Citation Nr: 1512786 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 01-08 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) for accrued benefits purposes. 2. Entitlement to service connection for testicular cancer for accrued benefits purposes. 3. Entitlement to service connection for lung cancer for accrued benefits purposes. 4. Entitlement to service connection for the Veteran's cause of death. 5. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. 6. Entitlement to DIC under 38 U.S.C.A. § 1151 for the cause of the Veteran's death based on treatment for testicular cancer, its recurrence, or metastases. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from February 1970 to February 1974. The Veteran died in March 2000. This matter comes before the Board of Veterans' Appeals (Board) following an order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in March 2009, which vacated a December 2006 Board decision denying service connection for the Veteran's cause of death and entitlement to DIC benefits. The Court remanded the case for additional development including instructions to adjudicate inextricably intertwined issues. The appeal initially arose from a September 2000 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues as to cause of death on the merits, the DIC claim under 38 U.S.C.A. § 1151, the DIC claim under 38 U.S.C.A. § 1318, and the accrued benefits claims were addressed in rating decisions in September 2002, September 2005, and June 2013. In September 2003, the appellant testified at a personal hearing before a Veterans Law Judge who is unavailable to participate in a decision in her case. A copy of the transcript of that hearing is of record. The appellant was informed of her right to another Board hearing by correspondence dated in January 2013 sent to her last known address of record. She was adequately notified and her right to an additional hearing is considered to have been waived. The case was remanded for additional development including in February 2010, October 2011, April 2013, and February 2014. FINDINGS OF FACT 1. A claim for PTSD was pending at the time of the Veteran's death; the evidence in VA possession at that time shows he had PTSD related to unverified stressor events. 2. A claim for testicular cancer was pending at the time of the Veteran's death; the evidence in VA possession at that time did not show testicular cancer developed as a result of active service. 3. A claim for lung cancer was pending at the time of the Veteran's death; the evidence in VA possession at that time does not show lung cancer developed as a result of active service. 4. The Veteran died in March 2000 as a result of testicular cancer with metastases to the lung and brain. 5. The evidence does not establish that a service-connected disability caused or contributed materially or substantially to the Veteran's death, nor that the cause of death is otherwise related to service. 6. A total service-connected disability rating was not in effect at the time of the Veteran's death and there is no indication that he was otherwise entitled to receive a total rating prior to his death. 7. The evidence does not establish that the cause of the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault due to VA treatment for testicular cancer, its recurrence, or metastases, and was not caused by an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. PTSD for accrued benefits purposes was not incurred or aggravated as a result of active service, nor may service connection be presumed. 38 U.S.C.A. §§ 1110, 5121 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2014). 2. Testicular cancer for accrued benefits purposes was not incurred or aggravated as a result of active service, nor may service connection be presumed. 38 U.S.C.A. §§ 1110, 5121 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2014). 3. Lung cancer for accrued benefits purposes was not incurred or aggravated as a result of active service, nor may service connection be presumed. 38 U.S.C.A. §§ 1110, 5121 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2014). 4. The criteria for service connection for the cause of the Veteran's death have not been met, and a service-connected disability did not cause, hasten, or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2014). 5. The criteria for DIC benefits under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2014). 6. The criteria for compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death based on treatment for testicular cancer, its recurrence, or metastases are not met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The appellant was notified of the duties to assist and of the information and evidence necessary to substantiate her claims by correspondence dated in April 2001, February 2002, March 2004, May 2010, July 2010, October 2011, November 2011, and September 2012. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, non-VA (private) treatment records, and statements and testimony in support of the claims. The appellant was notified of the specific records VA was able to obtain, of the efforts made to obtain records, of the further action to be taken by VA with respect to the claims, and that she was ultimately responsible for providing the evidence. The development requested on remand has been substantially completed. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms as well as the specific contentions raised by the appellant. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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 September 2003 Board hearing, the appellant was assisted at the hearing by an accredited representative and the representative and the VLJ asked questions to draw out the essential elements of her claims. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or the representative that was not obtained while the appeal was in Remand status. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Factual Background The pertinent evidence of record shows service treatment records are negative for complaint, treatment, or diagnosis related to malignant tumor, cancer, or PTSD. The Veteran's November 1973 separation examination revealed normal clinical lung, genitourinary, and psychiatric evaluations. Service records show he served in the Republic of Vietnam from January 1971 to August 1972. His military occupational specialty was air cargo specialist. No medals indicative of combat were awarded. VA records show the Veteran requested entitlement to service connection for PTSD in July 1983. His claim was denied in an October 1983 rating decision based upon his failure to report for a VA examination. The Veteran requested entitlement to service connection for testicular cancer in December 1996. He noted having received private treatment in December 1996. A February 1997 rating decision denied the claim as not well grounded. Private treatment records from Kewanee Hospital dated in December 1996 noted a pathology report with diagnoses of seminoma of the right testis with foci of lymphatic channel involvement, invasion into the adnexal tissue, and involvement of the epididymis. Records dated in February 1997 from the University of Iowa (UIHC) Hospitals and Clinics show the Veteran reported having had an enlarging right testes mass over the previous six months and that he underwent a radical orchiectomy in December 1996. A basic treatment plan was provided. Radiation oncology records show treatment ended in March 1997. A November 1997 UIHC report noted that chest X-ray studies revealed a 1.5 centimeter nodule in the right upper lung that was suspicious for metastatic cancer. VA treatment records show the Veteran underwent laboratory blood work including in November 1997, April 1998, January 1999, and March 1999. An April 1998 computerized tomography (CT) scan included a diagnosis of enlarging noncalcified pulmonary nodule in the anterior segment of the right upper lobe. In March 1999, the Veteran requested that his PTSD and testicular cancer claims be reopened and requested entitlement to service connection for lung cancer. While the matters were reopened, service connection was denied in a November 1999 rating decision. An appeal from this decision was subsequently perfected. VA treatment records dated in May 1999 show a staff psychologist, R.J.R, Ph.D., became involved in the Veteran's case upon request of hospital administration in response to congressional office concerns about his care. It was noted it seemed the Veteran was upset that VA had been hounding him to come in for further evaluation and potential treatment for a possible cancer. Dr. R.J.R. stated he had numerous brief contacts with the Veteran trying to encourage compliance with medical personnel so that he could get the medical attention he apparently desperately needed. It was further noted that the Veteran probably had unrecognized and untreated PTSD secondary to military service in Vietnam for years, and that his withdrawal and avoidance of anything to do with the military, the government, or death influenced his avoidance of cancer treatment. The examiner stated that although the history pieced together was not complete, it seemed clearly consistent with a diagnosis of combat-related PTSD. The criteria for a diagnosis of PTSD under DSM-IV were addressed, including stressors related to handling body bags and having spent a two to three week period in Khe Sanh under almost constant enemy fire. On VA genitourinary examination in May 1999 the diagnosis was history of right testicular seminoma with metastases, status post right orchiectomy. A May 1999 VA respiratory examination diagnosed a lung mass that was possibly secondary to metastatic right testicular seminoma. VA PTSD examination in May 1999 included a diagnosis of PTSD. It was noted the Veteran complained of problems with PTSD for approximately 25 years and related it to his time in the service unloading dead bodies off airplanes. VA treatment records indicate that by September 1999 the Veteran developed clival metastases. Records dated in November and December 1999 reflect ongoing chemotherapy for recurrent seminomatous germ cell cancer and metastasis to the clivus and lungs. A February 2000 VA aid and attendance examination included a diagnosis of progressive seminoma with metastasis to lung, clivus (brain), and cerebral spinal fluid. In a January 2000 VA treatment note, Dr. R.J.R., reiterated his diagnosis of PTSD from Vietnam combat. It was noted, in essence, that his opinion was changed upon information indicating that friends the Veteran had known died in Vietnam before his service in Vietnam. A February 2000 reevlauation note from the University of Iowa Hospitals and Clinics showed the Veteran had an initial diagnosis of right testicular seminoma in December 1996. It was also noted he was treated with right radical orchiectomy followed by beam radiation therapy to the abdomen and right pelvis that was completed in March 1997. The examiner noted he had done well until the fall of 1998. The diagnosis was Stage II testicular seminoma, now metastatic with non seminomatous histology. VA records dated in March 2000 from a hospice care nurse noted the Veteran was asked to come to a VA facility for testing and possible decompressive surgery for worsening pain and cord compression. It was further noted that the Veteran indicated he understood, but that he chose not to seek treatment because he viewed the hospital system as anti-palliative. Records show the Veteran was receiving hospice care when he died in March 2000. His death certificate noted the immediate cause of death was carcinoma of the testis which had developed five years earlier. The appellant submitted her claim for VA compensation benefits in April 2000. In statements and testimony in support of her claims the appellant asserted that the Veteran died as a result of cancer to the testicles, lungs, and brain that developed as a result of herbicide and/or jet fuel exposure during service in the Republic of Vietnam. She has also asserted that a VA failure to diagnose or treat lung cancer or a metastasis of testicular cancer in approximately November 1997 contributed to or accelerated his cause of death. She further contended, in essence, that an October 1983 VA rating decision denying service connection for PTSD during his lifetime was clearly and unmistakably erroneous and that the Veteran had developed PTSD as a result of traumatic events during service in Vietnam, including enemy attacks on his base, cargo loading duties involving casualty repatriation, and the combat-related deaths of friends. VA medical opinion in December 2001 found that the Veteran's cause of death was carcinoma of the testes with metastases. It was the examiner's opinion that since carcinoma of the testes was not recognized as a presumptive disease caused by Agent Orange his cause of death was not at least as likely as not due to Agent Orange. In November 2002, the appellant submitted several articles, including a medical treatise from the Annals of Epidemiology in 1994 discussing studies that showed an increased risk of testicular cancer for individuals who had served in Vietnam. The article also stated that testicular cancer was the most prevalent or second most prevalent type of cancer in men between the ages of 25 and 39, and indicated that only those who had served in the Navy had been shown to have a statistically significant increased risk of testicular cancer. A June 2013 VA medical opinion found the Veteran had an enlarging mass in the right testis before seeking medical attention in December 1996. By that time his right orchiectomy was stage 3 cancer with lymphatic channel involvement, invasion into adnexal tissue, and involvement of epididymis. He received a course of radiation treatment and a November 1997 X-ray study showed a nodule in the right lower lobe of the lung. By March 1998 the right lung mass had increased in size. It was noted the Veteran was lost to VA follow up until he was started on chemotherapy in April 1999, and that VA promptly treated him as soon as he was seen at VA. There was clearly no delay in treatment by VA based upon the available clinical records. The physician found it was less likely than not that the Veteran's death was the result of VA medical or surgical treatment, VA training, or VA examination. Furthermore, it was noted his death did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the attending VA personnel, or the result of an event that could not reasonably have been foreseen or anticipated by a competent and prudent health care provider/trainer/examiner. VA medical opinion in March 2014 based upon review of the claims file and the clinical notes found the Veteran died in March 2000 of metastatic testicular cancer. It was noted that the literature relevant to the question regarding herbicide exposure and exposure to jet fuels had been reviewed, and that it was clear that there is a dearth of scientific evidence. The American Cancer Society had stated that there is inadequate and insufficient evidence to determine whether there is an association between herbicide (Agent Orange) and testicular cancer. The International Agency for Research on Cancer concluded that jet fuels are not classifiable with respect to carcinogenicity. The International Journal of Occupational and Environmental Medicine (IJOEM) in October 2010 addressing the occupational causes of testicular cancer in adults did not include either jet fuels or herbicide as a cause of testicular cancer. It was further noted that although various internet sources may have anecdotal information regarding the topic, they did not constitute scientific literature with appropriate peer review. The physician found the Veteran's testicular cancer was not related to either herbicide or jet fuel exposure. An October 2014 VA medical opinion found the Veteran's testicular cancer with metastases to lung and brain was not incurred as a result of service, to include as a result of herbicide and/or jet fuel exposure and there was no objective evidence of testicular cancer, lung, or brain cancer during or within one year of active service. The pertinent medical evidence was summarized and it was noted the Veteran was initially diagnosed with right testicular seminoma in December of 1996, many years after separation. The exact cause of testicular cancer was noted to be unknown, but the medical literature supported that the risks for testicular cancer include abnormal testicle development and family history. Jet fuel and herbicide exposure it was noted were not considered risk factors. The examiner noted, in essence, that cancer originating in the lungs are presumptive diseases associated with Agent Orange exposure, but that the Veteran's lung cancer was caused by testicular cancer metastasis. Accrued Benefits Claims Accrued benefits are periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2014). For claims filed prior to December 16, 2003, accrued benefits were limited to monetary benefits due and unpaid for a period not to exceed 2 years prior to the last date of entitlement upon the death of such person. 38 U.S.C.A. § 5121 (effective prior to December 16, 2003). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). For PTSD claims an adequate statement of reasons or bases must be provided that includes a discussion of the PTSD diagnoses provided during the Veteran's lifetime in VA treatment records. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that "a clear ... PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria ...."). The Board also notes that during the course of this appeal VA regulations related to PTSD claims were revised to include that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or a psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (effective from July 13, 2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of service as shown by the service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014). Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Tumors that are malignant or that develop in the brain, spinal cord, or peripheral nerves and psychoses are chronic diseases for presumptive service connection purposes. Veterans diagnosed with an enumerated disease who, during active 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 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 C.F.R. § 3.307 (2014). Certain disorders, including respiratory cancers, if manifest to a degree of 10 percent or more for a herbicide exposed Veteran may be presumed service connected. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Testicular cancer is not a disease recognized by VA as associated with herbicide exposure. 75 Fed. Reg. 32540 (Jun. 8, 2010). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2014). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A Veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and competent regarding those issues for which is can be competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2014). Based upon the evidence of record, the Board finds that service connection claims for PTSD, testicular cancer, and lung cancer were pending at the time of the Veteran's death in March 2000. The RO is shown to have reopened and adjudicated the previously denied claims for PTSD and testicular cancer in November 1999. An appeal from that decision was perfected and the appellant, the Veteran's surviving spouse, filed her claim for VA compensation benefits in April 2000. The Board further finds that the evidence shows the Veteran had PTSD related to unverified stressor events that under applicable law at that time was not shown to have developed as a result of active service. Although pertinent liberalizing regulations were revised effective July 21, 2010, to include that a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if a stressor claimed by a veteran is related to fear of hostile military activity, the effective date for an award pursuant to a liberalizing law may not be assigned earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114 (2014). As an effective date for an award of service connection for PTSD based upon the evidence in VA possession at the time of the Veteran's death cannot be assigned retroactively prior to July 21, 2010, the appellant's accrued benefits claim for PTSD must be denied. The Board also finds that the evidence in VA possession at the time of the Veteran's death does not show testicular or lung cancer developed as a result of active service. There is no evidence of testicular cancer of lung cancer manifest during active service or within the first year after service. The Veteran is shown to have served in the Republic of Vietnam and to have served in areas likely to have included exposure to jet fuel and herbicides; however, the opinions of the December 2001, March 2014, and October 2014 VA examiners in this case are found to be persuasive. The provided opinions are shown to have been based upon review of the evidence of record with adequate rationale for the etiology opinions. The March and October 2014 VA opinions are shown to have also considered applicable medical and scientific studies, and to have found that the Veteran's testicular cancer with metastases including to the lung did not develop as a result of jet fuel or herbicide exposure. The examiners adequately considered the evidence of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board notes that the Veteran and the appellant are competent to provide evidence as to observations and some medical matters, but not to establish a medical diagnosis or provide opinions as to etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). As questions of medical diagnosis and any relationship to service are complex etiological questions of the type of medical matters which laypersons are not competent to provide, such statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). There is no indication that the Veteran or the appellant had any medical training or expertise as to these matters and they are not competent to provide etiology opinions regarding an association between a post-service diagnosis and service. The persuasive medical evidence in this case included thorough reviews of the pertinent evidence of record and found there was no evidence that the Veteran had a primary lung cancer and no evidence that his testicular cancer was incurred as a result of service. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the claims, and that service connection must be denied. Cause of Death VA regulations provide that the death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2014). The service-connected disability will be considered as 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). The regulations under 38 C.F.R. § 3.312(c) also provide that: (1) 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; 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. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Based upon the evidence of record, the Board finds that the Veteran died in March 2000 as a result of testicular cancer with metastases to the lung and brain. Although the evidence indicates the Veteran may have avoided or delayed various treatments for his testicular cancer after the disorder was shown to have metastasized to his lungs due to PTSD, service connection was not established for PTSD prior to his death. The evidence also shows the Veteran was receiving both private and VA medical care from the date of his December 1996 diagnosis of testicular cancer until his death in March 2000, including having undergone blood work in November 1997 and March 1998. The evidence does not establish that a service-connected disability caused or contributed materially or substantially to the Veteran's death, nor that the cause of death is otherwise related to service. The Board finds that the December 2001, March 2014, and October 2014 VA medical opinions in this case are persuasive. The opinions are shown to have been based upon a thorough review of the evidence of record and adequate rationale. Therefore, the claim for entitlement to service connection for the cause of the Veteran's death must be denied. 1318 Claim VA law provides that a surviving spouse may establish entitlement to DIC in the same manner as if the veteran's death were service connected where it is shown that (1) the death was not the result of willful misconduct, and (2)(i) was continuously rated totally disabled for the 10 years immediately preceding death, (ii) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service, or (iii) was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22(a) (2014). The phrase "entitled to receive" is defined as a situation where, at the time of death, the veteran had service-connected disability(ies) rated totally disabling by VA, but was not receiving compensation because, in part, the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22(b). For cases filed on or after January 21, 2000, the phrase "entitled to receive" does not include so-called claims involving "hypothetical entitlement." Rodriguez v. Peake, 511 F3d 1147 (Fed. Cir. 2008). The appellant's claim was received by VA in April 2000. VA records show that at the time of the Veteran's death in March 2000 service connection had not been established for any disability. Although the appellant has at various times over the course of her appeal asserted that an October 1983 VA rating decision was clearly and unmistakably erroneous, the Board finds that she has provided no evidence demonstrating that the prior VA rating decision was based upon CUE. The evidence shows the Veteran's October 1983 claim was denied based upon his failure to appear for a VA examination. There is no indication that the determination was erroneous. In asserting a claim of CUE, a claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the 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 that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). Based upon the evidence of record, the Board finds a total service-connected disability rating was not in effect at the time of the Veteran's death and there is no indication that he was otherwise entitled to receive a total rating prior to his death. The Board finds that the preponderance of the evidence is against the appellant's DIC claim under 38 U.S.C.A. § 1318. 1151 Claim Effective October 1, 1997, 38 U.S.C.A. § 1151 was amended by the United States Congress. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, Section 1151, as amended, reads as follows: Compensation under this Chapter and dependency and indemnity compensation under Chapter 13 of this Title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, 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 - (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 as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (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. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. VA regulations provide that to determine whether a veteran has an additional disability VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2014). Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). In this case, the Board finds the evidence does not establish that the cause of the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance fault due to VA treatment for testicular cancer, its recurrence, or metastases, and was not caused by an event that was not reasonably foreseeable. Although the appellant has asserted that a VA failure to diagnose or treat lung cancer or a metastasis of testicular cancer in approximately November 1997 contributed to or accelerated the Veteran's cause of death, the available evidence shows the Veteran was receiving both private and VA medical care over the course of his illness. The June 2013 VA medical opinion is persuasive that there was no delay in VA treatment based upon the available clinical records, and that it was less likely than not that the Veteran's death was the result of VA treatment. The Board finds that the preponderance of the evidence is against the appellant's claim for compensation under 38 U.S.C.A. § 1151. ORDER Entitlement to service connection for PTSD for accrued benefits purposes is denied. Entitlement to service connection for testicular cancer for accrued benefits purposes is denied. Entitlement to service connection for lung cancer for accrued benefits purposes is denied. Entitlement to service connection for the Veteran's cause of death is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. Entitlement to DIC under 38 U.S.C.A. § 1151 for the cause of the Veteran's death based on treatment for testicular cancer, its recurrence, or metastases is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs