Citation Nr: 1334972 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-17 055 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1952 to January 1954. The appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the RO which denied the benefits sought on appeal. A hearing before the undersigned was held at the RO in April 2013. The Board remanded the appeal for additional development in June 2013. 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). FINDINGS OF FACT 1. The immediate cause of the Veteran's death on December 14, 2009 is shown to have been the result of acute respiratory failure secondary to bilateral pulmonary emboli, right lung infarction, left health care associated pneumonia, sepsis with sepsis shock and staphylococcal bacteremia, status post left cerebral infarction with post t-PA (tissue plasminogen activator) thrombolysis, atrial fibrillation and dyslipidemia. Other significant conditions contributing to death included type two diabetes mellitus, hypertension, emphysema and aspiration pneumonia. 2. The Veteran's respiratory and vascular disorders were first clinically demonstrated many years after service, and there is no probative evidence of a causal connection between his pulmonary and cerebral infarctions and military service or any incident therein. 3. At the time of death, the Veteran's service-connected disabilities included bilateral defective hearing, rated 70 percent disabling and tinnitus, rated 10 percent disabling. The combined rating was 70 percent; effective August 24, 2006. 4. The preponderance of the medical evidence of records establishes that it is unlikely that the Veteran's service-connected bilateral defective hearing and tinnitus caused or contributed to his death. 5. The Veteran's service-connected disabilities were not continuously rated totally disabling, nor was he in receipt of an unemployability rating for 10 years prior to his death. CONCLUSIONS OF LAW 1. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1154, 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012). 2. The claim for VA Survivors' and Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. Chapter 35 lacks legal merit. 38 U.S.C.A. §§ 3500, 3501, 5102, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.807, 21.3020, 21.3021 (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Before addressing the merits of the appellant's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in March 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, the March 2010 notice letter set forth the requirements for entitlement to DIC benefits. Therefore, the Board determines that the requirements of Hupp, to the extent that they are applicable to this case, have been met. As to VA's duty to assist, the Board finds that all necessary development has been accomplished to the extent possible, and therefore appellate review may proceed without prejudice to the appellant. All VA records and available private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. Additionally, the appellant was requested by VA on at least three occasions to submit any treatment records pertaining to the Veteran in her possession, or to provide VA with authorization to obtain any such records from all healthcare provider who treated the Veteran around the time of his death. However, the appellant did not respond to the RO's specific request for the Veteran's terminal (private) hospital records. A detailed discussion of the RO's actions in this regard was included in the June 2013 Board remand, and the appellant was subsequently afforded another opportunity to provide VA with authorization to obtain all outstanding records. However, the appellant did not respond to any of the inquiries, including the most recent request in June 2013. The Veteran's service treatment records (STRs) were apparently lost in a fire at the National Archives and Records Administration in July 1973, and are unavailable for review. The Veteran's service separation examination is of record and has been reviewed. When STRs are lost or missing, VA has a heightened obligation to satisfy the duty to assist. In such cases, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the RO was notified by the National Personnel Records Center (NPRC) in November 2006, that the Veteran's STRs and service personnel records (SPRs) were unavailable due to fire related loss and that there were no Surgeon General Office records showing treatment for any medical problems. The NPRC indicated that while there are alternative records sources that often contain information which can be used to reconstruct parts of a lost service record, the type of information requested could not be reconstructed. During his lifetime, the Veteran was advised that his STRs and SPRs were lost and was requested to provide VA with any service records in his possession or to advise VA of any alternative source from which such records might be located so that VA could attempt to obtain any available records. In a letter received in November 2006, the Veteran indicated that he did not have any records. The RO subsequently concluded that any further attempts to obtain the records would be futile. (See March 2007 Formal Finding of Unavailability of Service Records). Considering the aforementioned, the Board concludes that the VA's actions constitute a "reasonably exhaustive search" of all available options. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). VA has satisfied the duty to assist the appellant with regard to obtaining service treatment records and SPRs through its actions. See also Layno v. Brown, 6 Vet. App. 465, 469 (1994); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). Accordingly, there is no basis for any further pursuit of the Veteran's STRs and SPRs. Further, neither the appellant nor her representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of this appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). As noted above, the appellant testified at a Travel Board hearing before the undersigned in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Furthermore, neither the appellant nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The case has also been subject to a prior Board remand. In this regard, the AMC advised the appellant of the Veteran's missing STRs and requested that she submit any records in her possession and complete the appropriate (enclosed) forms authorizing VA to obtain all of the Veteran's treatment records, including his terminal hospital reports. As discussed above, however, the appellant did not respond. The AMC also obtained an adequate VA medical opinion. As such, the Board finds that the AMC has substantially complied with the June 2013 remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied. Also, the Board finds that the AMC complied with the June 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). As the resolution of the appellant's appeal for entitlement to Chapter 35 benefits is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits, no further development under the VCAA or previously existing law is warranted. Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz, 15 Vet. App. 143 (2001); Smith, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Laws & Regulations To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002). A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence, such as diabetes mellitus, hypertension or cardiovascular disease, if manifested to the required degree within a prescribed period from a veteran's separation from active duty; or one that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (2012). Service connection may also be established if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. 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." 38 C.F.R. § 3.303(b). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 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, or 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 (2012). Cause of Death In this case, the Board has reviewed all the evidence of record, including but not limited to the appellant's contentions and testimony at the DRO hearing in October 2009, the Veteran's STRs, and all VA and private medical records prior to his death in December 2009. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, it is not required to discuss each and every piece of evidence in a case. The relevant evidence including that submitted by the appellant will be summarized where appropriate. The Veteran died in December 2009 at 79 years of age. The certificate of death listed the immediate cause of death as acute respiratory failure secondary to bilateral pulmonary emboli, right lung infarction, left health care associated pneumonia, sepsis with sepsis shock and staphylococcal bacteremia, status post left cerebral infarction with post t-PA (tissue plasminogen activator) thrombolysis, atrial fibrillation and dyslipidemia. Other significant conditions contributing to death included type two diabetes mellitus, hypertension, emphysema and aspiration pneumonia. At the time of his death, the Veteran was service-connected for bilateral defective hearing, rated 70 percent disabling and tinnitus, rated 10 percent disabling. The combined rating was 70 percent; effective August 24, 2006. The appellant contends that the Veteran's death was due to or a result of his exposure to extreme cold weather while serving in Korea during the Korean Conflict. The appellant testified that the Veteran told her that he had frostbite of the hands and feet in service, and that she believes that all of the disabilities that contributed to the Veteran's demise as shown on the certificate of death were the result of his exposure to cold weather. Regarding the appellants contentions, while she is competent to report her observations of the Veteran's medical problems and what he told her about his experiences in service, the etiology of his disabilities may not be diagnosed via lay observation alone, and she is not shown to have the expertise to provide an opinion concerning the complex medical question of the underlying cause of his death. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 of whether the disabilities causing the Veteran's death were due to service, this question falls outside the realm of common knowledge of a lay person. See Jandreau, at 1377 n.4 (Fed. Cir. 2007). As noted above, the Veteran's STRs are lost and unavailable for review. However, the Veteran's service separation examination is of record and does not show any complaints, treatment, abnormalities or diagnosis for any respiratory, cardiovascular or renal problems, or any residuals of cold weather exposure at the time he was examined for discharge from service in January 1954. The examination report showed the Veteran's heart, lungs, upper and lower extremities, feet and neurological and vascular systems were normal. His blood pressure was 120/80 and a chest x-ray study was negative. Post-service medical records showed that the Veteran was treated by VA for pneumonitis of the left lower lobe due to undetermined cause in September 1960, and for angina pectoris in January 1977. A VA chest x-ray study in November 1976 showed his lung fields were clear of active disease and that his heart was within normal limits. Although the specific date of onset of the Veteran's hypertension and diabetes mellitus is not indicated in the medical reports of record, an April 1995 VA treatment note showed no history of hypertension or diabetes mellitus. The Veteran's blood pressure was 198/80 when seen by VA in July 1998, and a note in November 1998, showed that he was being followed-up for hypertension. At that time, the Veteran denied any history of heart or lung disease or diabetes. A VA treatment note dated in October 2007 showed a four to five year history of diabetes mellitus and a questionable cerebral vascular accident two months ago. An echocardiogram at that time was consistent with degenerative aortic and mitral valve disease with pulmonary hypertension. A brain MRI in March 2008 showed evidence of a prior ischemic stroke. Private medical records showed treatment for acute exacerbation of chronic obstructive pulmonary disease (COPD), chronic bronchitis and asthma in July 2005. An August 2005 VA pulmonary report noted a six month history of chronic respiratory problems. The assessment was adult intrinsic asthma and poorly controlled severe persistent reactive airway disease. A private pulmonary function study in May 2009 showed mild restrictive and obstructive lung disease with moderate impairment in diffusing capacity. At the direction of the June 2013 Board remand, the claims file was referred to a VA physician for review of the record and an opinion as to whether the Veteran's cold weather exposure in service caused or contributed substantially or materially to cause his death. The examiner was also asked to comment on whether any of the disabilities listed on the Veteran's certificate of death were etiologically related to cold weather exposure; whether cold weather exposure damaged his lungs and cardiovascular system and ultimately caused his death, and whether he suffered bilateral upper and lower extremity frost bite which caused his cardiac disorders to be affected by poor circulation and ultimately brought about his death. In a July 2013 report, a VA physician indicated that he reviewed the claims file and the medical literature, and opined that the Veteran's death was less likely than not due to any event or condition in service, including cold weather exposure, and that it was more likely than not that his death was the result of the cumulative effects of his obesity, tobacco abuse, diabetes, immobility and loss of bodily functions related to a cerebral vascular accident (CVA), hypertension, congestive heart failure, atrial fibrillation and hypertensive vascular disease, none of which was worsened by a service-connected disability. The examiner maintained that the natural progression of these disorders was not altered or worsened by any event and/or condition that occurred and/or expressed during active service. The examiner pointed out that diabetes was a risk factor for CVA, hypertension and atrial fibrillation, and that tobacco smoking was a well established risk factor for COPD and for circulatory disease. COPD exacerbation, as documented in the records, is a well established risk factor for pneumonia, and CVA is a risk factor for aspiration that may lead to aspiration pneumonia. Immobility from CVA and COPD are risk factors for pulmonary embolism and lung infarct is a recognized complication of pulmonary embolism. The examiner noted that the Veteran suffered a chest trauma with rib fractures in 1976, and that he had no complaints of any respiratory problems when seen in 1979, some 25 years post service. He pointed out that a chest contusion is a well established risk factor for respiratory conditions. The examiner indicated that any respiratory or other body system condition that might have been due to cold exposure in the 1950's would have been a continuous condition since service, and that there was no evidence of any such problems. He noted that while cold exposure may affect the circulatory system, the medical reports of record did not show any evidence of a circulatory impairment of the upper or lower extremities consistent with cold weather injury. The Board notes that there is also no lay evidence that the disabilities listed in the death certificate were noted in service and have continued ever since service. In this case, the Board finds the July 2013 VA opinion persuasive as it was based on a thorough review of the record and included a discussion of all relevant facts. The examiner reviewed the claims file and offered rational and plausible explanations for concluding that Veteran's death was not due to or contributed to by any disease or disability associated with cold weather injury in service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). The examiner reasoned, in essence, that if the Veteran suffered a cold weather injury to his respiratory or other body system, there would have been evidence of continuing chronic residuals, and that there was no evidence of any of the claimed disabilities within one year of service separation or until many years later. Thus, it was more likely than not that his death was the result of the cumulative effect of his multiple medical problems which were first demonstrated many years after service. Furthermore, the appellant has not presented any competent medical evidence to rebut that opinion. In the absence of competent, probative medical evidence to the contrary, the Board finds that reliance on the VA medical opinion is warranted. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). In this case, the probative evidence of record does not show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to the Veteran's death. Inasmuch as there is no competent or probative evidence of a cardiovascular, renal or respiratory disorder in service or until several decades after service, no probative evidence of any residuals of cold weather injury, and no probative evidence that a service-connected disability played any part in his death, there is no basis upon which to grant service connection. Accordingly, service connection for the cause of the Veteran's death is denied. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for the cause of the Veteran's death. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. Chapter 35 Chapter 35 benefits, Survivors' and Dependents' Educational Assistance, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021 (2012). Basic eligibility for certification of Survivors' and Dependents' Educational Assistance exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or, if a serviceperson (5) is on active duty as a member of the Armed forces and is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. Service connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. 38 C.F.R. § 3.807. In this case, the Veteran did not have a permanent total service-connected disability at the date of his death, nor did he die as a result of a service-connected disability. Thus, the criteria for basic eligibility for Chapter 35 benefits are not met. Consequently, the appellant's claim fails because of absence of legal merit or lack of entitlement under the law. Where, as here, the law and not the evidence is dispositive of the claim, the claim must be denied because of lack of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to Survivors' and Dependents' Educational Assistance benefits under the provisions of 38 U.S.C.A. § Chapter 35, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs