Citation Nr: 18125933 Decision Date: 08/13/18 Archive Date: 08/13/18 DOCKET NO. 14-22 725 DATE: August 13, 2018 ORDER Entitlement to a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and non-small cell lung cancer is denied. Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran did not serve in country or on the inland waterways of the Republic of the Vietnam during the Vietnam era but served in the blue waters off the coast of Vietnam. 2. The Veteran was not exposed to herbicides in service. 3. No respiratory disease or chronic symptoms of a respiratory disability, to include COPD and non-small cell lung cancer was manifested during service or were continuously manifested in the years after service, and non-small cell lung cancer was not manifested to a degree of ten percent within one year of service separation. 4. COPD and non-small cell lung cancer were diagnosed many years after service and there is no competent evidence that establishes that the COPD or non-small cell lung cancer are related to disease or injury in service. 5. The Veteran died in May 2015. The immediate cause of death was systolic congestive heart failure, which was due to or as a consequence of acute coronary syndrome and coronary artery disease. Adenocarcinoma of the lung was a significant condition contributing to death. 6. At the time of the Veteran’s death, service connection was in effect for tinnitus, rated as 10 percent disabling, right inguinal hernia, rated as noncompensably (0 percent) disabling, and bilateral hearing loss rated as noncompensably (0 percent) disabling. 7. The competent evidence does not show that the Veteran’s death was caused by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability, to include COPD and non-small cell lung cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1133 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). 2. Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. §§ 1110, 1131, 1310 (2012); 38 C.F.R. §§ 3.303, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1962 to January 1965. He died in May 2015. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision and a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for entitlement to service connection for a respiratory disorder was denied in July 2013 and the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death was denied in July 2015. The Veteran perfected an appeal of the claim for a respiratory disorder. As noted above, the Veteran died in May 2015. A November 2016 letter advised the appellant that she has been substituted as the claimant. See 38 U.S.C. § 5121 (2012). This law provides for a more liberal basis for the award of accrued benefits than is provided in 38 U.S.C. § 5121, but is still limited to the same benefit, i.e., accrued benefits due and unpaid at the time of the Veteran’s death. See 38 U.S.C. §§ 5121A, 5121 (2012). However, it is no longer referred to as a claim for “accrued benefits,” because the appellant has been substituted for the Veteran in the claim, and she essentially replaces him as the claimant. Subsequent to the last supplemental statement of the case (SSOC) issued with regard to the claim for a lung disability, the appellant submitted additional service personnel records and information regarding the USS COLONIAL without a waiver of consideration of the evidence by the Agency of Original Jurisdiction (AOJ). However, the evidence is duplicative of or cumulative of the evidence already considered by the AOJ. As the evidence has already been considered by the AOJ, the appellant is not prejudiced by the Board’s adjudication of the issues on appeal. The appellant testified at a video conference hearing before the Board in June 2018. Prior to his death, the Veteran had also appealed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). However, in a statement dated in January 2015, the Veteran withdrew the claim for PTSD. As such, the claim for PTSD was properly withdrawn prior to his death. Also prior to his death, in March 2015, the Veteran submitted a VA Form 21-526EZ and claimed entitlement to service connection a compensable rating for hearing loss and entitlement to service connection for diabetes mellitus as due to herbicide exposure, a left knee disability, PTSD, and ischemic heart disease as due to herbicide exposure. These issues were not developed by the AOJ and are therefore referred for appropriate action. Service Connection – Respiratory Disability and Lung Cancer The Veteran submitted a claim of entitlement to service connection for a respiratory disability in April 2012. The claim for a respiratory disability was denied in a July 2013 rating decision. The Veteran disagreed with the denial of his claim and this appeal ensued. The Veteran subsequently submitted a claim for stage IV lung cancer in October 2014. The claim was denied in a December 2014 rating decision. The Veteran disagreed with the denial of his claim for lung cancer and the claim was included as part of the claim for a respiratory disability on appeal. Prior to his death, the Veteran reported that he was exposed to asbestos while working aboard the USS COLONIAL during service. He indicated that although he was a smoker, he believed that he had a respiratory disability related to his service. He also contended that his lung cancer resulted from exposure to herbicides during service. He did not report service in-country in the Republic of Vietnam but instead asserted exposure to herbicides through contaminated water used on board the USS COLONIAL for both drinking and washing while docked in Da Nang Harbor. The appellant also testified that the Veteran was sprayed with herbicides from helicopters flying above the USS COLONIAL while it was docked in Da Nang Harbor. A review of the Veteran’s service personnel records reflects that he served aboard the USS COLONIAL for the period from June 1962 to January 1965. Also associated with the claims file are deck logs, a cruise log, and a newsletter for the USS COLONIAL. The newsletter indicates that the USS COLONIAL was in the Vietnam area of operations from August 1964 to October 1964 and in November 1964 and that it was at port in Da Nang Harbor in August 1964. There was information that the service members aboard were ordered to Da Nang Harbor to “debark.” However, during his lifetime, the Veteran specifically stated he did not go ashore but remained on the ship. The appellant similarly made no assertion that the Veteran ever went on land in Vietnam. A review of the Veteran’s DD Form 214 reflects that he served as a boiler operator helper. As the Veteran served in the boiler room of a Naval Ship, the Board will concede exposure to asbestos. A review of the Veteran’s service treatment reports indicates that his March 1962 enlistment examination revealed a normal clinical evaluation of the heart and lungs. The records do not reflect any complaints, findings, or treatment for any heart or respiratory complaints or disabilities. The January 1965 separation examination revealed a normal clinical evaluation of the heart and lungs. The post-service VA outpatient treatment reports reflect that the Veteran was diagnosed with COPD per x-rays in September 1996. The records indicate that there was no acute disease and an infiltrate of the left lung base could not be ruled out. No findings relevant to asbestos exposure were reported in the records. In February 2000, the Veteran was noted to have a history of coronary artery disease and congestive heart failure. In July 2004, the Veteran was noted to have a history of COPD and a forty-year history of smoking one pack of cigarettes per day. A pathology report from Mercy Medical Center dated in April 2014 reveals a diagnosis of non-small cell carcinoma consistent with pulmonary adenocarcinoma. VA treatment reports reflect that in April 2014, the Veteran was noted to have a new diagnosis of lung cancer and he was followed by oncology. The records indicate a diagnosis of severe COPD and stage IV lung cancer. The Veteran was reported to have had exposure to Agent Orange which could have contributed to the development of lung cancer. In October 2014, the Veteran’s treating oncologist reported that the Veteran’s stage IVA adenocarcinoma of the lung was incurable and terminal. The Veteran was treated with chemotherapy to delay progression of the disease and slowing of cancer symptoms. The physician stated that the lung cancer diagnosis was attributable and caused by prior Agent Orange exposure during Vietnam as per the history relayed by the Veteran. The records do no reference treatment for leukemia or “reverse leukemia.” A VA medical opinion was obtained in May 2014. The examiner was advised that the Veteran worked as a boiler tender during service and that asbestos exposure was conceded. The examiner opined that the Veteran’s lung disabilities, including COPD and non-small cell lung cancer were less likely than not due to asbestos exposure in service. The examiner’s rationale was that the Veteran had a fifty-year history of smoking until October 2010. He reported breathing problems starting in October 2010 and was diagnosed with COPD at that time. The examiner indicated that smoking is the most common cause of COPD. In March 2014, the Veteran had increased shortness of breath and hemoptysis. A chest computed tomography (CT) scan showed a mass in the right upper lobe/right middle lobe with probable lymphatic or hematogenous tumor spread and/or pneumonia in the right upper lobe and bilateral lower lobes. A biopsy showed the mass to be non-small cell lung cancer. The examiner noted that the CT report did not mention any findings consistent with interstitial findings most commonly seen with asbestosis nor any pleural plaques. Additionally, there was no mention of diffuse interstitial fibrosis typically seen with asbestosis on the lung biopsy from April 2014. Associated with the claims file is a memorandum from the RO dated in January 2015 which indicates that there is insufficient evidence to verify the Veteran’s exposure to herbicides sufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of the Marine Corps or National Archives and Records Administration (NARA) records. The memorandum indicates that the deck logs and personal items submitted by the Veteran were reviewed as well as a December 9, 2014, Navy Ship list which shows that the USS COLONIAL traveled on the Saigon River in June and September 1969, after the Veteran left service. The memorandum concludes that the Veteran’s DD Form 214, service treatment reports, and service personnel records do not verify exposure to herbicides. Associated with the claims file is an August 2016 statement from R. Maggiore, M.D., the Veteran’s treating oncologist at VA. Dr. Maggiore indicated that the Veteran died in May 2015 due to metastatic adenocarcinoma (cancer) of the lung (stage IV). Dr. Maggiore reported that he was involved in the Veteran’s palliative chemotherapy since his initial diagnosis at Mercy Medical Center in April 2014. He indicated that the diagnosis of adenocarcinoma of the lung has a substantively direct association with Agent Orange and there is literature to support the link of dioxins similar to the contaminants associated with Agent Orange in lung cancers. He referenced a medical study which indicated that exposure to Agent Orange increased the risk for all cancer types including lung cancer by 1.6-fold even adjusting for other risk factors such as tobacco and alcohol exposure. The appellant testified that the Veteran told her that he was exposed to Agent Orange when he was unloading the ship he served aboard during his active service when “helos” (helicopters) came out to spray Agent Orange. She indicated that he served aboard the USS COLONIAL during his period of service. She reported that he began having heart trouble in 1988 and lung cancer was diagnosed in 2014. The appellant stated that the Veteran did not have any problems with his heart and lungs during service. She testified that his cause of death and respiratory issues were related to exposure to Agent Orange and asbestos exposure during service. She reported that the Veteran stopped smoking in 2010. She reported that the Veteran’s treating oncologist spent a lot of time with him and wrote letters of support. She also reported that he had to have his blood drawn once a month because he had elevated red or white blood cells beginning in around 2010. She reported that the condition was like a “reverse leukemia” but he did not have any treatment other than the blood draws. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, including malignant tumors, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a), 1133; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology. See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The diseases alluded to above include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341, 346 (1994), 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996), and 67 Fed. Reg. 42,600, 42,608 (2002). There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, and VA has not promulgated any regulations, but there are some procedural guidelines. McGinty v. Brown, 4 Vet. App. 428 (1993). In May 1988, VA issued a circular on asbestos-related diseases that provided some guidelines for considering compensation claims based on exposure to asbestos, entitled Department of Veterans Benefits, Veteran’s Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular). The DVB Circular was rescinded by the Director of the VA Compensation and Pension Service in September 1992, and, at that time its contents were added as paragraph 7.68 (now paragraph 7.21) of Part VI of the VA Adjudication Procedure Manual, M21-1 (Manual M21-1). The provision does not give rise to enforceable substantive rights and does not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141 (1999). According to Manual M21-1, Part VI, paragraph 7.21, the most common disease related to asbestos exposure is interstitial pulmonary fibrosis (asbestosis), and clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In addition, it is stated that asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. In paragraph 7.21 it is also noted that cancers of the larynx and pharynx and the urogenital system (except the prostate) are also associated with asbestos exposure. Notwithstanding the foregoing, 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). In considering the evidence of record and the applicable laws and regulations, the Board concludes that service connection for a respiratory disability, to include COPD and non-small cell lung cancer, claimed as due to exposure to herbicides and asbestos is not warranted. As an initial matter, the Board observes that the Veteran is not presumed to have been exposed to herbicides during his period of service. The lay reports and service records do not support of a finding of actual herbicide agent exposure or service on land or in the inland waterways to support presumptive exposure. As noted, there is no assertion that the Veteran was stationed in the Republic of Vietnam, or had official duty there, and his service personnel records do not reflect any such duty. According to Haas, service in the official waters off the coast of Vietnam does not constitute “service in the Republic of Vietnam.” See VAOPGCPREC 27-97 (O.G.C. Prec.27-97); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (holding that the Court of Appeals (Court) had erred in rejecting VA’s interpretation of § 3.307(a)(6)(iii) as requiring a service member’s presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation’s presumption). See 38 C.F.R. §§ 3.307(a), 3.313(a). Instead, service in the Republic of Vietnam requires visitation (i.e. setting foot) in Vietnam or service in the inland waters of Vietnam. Id. The Board also relies on guidance from the VA Adjudication Procedure Manual and a training letter issued in September 2010 by the Compensation and Pension Service, and a VBA Fast Letter 10-37 (September 10, 2010). See also Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era (September 9, 2010). This guidance suggested that a blue water veteran must show that he stepped foot on the land mass of Vietnam to warrant the presumption of herbicide exposure under Haas. In Gray v. McDonald, 27 Vet. App. 313 (2016), the Court held that VA’s interpretation of 38 C.F.R. § 3.307(a)(6)(iii) designating Da Nang Harbor as an offshore, rather than an inland, waterway (even though Quy Nhon Bay and Ganh Rai Bay are designated as brown water) is inconsistent with the purpose of the regulation and does not reflect the Agency’s fair and considered judgment. The Court in Gray found that VA’s designations of what areas constituted inland waterways/brown water, and what areas constituted blue water (off shore) were arbitrary because no defined parameters had been set and the Secretary could provide no reasonable basis for finding that Da Nang Harbor was blue water when Quy Nhon Bay and Ganh Rai Bay were considered inland waterways. Although the Court in Gray found VA’s definition of inland waterways irrational and not entitled to deference, it noted that VA retains its discretionary authority to define the scope of the presumption of herbicide exposure. Haas v. Peake made it clear that VA may draw a line between blue and brown water while leaving the specific line drawing to VA discretion. Gray at 321. As such, the Court vacated and remanded the matter for VA to reevaluate its definition of inland waterways. In light of the decision in Gray, VA amended its VA’s Adjudication Procedure Manual with clear guidance as to how VA defines “inland waterways” and which bodies of water in Vietnam constitute inland waterways. According to the February 5, 2016, amendments to the VBA Manual M21-1, IV.ii.1.H.2.a, inland waterways are classified as fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is considered service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See VBA Manual M21-1, IV.ii.1.H.2.c.; see also VBA Manual M21-1, IV.ii.2.C.3.m. In Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. 2017), the Federal Circuit dismissed a direct petition for review of M21-1 provisions concerning blue water versus brown water herbicide exposure that were updated in response to the Court’s holding in Gray. Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b. In addition to these amendments to the M21-1, the VA herbicide exposure ship list was also updated on the same day to reflect the M21-1 amendments. The amended background section of the document, entitled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents states as follows: According to 38 C.F.R. § 3.307(a)(6)(iii), eligibility for the presumption of Agent Orange exposure requires that a Veteran’s military service involved “duty or visitation in the Republic of Vietnam” between January 9, 1962 and May 7, 1975. This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam. However, this does not include service aboard a large ocean-going ship that operated only on the offshore waters of Vietnam, unless evidence shows that a Veteran went ashore. Inland waterways include rivers, canals, estuaries, and deltas. They do not include open deep-water bays and harbors such as those at Da Nang Harbor, Qui Nhon Bay Harbor, Nha Trang Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, or Ganh Rai Bay. These are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. Under the amended criteria, consistent with the pre-amended criteria, Da Nang Harbor is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents. See VBA Manual M21-1, IV.ii.1.H.2.c. Therefore, to the extent the appellant relies on the presence of USS COLONIAL in Da Nang Harbor, the presumption of exposure to herbicide agents, and the presumption of service connection for lung cancer does not attach. The Veteran did not have service in the Republic Vietnam or the inland waterways of the Republic of Vietnam or another location where exposure to herbicides can be presumed, and the service records do not otherwise show exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Moreover, although the Veteran’s ship may have entered Da Nang Harbor, the Veteran’s presence on the land mass of Vietnam may not be assumed because the Veteran specifically denied any such presence. As noted, VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records. Veterans whose military records confirm they were aboard these ships qualify for presumption of herbicide exposure. See http://www.benefits.va.gov/compensation/claims-postservice-agent_orange.asp. This list does not mention the USS COLONIAL as a ship that docked on the land mass of Vietnam or that went into the inland waterways of Vietnam during the time period that the Veteran served aboard. The Board acknowledges that the USS COLONIAL travelled up the Saigon River to Nha Be during April 1966 and from June to September 1969. However, these dates were after the Veteran left service in January 1965. In conclusion, the Board finds that the weight of the evidence establishes that USS COLONIAL was an offshore “blue water” vessel during the time period the Veteran was aboard the ship and the Veteran did not serve in the Republic of Vietnam within the land borders, including the inland waters, of Vietnam. The Board has also considered the lay assertions of the Veteran and the appellant that the Veteran was exposed to herbicides from contaminated water or from “helos” spraying herbicides. However, with respect to the contention that the Veteran was exposed to herbicide through contact with contaminated water, the Board notes that while it is “conceivable that some veterans of offshore service incurred exposure under some circumstances due, for example, to airborne drift, groundwater runoff, and the proximity of individual boats to the Vietnam Coast,” VA is “not aware of any valid scientific evidence showing that individuals who served in the waters offshore of the Republic of Vietnam or in other locations were subject to the same risk of herbicide exposure as those who served within the geographic land boundaries of the Republic of Vietnam.” 69 Fed. Reg. 44,614, 44,620 (July 27, 2004); 73 Fed. Reg. 20,566, 20,568 (April 16, 2008); Haas, 525 F.3d at 1182-83. The Veteran did not submit any competent evidence suggesting that he was in fact exposed to contaminated water. Furthermore, the Board finds that the Veteran’s assertions regarding contaminated water and his spouse’s assertions that he was exposed to herbicides from “helos” spraying herbicides, have no probative value, especially as they were merely speculative or assumptions with no bases. While the Veteran is competent to describe an observable event such as having a substance touch his skin or using water, there is no evidence showing that the Veteran or his spouse have the expertise to determine if the water used was in fact contaminated, nor has the Veteran or his spouse provided any scientific or other reports which speak to this assertion. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. It was noted that in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant’s lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident. Therefore, the Board finds that there is no competent evidence of record showing that the Veteran was in fact exposed to herbicides. As it is not shown that the Veteran had service in the Republic of Vietnam, the presumption of exposure to herbicides does not apply to the claim of service connection for lung cancer. 38 U.S.C. § 1116(f). Further, as the Veteran is not presumed to have been exposed to herbicides, the presumption of service connection under 38 U.S.C. § 1116(a)(1) for this disorder does not apply. The Board will next turn to service connection as due to asbestos exposure. As the Veteran served as a boiler operator helper, the Board has conceded exposure to asbestos. However, neither the Veteran nor the appellant submitted any competent evidence linking any respiratory disability to his active service, including exposure to asbestos. The only medical opinion of record indicates that the Veteran’s respiratory disabilities, including COPD and non-small cell lung cancer were less likely than not related to asbestos exposure. The examiner thoroughly reviewed the claims file and provided a detailed rationale to support the conclusion. Finally, with regard to service connection on a direct basis, there is no competent evidence that links the claimed respiratory disabilities directly to service. As noted, the Veteran’s service treatment reports do not document any complaints, findings, or treatment for any respiratory complaints and the post-service treatment reports do not include any opinions which link any respiratory disorder to the Veteran’s service. Moreover, neither the Veteran nor the appellant submitted any medical evidence linking any such disorder to service. The only opinion submitted by the appellant linked the Veteran’s lung cancer to exposure to herbicides. However, for the reasons noted above, the Board has determined that the Veteran was not exposed to herbicides during service. Consequently, there is no competent evidence to establish a nexus between the respiratory disabilities and any documented event or incident of service. With regard to non-small cell lung cancer, the evidence of record does not establish that lung cancer was diagnosed within one year of service to allow for service connection on a presumptive basis. 38 C.F.R §§ 3.307, 3.309. As noted, lung cancer was diagnosed in 2014, many decades after the Veteran left service. Consequently, the Board finds that service connection is not warranted because the competent medical evidence of record is against a finding that any respiratory disability is etiologically linked to the Veteran’s active service, including exposure to asbestos. Accordingly, the preponderance of the evidence is against the claim for service connection for a respiratory disorder, to include COPD and lung cancer, and the claim is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cause of Death The appellant contends that service connection for the cause of the Veteran’s death is warranted. She testified that the Veteran’s heart and lung disorders which caused his death were related to his exposure to herbicides or exposure to asbestos during service. She reported that the Veteran began having heart trouble in 1988 and lung cancer was diagnosed in 2014. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1133; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312. Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312(c)(3). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). As noted, the immediate cause of the Veteran’s death was systolic congestive heart failure, which was due to or as a consequence of acute coronary syndrome and coronary artery disease. Adenocarcinoma of the lung was listed as a significant condition contributing to death. As noted above, the Veteran’s service treatment reports indicate that his March 1962 enlistment examination revealed a normal clinical evaluation of the heart and lungs. The records do not reflect any complaints, findings, or treatment for any heart or respiratory complaints or disabilities. The January 1965 separation examination revealed a normal clinical evaluation of the heart and lungs. The post-service VA outpatient treatment reports reflect that the Veteran was diagnosed with COPD per x-rays in September 1996. The records indicate that there was no acute disease and an infiltrate of the left lung base could not be ruled out. In February 2000, the Veteran was noted to have a history of coronary artery disease and congestive heart failure. In July 2004, the Veteran was noted to have a history of COPD and a forty-year history of smoking one pack of cigarettes per day. A pathology report from Mercy Medical Center dated in April 2014 reveals a diagnosis of non-small cell carcinoma consistent with pulmonary adenocarcinoma. As an initial matter, the Board notes that the appellant does not contend nor does the evidence show that the Veteran’s death was due to an already service-connected disability (i.e., hearing loss, tinnitus, or a right inguinal hernia). Turning to the appellant’s belief that the heart and lung disabilities which caused the Veteran’s death are related to exposure to herbicides, as noted above, the Board has determined that the Veteran was not presumed to have been exposed to herbicides during service and there is no competent and credible medical evidence linking non-small cell lung cancer to his active service, including asbestos exposure. Additionally, service connection was not in effect for any heart disabilities at the time of the Veteran’s death and there is no competent evidence linking any heart disability to the Veteran’s service, including asbestos exposure. Finally, the appellant has not submitted any competent medical evidence which links the Veteran’s cause of death to his period of service. As such, the probative evidence does not show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death, that a disability incurred in or aggravated by active service contributed substantially or materially to the cause of death, or that there was a causal relationship between a disability incurred in or aggravated by active service and the Veteran’s cause of death. Moreover, the Board finds that the appellant’s opinion is insufficient to provide the requisite etiology of the cause of the Veteran’s death because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512 (2004); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The appellant’s statements maintaining that the Veteran’s heart and lung disabilities which caused his death were related to service is merely speculation as she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to etiology. The appellant has not been shown to have any medical expertise. As such, the Board finds that service connection is not warranted because the competent evidence of record is against a finding that the cause of the Veteran’s death was related to his service or a service-connected disability. The Board is very sympathetic to the appellant for the loss of her husband. Unfortunately, the Board is ultimately bound by the laws passed by Congress, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In sum, the preponderance of the evidence is against the appellant’s claim, and service connection for the cause of the Veteran’s death is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. Duty to Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, a VA examination in this case has been undertaken with regard to the service connection claim. Regarding records, VA must obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the appellant “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the appellant has indicated no such records exist and all pertinent records have been obtained. Certain additional notice requirements attach in the context of a claim for DIC benefits based on service connection for the cause of death. Generally, notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the notice letter will depend upon the information provided in the claimant’s application. Hupp v. Nicholson, 21 Vet. App. 342 (2007); 38 U.S.C. § 5103(a) (2012). The RO sent a rating decision in July 2015, a statement of the case in January 2017, and a duty to assist letter in December 2017. Those documents discussed specific evidence, particular legal requirements applicable to the claim, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board notes neither appellant nor her representative has alleged prejudice with regard to the timing or content of the notice. The Federal Court of Appeals has held that “absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran....” See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. (Continued on the next page)   With regard to a medical opinion regarding the cause of the Veteran’s death, as not even speculative medical evidence of a relationship between the Veteran’s cause of death and his active service has been presented, VA has no duty to obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). VA’s duty to assist with respect to obtaining an opinion has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel