Citation Nr: 1342974 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-46 454 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation benefits (DIC), pursuant to the provisions of 38 U.S.C.A. § 1310. 2. Entitlement to Dependency and Indemnity Compensation benefits (DIC), pursuant to the provisions of 38 U.S.C.A. § 1151. 3. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for renal cell carcinoma with lung metastasis, for accrued benefits purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service from June 1970 to March 1972. He died in March 2007. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 RO decision, which denied service connection for cause of death, entitlement to DIC under 38 U.S.C.A. § 1151, and entitlement to compensation under 38 U.S.C.A. § 1151 for renal cell carcinoma with lung metastasis, for accrued benefits purposes. In October 2011, the appellant relocated from Texas to Washington; her appeal has therefore been transferred from the jurisdiction of the Waco RO to that of the Seattle RO. In March 2012 a Board hearing was held at the RO in Seattle, Washington; the transcript is of record and has been reviewed. The Board remanded the matter in December 2012 for further evidentiary development. After such development was complete, the Board referred the Veteran's medical records to a physician who is a specialist in the treatment of cancers such as the Veteran's terminal disease, for an independent medical opinion, which was received in June 2013. The Board remanded the appeal again for initial RO consideration of newly-submitted evidence from the appellant in October 2013. Such review and consideration was accomplished in October 2013 and the matter is once again before the Board for further appellate review. FINDINGS OF FACT 1. Exposure to asbestos or other chemicals such as cadmium during service did not cause or contribute to the Veteran's development of renal cell carcinoma. 2. No additional disability, to include hastening his death or causing his death, resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in caring for the Veteran is shown. 3. The appellant, who is the Veteran's surviving spouse, filed a claim for accrued benefits within one year of the Veteran's death in March 2007. 4. The evidence of record and constructively of record at the time of the Veteran's death does not support a finding that the Veteran sustained any additional disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in caring for the Veteran. CONCLUSIONS OF LAW 1. Dependency and indemnity compensation benefits based upon service connection for the cause of the Veteran's death, claimed as due to exposure to asbestos and chemicals during service, are not warranted. 38 U.S.C.A. § 1110, 1310, 5107 (West 2002); 38 C.F.R. § 3.303, 3.312 (2013). 2. Dependency and indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1151 for the Veteran's death are not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). 3. The criteria for an award of 38 U.S.C.A. § 1151 benefits for accrued benefits purposes are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.361, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran passed away in March 2007. According to his death certificate, the cause of his death was determined to have been metastatic renal cell carcinoma. At the time of his death, service connection had not been established for any disability. He had filed a claim which was pending and unadjudicated at the time of his death, for VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for renal cell carcinoma, however. The appellant has advanced essentially two theories of entitlement to dependency and indemnity compensation benefits. The first is based upon service connection for the cause of the Veteran's death. She asserts that exposure to asbestos and chemicals such as cadmium during service caused him to develop the renal cell carcinoma. Her second theory is based upon a theory of negligent VA medical care during the Veteran's cancer treatment and final illness. In this regard, she asserts that he was not provided with oncology services until his cancer had progressed, that there was a delay in treatment which was detrimental to the Veteran's health as the tumor spread, and that follow-up care following his kidney surgery was untimely. She also asserts that timely action was not taken after the discovery of nodules in his lungs. In particular, she claims that a positron-emission tomography (PET) scan should have been performed immediately upon discovering the lung nodules. The appellant is also claiming accrued benefits based upon the claim her husband had filed prior to his death. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the appellant of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically with respect to claims for DIC, the United States Court of Appeals for Veterans Claims (Court) has required that VA must provide a detailed notice to the claimant. This notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and 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 (2007), rev'd on other grounds, 329 Fed.Appx. 277 (Fed. Cir. 2009) (unpublished). This information was provided to the appellant in an August 2009 letter. Regarding the claims for accrued benefits, because the law requires that accrued benefit claims be adjudicated on the basis of the evidence that was of record at the time of the Veteran's death, no notice of the evidence necessary to support these claims is required. Thus, there is no prejudice to the claimant in adjudication of the accrued benefits claim. Bernard v. Brown, 4 Vet. App. 384 (1993). With respect to the March 2012 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing must 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. Here, during the hearing, the Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the appellant's claims. She asked specific questions, directed at identifying any relationship between the Veteran's military service and the cause