Citation Nr: 1335628 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-20 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from February 1954 to April 1968 and from February 1970 to January 1974. He died in October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in which the RO essentially reopened and denied the appellant's claim of service connection for the cause of the Veteran's death. The Board observes that, in a November 1993 rating decision, the RO denied the appellant's claim of service connection for the cause of the Veteran's death. The appellant did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). In a June 2010, the Board found that the appellant had submitted evidence that was new and material since the 1993 rating decision and, thus, found that the claim had been successfully reopened. The appellant's claim was subsequently remanded in June 2010 for further development. That development having been completed, this case is once again before the Board. A review of the Veteran's electronic claims file, Virtual VA, did not reveal any further evidence pertinent to the present appeal. 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 Veteran's death certificate states that he died in October 1987 as result of bowel obstruction due to metastic pancreatic cancer. 2. At the time of the Veteran's death, service connection had not been established for any conditions. 3. Neither the Veteran's bowel obstruction nor metastic pancreatic cancer was present during service and did not develop as a result of any incident during service. CONCLUSION OF LAW A disability incurred in service did not cause, or contribute substantially or materially to the cause of, the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.101, 3.159, 3.307, 3.309, 3.311, 3.312, 3.13 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her 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). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The timing requirement applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Certain additional VCAA notice requirements may attach in the context of a claim for dependency and indemnity (DIC) benefits based on service connection for the cause of death. The Court of Appeals for Veterans Claims (Court) held that, for a DIC claim, VCAA 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 (2007). The record shows that the appellant was mailed a letter in June 2004 and a corrective notice in January 2011 advising her of the conditions for which the Veteran was service-connected, or lack thereof, what evidence was needed to substantiate her claim of entitlement to DIC, and of the evidence that she should submit and which evidence VA would obtain on her behalf. Although the appellant was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). Following the provision of the required notice and the completion of all indicated development, the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had notice been provided at an earlier time. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board also finds that VA's duty to assist the appellant has been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), private treatment records, and death certificate have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). No such further records have been identified by the appellant. There is no indication in the record that additional evidence is available which is relevant to the currently appealed claim. See Pelegrini, 18 Vet. App. at 121-22. The Board is cognizant that the appellant was not provided a VA medical opinion with respect to her cause of death claim. VA's duty to assist specifically includes providing a medical opinion when necessary if the claim at issue involves disability compensation. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 3.326. In the context of DIC claims, provision of a medical opinion or other medical analysis is pursuant to 38 U.S.C.A. § 5103A(a) rather than the above cited statute and regulations which pertain only to claims for disability compensation. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). In this case, a medical opinion is not needed. There is no evidence of record, other that the appellant's assertions, that the Veteran's cause of death, pancreatic cancer, was related to service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that reflected that he suffered an event, injury, or disease in service that may be associated with his symptoms). Moreover, there is no question that pancreatic cancer had been diagnosed, but for reasons that will be more fully discussed on the merits below, there is no indication in the record of a causal connection between the Veteran's diagnosed disorder and service. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical opinion in order to decide these claims. In June 2010, the Board remanded the issue of entitlement to service connection for the cause of the Veteran's death in order to have a corrective VCAA letter sent that was compliant with the notice requirements for DIC claims. Such notice was sent to the appellant on July 2011 and the Board finds that the RO substantially complied with that request. The Board also remanded the claim in order to have it referred to the Under Secretary for Health for preparation of a radiation dose estimate in accordance with 38 C.F.R. § 3.311(a)(2)(iii). While the RO attempted to obtain a DD Form 1141 for the Veteran, it was determined that no such form was available. The RO, although in possession of the Veteran's other service personnel records as well as information regarding the Veteran's in-service radiation exposure from the Naval Dosimetry Center showing a roentgen equivalent in man (REM) of 0, did not forward any of this information to the Under Secretary for Health, as the dosage report was negative for a showing of any significant radiation exposure. The Board finds on review that the RO substantially complied with the requirements articulated in the Board's remand, as it has determined that it would be fruitless to send the radiation information currently available to the Under Secretary for Health, as the radiation dose estimate would not reveal any significant findings based upon a REM estimate of 0 with no further evidence. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) . Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed Veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. First, a "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). Radiation-risk activity also includes certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(3)(ii). Specifically, service before January 1, 1974, on Amchitka Island, Alaska, qualifies as a radiation-risk activity if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. 38 C.F.R. § 3.309(d)(3)(ii)(D)(2). Diseases specific to radiation-exposed Veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). Second, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. In all other claims involving radiation exposure, a request will be made for any available records concerning the Veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i) -(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Third, and notwithstanding the above, the Court has held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Rucker v. Brown, 10 Vet. App. 67, 71 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 (1996); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). Thus, the Board must not only determine whether the Veteran had a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. Simply stated, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation. Additionally, service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide exists for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, that included service in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2012). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 3 8 C.F.R. § 3.312(a) (2012). A service-connected disability will be considered as the principal, or primary, cause of death when that 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) (2012). A contributory cause of death inherently is one not related to the principal cause of death. In determining whether 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(c)(1) (2012); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any rating, but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Background The appellant contends that the Veteran's in-service ionizing radiation exposure, or in the alternative, herbicide exposure, contributed to or caused his fatal pancreatic cancer. She also contends that the Veteran was sick constantly during active service as a result of his in-service duties as a nuclear, biological, and chemical (NBC) technician which exposed him to radiation and other chemicals that subsequently caused his death. The Veteran died in October 1987. Of record is a certificate of death listing the immediate cause of the Veteran's death as a result of bowel obstruction due to metastic pancreatic cancer. During the Veteran's lifetime, service-connection had not been established for any disability. A review of the Veteran's STRs was absent for any complaints, treatment, or diagnoses of pancreatic cancer or bowel obstruction. The Veteran's service personnel records indicated that that the Veteran served as a nuclear, biological, and chemical (NBC) technician during active service. They also contain a copy of the Veteran's DD Form 1141, "Record Of Exposure To Ionizing Radiation," which lists the Veteran's total in-service exposure to ionizing radiation while he was assigned to the U.S. Army Chemical Center and School at Fort McClellan, Alabama, during active service. Based upon a review by the Naval Dosimetry Center it was revealed that the Veteran's exposure showed a REM of 0. Further, the service personnel records show that the Veteran did have service in Vietnam from February 1968 to April 1968. A review of the Veteran's private treatment records showed a discussion of his final illness and his medical condition just prior to his death which occurred in the hospital. The Veteran's terminal medical records show treatment prior to his death for pancreatic cancer. However, there was no discussion of etiology relating this condition to the Veteran's military service. Analysis Presumptive service connection (radiation exposure) As noted above, there are 21 types of cancer which are presumptively service connected under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). The Veteran's cause of death, pancreatic cancer, is specifically listed as a presumptive disease. See 38 U.S.C.A. § 1112(c)(2) (West 2002); 38 C.F.R. § 3.309(d)(2) (2012). Importantly, however, the Board does not find that the Veteran is a radiation-exposed veteran who participated in radiation-risk activity. A review of the claims file shows that the Veteran is not a "radiation-exposed Veteran" and did not participate in a "radiation-risk activity" during active service. Accordingly, the presumption of service connection normally available for radiation-exposed Veterans who participate in radiation-risk activities and subsequently develop a radiogenic disease such as pancreatic cancer is inapplicable to this claim. See 38 C.F.R. §§ 3.309, 3.311. Also, with respect to the Veteran's pancreatic cancer, which is a "radiogenic disease," pursuant to 38 C.F.R. § 3.311, the Board does not find that it resulted from exposure to ionizing radiation in service. To be clear, although the Board has determined that the Veteran is not a radiation-exposed veteran as defined under 38 C.F.R. § 3.309(d), this is not to say that he was not exposed to any ionizing radiation in service. As discussed above, in all other claims involving radiation exposure, a request will be made for any available records concerning the Veteran's exposure to radiation. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. See 38 C.F.R. § 3.311(a)(2)(iii). At this juncture, the Board acknowledges the extensive development undertaken by the RO. After forwarding the Veteran's information to the Naval Dosimetry Center it was revealed that the Veteran's exposure showed a REM of 0 based on the Veteran's service personnel records, including duty assignments, military occupational specialty, and duties as claimed, and published reports of exposures to ionizing radiation at the Veteran's verified duty location and period of service. Although the Veteran's records would have typically been forwarded to the Under Secretary for Health for the preparation of a dose estimate in accordance with See 38 C.F.R. § 3.311, it was determined that such an endeavor would be fruitless, as there was no verifiable radiation exposure to report. The above absence of evidence of actual ionizing radiation exposure is against the appellant's claim for service connection for cause of the Veteran's death as a result of ionizing radiation exposure. In summary, in regards to the Veteran's pancreatic cancer, which is a "radiogenic disease," pursuant to 38 C.F.R. § 3.311, the absence of a verifiable exposure to such ionizing radiation runs against the claim. In reaching its decision under 38 C.F.R. § 3.311, the Board has taken the factors as listed in 38 C.F.R. § 3.311(e) into consideration, as mandated by the Court in Hilkert v. West, 11 Vet. App. 284 (1998). Specifically, the Board notes the following: the Veteran was a male; he was approximately 18 to 32 years of age when he was possibly exposed to radiation; the medical evidence does not indicate a family history of the claimed condition; the Veteran's first diagnosis of record for pancreatic cancer appeared approximately 20 to 35 years after exposure to radiation, almost two decades after separation from service; and, there is no verified record of pre or post-service exposure to radiation or carcinogens. None of these factors warrant a different result than shown by the absence of any finding of significant radiation exposure. Presumptive service connection (herbicide exposure) The appellant also contends in the alternative that the Veteran's in-service herbicide exposure contributed to cause his fatal pancreatic cancer. Although, as noted, the Veteran's service personnel records show that he had active combat service in Vietnam during 1968 and his in-service herbicide exposure is presumed as a result of such service, pancreatic cancer is not among the diseases for which service connection is available as a result of in-service herbicide exposure. Thus, the presumptions normally available for Vietnam Veterans presumptively exposed to herbicides during active service also do not apply to this claim. See 38 C.F.R. §§ 3.307, 3.309. No medical opinion could overcome these facts. Neither the appellant nor her service representative has identified or submitted any evidence showing that the Veteran experienced a disease for which service connection is available on a presumptive basis due to his in-service herbicide exposure. Direct service connection Moreover, the competent evidence does not show that the Veteran's pancreatic cancer is otherwise related to his military service. In this regard, as noted above, the earliest date associated with the diagnosis of pancreatic cancer is in 1987, almost two decades after discharge. Therefore, service connection is not warranted for this disability based on the presumption that the condition manifested within one year of discharge. Also, the lapse in time between service and the first treatment for, and diagnosis of, pancreatic cancer weighs against the claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time (as in this case) wherein the Veteran has not complained of the condition at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999). Service treatment records are silent for any reference to pancreatic cancer. Furthermore, private treatment records did not indicate that the diagnosed pancreatic cancer was related to the Veteran's military service. At this juncture, the Board directly addresses the appellant's lay contention that the Veteran's pancreatic cancer, the cause of his death, is a result of his exposure to ionizing radiation during active service. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include 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. Id. Similarly, the Court has held that when 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the appellant's contention regarding a relationship between the Veteran's cause of death and his military service, specifically his exposure to radiation, are not statements about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis. Rather, this contention is a statement of causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The appellant has not demonstrated any such expertise. Thus, her contentions are not competent medical evidence and provide only limited probative weight in support of this claim, clearly outweighed by the findings above. Thus, the Board has considered the appellant's claim under the general provisions pertaining to direct service connection. See Combee, 34 F.3d at 1043-44. Summary After an extensive review of the Veteran's record, as a whole, the Board finds that these records do not provide any additional evidence which would be favorable to the appellant's claim for service connection for the cause of the Veteran's death. In addition, there is no contention or evidence that pancreatic cancer was manifested to a compensable degree within one year of separation from active duty. See 38 C.F.R. §§ 3.307, 3.309. Because the preponderance of the evidence is against a finding that the Veteran died from a disease caused by or related to his service, the appellant's claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert, 1 Vet. App. at 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs