assertion regarding the Veteran's tobacco use. Accordingly, the preponderance of the evidence is against service connection for the cause of the Veteran's death, so there is no reasonable doubt to resolve in the appellant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Governing Laws and Regulations for 38 U.S.C.A. § 1318 Claim Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse or children in the same manner as if the Veteran's death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was "entitled to receive," compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. § 3.22(a) (2012). The total rating may be schedular or may be a total disability rating based on unemployability (TDIU). 38 C.F.R. § 3.22(c). The term "entitled to receive" means that, at the time of death, the Veteran had filed a claim for disability compensation during his lifetime, and the Veteran had service-connected disability rated totally disabling by VA for the requisite time period, but was not receiving compensation due to six possible circumstances: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; (3) the Veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (5) VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b)(3). In addition, the term "entitled to receive" can mean that the Veteran filed a claim for disability compensation during his lifetime and one of the following two circumstances is met: (1) the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the Veteran's lifetime concerning the issues of service connection, disability evaluation, or effective date; or (2) additional evidence submitted to VA before or after the Veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section. 38 C.F.R. § 3.22(b)(1) and (2). The Federal Circuit has ruled that § 1318 DIC claims are not subject to a "hypothetical entitlement" analysis. Rodriguez v. Peake, 511 F.3d 1147, 1156 (2008). See also Tarver v. Shinseki, 557 F.3d 1371, 1377 (Fed. Cir. 2009). In essence, under Rodriguez and Tarver, the amended regulation 38 C.F.R. § 3.22 does not have an impermissible retroactive effect, and it may be applied to bar DIC claims filed by survivors under the "hypothetical entitlement" theory, no matter when the § 1318 claim was filed. Simply put, there is no longer "hypothetical entitlement" to DIC benefits under any circumstance. Therefore, the state of the law is such that claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the Veteran's lifetime and without consideration of hypothetical entitlement for benefits raised for the first time after a Veteran's death. See again Rodriguez v. Peake, 511 F.3d 1147 (2008). Analysis - 38 U.S.C.A. § 1318 Claim The appellant has submitted no specific allegation or evidence as to why the section 1318 issue should be granted. In fact, the appellant's representative stated he was not sure why the section 1318 issue was on appeal, as the appellant's claim centered rather on the section 1151 issues. See March 2013 hearing testimony at pages 2, 7-8. In any event, the Board will proceed to evaluate the merits of the section 1318 appeal. As discussed above, the Veteran died in June 2007. Prior to death, the Veteran had been in receipt of a total TDIU rating, effective from December 14, 2004. This is a period of just over three years. In other words, the Veteran was not continuously rated as totally disabling (100 percent) for the 10 years immediately preceding his death in June 2007. He also did not have total disability (100 percent) for at least five years from the date of his separation from service in March 1961. Furthermore, there is no indication or allegation that he was a former POW. The Board adds that even if any of the § 1151 claims on appeal were eventually granted, the Veteran still would not be in receipt of a total disability rating (100 percent) for the 10 years immediately preceding his death in June 2007. On that point, the § 1151 claims stem from VA treatment in the mid-2000s, which negate the possibility of a total rating being effective back to the 1990s. Thus, the Board finds that the Veteran was not in actual receipt of total 100 percent disability compensation due to service-connected disabilities prior to his death in June 2007 for any of the required periods of time. 38 U.S.C.A. § 1318(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.22(a) (2012). Therefore, the Board finds that entitlement to 38 U.S.C.A. § 1318 benefits are not met on this basis. Although the Board is sympathetic to the appellant's assertions, any potential claim based on "hypothetical entitlement" is now barred as matter of law, no matter when the DIC claim for benefits was filed. Rodriguez, 511 F.3d at 1156; Tarver, 557 F.3d at 1377. Here, the appellant filed her claim for DIC benefits pursuant to 38 U.S.C.A. § 1318 in August 2007. In any event, as decided in Rodriguez and Tarver, the January 2000 changes to 38 C.F.R. § 3.22 are retroactively applicable and bar recovery on the hypothetical entitlement theory, irrespective of when the § 1318 DIC claim was filed. Accordingly, in as much as the appellant has asserted a claim based on "hypothetical entitlement," the Board concludes any theory of hypothetical entitlement is barred in the present case pursuant to the applicable regulation, 38 C.F.R. § 3.22, as well the Federal Circuit's holdings in Rodriguez and Tarver. It follows that, because any proffered theory of hypothetical entitlement for § 1318 benefits is barred as a matter of law, the appellant can only establish entitlement to § 1318 benefits if she shows that the Veteran was "entitled to receive" total disability compensation by way of one of the eight possible exceptions listed under 38 C.F.R. § 3.22(b)(1)-(3). However, there is no allegation by the appellant or any evidence of record showing that she has met the criteria for any one of the eight exceptions listed under 38 C.F.R. § 3.22(b). In this regard, there has been no allegation or evidence of CUE in any prior RO or Board decision, nor has the appellant or her representative identified any other basis for granting the § 1318 claim. 38 C.F.R. § 3.22(b)(1). With regard to CUE, the appellant has not provided 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. See Cole, 13 Vet. App. at 268. In fact, neither the appellant nor her representative has ever mentioned CUE. In addition, the appellant has not submitted additional service department records that would provide a basis for reopening a previous claim and awarding a total service-connected disability retroactively. 38 C.F.R. § 3.22(b)(2). Moreover, the appellant also does not meet any of the remaining six exceptions listed under 38 C.F.R. § 3.22(b)(3)(i)-(vi). Specifically, there is no simply no indication that VA was paying the compensation to the Veteran's dependents; VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; the Veteran had not waived retired or retirement pay in order to receive compensation; VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22(b)(3). In short, there is no legal basis for granting the appellant's claim pursuant to 38 U.S.C.A. § 1318. Her claim for DIC benefits pursuant to 38 U.S.C.A. § 1318 would essentially be a claim for hypothetical entitlement, which is barred as a matter of law. Accordingly, the appellant's claim under the provisions of 38 U.S.C.A. § 1318 must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). ORDER Service connection for the cause of the Veteran's death is denied. DIC pursuant to 38 U.S.C.A. § 1318 is denied. REMAND For purposes of establishing entitlement to section 1151 benefits, a disability or death is a qualifying additional disability or qualifying death if the disability or death: (1) was not the result of the Veteran's willful misconduct; and (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was - (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.361(a)-(d). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1). The appellant contends that the Veteran developed additional disability to the lung (radiation pneumonitis) and esophagus as the result of his VA radiation treatment in December 2006 and January 2007. As such she believes the Veteran is entitled to § 1151 benefits on an accrued basis. Her statements and the Veteran's statements contend that due to "over-radiation" by VA medical personnel in order to treat the Veteran's lung cancer at the VA Medical Center (VAMC) in Portland, Oregon, the Veteran developed additional disability to the lungs (radiation pneumonitis) and esophagus, leading to his eventual death. The appellant states that the Veteran had to be hospitalized shortly after his VA radiation therapy, as his overall condition worsened significantly. The appellant believes that the Veteran's esophagus deteriorated to the point that he could not breathe anymore due to VA's excessive radiation treatment. He also developed radiation pneumonitis. She says that a private physician told her there was additional disability to the lung and esophagus. See March 2013 hearing testimony at pages 4-10; Veteran's April 2007 claim for section 1151 benefits; Veteran's May 2007 statement; appellant's June 2009 NOD. In addition, the appellant also contends that the Veteran's death from lung cancer was the result of the failure of VA medical personnel to timely diagnose and properly treat the Veteran's lung cancer. The Veteran's lung cancer was not diagnosed until September 2006 by way of private X-ray. However, in the two to three year period preceding the Veteran's death in 2007, the appellant contends that VA medical personnel failed to diagnose and properly treat the lung cancer despite its presence on VA X-rays of the chest in 2003 and 2004. She says the Veteran was misdiagnosed with pneumonia by VA; thus the VA did not catch the Veteran's lung cancer in a timely fashion until it was too late, leading to his death. See November 2007 appellant's statement; March 2013 hearing testimony at pages 4, 11. Before addressing the merits of the remaining § 1151 issues, the Board finds that additional development of the evidence is required. A remand is required to secure the actual VA X-ray films of the chest dated in December 2003, March 2004, and April 2004. These VA X-ray reports are present in the claims folder, but the actual VA X-ray films or electronic equivalent are not. The Veteran's lung cancer was not diagnosed until September 2006 by way of private X-ray. However, in the two to three year period preceding the Veteran's death in 2007, the appellant contends that VA medical personnel failed to diagnose and properly treat the lung cancer despite its presence on VA X-rays of the chest in 2003 and 2004. She says VA misdiagnosed the lung cancer as pneumonia. It is important that VA medical personnel, prior to rendering any medical opinion in the present case, have access to the above VA X-ray films to determine if the Veteran's lung cancer was present in 2003 or 2004. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Also, a VA opinion from an appropriate clinician on the § 1151 issues on appeal is required. Also, the accrued benefits claim for § 1151 benefits is inextricably intertwined with the §1151 DIC claim. As such, the Board must adjudicate the two claims at the same time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the § 1151 issues are REMANDED for the following action: 1. The RO/AMC must attempt to secure copies of the actual VA X-ray films or electronic equivalent of the Veteran's chest dated in December 2003, March 2004, and April 2004 from the VAMC in White City, Oregon. The X-ray reports are already of record, but the actual VA X-ray films or electronic equivalent are needed, if still available. It is important that the VA medical examiner, prior to rendering any medical opinion for the § 1151 issues in the present case, have access to the above VA X-ray films or electronic equivalent to determine if lung cancer was present back in 2003 or 2004. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. After securing the actual VA X-ray films or electronic equivalent of the Veteran's chest dated in December 2003, March 2004, and April 2004, the RO/AMC must secure a VA medical opinion from the appropriate clinician to address the section 1151 issues on appeal. A clear rationale for all opinions is required and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be made available for review for the examination and the addendum report must state whether such review was accomplished. In providing the opinion, the reviewing VA clinician must answer the following: (a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran had additional disability to the lung (radiation pneumonitis) or damage to the esophagus as the result of VA radiation treatment in December 2006 and January 2007? (b) If the Veteran had additional disability to the lung (radiation pneumonitis) or damage to the esophagus as the result of VA radiation treatment, is it at least as likely as not (50 percent or more probable) the proximate cause of these additional disabilities was due to an event not reasonably foreseeable stemming from the Veteran's radiation treatment in December 2006 and January 2007? In making this determination, the VA clinician should indicate whether the Veteran's (radiation pneumonitis) or any damage to the esophagus after his VA radiation treatment was the type of risk that a reasonable health care provider would have disclosed in connection with any consent forms signed by the Veteran. The VA clinician should also address the appellant's contention that the Veteran received "excessive" amounts of radiation leading to his eventual death. (c) Is it at least as likely as not (i.e., 50 percent or more probable) that was the proximate cause of the Veteran's death from lung cancer was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? In other words, address whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider by failing to diagnose and treat the lung cancer at an earlier date after reviewing earlier VA X-rays or electronic equivalent dated in 2003 and 2004. In answering this question, please address whether VA failed to timely diagnose and properly treat the lung cancer, proximately causing the continuance or natural progress of the lung cancer. In answering this question, please also review the symptoms reported by the Veteran in VA treatment records dated from 2004 to 2007 and the actual VA chest X-ray films or electronic equivalent and reports dated in December 2003, March 2004, and April 2004, that noted an "infiltrate vs. nodule" in the left upper lung. (d) In addressing the above questions, the VA clinician is advised the appellant contends that due to "over-radiation" by VA medical personnel to treat the Veteran's lung cancer at the VAMC in Portland, Oregon, the Veteran developed additional disability to the lungs (radiation pneumonitis) and damage to his esophagus, leading to his eventual death. In addition, the appellant contends that VA medical personnel failed to diagnose and properly treat lung cancer despite its alleged presence on earlier VA X-rays of the chest in 2003 and 2004. She says the Veteran was misdiagnosed with pneumonia by VA from 2004 to 2006 - thus she maintains that VA was negligent in not catching the Veteran's lung cancer in a timely fashion until it was too late, leading to his death. (e) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. 4. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the § 1151 issues on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the appellant and her representative an opportunity to respond. (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.) Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the appellant until she is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs