Citation Nr: 1334460 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-10 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318. WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from April 1952 to April 1953. The Veteran died in December 2007, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for the cause of the Veteran's death and denied entitlement to DIC benefits. In May 2011, the Appellant and her son testified at a personal hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. 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). In November 2011, the Board remanded this matter for further development, to include providing appropriate notice that meets the requirements of Hupp; attempting to records from the Veteran's final hospitalization at Blanchard Valley Hospital; and arranging for a supplemental medical opinion as to whether the Veteran's service-connected posttraumatic personality disorder was a contributory cause of death. A review of the record showed that these actions were not accomplished; thus, in the March 2013 remand, the Board concluded that there had not been substantial compliance with the remand directives of November 2011. Stegall v. West, 11 Vet. App. 268 (1998). In March 2013, the Board remanded this matter in order to determine if the Veteran was in receipt of SSA benefits prior to death, and if relevant, to obtain any such records; and to obtain a supplementary medical opinion from the VA examiner from March 2012. A review of the record shows that these actions were accomplished; thus, the Board concludes that there was substantial compliance with the remand directives of March 2013. Stegall v. West, supra. FINDINGS OF FACT 1. The Veteran died in December 2007 due to respiratory arrest due to esophageal cancer; pneumonia, protein malnutrition, coronary artery disease, bipolar symptoms, and diabetes were listed as other significant conditions contributing to death but not resulting in the underlying cause of death. 2. At the time of the Veteran's death, service connection was in effect for: posttraumatic skull defect, 50 percent disabling; posttraumatic personality disorder, 50 percent disabling; arthrotomy scar of the left knee, 10 percent disabling; scar of the right temporal region, 10 percent disabling; incomplete paralysis of the right 7th facial nerve, 10 percent disabling; and hearing loss, 0 percent disabling. His combined rating, effective since August 23, 1954, was 80 percent. 3. The disabilities for which service connection was in effect during the Veteran's lifetime did not cause or worsen his fatal respiratory arrest due to esophageal cancer, nor did they otherwise play a material causal role in the Veteran's death. 4. The Veteran's fatal respiratory arrest due to esophageal cancer was not present during service or for many years afterward, and were not etiologically related to his military service. 5. A 100 percent convalescent rating was granted, effective from May 1, 1953 to August 22, 1954; thereafter, a combined 80 percent disability was assigned effective from August 23, 1954. 6. The Veteran was not evaluated as totally disabled for ten continuous years immediately preceding his death, was not evaluated as totally disabled continuously from the date of separation from service and for a period of not less than five years immediately preceding his death, and was not a former prisoner of war. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309, 3.311, 3.312 (2013). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The record reflects that the appellant was provided with 38 U.S.C.A. § 5103 compliant notice in a letter dated in September 2012. A prior letter was sent in December 2011, but it was marked "return to sender". These notices advised the appellant of the information and evidence necessary to substantiate her claims, and of her own and VA's respective responsibilities in obtaining evidence in connection with the claims. She was specifically advised that VA may pay DIC if the Veteran "was continuously rated totally disabled due to service connected conditions for at least 10 years before death." She was also advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, she has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the appellant. Concerning VA's duty to assist, the claims folder contains the Veteran's service treatment records and all outstanding and relevant post-service VA and private treatment records. Additionally, the claims folder contains the appellant's own statements in support of her claim. The Board has carefully reviewed such statements and concludes that the appellant has not identified that further pertinent evidence exists outside the record. Additionally, in May 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 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 to 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); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012). Here, during the August 2007 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal. Information was also solicited regarding the circumstances of the Veteran's death, the nature and severity of his service-connected disabilities, and the theories of entitlement and arguments posed by the appellant. The inquiry specifically included whether there was any outstanding pertinent medical evidence. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant v. Shinseki, supra. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claims for service connection for hypertension. The Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board may adjudicate the claims based on the current record. The Board also finds VA has satisfied its duty to assist the appellant in the development of the claims. The RO has obtained all identified and available post-service treatment records for the Veteran. While the appellant claimed that Dr. Saunders treated the Veteran for his eating problems in the 50s and 60s, the appellant also related that such treatment records were no longer available. Further, attempts were made to obtain any Social Security Administration (SSA) treatment records for the Veteran, and in June 2013, the RO issued a formal finding of unavailability of such records. The appellant was advised of this by phone in June 2013, and indicated she had no SSA records in her possession. Further, with regard to the duty to assist, VA DBQ (disability benefits questionnaire) examination reports, with opinions, were obtained in March 2012 and August 2013. The Board notes that the March 2012 VA examination/report was not based on a review of all the evidence of record, and did not provide complete answers to questions raised in the prior remand. The Board does find that the August 2013 VA DBQ examination report is adequate, and included a thorough review of the claims folder, along with diagnoses/opinions, which were supported in the record. This VA DBQ examination report is therefore adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the appellant relative to her claims has been obtained and associated with the claims folder, and that neither she nor her representative have identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the appellant in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426 (1994). II. Factual Background Service treatment records (STRs) show that in October 1952, the Veteran was wounded by enemy mortar fire, and sustained wounds to his head, face, and knee. There was brain penetration and involvement of the right frontalis branch of the seventh nerve which required a craniectomy. Thereafter, he appeared before a Physical Evaluation Board, and was eventually discharged due to the injuries and disabilities he incurred during the October 1952 incident. By August 1953 rating decision, the RO granted service connection for encephalopathy, injury of the 7th cranial nerve; skull defect 2.5 x 3 cm; scars of the face with disfigurement; wounds to both eyes; and wounds to the left knee with arthrotomy. In addition, a 100 percent convalescent rating was granted effective from May 1, 1953. In a letter dated in September 1953, the Veteran was advised of the RO's rating decision, and he was advised that an award had been made for his service-connected residuals of head injury, held to be 100 percent disabling from May 1, 1953. He was also advised that his rating was for a limited period, not to exceed 6 months, subject to change upon a medical examination. He was advised that his examination had been scheduled and that he would be notified by separate letter when and where to report. On a VA special surgical and orthopedic evaluation in November 1953, the diagnoses were residuals of a gunshot wound of the right tempomandibular region, and residuals of arthrotomy of the left knee. On a VA examination in August 1954, the impression was that the Veteran was suffering from a post-traumatic concussion syndrome with marked psychoneurotic features, particularly psychasthenic and somewhat hypochondriacal in character. It was suggested that another electroencephalogram be done to determine the presence of residual cerebral dysfunction from injury. The examiner indicated that the Veteran should be encouraged to resume some type of occupation, with no hint that any physical defect prevents him from doing any kind of work. The examiner further indicated that the Veteran's disability was considered marked, probably well over 50 percent, and that the outlook, if no severe stresses occur, was fairly good, and that he did not seem to be a suitable subject for psychotherapy at that time. By September 1954 rating decision, the RO indicted that effective from May 1, 1953 to August 22, 1954, the Veteran was granted a 100 percent convalescent rating; effective from August 23, 1954, a combined 80 rating was granted for the Veteran's service-connected disabilities, to include: a 50 percent rating post traumatic personality disorder with considerable social and industrial inadaptability; a 50 percent rating for skull defect 1.1625 square inches; a 20 percent rating for paralysis, incomplete; 7th facial nerve, a 10 percent rating for a depressed and disfiguring scar of the right temporal region; a 10 percent rating for a left knee arthrotomy scar, and a 0 percent rating for slight defective hearing. In a letter dated in September 1954, the Veteran was reminded of temporary nature of his 100 percent award, and that the evidence in his claims folder, including a report of recent examination, had been reviewed and that his service-connected disabilities were not considered 80 percent disabling. He was advised that it was necessary to reduce his monthly payments, effective October 1, 1954. He was also advised that the amount of his award was subject to change in the event of receipt of medical or other evidence which may warrant it. Received from the Veteran in October 1998 was a formal claim for a total rating based on individual unemployability due to service-connected disability (TDIU rating), in which he claimed that his service-connected wounds to the head and ear prevented him from securing or following any substantially gainful occupation. In March 1999, the Veteran underwent VA examinations, including one for his bones, At the examination, it was noted that the bones involved were his left knee and right side of the skull. The diagnosis was history of shrapnel wound, right side of the head, which the Veteran reported left him with tinnitus in his right ear, diminished hearing for which he wore a hearing aid. He was to be sent for s skull x-ray. Thereafter, a four view skull series showed multiple pieces of shrapnel projected over the right parietal lobe of the brain. By May 1999 rating decision, the RO denied entitlement to increased ratings for the Veteran's service-connected disabilities, and denied entitlement to a TDIU rating. Private treatment records from Blanchard Valley Hospital show that on November 24, 2007 the Veteran was admitted for persistent vomiting and inability to keep anything down. For the history of his present illness, it was noted that in July 2006, he had an esophagogastroduodenoscopy and was found to have recurrent moderately poorly differentiated adenocarcinoma. Because of dysphagia and difficulty swallowing, the Veteran was offered a PEG tube, but he refused, and had a stent placed in his esophagus. Since then he had been having off and on vomiting, was unable to keep the food down, and had the feeling of a foreign body in his chest. He was admitted and hydrated, and the assessment included esophageal carcinoma, locally advanced, and incessant vomiting, unable to keep anything down. He was admitted the next day, on November 25, 2007, for rehydration, for worsening dysphagia and inability to keep food or liquids down. Thereafter, he remained at the hospital as an inpatient. His general condition remained poor and continued to go down, until his death on December [redacted]. A death certificate shows that on December [redacted], 2007, the Veteran died due to respiratory arrest due to esophageal cancer, and pneumonia, protein malnutrition, coronary artery disease, bipolar symptoms, and diabetes were listed as other significant conditions contributing to death but not resulting in the underlying cause of death. On the death certificate it was noted that the Veteran died while an inpatient at Blanchard Valley Hospital. In May 2011, the appellant and her son gave testimony at a hearing before the undersigned Veterans Law Judge. They testified as to their two theories of entitlement in this matter. First, they testified that there was a discrepancy in the Veteran's claims folder because when he was released from service he was regarded by VA as 100 percent disabled, and although he was reduced to 80 percent, effective August 1954, they felt that the Veteran was still paid at the 100 percent rate from 1953 until 1986, which they felt provided protection for the 100 percent rating for the Veteran, which would lead to a possibility of entitlement based on the Veteran being 100 percent for the 10 years prior to his death. They also felt that it was clear and unmistakable error that the Veteran was reduced to 80 percent, and that he actually should have been 100 percent for the 10 years prior to his death. Finally, the appellant and her son testified that the Veteran's service-connected post-traumatic personality disorder led to his avoidance of eating, which led to protein malnutrition, which strongly contributed to his ultimate death. In a March 2012 VA DBQ (disability benefits questionnaire) report, a VA examiner opined that the Veteran's service-connected disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale included the fact that the Veteran died in December2007 as the result of his esophageal cancer; that the Veteran suffered significant head injuries in service from a mortar explosion in October 1952, and that the residuals included a right temple depressed skull defect, post traumatic personality disorder, and incomplete paralysis of the right facial nerve, but that in spite of these disabilities he worked as a production supervisor at RCA for 21 years, and did not work after the age of 50 due to non-service connected heart problems. The examiner further noted that over the years the Veteran's family noted periods of withdrawal which were associated with a few days of refusing food, but that the Veteran's medical records were silent for any significant weight loss or malnutrition. Also, the examiner indicated that in May 1999 it was noted that the Veteran's "[r]ecent examination showed that there was apparently some improvement in his neuropsychiatric conditions and other conditions were no worse now than when he was evaluated in 1954. The examiner further noted that esophageal cancer usually presents with symptoms of dysphagia, and that the second most common symptom was substantial weight loss as the result of the obstructive nature of the tumor and its association with poor appetite and malnutrition. The examiner also noted esophageal cancer also disrupted normal peristalsis, leading to nausea and vomiting, regurgitation of food, coughing and an increased risk of aspiration pneumonia. The examiner also noted that since most patients with esophageal cancer present with advanced disease, the prognosis is poor, and that the overall five-year survival rate is approximately 15%, with most patients dying within the first year of diagnosis. The examiner noted that the Veteran lived over 50 years without dietary consequences of his service connected post traumatic personality disorder, and opined that it was therefore less likely as not that the Veteran's service-connected post traumatic personality disorder was a contributory cause of his death from respiratory arrest due to esophageal cancer with protein malnutrition. In an Authorization for Release of Information, dated in October 2012, the appellant indicated that the Veteran was treated by Dr. B. Saunders in the late 50s and early 60s to the 70s for everything including headaches and malnutrition. The appellant indicated that since the Veteran came home from Korea, he had eating problems off and on, and sometimes would not eat for 2, 3, or 4 days. In a statement dated in November 2012, the appellant indicated that she married the Veteran in May 1953, and that since then he sometimes got very moody and would not eat for 3 or 4 days at a time, and would say he just was not hungry. She claimed that the Veteran was at "100 percent" until 1987, when he was dropped to 80, and she wanted to know who made that determination without sending him to a doctor to see if his condition had changed. In a statement dated in December 2012, the appellant indicated that she had contacted the records department for Blanchard Valley Hospital where Dr. Saunders treated the Veteran, but found out that they only keep record for 10 to 15 years and then they are shredded. The appellant indicated she had no other way to obtain those records. In an August 2013 VA DBQ addendum report, the examiner indicated that the Veteran was found to have esophageal cancer fifty years after his military service, and that it was believed that a history of smoking, a body mass index higher than the lowest quartile, gastroesophageal reflux disease, and a diet that is low in fruits and vegetables are among the risk factors for almost 80 percent of cases of esophageal adenocarcinoma in the United States. The examiner reiterated that these elements are noted risks, not causes, and that the 5 year survival rate for this cancer was less than 15%. The examiner opined that it was less likely as not that the esophageal cancer that caused the Veteran's death had its onset in or was incurred in or aggravated (made worse) by active service or a service-related disability. The examiner also acknowledged that the Veteran suffered a significant head injury during his service in Korea, and then died at the age of 75 of esophageal cancer. The examiner indicated that although some head injuries may cause difficulty swallowing, there was no evidence that the Veteran had long term swallowing problems or long term malnutrition. The examiner opined that it was less likely as not that the Veteran's death was caused, hastened, or substantially and materially contributed to by a service-connected disability. Further, the examiner advised to see the prior C&P opinion (of 2012) regarding the relationship between the Veteran's service-connected posttraumatic personality disorder and the protein malnutrition that played a role in his death. The examiner advised that the opinion rendered in March 2013 had not changed in light of the newly associated evidence of record. The examiner's opinion was that it was less likely as not that the Veteran's service-connected posttraumatic personality disorder was a contributory cause of his death from respiratory arrest due to esophageal cancer with protein malnutrition, and the examiner also provided the same rationale as in March 2012. III. Analysis 1. Entitlement to Cause of Death To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). The appellant in this matter has contended that service connection is warranted for the cause of the Veteran's death. She basically argues that the Veteran's service-connected posttraumatic personality disorder led to his avoidance of eating, which led to protein malnutrition, which was listed on the death certificate as significantly contributing to his death. Having reviewed the complete evidence of record, the Board concludes that the most probative evidence fails to support the appellant's contention that the Veteran's death was related to service. In that regard, in March 2012, a VA examiner reviewed