of his death. She also specifically sought to identify any pertinent evidence not currently associated with the claims file. Finally, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). With regard to the independent medical opinion which is of record, when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that the independent medical opinion obtained in this case is adequate. The opinion was predicated on a review of the claims folder and the relevant medical records contained therein, it contains a description of the history of the disabilities at issue; and documents and considers the Veteran's complaints and symptoms. The physician considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Medical reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Accordingly, the Board finds that the VA's duty to assist with respect to obtaining an independent medical opinion has been met. 38 C.F.R. § 3.159(c)(4). Medical treatment records, including the records reflecting the Veteran's terminal illness, have been obtained and reviewed in support of the Veteran's claim. The hearing testimony has been carefully reviewed. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his Virtual VA file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Analysis Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause of death. Dependency and indemnity compensation may be paid under the provisions of 38 U.S.C.A. § 1151 for death which is treated as though it were service connected under this statute. Cause of death To establish service connection for the cause of 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. 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. The appellant claims that exposure to asbestos and toxic chemicals such as cadmium while the Veteran was stationed aboard ships, including the USS Apache, during his naval service caused or contributed to his renal cancer. During the March 2012 Board hearing, she testified that he had told her he did "a lot of scraping and painting and inside the ship, outside the ship," and was exposed to not only the asbestos but the cadmium which is in paint. There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-related diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M 21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M 21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people were employed in shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come in for medical attention because the latency period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In this case, it is significant that the Veteran's primary cancer was in his kidney, rather than in his lungs. Although he developed cancerous nodules in his lungs, it was determined upon pathology studies that the primary site of the cancer was his kidney. Furthermore, although the Veteran had extensive tests and studies, there is no indication of asbestosis or parenchymal lung disease. Therefore, many of these provisions regarding asbestosis and parenchymal lung disease are inapplicable to this case, as the question is whether asbestos exposure contributed in any way to his renal cancer. Initially, the Board notes that the evidence of record does not support definite exposure to either asbestos or cadmium. However, for the limited purposes of this decision, the Board will assume exposure to asbestos and other chemicals during the course of the Veteran's one year and nine months of sea service. Based upon this assumption, the Board requested an independent medical opinion as to whether exposure to asbestos or any other chemicals in service caused the Veteran's renal cell carcinoma. In a June 2013 opinion, a physician who is not affiliated with the VA, opined that there is less than a 50 percent probability that the Veteran's renal cancer was caused by that potential exposure. The physician provided the following explanation: To date, there is no clear evidence linking exposure to any carcinogen and the etiology of renal cancer other than a weak association to tobacco exposure. Lack of tobacco exposure does not signify that some other carcinogen must have been the cause. Renal cancers while not common, do comprise about 3-4% of all solid malignancies and the great majority are sporadic with no clear etiology. There are numerous reports of potential links to various chemicals but no definitive evidence has been published. The appellant has presented no medical opinion evidence to the contrary. She has submitted multiple treatise articles and internet articles, including evidence regarding the effects of asbestos exposure and articles indicating that there may be a link between cadmium exposure and kidney cancer. Much of the information she has submitted is consistent with the physician's explanation that kidney cancers generally have no clear etiology, however. None of this information is specific to the Veteran. The appellant has also submitted her own strongly-expressed beliefs that the Veteran's cancer must be due to some ill-exposure during service. She is not shown to possess any particular medical expertise, 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, (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. Davidson v. Shinseki, 581 F3d 1313 (Fed. Cir. 2009). In this case, the appellant is not shown to be competent to render an authoritative opinion on a complex medical matter such as the etiology of her husband's cancer. The Board therefore accords much greater weight to the June 2013 informed medical opinion. These conclusions are supported by medical expertise, and the Board therefore holds that the appellant, as a layperson, does not have the necessary expertise to present a contrary opinion which would carry greater weight than the informed and well-explained, expert opinion presented by the independent medical expert in this case. In sum, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. This is a purely medical question, requiring informed medical expertise to answer it. No link is shown between the Veteran's renal cancer and his period of service, or any asbestos or chemical exposure which may have occurred therein. The benefit sought is therefore denied. VA medical negligence As set forth above, the appellant asserts that negligent VA medical care during the Veteran's cancer treatment and final illness hastened his death. She asserts that he was not provided with oncology services until his cancer had progressed, that there was a delay in treatment which was detrimental to the Veteran's health as the tumor spread, and that follow-up care following his kidney surgery was untimely. She also asserts that timely action was not taken after the discovery of nodules in his lungs. In particular, she claims that a positron-emission tomography (PET) scan should have been performed immediately upon discovering the lung nodules. Under 38 U.S.C.A. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The first step of developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure. To make this determination, we compare the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, etc. upon which the claim is based to the Veteran's condition after such care. Each involved body part or system is considered separately. 38 C.F.R. § 3.361(b). If it is determined that the Veteran has an additional disability resulting from VA care, the second step is to establish the cause of the additional disability; in other words, to determine whether the VA actions actually caused the additional disability. To establish causation, the evidence must show that the VA care actually resulted in the additional disability. Merely showing that the Veteran received care and that he has an additional disability does not establish cause. Furthermore, medical care cannot cause the continuance or natural progress of a disease or injury for which the care was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). The proximate cause of disability is defined for these purposes as the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). However, causation alone is not sufficient to warrant compensation under 38 U.S.C.A. § 1151. Rather the third step in the analysis requires that the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Initially, the Board observes that the appellant's first assertion, that the Veteran was not provided with oncology care early in his course of treatment, is simply incorrect. Review of his electronic VA treatment records dated in 2005 reveals multiple referrals to the VAMC tumor board, showing that the Veteran's care was coordinated by a team of specialists, to include specialists with expertise in oncology, following the diagnosis of cancer. Although she may not have met with the entire membership of the tumor board, and indeed, each member of the board may not have personally examined the Veteran, this in no way means that the Veteran was not under the care of a team of specialists; rather these specialists coordinated his care throughout his illness. Perhaps this information can correct a misimpression which was causing her angst and possibly provide the appellant with some peace as she grieves for her husband. The Board referred the remainder of the appellant's concerns to an independent medical expert, who is a physician not affiliated with the VA, for review of her serious allegations involving negligence and lapses in her husband's care. Because the resulting opinion is both technical and comprehensive, it is set forth in its entirety here: Regarding the question of whether negligence of the VA staff caused progression of the patient's cancer, at the time of diagnosis, there were two small pulmonary nodules, one on each lung. It was appropriate to perform the nephrectomy whether the nodules represented cancer or not. Small pulmonary nodules may have a variety of causes including but not limited to inflammatory lesions, primary lung tumors or metastatic disease. A biopsy of these lesions would have been difficult and associated with significant risk. After the nephrectomy, the choices included attempt at resection of the nodules, immediate adjuvant chemotherapy or observation. There is no clear standard of care in this clinical scenario. Bilateral resection of the pulmonary nodules would have been a very aggressive approach that in hindsight would not have been helpful. The other pulmonary lesions which were eventually discovered were almost certainly present in microscopic form. There have been cases of spontaneous resolution of what was thought to represent metastatic renal cancer but in all likelihood was some inflammatory lesion. A brief period of observation will usually allow for confirmation of the nature of the possible metastases. While some clinicians may have elected to perform a PET scan, that is not the standard of care now nor was it at that time. It would not have proven the nature of the lesions in the lungs conclusively. The next CT [computed tomography] scan interestingly showed resolution of the larger lesion and stability of the smaller lesion. There were also numerous other sub-centimeter lesions noted. At this point, further observation led to another CT a few months later which conclusively demonstrated metastases. The earliest possible time to consider starting chemotherapy, if that route had been chosen, would have been November 2005 when the patient had mostly recovered from surgery. Even if chemotherapy had been administered at that early juncture, the response rate of the available agents was less than 50%. While the timing of the treatment is controversial and some clinicians may have chosen to start chemotherapy without further confirmation on imaging studies, the fact that the agents available simply were not that effective leads me to conclude that the progression was not caused by a delay in treatment to within a reasonable degree of medical certainty. In my opinion, there was no significant delay, but even if one were to conclude that there was, the progression would more than likely have occurred anyway. Regarding whether a delay in treatment led to the Veteran's death, there is less than a 50% probability that any delay caused the patient's death. As discussed above, there may be some difference of opinion about the timing of the chemotherapy. Regardless of that, patients who present with systemic metastases from renal cancer have an extremely poor prognosis, with the majority dying within about a year. While the chemotherapeutic agents that have been developed in recent years represent an advance in this disease, there remains no treatment that has shown a likelihood of cure when renal cancer involves other distant sites. In my opinion, there was no delay in treatment, but even if one were to conclude that there was a delay of a few months, there is no reasonable expectation that the outcome would have been different. Based upon this thorough explanation, the Board finds that the Veteran did not incur additional disability related to his VA medical treatment at any point during his terminal illness. The medical expert reviewed the course of the Veteran's disease and the concomitant treatment he was given at each stage of the disease and found the medical treatment he was given to be appropriate. The expert opined that there was no delay in treatment, and in so doing explained that reasonable differences of opinion as to when it is best to begin chemotherapy under such circumstances, exist among medical experts. The expert also opined that administering a PET scan at the point the appellant asserts it should have been done, would not have fallen within the standard of care for such diseases, and indeed, would not have proven the nature of the lesions in the Veteran's lungs conclusively. As above, the Board chooses to accord greater probative weight to the informed medical opinion of the independent physician than to the lay assertions of the appellant. Her allegations do not hold up under legal scrutiny. Thus, in this case, the Board finds that no additional disability related to VA medical care has been established. The evidence does not support the appellant's contention that VA negligence hastened her husband's death. Rather, the medical evidence indicates that his care was appropriate and within the degree of care that would be expected of a reasonable health care provider. The preponderance of the evidence is thus against this claim, and the benefit sought must be denied. Accrued benefits The law provides that, upon the death of a Veteran, a surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of the Veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The application for accrued benefits must be filed within one year after the date of the Veteran's death. 38 C.F.R. § 3.1000(c). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the 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." Therefore, in order for a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 ; Jones, 136 F.3d 1299. Claims for accrued benefits are derivative in nature, such that a "claimant's entitlement is based on [a] veteran's entitlement" to service connection. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed Cir. 1996). The claim is based on evidence in the file at date of death, which means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). The Veteran filed a claim for VA compensation based upon 38 U.S.C.A. § 1151 in February 2007. He died in March 2007, before the RO had developed or adjudicated his claim. Review of the record shows that the appellant filed a claim for dependency and indemnity compensation in May 2007, two months after the Veteran's death. Because the Veteran had a pending claim, the RO properly interpreted her claim as including any accrued benefits. The accrued benefits claim is thus considered timely-filed and the appellant has standing to pursue any accrued benefits. However, the question of whether the Veteran would have prevailed on the claim if he had not died, remains. As noted above, the RO had not developed or adjudicated the Veteran's claim at the time of his death. However, because he received his medical care from the VA, his terminal records were considered to have been constructively in his claims file. Thus, the RO properly associated all VA medical records prior to adjudicating the accrued benefits claim. As provided in the governing regulation, however, other than VA-generated evidence which was in existence at the time of the Veteran's death, only evidence contained in his claims file may be considered in adjudicating the claim for accrued benefits. In this case, the preponderance of the evidence which may be considered is against the Veteran's claim for 38 U.S.C.A. § 1151 benefits. The VA medical records reflecting his medical care do not in themselves show any additional disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in caring for the Veteran. The Board acknowledged this implicit fact when it sought an independent medical opinion to resolve the appellant's claim for dependency and indemnity compensation. For purposes of adjudicating this accrued benefits claim, the Board cannot consider the independent medical opinion, or any of the treatise and internet evidence submitted by the appellant. Thus, absent any showing of additional disability or showing that the Veteran's life was shortened, as he asserted in his February 2007 claim, related to his VA medical care, the preponderance of the evidence is against 38 U.S.C.A. § 1151 benefits in the claim filed by the Veteran. The preponderance of the evidence is concomitantly against the appellant's claim for accrued benefits. Accrued benefits are also denied in this case. Continued on next page ORDER Dependency and indemnity compensation based upon service connection for the cause of the Veteran's death is denied. Dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for renal cell carcinoma with lung metastasis, for accrued benefits purposes, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs