Citation Nr: 1748243 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 09-23 101A DATE Advanced on the Docket THE ISSUES 1. Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure, for accrued purposes. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or due to being housebound, for accrued purposes. 3. Entitlement to service connection for service connection for the Veteran's cause of death. 4. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. ORDER Service connection for ischemic heart disease is denied. SMC based upon the need for regular aid and attendance or due to being housebound is denied. Service connection for cause of death and DIC are denied. FINDINGS OF FACT 1. The Veteran did not have a diagnosis of ischemic heart disease at any time during the period on appeal. 2. Although the Veteran did require regular aid and attendance prior to his death, the requirement was not due to the Veteran's service-connected disabilities. 3. The Veteran passed away on June [REDACTED], 2001, due to an intracerebral hemorrhage with a spontaneous rupture of a cerebral vessel. 4. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening, the Veteran's death. 5. The Veteran was in receipt of a total evaluation based on individual unemployability based on his service connected disability from December 1999. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for an award of SMC based on the need for regular aid and attendance or due to being housebound have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.353(a) (2016). 3. The criteria for service connection for cause of death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2016). 4. The criteria for payment of DIC benefits under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2014); 38 C.F.R. § 3.22, 3.102, 3.159 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1969 in the United States Army, to include active service in the Republic of Vietnam. The Veteran died on June [REDACTED], 2001. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2001, February 2010, and March 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). By rating decision dated November 2001, the RO denied service connection for cause of death. In October 2003, the Board remanded the claim for additional development. In January 2006, the Board denied the claim for cause of death. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court), which affirmed the Board's determination in a March 2008 decision. In a September 2008 decision, the U.S. Court of Appeals for the Federal Circuit affirmed the Court's decision. In its March 2008 decision, the Court noted that VA should have addressed the appellant's eligibility for accrued benefits and directed the Board to do so. In May 2009, the Board remanded the issue of entitlement to accrued benefits for additional development. In February 2010, the RO denied entitlement to DIC. In a March 2011 rating decision, the RO readjudicated the claim of entitlement to service connection for ischemic heart disease and entitlement to service connection for cause of death pursuant to Nehmer v. United States Veterans Administration, 284 F.3d 1158, 1161 (9th Cir. 2002). The claims were denied and the appellant filed a timely appeal to the Board. In July 2013, the Board remanded the issues to address the appellant's claims asserting clear and unmistakable error (CUE) in multiple earlier rating decisions. In a June 2016 supplemental statement of the case, those issues were adjudicated by the RO. In an April 2017 Board decision, the Board denied multiple issues to include an increased rating for sebaceous cysts, an increased rating for degenerative arthritis of the right hip, and entitlement to an earlier effective date for a total disability rating due to individual unemployability (TDIU). The issues of entitlement to revision or reversal of earlier decisions were denied as the CUE was previously found and addressed, CUE was not found, or CUE could not be determined due to a lack of finality in the prior decisions. Finally, the Board remanded the issues of entitlement to service connection for ischemic heart disease, service connection for cause of death, entitlement to DIC, and entitlement to SMC. The Board notes that actions requested in the prior remands, specifically the April 2017 remand, have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Compliant VCAA notice was provided in August 2001 and April 2011. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and all necessary opinions obtained. The Board notes that the issues of entitlement to service connection for ischemic heart disease and entitlement to SMC are considered for the purposes of accrued benefits. Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000 (a). An "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000 (c). A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.1000(c), 3.152(b). However, for claims filed for death benefits, a specific claim in the form prescribed by the Secretary must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.152(a). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, "for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." The Board acknowledges that the appellant has met the procedural requirements for the claims of entitlement to accrued benefits. Therefore, the Board will address the issues on the merits in the decision below. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure, for accrued purposes. The appellant contends that the Veteran had ischemic heart disease prior to the Veteran's death that should be considered service-connected due to herbicide exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), as to Veterans who served in Vietnam during a certain time period, selected diseases may be presumed to have resulted from exposure to herbicide agents such as Agent Orange. According to the Veteran's service records, he served in the Republic of Vietnam during the Vietnam Era, therefore, his exposure to toxic herbicides is presumed. See 38 U.S.C.A. §§ 1116, 1154. Regulations provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, 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 leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e). The question for the Board is whether the Veteran was diagnosed with ischemic heart disease during the period on appeal. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board finds that competent, credible, and probative evidence establishes that the Veteran did not have a diagnosis of ischemic heart disease during the period on appeal. The Veteran's treatment records are silent for any diagnosis of ischemic heart disease. The Board acknowledges a diagnosis of hypertension and arthrosclerosis, which are not considered ischemic heart disease. In February 2015, VA obtained a nexus opinion. The Veteran's records were reviewed as well as death summary notes from Bon Secours St. Francis Hospital. The examiner noted that the Veteran had a history of degenerative arthritis and cause of death was felt to be related to a hemorrhagic stroke. Other medical conditions listed included obstructive sleep apnea, hypertension, and seizure disorder. The examiner specifically noted that the Veteran did not have evidence of ischemic heart disease per review of records. Therefore, the examiner found that it is less likely than not that the Veteran had ischemic heart disease. Therefore, the examiner could not attribute it to his cause of death. An additional VA medical opinion was obtained in May 2017. The examiner also reviewed the Veteran's records. He noted that atherosclerosis is a condition of the peripheral (non-cardiac) arteries and there is no definitive association that just because an individual has atherosclerosis or ischemic heart disease that they would necessarily have the other. Therefore, due to this and upon review of the Veteran's medical record, there is no definitive objective evidence that the Veteran had a diagnosis of ischemic heart disease or coronary artery disease, or that these conditions caused or contributed to his cause of death nor that it resulted in debilitating effects or general impairment of health to the extent that it rendered the Veteran less capable of resisting the effects of either disease or injury primarily causing death, nor was it of such severity as to have a material influence in accelerating death. Additionally, as the cause of death was due to a hemorrhagic (not ischemic) event, it would not have been the atherosclerotic condition that caused the stroke as it would more likely have been secondary to hypertension, which most commonly is the cause of hemorrhagic strokes. While the appellant believes that the Veteran's atherosclerosis is ischemic heart disease, as a lay person, the appellant has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of ischemic heart disease are matters not capable of lay observation, and require medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran's atherosclerosis is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service may be considered ischemic heart disease or otherwise be related to herbicide exposure is also a matter that requires medical expertise to determine. Thus, the appellant's own opinion regarding the proper diagnosis of the Veteran's disability is not competent medical evidence. The Board finds the opinion of the VA examiners to be significantly more probative than the appellant's lay assertions. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for ischemic heart disease. As the preponderance of the evidence is against the claim for service connection for ischemic heart disease, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to SMC based on the need for regular aid and attendance or due to being housebound, for accrued purposes. The appellant asserts that the Veteran was considered housebound and required regular aid and attendance prior to his death. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Additionally, SMC may be granted if the Veteran is considered permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 C.F.R. § 3.350(i). The question before the Board is whether the Veteran's service-connected disabilities, alone, created the need for him to receive regular aid and attendance or was considered permanently housebound. After reviewing the evidence of record, the Board does not find that the evidence suggests that the Veteran's service-connected disabilities, alone, create the need for him to receive regular aid and attendance or result in his being permanently housebound. Prior to his death, the Veteran was service-connected for left knee replacement, cervical spine degenerative arthritis, lumbar spine degenerative arthritis, left shoulder degenerative arthritis, left hips degenerative arthritis, right hip degenerative arthritis, right ankle degenerative arthritis, and multiple sebaceous cysts. The Veteran's combined total rating at the time of his death was 80 percent. The Veteran's treatment records show multiple additional disabilities including, but not limited to, an uncontrollable seizure disorder, morbid obesity, sleep apnea, status-post tracheotomy, depression, a bowel disorder, and hypertension. In December 1999, the Veteran was afforded an examination in relation to his aid and attendance claim. The examiner noted that the Veteran's wife provided aid and attendance, but noted that the issues that caused the need for aid and attendance were his depression, obesity, hypertension, sleep apnea, status-post tracheotomy, and uncontrolled seizures. He did not note the Veteran's arthritis as a factor in the Veteran's need for aid and attendance. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the appellant's statements that the Veteran required aid and attendance in the last years of his life; however, whether the Veteran required aid and attendance is not at issue. The Board acknowledges that the Veteran required significant assistance towards the end of his life. The record does not show, however, that the Veteran required aid and assistance or was housebound due solely to his service-connected disabilities. Rather, the Veteran's most significant disabilities were his depression, obesity, hypertension, sleep apnea, status-post tracheotomy, and uncontrolled seizures, which are not service-connected, but which required aid and attendance. In an October 1999 treatment record, the examiner noted that the heart of the Veteran's problem was his morbid obesity. He noted that other physicians have also recommended weight reduction in the past, but the Veteran freely admitted that he has never made a concerted effort to lose weight. Additionally, February 2000 private treatment records show that the Veteran smoked for over thirty years. A January 2000 treatment record showed good range of motion of the knees, but noted significant back pain with radiation down into the right leg. The February 2000 treatment record also showed full range of motion of the hips without discomfort. The Veteran had flexion to 90 degrees of both knees with some tenderness. The left shoulder was only minimally tender on palpation with some discomfort around the scapular area. The cervical spine showed tenderness on palpation. Right shoulder was nontender on palpation. The shoulders had abduction to 120 degrees and limited internal rotation. He had rotation to about 75 degrees to the right and left, no extension, anterior flexion to about 15 degrees, lateral flexion to less than 5 degrees to the right and left, all with discomfort. The examiner noted some tenderness across the upper back, but none in the thoracic and lumbar spine area. The medical evidence of record does not show that the Veteran's service-connected disabilities caused such impairment as to require regular aid and attendance or to render the Veteran housebound. In sum, as the evidence of record fails to reflect that the Veteran required regular aid and attendance or was rendered housebound due to his service-connected disabilities, the Veteran is not entitled to special monthly compensation for aid and attendance or due to being housebound. 3. Entitlement to service connection for cause of death. The appellant contends that a disability of service origin caused or materially contributed to the Veteran's death. Service connection for cause of death may be awarded to a Veteran's spouse, children, or parents for death resulting from a service-connected disability or a disability related to service. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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). The service-related disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran's death certificate shows that the Veteran died from an intracerebral hemorrhage with the spontaneous rupture of a cerebral vessel. The appellant asserts that the Veteran's intracerebral hemorrhage is causally related to the Veteran's service-connected disabilities. The Veteran was not service connected for an intracerebral hemorrhage or a disability for which an intracerebral hemorrhage could be a symptom at the time of his death. At the time of his death, the Veteran was service-connected for degenerative arthritis of the right knee post arthroplasty, degenerative arthritis of the left knee post arthroplasty, degenerative arthritis of the cervical spine, degenerative arthritis of the left shoulder, degenerative arthritis of the lumbar spine, degenerative arthritis of the left hip, degenerative arthritis of the right hip, degenerative arthritis of the right ankle, and multiple sebaceous cysts over the upper body. In May 2001, the Veteran was admitted to the hospital for an intracerebral bleed. Doctor's summary showed that the Veteran was a disabled electrician who had obstructive sleep apnea with a tracheostomy in place. He also had a seizure disorder not defined, but thought to have been caused by hypoxia. He entered the hospital after he had complained of a severe right sided headache for several hours, had several hard seizures, and developed a left-sided hemiparesis. Assessment in the emergency room with a CT scan showed an intracerebral hemorrhage that was initially interpreted as a contusion. A follow-up scan the next day showed worsening mass affect and a midline shift as well as herniation of the brain stem. Surgery offered little in the way of salvage and election was made not to intervene. He went on to die as had been expected. One issue in his death was a fall the patient had three days prior to his admission to the hospital and how this played a role in his death. The examiner went to the home and interviewed the wife and she showed him how and where he had fallen. The Veteran had gotten up to go to the bathroom to urinate. When he finished, he began to side step to the left towards the tub. His wife broke his fall and helped him sit on the side of the tub. He then fell over against the shower wall on the tub and hit his head but not hard. There was no blood seen. He was having a grand mal seizure. He awoke an hour or so later and showed no signs of deficit. The next two days and longer he was lucid and participated in all routine activities of the house. The headache and other seizure activity then occurred on the day of his admission. He reviewed the X-rays with another doctor and discussed the clinical history with a third doctor. It appeared that his bleed was from a spontaneous intracranial hemorrhage and not from trauma that he suffered in the fall in the tub and his death was therefore natural. The record contains two private nexus opinions dated January 2002. One nexus opinion noted that although there is no direct 100 percent correlation, there certainly is correlation between the Veteran's lifestyle brought on by his significant arthritis and the hemorrhage and it is more likely than not that the hemorrhage was therefore a result of chronic modificational lifestyle secondary to the arthritis. He stated that this would occur because of the Veteran's inability to move, his resultant obesity, and secondary hypertension, ultimately leading to atherosclerosis and cerebral hemorrhage. In the second private nexus opinion, the examiner opined that the Veteran's long term arthritis had a significant impact in the development of his arthrosclerosis, which led to his intracerebral hemorrhage. He stated that this is more likely than not. The examiner opined that certainly, the Veteran's inactivity secondary to his arthritis led to a sedentary lifestyle, which contributed to his cardiovascular risk. VA obtained an additional nexus opinion in May 2002. The examiner acknowledged that the Veteran's family physician alleges that because the Veteran had arthritis, which limited his mobility, that in turn caused obesity and hypertension, which in turn caused the rupture of an intracerebral blood vessel leading to hemorrhage and ultimate death. The examiner performed a complete review of the claims file and opined that it would be a great leap of faith to make the connection of arthritis causing hypertension because the Veteran was sedentary and could not move about. In fact, a review of the claims file indicated that the Veteran, while he was still ambulatory in the early 1990s, was obese and had hypertension. The examiner found nothing in the claims file that linked hypertension to his military service. The examiner also noted that arthritis and obesity are not causes of hypertension in and of themselves, but rather risk factors that allow the identification of hypertension. Hypertension seems to be a separate issue that evolved, not because of the arthritis, but for reasons other than the arthritis. The examiner stated that no credible medical literature incriminates arthritis, particularly osteoarthritis, as a risk factor for hypertension. Therefore, the examiner found no direct or even indirect connection between his arthritis and his demise from an intracerebral hemorrhage. In fact, the hypertension itself may not even be the cause of his intracerebral hemorrhage, but simply be another risk factor that allows intracerebral hemorrhage to occur. The cause of the intracerebral hemorrhage is actually probably not known. There may be other illnesses to account for the hemorrhage, particularly an illness occurring in patients at this age known as congophilic angiopathy, also known as amyloid angiopathy. He noted that it is just one example of other illnesses that would be related to his intracerebral hemorrhage and would be a more reasonable presumption than the idea that his arthritis is a cause. The examiner noted that the Veteran's family doctor was, perhaps, over advocating on behalf of his patient. When weighing the probative value of the conflicting opinions, the Board notes that the private examiners suggested that the Veteran's arthritis was the reason for the Veteran's obesity, which they then related to his hypertension, which they then related to his intracerebral bleed. The examiners did not address the Veteran's history or additional nonservice-connected disabilities. The examiners also did not address the Veteran's treatment records, such as the January 2000 or February 2000 treatment records indicating that the Veteran did have functional range of motion. The examiners also did not address the onset of obesity and hypertension prior to the Veteran's limited mobility. The Veteran's treatment record in October 1999 shows that the Veteran freely admitted that he had never made a concerted effort to lose weight. At no point did the examiner relate the Veteran's obesity to his arthritis. The VA examiner, in contrast, addressed the Veteran's treatment records and history. He noted the onset of obesity and hypertension prior to any significant limitation of mobility. Additionally, he noted that obesity and hypertension are risk factors for an intracerebral hemorrhage, but do not cause intracerebral hemorrhage. He also presented possible unrelated causes for the Veteran's intracerebral hemorrhage and found the private examiners' opinions to be tenuous. Given the use of the Veteran's own medical history and treatment records in providing the opinion, the Board finds that the VA examiner's opinion is of more probative value than the private examiners' opinions. While the appellant believes that the Veteran's cause of death is related to service or to a service-connected disability, as a lay person, she has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of an intracerebral hemorrhage are matters not capable of lay observation, and require medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran's cause of death is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for cause of death. As the preponderance of the evidence is against the claim for service connection for cause of death, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to DIC under 38 U.S.C.A. § 1318. If the Veteran's death is not determined to be related to a service connected disability, as in this case, a surviving spouse may still be entitled to benefits. Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct and who at death was either in receipt of compensation or entitled to receive compensation for service-connected disabilities rated totally disabling. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). The veteran's service-connected disabilities must have been either continuously rated totally disabling for ten or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of the veteran's separation from service. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22(c). The Veteran was rated as totally disabled due to individual unemployability from December 23, 1999. As he died in June 2001, he was only considered totally disabled for approximately one and a half years. The requirements for DIC under 38 U.S.C.A. § 1318 therefore are not met. Therefore, the claim for DIC under 38 U.S.C.A. § 1318 must be denied. ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel Copy mailed to: The American Legion Department of Veterans Affairs