the claims folder, and provided an opinion, with supporting rationale, as to whether the Veteran's service-connected posttraumatic personality disorder was a contributory cause of his death. In August 2013, the examiner reviewed the claims folder, to specifically include newly added evidence, and provided the same opinion and rationale as in 2012. The Board finds the VA examiner's opinion and addendum, from 2012 and 2013, to be the only probative and persuasive opinion on the issue of whether the Veteran's service-connected posttraumatic personality disorder was a contributory cause of his death. The Board notes that the VA examiner's opinions are probative because they are based on a thorough review of the claims folder, and the examiner offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question this medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, the appellant has not submitted or identified competent medical nexus evidence to the contrary. The Board has given careful consideration to the statements of the appellant regarding the cause of her husband's death. Certainly, the appellant is competent to offer evidence as to facts within her knowledge, such as observable symptoms related to any of the Veteran's medical conditions prior to his death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board recognizes that the appellant has sincerely contended that the Veteran's cause of death was related to service, and that specifically his protein malnutrition, which contributed to his death, was due to his service-connected posttraumatic personality disorder. However, as previously discussed, although the appellant may attest to the Veteran's symptomatology, as a layperson without medical training or experience, she is not competent to provide an opinion on a complex medical issue, such as determining the etiology of liver cancer or relating it to the Veteran's military service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, this is not a case in which the lay opinions of the appellant may serve to establish any association between the Veteran's death and service. Moreover, although the appellant was furnished with VCAA notice advising her of the evidence necessary to substantiate her claim, and she has clearly demonstrated a knowledge of the requirements necessary to prove her claim, she has failed to provide any competent medical evidence suggesting an association between the Veteran's death and military service, to specifically include evidence of a link between the Veteran's posttraumatic personality disorder and protein malnutrition, which contributed to his death.. As such, the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not for application, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, as the claims folder contains no competent medical evidence or opinion relating the Veteran's death directly or indirectly to his active duty service, the Board finds that service connection for the cause of the Veteran's death is not warranted. In conclusion, the Board finds that the preponderance of the competent evidence of record is against a finding that the cause of the Veteran's death was linked to service or to any of his service-connected disabilities. The Veteran died 54 years after his discharge from active service due to respiratory arrest due to esophageal cancer; with the following significant conditions contributing to death, but not resulting in the underlying cause of death: pneumonia, protein malnutrition, coronary artery disease, bipolar symptoms, and diabetes, none of which was present in service or for many years afterward. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful. As noted above, he sustained a significant shrapnel wound injury in service and received a Purple Heart. However, the Board has carefully reviewed the record in depth, and it has been unable to identify a basis upon which service connection may be granted. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-433 (1992). In summary, and for reasons and bases set forth above, because the record preponderates against a finding that the Veteran's death was due to service-connected disability or otherwise related to service, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to DIC under 38 U.S.C.A. § 1318 Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse and to the children of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of his/her own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). The service-connected disability(ies) must have been (1) continuously rated totally disabling for a period of 10 or more years immediately preceding the veteran's death, or (2) continuously rated totally disabling since the Veteran's discharge or other release from active duty and for at least 5 years immediately preceding death; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. Id. The total disability rating may be schedular or based on individual unemployability under 38 C.F.R. § 4.16. 38 C.F.R. § 3.22(c). The term "entitled to receive" means that, at the time of death, the veteran had service-connected disability(ies) rated totally disabling by VA but was not receiving compensation for reasons specified in the regulations which are not relevant here, or because the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22(b). Claims under 38 U.S.C.A. § 1318 will be adjudicated based on decisions rendered during the veteran's lifetime. 38 C.F.R. § 20.1106. Thus, the only possible ways for the appellant to prevail on a claim for benefits under 38 U.S.C.A. § 1318 would be: (1) meeting the statutory duration requirements for a total disability rating at the time of death; or (2) showing that such requirements would have been met but for CUE in a decision on a claim filed during the veteran's lifetime. Based on the evidence of record, the Board finds that the statutory requirements for an award of DIC benefits have not been met on any basis. The Veteran was discharged from service in April 1953. He died in December 2007. At the time of his death, service connection was in effect for posttraumatic skull defect, 50 percent disabling; posttraumatic personality disorder, 50 percent disabling; arthrotomy scar of the left knee, 10 percent disabling; scar of the right temporal region, 10 percent disabling; incomplete paralysis of the right 7th facial nerve, 10 percent disabling; and hearing loss, 0 percent disabling. Also, at the time of his death, he a combined service-connected disability rating of 80 percent, which had been in effect since August 23, 1954. Thus, the evidence of record fails to show that he was rated as totally disabled for a period of at least 5 years from the date of his discharge from active duty or for at least 10 years preceding his death. The Board acknowledges the appellant's arguments that the Veteran was being paid at the 100 percent rate from 1953 through the 1980s, that he was not notified when his benefits were reduced in the 1980s, and that he was entitled to a 100 percent rating up to the time of his death. However, a careful review of the record shows that by August 1953 rating decision, the RO granted service connection for encephalopathy, injury of the 7th cranial nerve; skull defect 2.5 x 3 cm; scars of the face with disfigurement; wounds to both eyes; and wounds to the left knee with arthrotomy, and assigned a 100 percent convalescent rating, effective from May 1, 1953. In a letter dated in September 1953, the Veteran was advised that his 100 percent rating was for a limited period, not to exceed 6 months, subject to change upon a medical examination. Thereafter, by September 1954 rating decision, the RO indicted that effective from August 23, 1954, a combined 80 rating was granted for the Veteran's service-connected disabilities, to include: a 50 percent rating post traumatic personality disorder with considerable social and industrial inadaptability; a 50 percent rating for skull defect 1.1625 square inches; a 20 percent rating for paralysis, incomplete; 7th facial nerve, a 10 percent rating for a depressed and disfiguring scar of the right temporal region; a 10 percent rating for a left knee arthrotomy scar, and a 0 percent rating for slight defective hearing. In a letter dated in September 1954, the Veteran was reminded of temporary nature of his 100 percent award, and that the evidence in his claims folder, including a report of recent examination, had been reviewed and that his service-connected disabilities were not considered 80 percent disabling. He was advised that it was necessary to reduce his monthly payments, effective October 1, 1954. He was also advised that the amount of his award was subject to change in the event of receipt of medical or other evidence which may warrant it. The record reflects that in October 1998 the Veteran filed a claim for a TDIU rating, however, by May 1999 rating decision, the RO denied the claim for a TDIU rating and also denied increased ratings for the Veteran's service-connected disabilities. There is no indication that he appealed that rating decision. Thus, on review of the record there is simply no showing that the Veteran was rated as totally disabled for a period of at least 5 years from the date of his discharge from active duty or for at least 10 years preceding his death. Finally, the evidence also fails to show, and the appellant does not assert, that the Veteran was a prisoner of war. Accordingly, the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318 . The Board need not review whether there is any other disorder of record that could have been service-connected and then assigned a total rating for the appropriate period of time, nor must it review whether a rating in effect prior to death could or should have been higher so as to warrant the award of DIC benefits under 38 U.S.C.A. § 1318, also known as "hypothetical entitlement." Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008); Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); see also 38 C.F.R. § 3.22 (2012). Consideration of hypothetical entitlement to DIC benefits under 38 U.S.C.A. § 1318 is legally precluded in this case. Further, the Board also notes that the appellant has not alleged CUE in any prior ratings decision. Entitlement to DIC benefits must therefore be denied as a matter of law. Where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs