Citation Nr: 1334525 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-11 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to death pension benefits. 2. Entitlement to service connection for diabetes mellitus (DM), Type II and glioblastoma for purposes of accrued benefits. 3. Entitlement to service connection for the cause of the Veteran's death for purposes of Dependency and Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1967. The Veteran served in Vietnam. The Veteran died in April 2008. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 decisions of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to DIC based on service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant has not provided income information to substantiate an award of death pension benefits. 2. The appellant filed a claim for accrued benefits within a year of the Veteran's death. 3. The Veteran served in Vietnam and is presumed to have been exposed to herbicides including Agent Orange. 4. Evidence in the claims file at the time of the Veteran's death did not indicate that the Veteran had DM, Type II, nor did it indicate that glioblastoma was manifested within the one year presumptive period from service or for many years thereafter, or that glioblastoma was attributable to service, including herbicides exposure. CONCLUSIONS OF LAW 1. Entitlement to nonservice-connected death pension benefits is not warranted. 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 (2013). 2. Entitlement to accrued benefits for service connection for DM, Type II and glioblastoma, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A. The Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim. See Holliday v. Principi, 14 Vet. App. 282 -83 (2001). For reasons expressed immediately below, the Board finds that resolution of the issue if entitlement to death pension on appeal is based on the operation of law and that the VCAA is generally not applicable. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. The Board finds that such is the case as to the death pension issue addressed herein. As explained below, there is no dispute as to the facts. This appeal is being denied due to the claimant's failure to provide income information to establish that she meets the basic eligibility requirements for the benefit sought. Therefore, based on the Court's decision in Manning, the Board concludes that the appellant's appeal is not subject to the provisions of the VCAA. Nonetheless, the Board also finds that the claimant has been accorded ample opportunity to present evidence and argument as required by the Court's jurisprudence in general. See 38 C.F.R. § 3.103. With regard to the accrued claim, as discussed below, accrued benefits claims must be adjudicated based on the evidence of record at time of death. See Ralston v. West, 13 Vet. App. 108, 113 (1999) ("[E]entitlement to accrued benefits must be determined based on evidence that was either physically or constructively in the Veteran's file at the time of death."). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records that would have been constructively of record at the time of death. The appellant was sent a VCAA letter in June 2008. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for entitlement to nonservice-connected pension benefits and for accrued benefits are thus ready to be considered on the merits. Death Pension The appellant is seeking entitlement to nonservice-connected death pension benefits. In this regard, nonservice-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 April 2008. 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 nonservice-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 and 2009, 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). 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 received in May 2008, the appellant indicated that she was only seeking DIC benefits and did not provide any financial information. However the August 2008 decision also denied entitlement to death pension. The appellant was informed that if she wanted those benefits, she should submit the requisite financial information and was provided a form to complete. The appellant generally appealed all denials, but has not submitted any financial information. Thus, as the appellant has not provided income information to substantiate an award of death pension benefits, entitlement to those benefits is not warranted. Therefore, the claimant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accrued Benefits A proper party is entitled to any periodic monthly benefits under laws administered by the Secretary to which the decedent was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the deceased's death which were due and unpaid preceding the deceased's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. A veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision in order for a surviving spouse to be entitled to accrued benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). The Veteran filed a claim for service connection for DM, Type II, and glioblastoma in March 2008, one month prior to his death. He indicated that he served in Vietnam. The Veteran died in April 2008, prior to a decision on these claims, and they were therefore pending at the time of his death. Moreover, the appellant filed her claim for accrued benefits in May 2008, within a year of the Veteran's death. Consequently, the appellant has met the threshold requirements of these claims for purposes of accrued benefits and the Board will address them on the merits. As noted above, the Board can only consider evidence in the claims file or constructively in VA's possession at the time of death. See Ralston, 13 Vet. App. at 113. The Board initially notes that the STRs do not reveal any complaints, findings, treatment, or diagnosis of DM, Type II, or glioblastoma, including on his July 1967 separation examination. Prior to his death, VA and private medical records disclosed that the Veteran was being treated for a brain tumor, diagnosed as glioblastoma, for which he underwent radiation and chemotherapy. Unfortunately, it was terminal and he died. In conjunction with his treatment, he developed diabetes as secondary to high-dose dexamethasone therapy, also diagnosed as "steroid induced hyperglycemia." Although the Veteran reported to a VA examiner that he was coming to VA for potential Agent Orange exposure, there was no commentary made by the examiner. See March 24, 2008 VA outpatient record. A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924,47,925 (Aug. 10, 2012) (hereinafter "Update); see also Notice on Health Outcomes Not Associated With Exposure to Certain Herbicide Agents (hereinafter "Notice"), 75 Fed. Reg. 81332, 81333 (December 27, 2010); Notice, 72 Fed. Reg., 32395, 32407 (June 12, 2007). This determination is based on periodic reports of the National Academy of Sciences (NAS) based on a comprehensive review of scientific and medical literature on potential health effects of exposure to Agent Orange. See Update, 77 Fed. Reg. at 47,925 ; see also 72 Fed. Reg. at 32395-96, 32407. Congress has mandated that NAS determine, to the extent possible, whether there is a statistical association between "suspect diseases" and exposure to herbicide agents. Update, 77 Fed. Reg. at 47,925. The comprehensive review and evaluation of the available literature that NAS conducted in conjunction with its report has permitted VA to identify all conditions for which the current body of knowledge supports a finding of an association with herbicide exposure. Notice, 72 Fed. Reg. at 32407. In the most recent Update, the Secretary confirmed previous findings that the available evidence does not establish a positive relationship between brain cancer and herbicide exposure. 77 Fed. Reg. at 47,927. The Secretary's determination that a positive association does not exist between the Veteran's brain cancer and Agent Orange exposure does not preclude VA from granting service connection for such disorders on the basis of being caused or aggravated by Agent Orange exposure. Update, 77 Fed. Reg. at 47924. If a veteran, who served in the Republic of Vietnam was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Recent action concerning herbicide-related disability has been undertaken by VA. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. The term ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina. The Veteran served in the Republic of Vietnam during the Vietnam era, and is therefore presumed to have been exposed to Agent Orange or other herbicide agents/chemicals during that time. The appellant asserts that the Veteran's brain tumor as well as DM, Type II, developed as a result of his inservice exposure to Agent Orange or other herbicides. 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). The Veteran is competent to report the Veteran can observe and feel through the senses. 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). 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. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Veterans Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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 appellant's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The appellant is capable to present her observations regarding the Veteran's illnesses. However, her personal opinion regarding his diagnoses is not as probative as the clinical records since the illness which predated his death is complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's brain tumor, diagnosed as glioblastoma, is not among the disorders determined, as set forth by the above legal criteria, to be presumptively related to herbicide exposure. Even if the appellant believes that it was etiologically related to inservice herbicides exposure, her opinion is afforded less probative weight than the extensive studies which are the bases for the listed presumptive disorders. With regard to DM, the Veteran did not have a diagnosis of DM, Type II, which is the presumptive disorder. Rather, he had high-dose dexamethasone therapy or "steroid induced hyperglycemia." He did not have DM, Type II, which is the only diabetes-based presumptive disorder. Thus, it is clear that the Veteran's DM was due to an intercurrent cause. However, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Specifically, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. Establishing service connection on a direct basis 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, DM and malignant tumors will be presumed to have been incurred in or aggravated by service if they 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. The Board notes that 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 manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, 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 Federal Circuit recently held that 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. Walker held that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection or service connection via continuity of symptomatology. As noted, there is no evidence of DM or glioblastoma during service. More recently, VA and private records show that the Veteran's diagnosis of glioblastoma occurred within one year of his death, which occurred many decades after his separation from service. Likewise, his DM diagnosis was indicated to be related to the therapy for the brain tumor; thus also occurring within that time frame just prior to death. There is no suggestion that either diagnosis was shown during service, within the one year presumptive period, or otherwise to service including presumed herbicide exposure. As to the statements of the appellant opining that there was a connection between the DM, brain tumor, and herbicide exposure, while lay persons are competent to opine as to some matters of diagnosis and etiology, testimony as to the possible relationship between DM, fatal brain tumor, and herbicide exposure is testimony as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (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 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); 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"). Thus, the statements of the appellant as to a connection between the Veteran's DM, brain tumor, and herbicide exposure are not as probative as the clinical medical evidence in this case. For the foregoing reasons, the evidence in the record at the time of the Veteran's death does not support a finding of entitlement to service connection for DM, Type II, or service connection for glioblastoma. Thus, entitlement to service connection for DM, Type II, and for glioblastoma, for purposes of accrued benefits is not warranted. ORDER Entitlement to death pension benefits is denied. Entitlement to service connection for DM, Type II and glioblastoma for purposes of accrued benefits, is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that the appellant is afforded every possible consideration. The appellant claims that service connection for the cause of the Veteran's death is warranted. Her representative has requested that a VA medical opinion be obtained. The Board observes that a May 2008 medical opinion addressed the nature of the Veteran's DM diagnosis, in which the examiner explains why the record does not reflect that the Veteran had DM, Type II. However, the etiology of the Veteran's glioblastoma and hypertension was not addressed. The Certificate of Death indicated that the Veteran's immediate cause of death was glioma, multiforme, of the brain. Also, hypertension was listed as another significant condition contributing to death. In DelaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination for a DIC claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. However, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit Court held that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim. While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim. Since the Board cannot conclude at this juncture that there is no reasonable possibility that a medical opinion would assist in substantiating this DIC claim, a medical opinion, as requested by the appellant's representative, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion. The examiner should review the record. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's glioblastoma or hypertension had its clinical onset during service, within the one year presumptive period, or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the appellant should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs