Citation Nr: 1328616 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-24 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to accrued benefits. 2. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. 3. Entitlement to death pension benefits. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to February 1965. The Veteran died in August 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. At the time of the Veteran's death in August 2006, he was not service-connected for any disability and did not have any claim pending before VA. 2. The claim for death benefits was received in August 2008. 3. The Certificate of Death reflects that he died at the age of 62 in August 2006. The immediate cause of death was cardiogenic shock due to myocardial infarction (MI) due to ruptured abdominal aortic aneurysm. There were no significant conditions contributing to death and an autopsy was not performed. 4. The ultimately terminal abdominal aortic aneurysm and heart disability were not initially manifested during his service or within one year of his separation and were not related or attributable to his service. 5. The appellant does not have any dependent children. 6. The Veteran's daughter paid the Veteran's funeral expenses. 7. For the 2008 pension year, the claimant's countable annualized income was $20,160. 8. For the 2009 and 2010 pension years, the claimant's countable annualized income was $10,572. CONCLUSIONS OF LAW 1. The criteria for establishing a claim of entitlement to accrued benefits have not been met. 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). 3. The appellant's annual countable income for 2008-2010 is excessive for the purposes of establishing eligibility for nonservice-connected death pension benefits. 38 U.S.C.A. §§ 101, 501, 1151, 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.24, 3.271, 3.272, 3.274, 3.275, 3.350 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Court issued certain directives pertinent to cases where the issue is service connection for the cause of a veteran's death in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court held that there is no preliminary obligation on the part of VA to perform, what in essence would be, a predecisional adjudication of a claim prior to providing to the Veteran section 5103(a) notice. Although section 5103(a) does not require a "predecisional adjudication" of the evidence in each case, the notice must be responsive to the particular application submitted. See Kent v. Nicholson, 20 Vet. App. 1 (2006), at 9 ("The legislative interest underlying the VCAA notice requirement is the intent of Congress to provide Veterans a meaningful opportunity to participate in the adjudication of claims"). This means that there is a middle ground between a predecisional adjudication and boilerplate notice with regard to the amount of detail and degree of specificity VA must provide for section 5103(a)-compliant notice. The Court later stated that a more detailed notice potentially discourages a Veteran from submitting additional or corroborative notice, and is contrary to the VCAA's purpose. However, in DIC cases where a veteran was service-connected during his or her lifetime, the Court found that section 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 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. However, where a veteran was not service-connected during his or her lifetime, the same did not apply. The Court held that in those cases, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Further, section 5103(a) preadjudication notice, the Secretary or VA is not required to inform a DIC claimant of the reasons for any previous denial of the Veteran's service connection claim. In this case, the Veteran was not service-connected for a disability during his lifetime. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A pre-decisional VCAA letter was sent in September 2008. The indicated the type of evidence and information needed to substantiate the claims and apprised the appellant of the appellant's and VA's respective responsibilities in obtaining this supporting evidence. The letter also notified the appellant that an effective date for the award of benefits will be assigned if service connection is awarded, in compliance with Dingess. Regarding the duty to assist, the Veteran's service medical records and pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The Board acknowledges that VA has not sought a medical opinion with respect to the appellant's claim for service connection for the cause of the Veteran's death. However, in light of the uncontroverted facts, as discussed below, the Board finds that there is no evidence indicating that the cause of the Veteran's death is related to service. Therefore, the Board finds that a medical opinion is not necessary to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (citing 38 U.S.C.A. § 5103A(d), 38 C.F.R. § 3.159(c)(4)). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the appellant). Accrued Benefits Section 5121 of title 38, United States Code, provides for payment of certain accrued benefits upon death of a beneficiary. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a veteran, be paid to the living person first listed below: (A) The Veteran's spouse; (B) The Veteran's children (in equal shares); (C) The Veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2) (West 2002 and Supp. 2012); 38 C.F.R. § 3.1000(a) (2012). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. Id. Applications for accrued benefits must be filed within one year after the date of death. See 38 U.S.C.A. § 5121(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000(c) (2012). The Board notes that Congress amended 38 U.S.C.A. § 5121 to repeal a two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This change applies only to deaths occurring on or after the date of enactment, December 16, 2003, as is the case here. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003), codified at 38 U.S.C. § 5121(a). For a survivor to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or have been entitled to benefits, accrued and unpaid, under an existing rating or decision. Jones v. West, 136 F.3d. 1296, 1299 (Fed. Cir. 1998). The Federal Circuit noted that "a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Id. at 1300. In the instant case, the Veteran did not have a claim for VA benefits pending at the time of his death, and there is no indication that he was entitled to any benefits as yet unpaid. The appellant also did not file a claim within one year of the Veteran's death as his death occurred in August 2006 and her claim was received in August 2008. As such, the Board finds that a preponderance of the evidence is against the appellant's claim of entitlement to accrued benefits under 38 U.S.C.A. § 5121. Thus, the claim is simply precluded by law. The Court has held that, in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). DIC/Service Connection for the Cause of Death DIC benefits are payable to the surviving spouse of a veteran if such veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In addition, valvular heart disease will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 38 C.F.R. § 3.303(b) provides that with chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any abnormality of heart action or heart sounds in service will permit service connection for a disease of the heart first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes valvular heart disease. See 38 C.F.R. § 3.309(a). In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. 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 causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Therefore, in order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). A claimant is competent to report observable symptoms. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's heart condition was caused by his period of active duty, including by foot calluses, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Board must account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The STRs do not reveal any complaints, findings, treatment, or diagnosis of any aorta or heart disease or injury, including an aortic aneurysm. On physical examination at separation, all body systems were normal on evaluation with the exception of a left knee scar. The blood pressure reading was 128/82. Post-service, there is no record of any medical treatment nor has the appellant asserted that the Veteran was under medical care. In fact, the terminal hospital report which is dated in August 2006 and reflects that the Veteran died at that facility, noted that the Veteran had not been under medical care and had not been under medical care for 10 to 15 years. In fact, in general, it was noted that the Veteran had "scant medical care in the past." The Veteran was admitted to a private hospital for abdominal pain. He suffered a ruptured abdominal aortic aneurysm and underwent repair It was noted during treatment that the Veteran had a history of hypertension. He reported that he took medication for a while, then stopped. He also was noted to be a smoker. On the evening of the first postoperative day, the Veteran unfortunately had an MI. The hospital report indicated that the Veteran's coronary artery disease was unapproachable because of the complexity of his cardiogenic shock. His only "chance" was a placement of a balloon pump which was done, but he remained in critical condition, did not respond to later efforts, and died. The appellant initially indicated that the Veteran had been unable to exercise due to calluses on his feet which she stated were due to marching exercises and punishment during service. However, he never sought treatment from VA because he did not want to take time off of work. However, she later indicated that her husband was not a "sickly person" and expected to live a long life. She also stated that the corns and calluses on his feet developed about 15 years after service. The Board notes that while not articulated by the appellant, it appears that she is claiming that the foot disorder prevented exercise which in turn lead to heart problems. A review of the STRS showed that the Veteran had mild pes planus when he entered service, was treated on one occasion for a blister on his left great toe, and had one of his feet run over by a horse carriage. However, x-rays were negative for a fracture. The separation examination revealed no lasting residual of either the blister or the horse carriage incident. The lower extremities were normal on examination. As noted, there are no post-service complaints, findings, treatment, or diagnosis of feet problems. Copies of photographs of the Veteran's grandchildren putting lotion on his feet were submitted. The Board accepts that the Veteran had calluses of his feet as the appellant is certainly competent to report that he had calluses. Further, there is nothing in the record to indicate that her statements are not credible with regard to the existence of the calluses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, she has been inconsistent regarding the date of onset, which damages her credibility with respect to her statements regarding when the Veteran's foot problems began. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Further, even if they had a service inception, there is no suggestion that any foot disability played an etiological role in the development of an aortic aneurysm, the MI, coronary artery disease, or any other heart disability. There are no assertions regarding the onset of heart disease. As noted, heart disease was not shown on the separation examination. The Veteran separated from service in 1965 and he died over 40 years later. There is simply no indication in the record that an aorta/heart disability began during service or the post-service year. There are no contentions regarding chronicity from service. The Veteran apparently was not treated in the years prior to his death. At one point, he was on blood pressure medication, but the time frame is unknown and the reason for cessation of medication is unknown. In light of the foregoing, the Board finds that there is no competent nexus which connects the cause of the Veteran's death to service. The appellant's general contentions regarding his feet disability and the purported connection to service and eventually to death are inconsistent, not supported in the record, and therefore not probative evidence. In sum, the only evidence of a nexus or etiological link between the Veteran's service and the terminal aorta/heart disease, which was first diagnosed some four decades after his discharge from service, are the unsubstantiated lay statements of the appellant which are in fact, not very clear regarding the nexus. The Federal Circuit Court has recognized that, in some cases, lay testimony falls short in proving an issue that requires medical knowledge. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). The question of an etiological relationship between aorta/heart disease and feet disability and service is an etiological one requiring medical expertise that the appellant has not been shown to possess. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Further, and as explained, the appellant stated that the causal connection is that the Veteran had a foot disability which began during service, continued, and prevented exercise. There is no suggestion that the Veteran died of heart disease due to lack of exercise. In fact, the appellant essentially indicated that he was healthy, which again damages her credibility due to internal consistency of her lay statements. Her assertions are contradicted. Thus, her assertions, due to the inconsistent nature and the complexity of the connection assertions are not competent, not credible, and not probative. The Board therefore concludes that the preponderance of the evidence is against this claim for DIC based on service connection for the cause of the Veteran's death, so there is no reasonable doubt to be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990). Death Pension The appellant is seeking entitlement to non-service connected death pension benefits. In this regard, non-service-connected death pension benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 C.F.R. § 3.3(b)(4). The Veteran in this case served on active duty from, and served during a period of war (i.e., the Vietnam War). See 38 U.S.C.A. § 101(8), (11). The Veteran died in August 2006. The claimant is the Veteran's surviving spouse. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). Therefore, as the Veteran served during a period of war, in order to be entitled to non-service-connected death pension benefits, the claimant must only meet the specific income and net worth requirements outlined below for each of the pension years on appeal. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). The maximum income rate for a surviving spouse with no dependents for 2008, 2009, and 2010 was $7,933 for each year. A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of countable income. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. See 38 U.S.C.A. § 1503; C.F.R. § 3.271. The maximum annual rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C.A. § 5312. See 38 C.F.R. § 3.23. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); see also 38 C.F.R. § 3.271(a). Social Security Administration (SSA) benefits and retirement pension benefits from private companies are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income. Medical expenses of the claimant in excess of five percent of the applicable maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual's income for the same 12-month period, to the extent they were paid. See 38 C.F.R. § 3.272(g)(2)(iii). Under 38 C.F.R. § 3.272, amounts paid by a spouse before the Veteran's death for expenses of the Veteran's last illness will be deducted from the income of the surviving spouse. 38 C.F.R. § 3.272(h)(1)(i). Likewise, amounts paid by a surviving spouse or child of the Veteran for the Veteran's just debts, expenses of last illness, and burial (to the extent such burial expenses are not reimbursed under chapter 23 of title 38 U.S.C.) will be deducted from the income of the surviving spouse or child. 38 C.F.R. § 3.272(h)(1)(ii). The term "just debts" does not include any debt that is secured by real or personal property. Id. Similarly, expenses of last illnesses, burials, and just debts that are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant's advantage. 38 C.F.R. § 3.272(h). Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. Id. Under 38 C.F.R. § 3.272, the following shall also be excluded from countable income for the purpose of determining entitlement to nonservice-connected death pension benefits: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; and profit from sale of property; and joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner). In her application for VA death benefits, VA Form 21-534, received in August 2008, the appellant indicated that during the past year (2008), her annual income was derived from SSA benefits of $725 per month or $9600; $115 per month or $1380 annually from private company pension; and $840 per month or $10,080 annually from earned wages. The total annual income was $21,180. The appellant indicated that the Veteran's funeral/burial expenses were $6,071. She did not report any medical expenses for the Veteran or herself. The total amount of income less the funeral/burial expenses totals $14,989. In an Improved Pension Eligibility Report (EVR), the appellant reported that she had not earned any wages in the last 12 months. She indicated that her annual income was $9,192 from SSA and $1,380 from a private retirement source. The total annual income was $10,572. She reported no medical expenses. The appellant later indicated that her daughter had paid the funeral/burial expenses for the Veteran. In light of the foregoing, the claimant is not entitled to payment of VA nonservice-connected death pension benefits because her income exceeds the legal limit of $7,933 for each year, even if the funeral/burial expenses were paid by her and considered with the 2008 finances and deducted. Although recognizing the Veteran's honorable wartime service and the appellant's application for pension, the Board is nonetheless bound by the laws enacted by Congress, the regulations of the Department, the instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. 38 U.S.C.A. § 7104(c). In this case, the law passed by Congress specifically prohibits the payment of VA nonservice-connected death pension benefits when the appellant's income exceeds certain levels. The Court has held that, where the law and not the evidence are dispositive, the claim should be denied due to the lack of entitlement under the law. Because the claimant's annual countable income exceeds the statutory limit, she is not legally entitled to payment of VA nonservice-connected death pension benefits, regardless of the Veteran's honorable wartime service or any need for these monies. Therefore, the claimant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to accrued benefits is denied. Entitlement to DIC based on service connection for the cause of the Veteran's death is denied. Entitlement to death pension benefits is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs