Citation Nr: 1422643 Decision Date: 05/19/14 Archive Date: 05/29/14 DOCKET NO. 05-00 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1927 to June 1956. He died in October 1992. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In September 2006, the Board denied the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant, through an attorney, and VA's Office of General Counsel, filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). In August 2008, the Court granted the Joint Motion and vacated and remanded the Board's September 2006 decision. In July 2009, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there was substantial compliance with the Board's July 2009 remand directives. The Board directed that the AOJ issue corrective VCAA notice to the Appellant on her claim of service connection for the cause of the Veteran's death. This notice was issued in November and December 2009. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In September 2010, the Board again denied the Appellant's claim. The Appellant appealed this decision to the Court. In an August 2012 memorandum decision, the Court vacated and remanded the Board's September 2010 decision. In January 2013, the Board was notified by Paralyzed Veterans of America (PVA) that the Appellant had appointed them to represent her before VA without their knowledge. PVA also notified the Board that it was not accepting the Appellant's appointment. Accordingly, the Appellant is unrepresented before VA. In April 2013, the Board again remanded the Appellant's claim to the AOJ. A review of the claims file shows that there was substantial compliance with the Board's April 2013 remand directives. The Board directed that the AOJ attempt to obtain identified records from the United States Naval Hospital, Subic Bay, Republic of the Philippines ("USNH Subic Bay"). The Board also directed that the AOJ contact the Appellant and request that she identify the date(s) that the Veteran was treated at Clark Air Force Base Hospital, the Republic of the Philippines ("Clark AFB Hospital"). The Board further directed that the AOJ obtain a medical opinion regarding the contended etiological relationship between the cause of the Veteran's death and active service. The AOJ's efforts to obtain the identified records from USNH Subic Bay are well documented in the claims file. The AOJ sent a letter to the Appellant in August 2013 requesting her assistance in identifying the date(s) of the Veteran's treatment at Clark AFB Hospital; she did not provide the requested information. The requested medical opinion was obtained in January 2014. See Stegall, 11 Vet. App. at 268; see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The record evidence, to include the Veteran's death certificate, shows that he died in October 1992 of cardiorespiratory failure due to cardiovascular failure. 2. At the time of the Veteran's death, service connection was not in effect for any disabilities. 3. The Defense Threat Reduction Agency (DTRA) has confirmed that the Veteran participated in Operation CROSSROADS during active service; thus, his in-service ionizing radiation exposure is conceded. 4. The record evidence does not show that the cause of the Veteran's death is related to active service or any incident of service, to include his acknowledged in-service ionizing radiation exposure. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to, a disability incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in May 2004, November and December 2009, and in August 2013, VA notified the Appellant of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Appellant to submit medical evidence relating the cause of the Veteran's death to active service and noted other types of evidence the Appellant could submit in support of her claim. The Appellant also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Appellant be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the November and December 2009 and August 2013 VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support granting service connection for the cause of the Veteran's death. Because the Appellant was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify her under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Appellant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particular notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation of the part of VA to conduct a pre-decisional adjudication of the claim prior to providing § 5103(a)-compliant notice. The Appellant was provided with Hupp-compliant notice in the November 2009 VCAA notice letter. With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the Appellant was not provided with Hupp notice until after the initial adjudication of her claim, because her claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Appellant has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Appellant in obtaining evidence and affording her the opportunity to give testimony before the RO and the Board, although she declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the claims file; the Appellant has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Appellant also does not contend, and the evidence does not show, that the Veteran was in receipt of Social Security Administration (SSA) disability benefits during his lifetime such that a remand to obtain his SSA records is required. As noted in the Introduction, the Appellant has contended that, prior to his death, the Veteran was treated at USNH Subic Bay in 1991-1992. In January 2006, the National Personnel Records Center in St. Louis, Missouri (NPRC), notified VA that there were no records available for the Veteran at USNH Subic Bay for 1991. In November 2013, the NPRC also notified VA that there were no records available for the Veteran at USNH Subic Bay for 1992. In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board concludes that it is reasonably certain that the Veteran's treatment records dated in 1991-1992 from USNH Subic Bay do not exist and further attempts to obtain them would be futile. As also noted in the Introduction, the Appellant has contended that, prior to his death, the Veteran was treated at Clark AFB Hospital. The Appellant was advised by the Court in its August 2012 memorandum decision, the Board in its April 2013 remand, and the RO in August 2013 correspondence that she needed to provide the approximate treatment dates for the Veteran in order for VA to attempt to obtain records from Clark AFB Hospital. The Appellant never responded to these repeated requests with any meaningful information concerning the Veteran's treatment dates at Clark AFB Hospital. In this regard, and as the Court noted in its August 2012 memorandum decision, it is well settled that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Having reviewed the record evidence, and especially in light of the Appellant's failure to identify the dates that the Veteran allegedly was treated at Clark AFB Hospital despite multiple requests to do so from the Court, the Board, and the RO, the Board concludes that no further assistance is required to attempt to obtain these records. In determining whether a medical opinion is warranted in a claim for DIC under 38 U.S.C.A. § 1318 (or a claim of service connection for the cause of the Veteran's death), VA must determine if such opinion is "necessary to substantiate the claim" or whether, instead, "no reasonable possibility exists that such assistance would aid in substantiating the claim." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2009); 38 U.S.C.A. § 5103A(a). In this case, the Board notes that the medical evidence, to include a certificate of death, shows that the Veteran died 36 years after his service separation of cardiorespiratory failure due to cardiovascular failure. There is no medical evidence of continuity of symptoms or competent opinion of a nexus between the Veteran's fatal cardiorespiratory failure due to cardiovascular failure and any incident of service. It also is pertinent to note that, at the time of the Veteran's death, service connection was not in effect for any disabilities. There is no competent evidence, other than the Appellant' statements, which indicates that the cause of the Veteran's death may be associated with service. The Appellant is not competent to testify as to the cause of the Veteran's death as it requires medical expertise to diagnose. Nor is the Appellant competent to testify as to the etiology of the Veteran's cardiorespiratory problems prior to his death. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that there is "no reasonable possibility" that obtaining an opinion regarding the cause of the Veteran's death or the asserted etiological relationship between cardiorespiratory failure due to cardiovascular failure and active service "would aid in substantiating the claim." See DeLaRosa, 515 F.3d at 1322, and Wood, 520 F.3d at 1348. Nevertheless, the Board notes that an opinion was obtained in January 2014 from a VA clinician concerning the contended etiological relationship between the cause of the Veteran's death and active service. In summary, VA has done everything possible to notify and assist the Appellant and no further action is necessary to meet the requirements of the VCAA. Cause of Death Claim The Appellant contends that the cause of the Veteran's death is related to active service. She specifically contends that the Veteran's in-service treatment for a respiratory condition (pleurisy) caused or contributed to his death from cardiorespiratory failure due to cardiovascular failure several decades later. She alternatively contends that the Veteran's in-service ionizing radiation exposure as a participant in Operation CROSSROADS caused or contributed to his death from cardiorespiratory failure due to cardiovascular failure several decades later. Laws and Regulations To establish service connection for the cause of the Veteran's death, evidence must be presented which in some fashion links the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In short, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran may establish service connection for a disability claimed to be attributable to ionizing radiation exposure during service in one of three different ways. McGuire v. West, 11 Vet. App. 274, 277 (1998); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir.1997). First, the Veteran could demonstrate that his or her disease is among the 15 types of cancer which are presumptively service connected pursuant to 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309. Second, a Veteran may show that the disease is on the list of "radiogenic diseases" enumerated in 38 C.F.R. § 3.311(b) which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection of a disease claimed to have been caused by ionizing radiation can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A "radiation exposed Veteran" is a Veteran who, while serving on active duty, participated in a "radiation risk activity," which is defined, in turn, as having participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, or whose service included onsite participation in atmospheric nuclear testing. 38 U.S.C.A. § 1112(c)(3); 38 C.F.R. § 3.309(d)(3). Under 38 U.S.C.A. § 1112(c), if a radiation-exposed Veteran has one of the 15 presumptive diseases contained in § 1112(c)(2), such disease shall be considered to have incurred in or been aggravated by active service, despite there being no record of evidence of such disease during a period of such service. 38 U.S.C.A. § 1112(c). Cardiorespiratory failure due to cardiovascular failure is not included in the list of presumptive diseases for which service connection is available for radiation-exposed Veterans. When it is determined that (1) a Veteran was exposed to ionizing radiation as a result of participation in the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946 or onsite participation in atmospheric nuclear testing; (2) the Veteran subsequently developed a radiogenic disease; and (3) such disease first became manifest 5 or more years after exposure, before adjudication of the claim, it must be referred to the Under Secretary for Benefits for further consideration in accordance with specific enumerated procedures contained in § 3.311(c). If any of the foregoing three requirements has not been met, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances. 38 C.F.R. § 3.311(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). The Veteran's death certificate lists cardiorespiratory failure due to cardiovascular failure as the cause of his death. Because cardiorespiratory failure due to cardiovascular failure is not considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is in applicable to the Appellant's claim. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran's available service treatment records show that, at his enlistment physical examination in August 1927, clinical evaluation of his heart and blood vessels and respiratory system was normal. On periodic physical examination in October 1933, clinical evaluation of the Veteran's heart and blood vessels and respiratory system was normal. On periodic physical examination in November 1937, clinical evaluation of the Veteran's heart and blood vessels and respiratory system was normal. On outpatient treatment on December 9, 1939, the Veteran complained of an injury to the left rib cage after falling down a hatch 8 days earlier "with resultant possible pleural irritation." Physical examination showed severe pain present over the left chest with slight dry cough. The Veteran was transferred to the U.S. Naval Hospital, Pearl Harbor ("USNH Pearl Harbor"), for treatment. When admitted to USNH Pearl Harbor on December 9, 1939, the Veteran complained of pain the left chest. He reported falling down a hatch and being unconscious for a few minutes. "One week later while laughing [the Veteran] felt something snap and pain became worse. Pain now only on deep breathing." The Veteran denied any cough or night sweats. Physical examination showed normal ventilation through the nose, surgically absent tonsils, a few palpable anterior cervical glands, equal expansion and normal percussion in the thorax, tenderness over the 8th rib at the mid-axillary line on the left side, increased breath sounds over the left lung base, and a few rales on deep breathing on the left base mid-axillary line. X-rays showed no evidence of fracture and no evidence of thickened pleura or fluid. The radiologist's impression was pleurisy as a "result of injury." The Veteran was advised to rest. The diagnosis on admission was acute fibrinous pleurisy. The Veteran's diagnosis was changed to chest contusion on December 15, 1939. The Veteran was sent back to full duty on January 3, 1940, with a noted that his was a "[c]ase of probable separation of costochondral junction resulting in a traumatic pleuritis. Treatment symptomatic." On periodic physical examination in November 1940, clinical evaluation of the Veteran's heart and blood vessels and respiratory system was normal. These results were unchanged on subsequent periodic physical examination in October 1944. A chest x-ray taken in May 1948 was negative. On periodic physical examination in November 1948, clinical evaluation of the Veteran's heart and blood vessels and respiratory system was normal. These results were unchanged on subsequent periodic physical examination in November 1951. Chest x-rays taken in August 1953, July 1954, and in April and December 1955 all were normal. On periodic physical examination in May 1955, clinical evaluation of the Veteran was completely normal. A chest x-ray was negative. A chest x-ray taken in March 1956 was essentially negative. At his separation physical examination in June 1956, clinical evaluation of the Veteran was normal except for several scars. A chest x-ray was normal. The post-service evidence shows that the Veteran was hospitalized at USNH Subic Bay from January 22, 1990, to February 15, 1990, after being admitted for aspiration pneumonia. Physical examination showed the Veteran was comatose and in moderate to severe respiratory distress, clear sinus turbinates, a very dry throat, harsh breath sounds in the lungs, equal expansion in the lungs, rhonchi in the left lobe, and "diffuse wheezes heard all over lung field. The admission diagnoses included aspiration pneumonia. The final diagnoses included aspiration pneumonia, resolved, mild exacerbation secondary to aspiration pneumonia, and chronic obstructive pulmonary disease. A review of the Veteran's death certificate shows that he died on October [redacted], 1990, in the Philippines. The immediate cause of the Veteran's death was listed as cardiorespiratory failure. The underlying cause of death was listed as cardiovascular failure. In a July 2002 letter to the RO, the Appellant asserted that the Veteran had been exposed to ionizing radiation while on active service. Attached to the Appellant's letter to the RO was a copy of a letter from the DTRA to the Appellant dated in May 2002 which confirmed that the Veteran had participated in Operation CROSSROADS while on active service. The Veteran's total ionizing radiation dose exposure was 0.275 rems according to information provided to the Appellant by the DTRA and forwarded to the RO in July 2002. In statements on her October 2004 notice of disagreement and December 2004 substantive appeal (VA Form 9), the Appellant asserted that the cause of the Veteran's death was related to active service, including as due to ionizing radiation exposure. She specifically contended that the cause of the Veteran's death was related to active service on a presumptive service connection basis due to his in-service exposure to ionizing radiation while a participant in Operation CROSSROADS. In a January 2014 opinion, a VA physician stated that he had reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. This physician opined that it was less likely than not that the cause of the Veteran's death was related to active service. The rationale for this opinion was that, although the Veteran had been diagnosed as having acute fibronous pleurisy in 1939, his service treatment records showed no "residual lung or pleural abnormalities after his injury in 1939. The pleurisy due to an injury as shown by succeeding physical exam findings and chest x-ray results was cured." The rationale also was that, without "any [other] lung or chest abnormality before his retirement," the Veteran's in-service injury and pleurisy was less likely than not related to the cause of his death several decades later. The rationale further was that there was no evidence of any residuals of the pleurisy experienced by the Veteran in 1939 on subsequent examinations. Analysis The Board finds that the preponderance of the evidence is against the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant has contended strenuously that the cause of the Veteran's death is related to active service, including as due to ionizing radiation exposure. The record evidence does not support her assertions regarding an etiological link between the cause of the Veteran's death and active service. It shows instead that, although the Veteran presumably was exposed to ionizing radiation while a participant in Operation CROSSROADS during active service, the cause of the Veteran's death is not related to his acknowledged in-service ionizing radiation exposure. The Board notes in this regard that DTRA has confirmed the Veteran's participation in Operation CROSSROADS during active service. Thus, the Veteran is considered a radiation exposed Veteran who participated in radiation risk activity while on active service. See 38 C.F.R. § 3.309(d)(3). The cause of the Veteran's death - in this case, cardiorespiratory failure due to cardiovascular failure - is not among those diseases for which service connection is available on a presumptive basis for radiation exposed Veterans due to participation in radiation risk activity, however. See 38 C.F.R. § 3.309(d)(2). The Appellant does not contend, and the evidence does not show, that, during his lifetime, the Veteran experienced any of the "radiogenic" diseases listed in § 3.309(d)(2) for which service connection is available on a presumptive basis for radiation exposed Veterans due to participation in radiation risk activity. Id. Because all of the criteria for service connection for a claimed disability or injury based on in-service ionizing radiation exposure have not been met, the Appellant's claim of service connection for the cause of the Veteran's death on a presumptive basis due to ionizing radiation exposure must be denied. See also 38 C.F.R. § 3.311(b). The Appellant also is not entitled to service connection for the cause of the Veteran's death on a direct basis. See 38 C.F.R. §§ 3.303, 3.304. Although her assertions are not a model of clarity, it appears that the Appellant contends that the Veteran's in-service hospitalization for pleurisy in 1939 caused or contributed to his death from cardiorespiratory failure due to cardiovascular failure several decades later. The record evidence does not support the Appellant's assertions regarding an etiological link between the cause of the Veteran's death and active service. It shows instead that, although the Veteran complained of and was treated for pleurisy in 1939, this respiratory condition resolved with in-service hospitalization and did not reoccur. The Board again observes that the Appellant has asserted repeatedly that the Veteran was treated at Clark AFB Hospital for an unidentified condition which, in her view, caused or contributed to his death. As noted elsewhere, however, the Appellant has failed to provide the Veteran's alleged treatment dates at Clark AFB Hospital despite being requested to do so by the Court, the Board, and the RO. Thus, the Board is unable to determine what relevance, if any, these alleged records have to the Appellant's claim. The Board also finds that, given the Appellant's failure to cooperate with VA, her argument concerning the Veteran's alleged Clark AFB Hospital records will not be considered further. See Wood, 1 Vet. App. at 193. Critically, the VA physician opined in January 2014 that it was less likely than not that the Veteran's in-service pleurisy caused or contributed to his death. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no competent contrary opinion of record. The Appellant also has not identified or submitted any evidence, to include a medical nexus, which relates the cause of the Veteran's death to active service. In summary, the Board finds that service connection for the cause of the Veteran's death is not warranted. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding 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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337 (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements, the Appellant essentially has contended that the Veteran's in-service pleurisy caused continuous respiratory disability which led to his death from cardiorespiratory failure due to cardiovascular failure several decades later. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a respiratory disability after service separation. Further, the Board concludes that the Appellant's assertion of continued respiratory symptomatology since active service, while competent, is not credible. And no medical evidence has been identified or submitted to support the Appellant's assertions of an etiological link between the Veteran's fatal cardiorespiratory failure and active service or any incident of service. The Board has weighed the Appellant's statements as to continuity of the Veteran's symptomatology between active service and his death and finds her current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the absence of complaints or treatment for decades after service. The Appellant's assertions also are outweighed by the medical evidence (in this case, a January 2014 VA physician's opinion) which found no etiological link between the cause of the Veteran's death and active service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms. 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