Citation Nr: 21015429 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-14 686 DATE: March 17, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to service connection for malignant melanoma for purposes of accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in May 2013; the Veteran’s death certificate lists the cause of death as metastatic melanoma of the brain. 2. At the time of death, the Veteran was not service connected for any disability. 3. Exposure to ionizing radiation, singly or jointly with some other condition, was not the immediate or underlying cause of death or etiologically related thereto; nor did ionizing radiation contribute substantially or materially to the Veteran's cause of death, combine to cause death or aid or lend assistance to the production of death. 4. The Veteran did not sustain any additional disability nor was melanoma worsened because of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or because of an event that was not reasonably foreseeable. 5. At the time of his death, the Veteran had a pending claim for entitlement to service connection for melanoma of the brain. 6. Melanoma was not manifest during service, a malignant tumeur was not manifest within one year of separation, and melanoma is not otherwise attributable to service, to include exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The Veteran’s death was not caused by, or substantially or materially contributed to by, an injury or disease incurred in or aggravated by service, to include as a result of ionizing radiation. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for melanoma has not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 3. The criteria for accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1980. The Veteran died in May 2013 and the Appellant claims as the surviving spouse. The Appellant appeared at a Board hearing in May 2018; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Appellant’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. 1. Cause of death The Veteran’s death certificate lists the cause of death as metastatic melanoma of the brain, with onset of one year. A timeframe of one to two years and the cause of death were confirmed by the Appellant at a Board hearing. The Appellant claims malignant melanoma was due to radiation exposure during his time serving aboard the U.S.S. Sperry and U.S.S. Sterrett. The Appellant claims that the Veteran was exposed to radiation on those two ships, which caused the cancer that ultimately resulted in death. Further, the Appellant and representative allege under 38 U.S.C. § 1151 that VA caused the Veteran’s death by cancelling a prescription for a medication (Zelboraf) the Veteran was taking or otherwise was responsible for failing to treat the Veteran adequately, to include failing to treat the cancer promptly. The Veteran was not service connected for any disabilities at the time of his death. When any veteran dies from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation (DIC) to such veteran’s surviving spouse, children, and parents. 38 U.S.C. § 1310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). A. Ionizing radiation Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by different methods. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d); Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, when a radiogenic disease first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A radiation-exposed veteran is defined in 38 C.F.R. § 3.309(d)(3)(i) and includes a variety of in-service activities (onsite participation in a test involving the atmospheric detonation of a nuclear device and service in Hiroshima or Nagasaki during the time after the use of nuclear devices in those cities, service on the grounds of a gaseous diffusion plant in several specific areas (Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee), service on Amchitka Island in Alaska before January 1, 1974, or service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000). It has not been alleged or noted in the evidence of record that any of these situations are applicable to the Veteran. Turning to § 3.311, the evidence must show: (1) the veteran was exposed to ionizing radiation in service; (2) subsequently developed a radiogenic disease; and (3) such disease became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of these three requirements is not met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. A DD Form 1141 has been obtained, reporting exposure to ionizing radiation with a lifetime dose of 00.025 REM (Roentgen Equivalent Man), the Veteran subsequently developed a radiogenic disease (in this case, “any other cancer” per 38 C.F.R.§3.311(b)(2)); and that disease manifested five years or more after exposure. Under 38 C.F.R. § 3.311, provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Under 38 C.F.R. § 3.311(a)(2)(iii), a request will be made for any available records concerning a veteran’s exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to a veteran’s radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. A July 1978 report of medical examination for purposes of occupational exposure to ionizing radiation is of record. The examination noted two abnormalities, an open lesion of the skin under the section for the genitourinary (GU) system and a facial lesion on the chin for 8 months. The representative stated these ailments are due to significant exposure to ionizing radiation. See February 2021 correspondence. As already noted, a DD Form 1141 has been obtained exposure to ionizing radiation, at a lifetime dose of 00.025 REM for the period of January 1979 to May 1980. A July 1980 service report provided to the Veteran on the termination of his service contains a report of occupational exposure to ionizing radiation from January 1979 to May 1980 with no other exposures. VA treatment records show that the Veteran established care with VA in 2012, with an initial examination in July 2012. He sought treatment in 2012 for a fungating melanoma on the right fifth toe – treated with amputation of the toe – and sentinel lymph node biopsy. Four of the six nodes biopsied were positive for melanoma. He reported dark pigmented lesion in 2003, with progressive increase and size and ulceration. History in July 2012 was metastatic melanoma (stage IV), indicating spread to other places throughout the body. MRI of the brain was obtained at that time which showed a lesion in the right frontal lobe consistent with metastatic disease. The Veteran subsequently developed widespread metastatic disease including spinal cord compression with paralysis which was not responsive to treatment. A Letter from the Naval Dosimetry Center, received in April 2019, confirmed the dose estimates and type of radiation dose exposure, noting exposure in the U.S. Navy from January 1979 to January 1980, type of radiation as DDE-Photon, and REM as 00.025. Based on this information, the Veteran’s claim was referred to the Under Secretary of Health. A response in December 2019 states, based on the evidence, the Veteran’s occupational exposure to ionizing radiation does not meet or exceed an annual dose estimate of 5 REM, or 10 REM in a lifetime. Therefore, an advisory medical opinion from the Under Secretary of Health is unnecessary. The Health Physics Society, in their position statement PS010-2, Radiation Risk in Perspective, revised in May 2016, states that in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 REM in one year or a lifetime dose of 10 REM above that received from natural sources. The position statement goes on to say that there is substantial and convincing scientific evidence of health risks following high-dose exposure. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent. The opinion from the Veterans Benefits Administration, Director of Compensation Service, was there is no reasonable possibility that the Veteran’s metastatic melanoma of the brain is the result of exposure to ionizing radiation during service. There is an opinion from a doctor who treated the Veteran at VA (Dr. S.S., although the opinion appears on the letterhead of a private organization), who treated the Veteran during his terminal illness and notes exposure to radiation in service. Dr. S.S. reports that the Veteran had ionizing radiation exposure while serving on the U.S.S. Sperry and documents related to this are in the wife’s possession. Radiation exposure is a significant risk factor for developing metastatic melanoma. He states that the Veteran’s terminal illness was very likely related to service. Several research articles noting that exposure to ionizing radiation causes cancer gave been submitted. However, in this case, the Veteran’s in-service exposure to ionizing radiation has been found to be far below 5-10 REM and, as noted by the Director of Compensation Services, risks of health effects are either too small to be observed or are nonexistent. The articles supplied do not report any situations akin to the Veteran’s, instead involving people who had much higher exposures such as nuclear workers or people receiving cardiology treatment, who had exposure that was the equivalent of 150 chest X-rays a year. Another article notes a lifetime exposure for the low-dose range of less than 200 millisievert (mSv), which is the equivalent of 20 REM. In regard to exposure to ionizing radiation under the rules laid out by 38 C.F.R. § 3.311, the Board finds the evidence is against the claim under this theory of entitlement. Medical professionals have found that exposures under the individual dose of 5 REM in one-year (or lifetime of 10 REM) result in health risks are either too small to be observed or are nonexistent. Here, the Veteran’s in-service exposure was .0025 REM. Turning to the Dr. S.S,’s opinion, there is no reason to doubt Dr. S.S.’s statements regarding exposure to ionizing radiation in general causing melanoma and Dr. S.S. had at least some knowledge of the Veteran’s medical history, but the opinion cannot be found to be probative on the matter, due to low ionizing radiation exposure in service. Dr. S.S. did not state whether he was aware of the amount of exposure, as he referenced the documents to the Appellant’s possession, but did not actually state the dose estimate. Therefore, this opinion is unpersuasive and does not support a grant of service connection. Turning to the argument raised by the representative in February 2021 regarding the July 1978 report of medical examination. He is correct that this examination was undertaken for occupational exposure to ionizing radiation and did show lesions on the face (specifically the chin) and the GU system. This examination notes that this examination was for purposes of occupational exposure to ionizing radiation and contains a report of time in this capacity as 0 months, indicating this physical examination may have occurred prior to occupational exposure to ionizing radiation. Further, the examination reported there was no significant or disqualifying history, a hemogram evaluation (used to determine blood count for radiation workers) was within normal limits (WNL) and all other finding attributable or aggravated by ionizing radiation was listed as zero. Otherwise, the examination shows the Veteran was clinically normal in all areas. A 1978 report of medical history the same month as the examination reports noted the Veteran was in good health and he denied any history of radium work, unsealed sources, radiation therapy, previous radiation work, external contamination, internal contamination, and diagnostic isotope. He did report skin disease and a history of urinary disease (accounting for the GU system lesion) as well as some unrelated medical histories (broken bones and pain or pressure in chest). His total lifetime exposure was listed as N/A, radiation limit ever exceeded as none, and he had no chronic diseases. For the report of skin, the 1978 report of medical history, in the section completed by a medical officer, notes probable fungal infection and the GU lesion system positive notation was due to an unrelated issue. The symptoms highlighted by the representative are therefore unrelated to ionizing radiation exposure, as outlined by the service medical records. Consequently, service connection under 38 C.F.R. § 3.311 is not warranted because the most competent and probative evidence establishes that his remote melanoma is unrelated to the estimated dose of .0025 REM. The most probative evidence establishes a remote post-service onset with no probative evidence of radiation exposure or a relationship to radiation exposure. B. Section 1151 Regarding the issue of § 1151, it has been contended that the Veteran’s death was due to VA cancelling the medication the Veteran was taking. The representative has also made formulaic arguments regarding failure to timely diagnose and treat the Veteran and failure to disclose adverse consequences of treatment or failure to provide informed consent, without any reference to anything specific to the Veteran’s treatment. Compensation may be paid for a qualifying additional disability that is 1) not the result of the Veteran's willful misconduct; 2) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA either by a VA employee or in a VA facility; and 3) the proximate cause of the disability was A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. Additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. To establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran's representative. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). An October 2019 VA opinion states that it was less likely than not that the treatment the Veteran received resulted in his death and treatment was not marked by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care, medical or surgical treatment, or examination. The examiner provided the following rationale: the Veteran came to the VA for intake examination in July 2012. The intake note states the Veteran had a spot on the right 5th toe since about 2003. It had enlarged and became ulcerated in December 2011 and was diagnosed as a melanoma in January 2012. A fluorodeoxyglucose (FDG)-positron emission tomography (PET) note dated in February 2012 showed benign prostatic hyperplasia (BPH) but no uptake, no lymphatic uptake, and no evidence of metastatic disease; just update at the site of the known primary and contrast injection site. He was scheduled to have amputation of right 4th and 5th toes and distal foot with right femoral sentinel in March 2012, but chose to come to VA. The examiner quoted at length from a note from Dr. S.S. dated in August 2014 provided a synopsis of the care from VA. It states, in a short time, the Veteran developed widely metastatic disease which was treated with the best available therapies. He developed a spinal cord compression from the site of metastatic disease in November of 2012 and even with emergent surgical intervention he was still left with permanent disabilities and paralysis. During the roughly two year course of care for which the Veteran was treated for melanoma until his passing from metastatic melanoma he developed obvious metastatic disease within his brain, multiple bones including vertebral column, testicle, subcutaneous nodules, adrenal gland and vital organs including his liver and lung. He additionally suffered as a result of malignancy or treatment of his malignancy hypophysitis (swelling and loss of some degree of function of his pituitary gland), hepatitis, vitiligo, paralysis, and squamous cell carcinoma of the skin. The examiner stated the Veteran had metastatic cancer that resulted in abrupt total organ failure. He did not find any alteration in the standing of care in the attempt to treat this aggressive and fatal disease. The examiner also opined that it was less likely than not that the VA medical center failed to exercise the degree of care that would be expected of a reasonable health care provider with the examiner opining that the care at VA was within the standard of care. The examiner also opined that it was less likely than not that the VA medical center failed to exercise the degree of care that would be expected of a reasonable health care provider with the examiner opining that the care at the VA was within the standard of care. The examiner also opined that it was less likely than not that the claimed disability became worse as a result of the VA treatment at issue. The examiner noted that death was the result of the natural history of metastatic melanoma. The examiner also opined that it was less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner noted that the stopping of the Zelboraf does not appear to have changed the prognosis or complications related to the Veteran’s death. Lastly, the examiner opined that it was less likely than not that failure on part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner noted that the disease had been present over 9 years and within months, there was documented metastatic disease in the brain. Regardless of the PET scan, there appeared to have been metastatic disease prior to transfer to the VA. The Board has considered the Appellant’s and the Representative’s contentions. The Appellant has not stated that she has any training as medical professional and no evidence of record to suggest such. The same is true for the representative. Therefore, regarding the cause of the Veteran’s death, they are not competent and are assigned no probative value. In contrast, the VA opinions noted that the Veteran’s metastatic disease existed prior to transfer to the VA and the stopping of the Zelboraf does not appear to have changed the prognosis or complications related to the Veteran’s death and that the disease was at an advanced stage prior to the Veteran establishing care with the VA, having existed for nine years prior and resulting in the Veteran’s death some one to two years after establishing care with VA. The VA opinion is based on accurate facts and is entitled to significant probative weight in determining the cause of the Veteran’s death. Nieves-Rodriguez, 22 Vet. App. 295. A VA medical professional’s opinion is more probative on this matter and outweigh the statements to the contrary. In summary, the Board concludes that the evidence is against a claim that VA treatment, including ending a medication by VA. Therefore, the preponderance of the evidence is against the claim, and it is denied C. Direct & Presumptive Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has also considered other theories which would warrant service connection. The Board notes that certain presumptions exist for chronic disabilities, including malignant tumors of the brain, if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, here, a tumor manifested many decades after service and these presumptions do not apply. There also are references made by the representative to the Veteran being exposed to toxins, metals, chemicals, asbestos, etc. in service as well as a report regarding toxic waste at Philippine military bases, but it is unclear whether and on what basis the representative believes these could cause melanoma. A thesis from a student in the Master of Laws program in British Columbia was submitted by the representative noting a history of pollution at Philippine military bases, but it makes no mention of melanoma. A portion of the Veteran’s diary was also submitted, which reports the Veteran having the flu, nausea, stomach problems, and other temporary ailments. Military personnel records and the discharge document show that the Veteran's Military Occupation Specialty was that of Electrician’s Mate, which the RO reported is associated with probable asbestos exposure. However, there is no evidence in the Veteran’s case that probable asbestos caused melanoma. A March 2015 statement of the Appellant notes that the claim was not based on asbestos exposure and her husband never mentioned asbestos exposure to her. Furthermore, there is no proof that the cause of death was related to potential asbestos exposure. Malignant melanoma was not manifested during service or within one year of separation. In addition, the Veteran did not have the characteristic manifestations sufficient to identify the disease entity. Rather, a separation reported of medical examination dated in May 1980 found the Veteran had a normal clinical evaluation in all areas except body marks, scars, or tattoos, which contains a notation of scars on the arm. A summary of defects and diagnosis only listed hearing loss. A report of medical history that same month noted that the Veteran was in excellent health, with reports of a history of skin disease, hearing loss, broken bones, and venereal disease. For skin disease, this was a lesion on the chin, and for the broken bones, foot and hand fractures. In addition, there is no competent evidence of melanoma until many years post service, until approximately around 2003. There is no acceptable evidence of record of melanoma during service or within one year of separation and no probative evidence of a relationship to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes. 2. Accrued Benefits Accrued benefits are periodic monetary benefits to which a payee was entitled at the time of his or her death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits may be paid upon the death of a Veteran to the Veteran's spouse. 38 C.F.R. § 3.1000(a)(1). The application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000(c). The Veteran submitted a claim for compensation for service connection for melanoma of the brain in September 2012. As the claim for accrued benefits is essentially the same as the claim for benefits for the Veteran’s cause of death, the claim for accrued benefits is denied on the same basis, contained in sections 1.A. and 1.C above. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.