Citation Nr: 1315917 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-48 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation benefits, pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to February 1971. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Baltimore, Maryland, which denied the appellant's claims. The Board observes that the appellant previously requested the opportunity to testify at a hearing before a Veterans Law Judge in Washington, DC. However, although a hearing was scheduled for November 2011, the appellant requested that the hearing be cancelled. As such, her request for a Central Office hearing before the Board is withdrawn. See 38 C.F.R. §20.704(d) (2012). The issues of entitlement to accrued benefits and compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction ("AOJ"). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. While the SOC included some of the law and regulations pertaining to compensation under 38 U.S.C.A. § 1151, it is clear that an analysis was not conducted. Finally, the Board finds that the issue of entitlement to compensation for the Veteran's death under the provisions of 38 U.S.C.A. § 1151 is not inextricably intertwined with the service connection claim currently on appeal. Although the ultimate benefits sought are the same (dependency and indemnity compensation, or "DIC"), the factual and legal determinations involved are entirely different. Therefore, the Board may proceed with final appellate review of the service connection issue at this time without interfering with any other pending claim. FINDINGS OF FACT 1. The Veteran died on September [redacted], 2008. The death certificate shows that the immediate cause of death was multifocal hepatocellular carcinoma (liver cancer). The secondary cause was hepatitis C. 2. At the time of the Veteran's death, service connection was in effect for: posttraumatic stress disorder ("PTSD") (70 percent disabling); bronchial asthma (30 percent disabling); residuals of meniscectomy, right knee (10 percent disabling); pseudofolliculitis barbae (10 percent disabling); hemorrhoids with pruritus ani (noncompensable); and tinea cruris and condyloma acuminate (noncompensable); he did not have any claims pending before VA. 3. The Veteran's combined disability rating was 80 percent from April 20, 2005; a total disability rating based on individual unemployability as result of service-connected disabilities (TDIU) was granted, effective April 20, 2005. 4. The Veteran served on active duty within the Republic of Vietnam during the Vietnam era, and is thus presumed to have been exposed to herbicides. 5. The Veteran was not diagnosed with multifocal hepatocellular carcinoma during service or within one year of service discharge, and the most probative evidence of record shows that his hepatitis C was not related to a disease or incident of active duty service. 6. Neither the immediate, nor secondary cause listed on the Veteran's death certificate are etiologically related to service, and may not be presumed to be. 7. The Veteran was not continuously rated totally disabled due to service-connected disability or due to unemployability for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death; and he was not a former prisoner of war. CONCLUSIONS OF LAW 1. The cause of the Veteran's death was not related to an injury or disease incurred in, or aggravated by active military service. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159. 3.303, 3.304, 3.307, 3.309(e), 3.312 (2012). 2. The requirements for entitlement to DIC under 38 U.S.C.A. §1318 have not been met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the appellant's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Court has held that, in general, 38 U.S.C.A. § 5103(a) notice for a claim of entitlement to dependency and indemnity compensation ("DIC") benefits must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his 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 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant, who submits a non-detailed application, of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id. Notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case ("SOC") or Supplemental Statement of the Case ("SSOC"). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). In this case, a January 2009 pre-adjudication letter notified the appellant that, in order to support her claim, she should provide medical evidence that would show a reasonable probability that the condition claimed to have contributed to the Veteran's death was caused by injury or disease that began in service. The letter also advised the appellant of her and VA's responsibilities under the VCAA. The United States Court of Appeals for the Federal Circuit ("Federal Circuit") has held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board notes that the January 2009 letter did not expressly notify the appellant of the information and evidence needed to support a claim for DIC based on the Veteran's previously service-connected conditions and what information and evidence was needed to support a claim for DIC based on a condition not yet service-connected. Specifically, the letter did not inform the appellant of the conditions for which the Veteran was service-connected at the time of his death. Nonetheless, the Court has held that actual knowledge can also be established by statements or actions by a claimant's representative that demonstrate an awareness of what is necessary to substantiate his or her claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). In this case, it is clear from the appellant's arguments that she had actual knowledge that, in order to be awarded service connection for the cause of the Veteran's death, she would have to submit evidence showing that he died as a result of a disease or injury that was related to his military service. See October 2010 statement. It is also evident that she knew that the Veteran was not service-connected for multifocal hepatocellular carcinoma or hepatitis C at the time of his death. She does not argue, and the evidence does not show that the Veteran's already recognized service-connected disabilities played a role in his death. Accordingly, and as the appellant has pointed to no prejudice resulting from this lack of notice, the Board finds any error in the content or timing of the notice is not prejudicial. Because the Board has concluded that the preponderance of the evidence is against the appellant's claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). B.) Duty to Assist Under the VCAA, VA also has a duty to assist the appellant in the development of a claim. This includes assisting the appellant in procuring service treatment records, relevant post-service treatment records, and providing a VA examination or opinion when warranted. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The Board concludes that VA's duty to assist has been satisfied in this case. Of record are the Veteran's service and post-service treatment reports, his terminal hospital treatment reports and his death certificate. The claims folder also contains the appellant's personal statements in support of her claim. VA's duty to assist also includes a duty to provide the Veteran with a proper medical examination or opinion when warranted. In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes that an opinion is not needed in this case because the only evidence indicating that the cause of the Veteran's death was related to active duty service are the lay statements of the appellant. Such evidence is insufficient to trigger VA's duty to provide an examination or opinion. In this regard, the Board acknowledges the there are instances in which lay testimony can serve to establish an association between service and the claimed disability or death for the purpose of satisfying the criteria of McLendon. See Charles v. Principi, 16 Vet. App. 370 (2002). For example, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions, such as a dislocated shoulder, and their lay testimony as to a continuity of symptomatology can satisfy the requirements of McLendon. However, the Board finds that a lay person is not competent to offer an opinion on a matter clearly requiring medical expertise, such as linking the multifocal hepatocellular carcinoma that was found to be the primary cause of the Veteran's death to his military service many decades earlier. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the appellant's lay beliefs alone can serve to establish any association between the Veteran's death and military service. As there is no competent evidence suggesting any association with service or a service-connected disability, the Board finds that an opinion is not warranted under the criteria set forth in McLendon. See Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Discussion The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "[l]ay 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013). In addition, certain chronic diseases, including malignant tumors and cirrhosis of the liver, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year of separation from active duty service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In order to establish service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). 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, including, particularly, autopsy reports. Id. The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). The service-connected disability will be considered a contributory cause of death if it is shown that it contributed substantially or materially to death, combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2012). 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. Id. Medical evidence is required to establish a causal connection between service, or a disability of service origin, and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease, or have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). A. Entitlement to service connection for the cause of the Veteran's death. The appellant appears to assert that the Veteran's death was the result of multifocal hepatocellular carcinoma due to hepatitis C, which she claims is a result of his military service in the Republic of Vietnam. See statement, November 2010. Although, at the time of his death, the Veteran was service-connected for PTSD, bronchial asthma, residuals of meniscectomy, right knee, pseudofolliculitis barbae, hemorrhoids with pruritus ani, and tinea cruris and condyloma acuminate, neither the appellant, nor the competent evidence of record, suggests that any of these disabilities caused or materially contributed to his death. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). These disease include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (including acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemia (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Ischemic heart disease associated with herbicide agent exposure in service for VA presumptive service connection purposes does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). The Secretary 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 -449 (1996). The Secretary has further stated that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for numerous specified diseases, including hepatobiliary cancers (liver, gallbladder and bile ducts). See Notice, 77 Fed. Reg. 47924-47928 (Aug. 10, 2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran's death certificate reveals that he died on September [redacted], 2008 as a result of multifocal hepatocellular carcinoma, due to (or a consequence of) hepatitis C. Review of the Veteran's service personnel records reveals that he served in combat in the Republic of Vietnam during the Vietnam Era, for which he was awarded the combat infantryman badge. As such, herbicide exposure is conceded. However, as noted above, multifocal hepatocellular carcinoma is not one of the diseases which may be presumed to have resulted from herbicide exposure under the provisions of 38 C.F.R. § 3.309(e), as hepatobiliary cancers have been specifically ruled out by the National Academy of Science as being associated with herbicide exposure. Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir 1994); see also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. 2000). With regard to establishing service connection on a direct basis for the cause of the Veteran's death from multifocal hepatocellular carcinoma due to hepatitis C, the Board observes that his service treatment records reveal no medical evidence that he was ever diagnosed with, or treated for either of the conditions that directly caused or contributed to his death. Review of his January 1971 separation examination reveals that, although an abnormality of the gastrointestinal system was described as a few sessile papules on the shaft of the penis, there is no indication that this condition was related to any disorder of the liver. Moreover, there is no competent evidence to establish that a malignant tumor became manifest to a compensable degree within one year of his separation from service. As such, service connection for the cause of the Veteran's death as a result of multifocal hepatocellular carcinoma on a presumptive basis is not warranted. With regard to his history of hepatitis C, the VA post-service treatment reports of record show that the Veteran was not diagnosed with this condition until approximately September 2001 (although, as part of his previous application for service connection for the disorder, he reported that he began treatment for hepatitis C in 1999). A May 2003 examination reports show that he reported having a 10-year history of cocaine abuse, a medically-recognized risk factor for hepatitis C. See Veterans Benefits Administration (VBA), Director Bulletin, 211B (98-110) (Nov. 30, 1998). However, there is no competent evidence attributing his hepatitis C to military service, as his previous claims of entitlement to service connection for the condition were denied. With regard to his multifocal hepatocellular carcinoma, VA treatment reports of record show that the Veteran was first diagnosed with the disease in early January 2007, following a December 2006 liver biopsy. At that time, although it was also noted that he had cirrhosis of the liver, there is no medical evidence that he was diagnosed with cirrhosis of the liver within one year of separation from service or that cirrhosis of the liver was a contributing cause of his death. In January 2007, the Veteran underwent surgery for ablation of a hepatic tumor. In August 2007, an abdominal CT scan revealed recurrence of the tumor. A December 2007 treatment record showed that his multifocal hepatocellular carcinoma was now considered "progressive." There are no additional treatment reports of record until September [redacted], 2008, when it was noted that the Veteran was on home hospice. The following day, the Veteran passed away. Having reviewed the complete evidence of record, the Board concludes that the most probative evidence fails to support the appellant's contention that the Veteran's death was related to service, to include as a result of multifocal hepatocellular carcinoma, hepatitis C or herbicide exposure. In this respect, the Board has given careful consideration to the statements of the appellant regarding the cause of her husband's death. Certainly, the appellant is competent to offer evidence as to facts within her knowledge, such as observable symptoms related to any of the Veteran's medical conditions prior to his death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as previously discussed, although the appellant may attest to the Veteran's symptomatology, as a layperson without medical training or experience, she is not competent to provide an opinion on a complex medical issue, such as determining the etiology of liver cancer or relating it to the Veteran's military service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, this is not a case in which the lay opinions of the appellant may serve to establish any association between the Veteran's death and service. Moreover, as previously discussed, although the appellant was furnished with VCAA notice advising her of the evidence necessary to substantiate her claim, and she has clearly demonstrated a knowledge of the requirements necessary to prove her claim, she has failed to provide any medical evidence suggesting an association between the Veteran's death from multifocal hepatocellular carcinoma and military service. As such, the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not for application, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, as the claims folder contains no competent medical evidence or opinion relating the Veteran's death directly or indirectly to his active duty service, the Board finds that service connection for the cause of the Veteran's death is not warranted. In so concluding, the Board in no way intends to minimize the Veteran's sacrifices during his service to his country, or the appellant's sincerity in pursuing her claim. Although the Board is sympathetic to the appellant's sincere belief that the Veteran died as a result of cancer due to herbicide exposure, the Board may not go beyond the factual evidence presented in this claim to provide a favorable determination. B. Entitlement to DIC under 8 U.S.C.A. § 1318 Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death were service-connected, even though the veteran died of non-service-connected causes, if the veteran's death was not the result of his or her own willful misconduct, and at the time of death, the veteran was receiving, or was entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty, and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22 (2012). In essence, the only possible ways of prevailing on a claim for benefits under 38 U.S.C.A. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision that were not previously considered by VA provide a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively. See also 38 C.F.R. § 3.22. Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are clearly not met. First, the Veteran plainly did not meet the durational requirement for a total disability rating under 38 U.S.C.A. § 1318. The Veteran was separated from service in February 1971. A TDIU was awarded effective from April 20, 2005; the Veteran died on September [redacted], 2008. As such, the Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabling continuously since his release from active duty and for a period of not less than five years immediately preceding death. In addition the Veteran was not a former prisoner of war. The next issue is whether either of the aforementioned duration requirements for a total rating so as to satisfy 38 U.S.C.A. § 1318 would have been met, but for clear and unmistakable error ("CUE") in a decision on a claim filed during the Veteran's lifetime. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior determination will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. See 38 C.F.R. § 3.105(a). The Court has created the following three-pronged test to determine whether CUE is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law which existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc). The Court has further stated that CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, which when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If a claimant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo v. Brown, supra. Neither the Veteran (during his lifetime), nor the appellant has reasonably raised a motion of clear and unmistakable error in any final rating action on file. In this regard the appellant has not identified any error of law or fact which forms the basis of a valid CUE claim. Mere disagreement with how facts were evaluated is an inadequate basis under which to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Finally, the Board has considered whether there were service department records in existence at the time of a prior VA decision which were not previously considered by VA and which provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively. In this regard, the Board has identified no such records which establish that the Veteran was entitled to a total service-connected disability rating for the requisite time period. Where the law and not the evidence is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, (1994). Accordingly, for the reasons discussed herein, the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs