Citation Nr: 18152733 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-00 197A DATE: November 27, 2018 ORDER The August 15, 1995 Department of Veterans Affairs (VA) Regional Office (RO) rating decision granting an increased disability rating of 50 percent (from 30 percent) for service connected posttraumatic stress disorder (PTSD) was not clearly and unmistakably erroneous (CUE). The December 12, 1997 RO rating decision granting a total disability rating based on individual unemployability due to service-connected disability (TDIU) from April 4, 1997 was not clearly and unmistakably erroneous (CUE). Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the August 15, 1995 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it granted an increased disability rating of 50 percent (from 30 percent) for service connected PTSD. 2. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the December 12, 1997 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it granted a TDIU from April 4, 1997. 3. The Veteran was never a prisoner of war and was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from active service, or for 10 or more years prior to death. 4. The Veteran’s death certificate lists the immediate cause of death as cardiorespiratory arrest due to (or as a consequence of) pulmonary edema, due to (or as a consequence of) intracranial neoplasm. 5. At the time of the Veteran’s death, service-connected disabilities were PTSD, rated 70 percent disabling, and shell fragment wound (SFW) scars, rated noncompensable (0 percent); entitlement to a TDIU was established effective April 4, 1997. 6. A service-connected disability was not either the principal or a contributory cause of the Veteran’s death, and the death did not result from any disability incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The August 15, 1995 rating decision granting an increased disability rating of 50 percent (from 30 percent) for service connected PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 2. The December 12, 1997 rating decision granting a TDIU from April 4, 1997 was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 3. The criteria for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.102 (2017). 4. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to March 1970. The Veteran died in February 2007. The appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision by the RO in New Orleans, Louisiana, and a March 2010 Administrative Review by the Director of Compensation and Pension Service. The August 2007 rating decision denied service connection for the cause of the Veteran’s death, entitlement to DIC pursuant to 38 U.S.C. § 1318, and entitlement to accrued benefits. The March 2010 Administrative Review, in pertinent part, found the August 1995 and December 1997 rating decisions were not clearly and unmistakably erroneous. In June 2011 and April 2012, the Board remanded the issues on appeal for additional development. In March 2015, the Board issued a decision denying service connection for brain cancer for accrued benefits purposes, denied service connection for the cause of the Veteran’s death, and found that an August 1995 rating decision which granted a 50 percent rating for PTSD was not clearly and unmistakably erroneous. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court issued an order which granted a November 2015 Joint Motion for Partial Remand (JMR). The Board decision was vacated to the extent that it denied service connection for the cause of the Veteran’s death, and to the extent that it found that an August 1995 rating decision which granted a 50 percent rating for PTSD was not clearly and unmistakably erroneous. The joint motion notes that the appellant abandoned the claim of entitlement to service connection for brain cancer for accrued benefits purposes. The March 2015 Board decision also remanded the appellant’s claim for DIC benefits under the provisions of 38 U.S.C. § 1318, and the claim of CUE in a December 1997 rating decision that assigned an effective date of April 4, 1997 for the award of a TDIU. A December 2015 supplemental statement of the case (SSOC) continued to deny both claims. In February 2016 and January 2018, the Board again remanded the issues on appeal for additional development. Review of the record reflects that that the Board has completed all requested development, including that directed by the November 2015 JMR. As such, the Board finds the instant matter ripe for adjudication. See Forcier v. Nicholson, 19 Vet. App. 414 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issues on appeal. Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the rating decisions on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible. A VA cause of death opinion was obtained in May 2017. Subsequently, in November 2017, the Veteran’s representative submitted an informal hearing presentation (IHP) questioning the adequacy of the opinion. Without commenting on the adequacy of the May 2017 opinion, in August 2018, VA obtained an addendum opinion which, upon review, appears to adequately address the concerns raised by the representative in the November 2017 IHP (despite comments raised by the representative in a subsequent October 2018 IHP). Further, as will be explained below, because the law, and not the facts, is dispositive of the issue of entitlement to DIC under 38 U.S.C. § 1318, the duties to notify and assist imposed by the VCAA are not applicable as to this issue. See Mason v. Principi, 16 Vet. App. 129, 131-32 (2002); Sabonis v. Brown, 6 Vet. App. 426 (1994). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. CUE Law and Regulation Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the August 15, 1995 and December 12, 1997, rating decisions became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decisions and no new and material evidence was received during the one year appeal period following those decisions. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Further, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). 1. Whether CUE in August 15, 1995 PTSD Rating The Veteran and representative argue that the RO erred in only awarding an increased 50 percent disability rating at the time of the August 15, 1995 rating decision. In January 1995, the Veteran filed an increased rating claim for the service connected PTSD, noting recent in-patient treatment for the PTSD between October 1994 and December 1994. A December 1994 VA discharge summary indicates that the Veteran was diagnosed with PTSD, dysthymia, and alcohol dependence in full remission. Symptoms were noted to include irritability, isolation, night terrors, nightmares, avoidance of war reminders, emotional estrangement from children, restricted affective range, sleep difficulties, an exaggerated startle reflex, hypervigilance, and experiencing a physiologic reaction to being startled. The Veteran had fleeting suicidal fantasies without attempt, intent, or plan. There was also episodic sadness with kind spells with retained libido and appetite. On examination, the Veteran was alert and oriented, recall ability was poor, abstraction on proverbs was good, there was some confusion regarding the year at times, affect was appropriate, but somewhat restricted, speech, thought processes, and thought content were within normal limits, and mood was dysphoric. A Global Assessment of Functioning (GAF) score of 45 was assigned. The note indicated that, even though the Veteran made significant progress during the hospital stay, the PTSD symptoms were considered chronic and severe in nature. The August 1995 rating decision, in pertinent part, granted a temporary total rating from October 24, 1994 until January 1, 1995, and an increased 50 percent disability rating from that date. A rating in excess of 50 percent was denied. The adjudicator found the symptomatology was productive of considerable impairment of working ability consistent with an evaluation of 50 percent and did not demonstrate severe impairment in the Veteran’s ability to obtain or retain employment. In April 1997, the Veteran submitted a November 1994 letter from VA treatment providers to the Social Security Administration (SSA) that noted the Veteran had become much more isolated and only left home to seek treatment at the hospital. The treatment providers noted the Veteran was “much less able to deal with people.” The Veteran was also noted to have a learning disorder, neck problems, and perianal fistulas. The treatment providers opined that alone, “any one of the problems [the Veteran] experiences might not prevent him from working, but working together they are synergistic and create great problems for successful employment.” In January 2015, the appellant submitted a December 1993 psychiatric evaluation report performed for an SSA disability determination. The examiner diagnosed depressive disorder NOS, PTSD, anxiety disorder not otherwise specified (NOS), and alcohol abuse. The examiner opined the evidence from the evaluation indicated that the Veteran was currently disabled due to the mental disability. Under the law and regulations in effect at the time of the August 1995 rating decision, disability ratings were determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (1994). If two ratings were potentially applicable, the higher rating was to be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating was to be assigned. 38 C.F.R. § 4.7 (1994). In 1995, PTSD was evaluated under Diagnostic Code 9411 as a psychoneurotic disorder. The rating criteria in effect at the time provided for a 70 percent disability rating where: the ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating was warranted for: The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994). 38 C.F.R. § 4.130 provided, in part: repeated psychotic periods, without long remissions, may be expected to have a sustained effect upon employability until elapsed time in good remission and with good capacity for adjustment establishes the contrary. Id. (1994). In various statements, the Veteran’s representative has argued the August 1995 rating decision was clearly und unmistakably erroneous because VA treatment records that would have affected the PTSD rating had not been obtained, citing Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that medical records concerning a claimant which are in VA’s possession at the time VA adjudicators render a decision on a claim will be considered to be evidence which was in the record before the adjudicators at the time of the decision, regardless of whether such records were actually before the adjudicators at the time of the decision) and a May 1995 General Counsel opinion, VAOGCPREC 12-95 (holding an AOJ’s failure to consider records which were in VA’s possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error, if such failure affected the outcome of the claim), to support this contention. Specifically, the representative asserted the November 1994 letter the Veteran’s VA treatment providers sent to SSA would have been contained in the Veteran’s VA treatment records because it was written when the Veteran was hospitalized for PTSD and could have been part of the Veteran’s medical chart. The consideration of such a letter in the August 1995 rating decision, the representative argued, would have resulted in an increased rating. In the April 2014 substantive appeal, the appellant argued the August 1995 rating decision was clearly and unmistakable erroneous because the Veteran’s symptomatology during the period under consideration warranted a 70 percent rating and because the adjudicator failed to consider the provisions of 38 C.F.R. § 4.130 (1994), which provided that “repeated psychotic periods, without long remissions, may be expected to have a sustained effect upon employability.” The Board recognizes the Court’s holding in Bell and the May 1995 General Counsel opinion, but finds the November 1994 letter from the Veteran’s VA treatment providers to SSA was not in VA’s possession and not a document that could reasonably be expected to be part of the record at the time of the August 1995 rating decision. The letter was addressed to the SSA and was clearly drafted for consideration in a pending SSA disability claim, not as a treatment note to document the Veteran’s ongoing care. As the letter was generated for non-VA purposes, it was not in VA’s possession, constructive or actual, until the Veteran submitted it in April 1997. As the Veteran did not submit the letter until April 1997, its existence cannot establish CUE in the August 1995 rating decision. This finding is supported by the fact that, per an April 2018 Report of General Information, no such November 1994 neuropsychological testing report was found to exist by the relevant VA medical center (VAMC). The Board notes the December 1993 examination report also cannot be used to establish CUE in the August 1995 rating decision because it was not received until January 2015. Even if the Board were to find that VA had constructive notice of the November 1994 letter at the time of the August 1995 rating decision, the appellant has not shown how its existence would have “manifestly changed the outcome” of the rating decision, as required to establish CUE. While it is necessary to consider the complete medical history of the Veteran’s condition to evaluate the level of disability and any changes in condition, the primary concern when rating a disability is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). The August 1995 rating decision assigned a 50 percent rating for PTSD based on the findings of the December 1994 VA discharge summary, which provided the more current objective findings. Notably, a temporary total rating was assigned for the Veteran’s PTSD at the time the November 1994 letter was drafted. The argument that the evidence warranted a higher rating under the rating criteria for PTSD in effect during the period under consideration is an argument that the facts were improperly weighed. Mere disagreement with how facts were evaluated is an inadequate basis under which to raise the claim of CUE. Luallen, 8 Vet. App. at 95. Similarly, allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. The appellant argued the RO’s failure to consider the provisions of 38 C.F.R. § 4.130 in the August 1995 rating decision was CUE; however, the provision applies to psychotic episodes, and the medical evidence, including the November 1994 letter to SSA and the December 1994 VA discharge summary, does not show the Veteran experienced psychotic episodes as a result of PTSD during the period under consideration. As such, not applying the provision cannot establish CUE in the August 1995 rating decision. For the aforementioned reasons, the Board finds there was no CUE in the August 15, 1995 RO rating decision granting an increased disability rating of 50 percent (from 30 percent) for service connected PTSD, and the appeal must be denied. 2. CUE in TDIU Effective Date Having reviewed the appellant and representative’s multiple briefs, including the most recent October 2018 brief, VA understands the Veteran’s CUE argument as to why an effective date for TDIU prior to April 4, 1997 is warranted to be as follows. The November 1994 letter from a VA treatment provider to SSA, which was constructively part of the record, constituted an informal claim for TDIU. As this informal claim was open at the time of the December 12, 1997 RO rating decision granting a TDIU, an effective date from November 1994 should have been granted. The Board notes that this argument fails due to the Board’s finding, above, that the November 1994 VA treatment letter, prepared specifically for SSA purposes, was not constructively before the Board in November 1994. Rather, the letter was not made a part of the record until its receipt in April 1997; however, even assuming that the letter was before the Board in November 1994, for the reasons discussed below, an effective date of November 1994 for the grant of a TDIU would still not have been warranted. Under the law and regulations in effect at the time of the December 12, 1997 rating decision, which is the same as now, under Chapter 51 of Title 38 of the United States Code, the effective date for an increased rating for disability compensation will be the date entitlement arose or the date of receipt of the claim, whichever is later, with the exception being that the date may be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date. 38 U.S.C. § 5110(b)(2) (1994); 38 C.F.R. § 3.400(o) (1997); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Assuming that the November 1994 letter from a VA treatment provider to SSA was constructively in VA’s position in November 1994, which, for the reasons discussed above, it was not, and that it constituted an informal claim for TDIU, the Board notes that such an informal claim would not have been open at the time of the December 12, 1997 RO rating decision granting a TDIU. The August 15, 1995 rating decision reflects that the RO specifically considered the Veteran’s employability. It was noted that the Veteran’s PTSD symptoms were productive of considerable impairment of working ability, but did not constitute a severe impairment in the ability to obtain or retain employment. In other words, the RO found the Veteran was not unable to obtain or maintain substantially gainful employment, and entitlement to a TDIU was implicitly denied. As discussed above, the August 15, 1995 rating decision subsequently became final; therefore, even if the November 1994 VA letter constituted an informal claim for a TDIU, the informal claim was adjudicated and became final in August 1995. Subsequently, on April 4, 1997, VA received a request for a total 100 percent disability rating for the service connected PTSD. The request was subsequently adjudicated, and in a December 1997 rating decision, the RO granted an increased disability rating of 70 percent and granted a TDIU, both from April 4, 1997, the date of claim. As no evidence was received during the one year period prior to the filing of the increased rating claim (April 1996 to April 1997), April 4, 1997 was the earliest effective available at law for a TDIU after the prior implicit denial of a TDIU in the August 15, 1995 rating decision. 38 C.F.R. § 3.400(o). As the earliest effective date available at law for the grant of a TDIU was awarded in the December 12, 1997 rating decision, the Board finds that, as a matter of law, there was no CUE in the December 12, 1997 rating decision that assigned an effective date of April 4, 1997 for the grant of a TDIU. See Sabonis, 6 Vet. App. at 430 (where the law is dispositive, the claim must be denied due to a lack of legal merit). 3. DIC Benefits Under 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC where it is shown that a veteran’s death was not the result of willful misconduct, and at the time of death, the veteran was receiving, or entitled to receive, compensation for a service connected disability and meets the following criteria: (1) that the veteran was continuously rated totally disabled for the 10 years immediately preceding death; (2) that the veteran was rated totally disabled upon separation from service, was continuously so rated, and died at least five years after separation from service; or, (3) that the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). Based on the evidence of record, the Board find that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met in this case. Review of the record reflects that the Veteran was never a prisoner of war, and benefits cannot be granted on that basis. The record does reflect that the Veteran had a 70 percent disability rating for the service connected PTSD, with a TDIU based upon that disability alone, as of April 4, 1997. As the Veteran separated from service in March 1970, the Veteran was not rated totally disabled upon separation from service; therefore, the final question before the Board is whether the Veteran was continuously rated totally disabled for the 10 years immediately preceding death. Per the Certificate of Death, the Veteran died on February [redacted], 2007. Unfortunately, this means that the total disability rating (PTSD plus TDIU) was in effect for just under ten years, and DIC benefits under 38 U.S.C. § 1318 cannot be granted on the basis of total disability for the 10 years immediately preceding death. The Board sympathizes with the appellant but the law is clear. As the evidence shows the Veteran (i) was not continuously rated totally disabled during the 10 years preceding death, (ii) was not continuous rated totally disabled for a period of not less than five years from the date of separation from service, and (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met; therefore, the appellant’s claim is without legal merit and must be denied. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Mason, 16 Vet. App. at 131-32; Sabonis, 6 Vet. App. at 426. 4. Service Connection for the Cause of the Veteran’s Death The appellant contends the Veteran’s death was caused by brain cancer, which, in turn, was caused by his exposure to Agent Orange in Vietnam. Alternatively, the appellant asserts that service-connected PTSD and/or ischemic heart disease caused by exposure to Agent Orange contributed to the Veteran’s death. The Veteran’s death certificate lists the immediate cause of death as cardiorespiratory arrest due to (or as a consequence of) pulmonary edema, due to (or as a consequence of) intracranial neoplasm. Dependency and indemnity compensation may be awarded to a Veteran’s surviving spouse from a service-connected or compensable disability under 38 U.S.C. § 1310 and 38 C.F.R. § 3.312. To establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by service was either the principal, or primary cause of death, or that it was a contributory cause of death under 38 C.F.R. § 3.312(a). For a service connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). A contributory cause of death is defined as one inherently not related to the principal cause. 38 C.F.R. § 3.312(c). For a service-connected disability to constitute a contributory cause, 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.” Id. 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. The Board must also determine whether the Veteran had a disability incurred in or aggravated by service that was either the principal, or primary cause of death, or that it was a contributory cause of death. In its review of the record, the Board must determine whether the evidence supports the claim or if it is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, the Board will consider the question of whether the underlying condition which caused the Veteran’s death, brain cancer, was incurred in or aggravated by military service. Next, the Board will consider whether the Veteran had ischemic heart disease that caused or contributed substantially or materially cause death. Finally, the Board will consider whether the Veteran’s service-connected disabilities caused or contributed substantially or materially to cause death. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Brain cancer is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and a chronic disease become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1133, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: 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). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). It is not in dispute that the Veteran served in Vietnam, and was entitled to a presumption of herbicide exposure. The regulations, however, do not provide presumptive service connection for brain cancer, including glioblastoma multiforme, based on exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Accordingly, presumptive service connection for brain cancer, including glioblastoma multiforme, based on exposure to Agent Orange is not warranted. Notwithstanding, the Board will still consider whether the Veteran was entitled to service connection for brain cancer based on a direct basis. The Veteran’s service treatment records show treatment for superficial fragment wounds of the right thigh and both legs in January 1968 and a shrapnel wound of the chest in September 1968. The March 1970 separation examination report shows the head was clinically evaluated as normal. A December 1994 VA discharge summary notes the Veteran reported two loss of consciousness incidents due to combat injuries in Vietnam in 1968. A November 1994 VA SPECT Brain Imaging examination report indicates the Veteran had a prior closed head injury and history of loss of consciousness. The scan showed bilateral diffuse frontal and temporal hypoperfusion. In the January 2010 substantive appeal, the appellant contended the Veteran’s death might have been caused by Agent Orange exposure and asserted the full effects of such exposure are still unknown. In a May 2014 appellate brief, the appellant’s representative asserted the Board has previously granted service connection for brain cancer due to herbicide exposure in two instances by relying on favorable medical opinions. The representative acknowledged prior Board decisions are not binding, but argued the favorable decisions provided at least some indication that there may be a nexus between Agent Orange exposure and glioblastoma. A VA opinion was obtained in May 2017. Per the opinion report, the VA examiner found it less likely as not that the Veteran’s glioblastoma/brain cancer was due to exposure to herbicides. As noted the August 2018 addendum opinion, the VA examiner reported that, after conducting a thorough review of the relevant medical literature, the VA examiner was unable to find any credible medical references reporting a causal relationship between Agent Orange exposure and glioblastoma; however, the VA examiner did find multiple references noting that there was no compelling or rigorous scientific data establishing a causal relationship between the two. In the May 2017 report, the VA examiner explained that the most significant risk factors for development of glioblastoma multiforme are ionizing radiation exposure and familial/genetic conditions. Caucasian ethnicity, male gender, and age over 50, all of which applied to the Veteran, are also reported as risk factors for development of glioblastoma. The Board finds that the preponderance of the evidence is against entitlement to service connection for brain cancer. The competent evidence does not show, and the appellant does not assert, that the Veteran’s brain cancer was manifested to a compensable degree in service or in the first post-service year. The post-service medical evidence does not indicate any findings of treatment for brain cancer for decades after service. It is not contended otherwise. Entitlement to service connection based on a continuation of symptomatology under 38 C.F.R. § 3.303(b) and on a presumptive basis for chronic disease under 38 C.F.R. § 3.309(a) is, therefore, not warranted. The competent medical evidence is also against the claim of direct service connection. Weighing against the claim is the probative May 2017 and August 2018 VA medical opinions. The examiner expressed a familiarity with the record and provided a clear explanation of rationale. The Board recognizes the representative’s assertion that two prior Board decisions granted service connection for brain cancer due to herbicide exposure based on positive medical opinions, but as acknowledged, Board decisions are not binding. Furthermore, the representative noted the decisions relied on positive medical opinions in those cases, but no such competent opinions linking the Veteran’s presumed exposure to herbicides and the brain cancer exist in this case. The Board has considered the appellant’s statements attributing the Veteran’s brain cancer to service, but the evidence of record does not demonstrate that the appellant has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation with respect to brain cancer. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer); 38 C.F.R. § 3.159(a)(2). As such, the appellant is not competent to provide an opinion on the etiology of the Veteran’s brain cancer. See Jandreau, 492 F. 3d at 1376-1377 (“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”). In the absence of persuasive and probative evidence that the Veteran’s brain cancer was etiologically related to active service, service connection is not warranted, and the claim must be denied. Diseases associated with exposure to Agent Orange include, among others, 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). 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 3. If the Veteran was shown to have been diagnosed with ischemic heart disease (IHD), presumptive service connection would be warranted. The Board finds that in this case the evidence of record does not support a finding of service connection for IHD or coronary artery disease (CAD). Specifically, the Board finds that the Veteran did not have IHD or CAD at the time of death. While the majority of the Veteran’s service and post-service treatment records do not report that the Veteran was diagnosed with, or treated for, IHD or CAD, some evidence of record does indicate that the Veteran was suspected of having IHD or CAD. For instance, a January 2007 VA nursing note states that a cardiovascular evaluation was within normal limits. The nurse noted the Veteran did not have chest pain, and extremities were without edema. “CAD” was then noted without explanation. Due to evidence indicating that the Veteran may have had IHD/CAD, in May 2017 VA obtained an opinion concerning whether, in fact, the Veteran had IHD or CAD prior to death. Per the opinion report, the relevant evidence included a July 1978 electrocardiogram (EKG), a 2005 complaint of chest pain, two January 2007 progress notes, and a January 2007 computed tomography (CT) scan report. In July 1978 the Veteran had an “abnormal” EKG; however, review of the relevant medical literature indicated that the EKG findings can be seen as variations of “normal” and have no clinical significance if they do not recur and cause symptoms. Subsequent EKGs in 1993 and 1994 were normal, which indicated that the “abnormal” findings in July 1978 were, in fact, normal, and the Veteran did not have symptoms of a cardiac origin, to include CAD. After the “abnormal” EKG, no potential cardiac symptoms were reported by the Veteran until December 2005, when the Veteran complained of chest pain. It was noted that the Veteran had a family history of CAD and was prescribed nitroglycerine to treat the chest pain symptoms. Review of the records reflects that the Veteran did not go in for follow up treatment and was not formally diagnosed with IHD or CAD. While it appears that the Veteran’s symptoms were relieved by the nitroglycerine, per the VA examiner, the medical literature reflects that patients with and without CAD may have their symptoms relieved by nitroglycerine. As such, the use of nitroglycerine does not predict the presence of CAD. A CT scan was performed in January 2007, which incidentally noted the finding of atherosclerosis in the infrarenal aorta. Per the VA examiner, atherosclerosis refers to plaque build up inside the arteries of the body. A review of the medical literature showed that the presence of an atherosclerotic lesion to the infrarenal aorta would not imply the presence of atherosclerotic disease to the coronary arteries. Per the August 2018 addendum opinion, the only objective evidence in the record indicating the Veteran had CAD was found in two nursing admission assessment notes from January 2007. The VA examiner explained that the nursing notes were authorized on dates that the Veteran had significant memory problems and confusion. The notes appeared to show that the Veteran provided the subjective historical details. Since the Veteran’s mental state was altered, reliability as an accurate historian was questionable. No other medical professionals corroborated a diagnosis of CAD during the 2007 admissions. Based upon the above, in both May 2017 and August 2018, the VA examiner opined that it was less likely as not that the Veteran had IHD/CAD prior to death. The only evidence supporting a finding of CAD was the January 2007 nursing admission notes that are of dubious reliability due to the Veteran’s mental state. No other medical professional has ever diagnosed the Veteran with IHD or CAD. No physical findings, EKGs, or labs were conclusive for CAD, and no autopsy was performed. Review of the treatment records showed more plausible etiologies for the Veteran’s episodes of chest pain, syncope, and acute pulmonary edema, to include genetics, gender, obesity, environmental risk factors, and stroke. The examiner reviewed the Veteran’s treatment records and found they did not show IHD or CAD. No competent opinion to the contrary has been provided. The preponderance of the evidence is, therefore, against a finding that the Veteran had IHD or CAD that was a contributory cause of death, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The appellant has not submitted any competent medical evidence showing that the Veteran had IHD/CAD prior to death. The Board has considered the appellant’s general assertion that the Veteran had IHD/CAD; however, as a layperson, the appellant is not competent to establish that the Veteran had IHD/CAD by her own opinion, as diagnosing such cardiovascular disorders requires medical testing. See Jandreau, 492 F. 3d at 1377. At the time of the Veteran’s death, service-connected disabilities were PTSD, rated 70 percent disabling, and SFW scars, rated noncompensable; entitlement to a TDIU was established effective April 4, 1997. Per the October 2018 IHP, the representative stated that “as for the [SFW], we have never opined or hinted that they may have played a part in the Veteran’s death.” Review of the evidence of record, including the May 2017 and August 2018 opinions, supports the representative’s contention that the SFW was neither the principal or a contributory cause of the Veteran’s death. As to the service connected PTSD, in the May 2017 VA opinion, the VA examiner opined that it was less likely than not that the service connected PTSD contributed substantially or materially to the Veteran’s death. In the August 2018 addendum opinion, the VA examiner further elaborated that while there is an “association” between PTSD and cardiac conditions, including CAD, “no causal relationship between PTSD and cardiovascular illness has been established in the credible medical literature.” Further, review of the relevant evidence of record showed that the Veteran had not been diagnosed with any PTSD associated physical conditions that could explain the development pulmonary edema. Review of the opinion reports reflect that this opinion was based upon a meticulous review of the Veteran’s medical history (with the addendum opinion coming in at 44 pages, most of which was document review and explanation). There is no probative evidence suggesting a link between the Veteran’s service connected disabilities and the later diagnosis of brain cancer and resulting death. The appellant did not submit any medical or scientific evidence that showed the Veteran’s service-connected disabilities were a contributory cause of death. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities were a contributory cause of death, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The Board acknowledges the appellant’s arguments suggesting the Veteran’s death was due to service-connected disabilities; however, although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, determining whether a service connected disability contributed to brain cancer, a complex disease process, this falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. In summary, there is no competent and probative evidence of record that suggests the brain cancer that caused the Veteran’s death is in any way related to active duty service, including as due to exposure to herbicides. There is also no competent and probative evidence of record that suggests a service-connected disability or a disability that warranted service connection was a contributory cause of death. In the absence of any probative evidence that a disability incurred in or aggravated by service was either the principal, or primary cause of death, or that it was a contributory cause of death, service connection for the cause of the Veteran’s death is not warranted. The Board is sympathetic to the appellant’s loss of her husband, the Veteran, but, for the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel