Citation Nr: 21026161 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-26 964 DATE: April 30, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran never served in the Republic of Vietnam (either on the landmass, inland waterways, or in the territorial sea extending 12 nautical miles from the shores of that nation) during the Vietnam era. The Veteran did not serve along the Korean DMZ from 1968 to 1971. The evidence does not show that the Veteran otherwise had exposure to Agent Orange or other herbicide agents during his periods of active duty service in the Army or Navy from 1971 to 1994. 2. The Veteran did not serve in the Southwest Asia Theater of Operations during the Persian Gulf War period. 3. The Veteran died in December 2017. His death certificates list the immediate cause of death as carcinoma of the lung with brain metastasis. One of the death certificates lists a contributory cause of death (but not resulting in the underlying cause), as hypertensive cardiovascular disease (HCVD). It was noted that tobacco use “probably” did contribute to his death. These conditions are all nonservice-connected disabilities. No autopsy was performed. 4. At the time of the Veteran’s death in December 2017, the Veteran was service connected for the following disabilities by VA: tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. 5. The causes of the Veteran’s death (metastatic lung cancer, coronary artery disease, and hypertension) did not manifest in service or within one year thereafter, are not otherwise related to his periods of active service, and are not secondary to his service-connected tinnitus and bilateral hearing loss disabilities. 6. The Veteran was not evaluated totally disabled for service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war (POW). 7. The Veteran was not “entitled to receive” total service-connected disability compensation by way of the eight possible exceptions listed under 38 C.F.R. § 3.22(b). CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 101, 1101, 1103, 1110, 1112, 1113, 1116, 1116A, 1310, 5107; 38 C.F.R. §§ 3.1, 3.5, 3.102, 3.300, 3.303, 3.307, 3.309, 3.310, 3.312, 3.313. 2. The criteria have not been met for DIC pursuant to 38 U.S.C. § 1318. 38 U.S.C. § 1318 (2012); 38 C.F.R. §§ 3.22, 20.1106 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1973 in the U.S. Army and from December 1976 to December 1994 in the U.S. Navy. The Veteran died in December 2017. The appellant is the Veteran’s surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The appellant requested a Travel Board hearing before a Veterans Law Judge in her July 2019 VA Form 9. Due to the COVID-19 pandemic, a Board virtual tele-hearing was scheduled for the appellant for April 2021. However, a short time before the scheduled hearing in April 2021, the appellant’s representative withdrew the request for the hearing because the appellant was hospitalized for a terminal illness. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2020). I. VA’s Duty to Notify and Assist VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA letters sent to appellant, dated in March 2019 and April 2019. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). These letters advised the appellant of the information and evidence necessary to substantiate her claims for DIC (cause of death) benefits and DIC (section 1318) benefits. The required notice was also satisfied by an attachment provided to the appellant included with her January 2018 Application for DIC (VA Form 21-534). In particular, the United States Court of Appeals for Veterans Claims (Court) has held that additional, detailed notice requirements apply in the context of a claim for DIC benefits based on service connection for the cause of death. In particular, this notice 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev’d on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the AOJ provided the appellant with a March 2019 notice letter compliant with the above requirements of the Hupp case. Moreover, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In fact, neither the Veteran nor the appellant nor her representative advanced any specific, substantive arguments on the cause of death and section 1318 claims, aside from the appellant’s general assertion that she was requesting service connection for lung cancer as the cause of the Veteran’s death. See August 2018 NOD (VA Form 21-0958). No further detail or factual explanation was provided as to why the Veteran’s lung cancer should be service-connected in the present case. In this regard, the appellant and her representative are reminded that the duty to assist is not a one-way street. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a claimant wishes help, he or she cannot passively wait for it in those circumstances where his / her own actions are essential in obtaining the putative evidence). Nonetheless, the Board will discuss several salient aspects of the duty to assist in the present case, reasonably raised by the evidence of record. With regard to the duty to assist, VA is required to obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(1)-(2); 38 C.F.R. § 3.159(c)(2), (c)(3). The Federal Circuit Court has clarified that VA has an obligation to obtain VA records that have been identified by the veteran, regardless of whether they are relevant to the claim. Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019); Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016). The constructive receipt doctrine also applies to VA records, regardless of their relevance and regardless of whether the VA adjudicator had knowledge of their existence. Lang v. Wilkie, F.3d, No. 2019-1992 (Fed. Cir. Aug. 19, 2020). Finally, VA must continue to obtain VA treatment records unless it is documented that the records do not exist or that further efforts would be futile because VA does not have them. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). In this case, the appellant has stated that the Veteran received earlier treatment at the VA Medical Center (VAMC) in Jackson, Mississippi beginning in January 2009. See January 2018 medical authorization (VA Form 21-4142a). Thus, the AOJ initiated a request for all VAMC Jackson treatment records beginning in January 2009. However, according to a January 2019 Deferred Rating Decision (VA Form 21-6789), the earliest VA treatment records for the Veteran that existed from the Jackson VAMC start in October 2019. There were no VA treatment records previous to that date. Therefore, it is clear in the present case that the AOJ has undertaken the necessary efforts to assist the appellant in the development of any additional VA treatment records dated earlier in 2009, which do not exist in the present case. Further efforts would be futile. Thus, the Board is satisfied that the AOJ has provided all assistance required by the duty to assist on this matter. 38 U.S.C. § 5103A(c)(2). With regard to the duty to assist, a VA medical opinion addressing the etiology of the causes of the Veteran’s death need not be obtained in the present case. This is so because no reasonable possibility exists that a VA medical opinion would aid in substantiating her cause of death claim. That is, the record contains no probative lay explanation or clinical evidence as to how the metastatic lung cancer and cardiovascular problems which caused the Veteran’s death are related to service or are secondary to a service-connected disability, or how any of the Veteran’s service-connected disabilities (hearing loss and tinnitus) caused or contributed to the Veteran’s death. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (38 U.S.C. § 5103A(a) does not require the VA to assist a claimant in obtaining a medical opinion in a DIC claim when no reasonable possibility exists that such assistance would aid in substantiating the claim). In fact, both the appellant and her representative are silent as to any duty to assist problems. The Board is therefore satisfied that VA has provided all assistance required by the VCAA, for the cause of death and section 1318 issues on appeal. 38 U.S.C. § 5103A. II. SC Cause of Death Dependency and Indemnity Compensation (DIC) is a monthly monetary benefit that is payable to a surviving spouse, child, or parent because of the service-connected death of a veteran. 38 U.S.C. § 101(14) (2012); 38 C.F.R. § 3.5(b) (2020). Entitlement to DIC benefits can be claimed on the specific form prescribed by the secretary. 38 C.F.R. §§ 3.150(b), 3.152(a). There are three main theories of entitlement to DIC benefits: (1) benefits awarded pursuant to 38 U.S.C. § 1310; (2) benefits awarded pursuant to 38 U.S.C. § 1318; and, (3) benefits awarded pursuant to 38 U.S.C. § 1151. Unless specifically limited by a claimant, the Board is required to consider all theories of entitlement to DIC benefits. See 38 C.F.R. § 3.152(a), (b)(1). As such, a generic claim for DIC benefits encompasses all three theories of entitlement listed above. See, e.g., Stoner v. Brown, 5 Vet. App. 488, 491 (1993). While a generic claim for DIC is a claim for all of the above theories, the theories are not interchangeable. Among the three primary theories, 38 U.S.C. § 1310 provides the greatest benefit. See 38 C.F.R. § 3.151. As such, an award of DIC under 38 U.S.C. § 1310 will moot the issues of entitlement to DIC benefits under either 38 U.S.C. § 1151 or 38 U.S.C. § 1318. (In the present case, the issue of a DIC award under the provisions of 38 U.S.C. § 1151 was not raised by the appellant or the evidence of record). DIC benefits under 38 U.S.C. § 1310, commonly referred to as “service connection for cause of death claims,” may be awarded when the Veteran died either (1) during active service, or (2) died from a disability deemed to be related to a period of active service from which he received a qualifying discharge. 38 U.S.C. § 1310(b). Generally, a veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303. For deaths occurring subsequent to a period of active duty, such as the current Veteran’s death in December 2017, the death will be considered to have been due to a service-connected disability when there is evidence that this service-connected disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death if it singly or jointly with another condition, was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A service-connected disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). But a contributory cause of death is one that is inherently not related to the principal cause of death. Id. For service-connected disabilities that affect vital organs in a contributory cause analysis, the primary inquiry is whether the service-connected disability had debilitating effects and general impairment of health that rendered the Veteran materially less capable of resisting the effects of the primary cause of death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). The fact that the primary cause of death would have been fatal regardless of any other contributory conditions is irrelevant and does not render a contributory cause analysis moot. 38 C.F.R. § 3.312(c)(4). Instead, the Board must consider whether a service-connected disability contributed to or had a material influence in accelerating death. Id. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was, itself, of a progressive or debilitating nature. Id. See also Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992). In the present case, the Veteran died in December 2017 at a private hospital (North Mississippi Medical Center in Eupora, Mississippi). The two death certificates list the immediate cause of death as carcinoma of the lung with brain metastasis. In addition, one of the death certificates lists a contributory cause of death (but not resulting in the underlying cause), as hypertensive cardiovascular disease (HCVD). Significantly, it was noted that tobacco use “probably” did contribute to the Veteran’s death. At the time of his death, his metastatic lung cancer and cardiovascular condition were both nonservice-connected disabilities. No autopsy was performed after his death. During the Veteran’s lifetime, service connection was established for the following disabilities: tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The combined service-connected disability rating was 10 percent. See 38 C.F.R. § 4.25 (combined ratings table). The appellant’s only contention is that the primary cause of the Veteran’s death listed on his death certificate (metastatic lung cancer) should be service-connected. See August 2018 NOD (VA Form 21-0958); January 2018 Application for DIC (VA Form 21-534). However, neither the appellant nor her representative have provided any substantive argument of record as to when his lung cancer began and how precisely it is related to his service in the Army from 1971 to 1973 or his service in the Navy from 1976 to 1994. In addition, during his lifetime, the Veteran did not seek service connection for either his lung or cardiovascular problems. At the time of the Veteran’s death, service connection had not been established for the causes of his death listed on his death certificate – i.e., metastatic lung cancer and hypertensive cardiovascular disease (coronary artery disease and hypertension). Thus, the focus of the present Board’s decision will be whether service connection is warranted for either of these disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service — the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service. Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013). In the present case, metastatic lung cancer (a malignant tumor), hypertension, and coronary artery disease (a form of arteriosclerosis) are each listed as an enumerated “chronic disease” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply if these diseases are noted or shown in the record. Walker, 708 F.3d at 1338-39. Service connection for an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). That is, under 38 C.F.R. § 3.303(b), with an enumerated “chronic disease” shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). VA is to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran’s spouse, when competent, can in certain instances establish a nexus between the Veteran’s death and an in-service disease or injury. Davidson, 581 F.3d at 1315-16. Therefore, a medical opinion is not always required to establish such a nexus. Id. As such, the Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Upon review of the evidence of record, the Board denies the appeal for service connection for the cause of the Veteran’s death. Initially, with regard to the Veteran’s already service-connected disabilities, there is no lay assertion or clinical evidence of record that the Veteran’s service-connected tinnitus or bilateral hearing loss were principal or contributory causes of death. See 38 C.F.R. § 3.312(b), (c). Thus, there is no probative evidence in support of this potential theory of entitlement, such that it will not be discussed in any detail. In this regard, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In addition, with regard to the Veteran’s already service-connected disabilities, there is no lay allegation or clinical evidence of record indicating that the Veteran’s service-connected tinnitus or bilateral hearing loss proximately caused or chronically worsened (i.e., aggravated) his causes of death (metastatic lung cancer and cardiovascular conditions). 38 C.F.R. § 3.310(a), (b). Thus, service connection for the cause of the Veteran’s death cannot be granted based on the theory of entitlement of secondary service connection, such that it too will not be discussed in any detail. Once again, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson, 557 F.3d at 1361. With regard to presumptive service connection, the law provides that certain diseases will be considered to have been incurred in service, even if there is no record of the disease during service, if that disease is associated with exposure to “herbicide agents” used in support of military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(i). The Veteran’s lung cancer and coronary artery disease are listed as diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The presumption of service connection requires exposure to a herbicide agent and manifestation of either lung cancer or coronary artery disease to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). It is undisputed that the Veteran’s metastatic lung cancer was a principal cause of his death under 38 C.F.R. § 3.312(b). It is also undisputed that the Veteran’s coronary artery disease was a contributory cause of his death under 38 C.F.R. § 3.312(c). Moreover, VA treatment records dated from 2009 to 2017 and private hospital records dated in 2017 from Baptist Memorial Hospital and NMMC Cancer Care confirm that his metastatic lung cancer and coronary artery disease were manifest to a degree of at least 10 percent or more after service. 38 C.F.R. § 3.307(a)(6)(ii). Unfortunately, in December 2017 the Veteran eventually died from his metastatic lung cancer and coronary artery disease, both listed as disorders associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). A Veteran is presumed to have been exposed to herbicide agents if he or she served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, or in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied between April 1, 1968 and August 31, 1971, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii)-(iv). Under VA regulation, service in the Republic of Vietnam is defined as “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 C.F.R. § 3.307(a)(6)(iii). VA historically interpreted the statutory phrase “served in the Republic of Vietnam” as incorporating a requirement that the veteran served on the land or inland waterways of same. See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir, 2008). However, the Federal Circuit Court recently held that for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “Service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). Therefore, a veteran is considered to have "served in the Republic of Vietnam," regardless of whether the veteran had duty or visitation on the ground or in the inland waters of Vietnam." Id. at 1380-81. Thereafter, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act). See Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67 (2019). The Blue Water Act codified the Procopio holding and extended the presumption of herbicide exposure to those veterans who served “offshore of the Republic of Vietnam,” encompassing service in the territorial sea extending 12 nautical miles from the shores of both the Republic of Vietnam and Cambodia. See 38 U.S.C. § 1116A(d). In short, the Blue Water Act provides that the presumption of exposure to herbicide agents extends to all veterans who served between January 9, 1962 and May 7, 1975 “offshore of the Republic of Vietnam” – meaning locations within the 12-nautical-mile territorial sea of the Republic of Vietnam. 38 U.S.C. § 1116A(a). However, with regard to presumptive service connection, the Veteran’s service personnel records (SPRs), including his multiple DD Form 214s, show that he did not serve in the Republic of Vietnam during the Vietnam era, or in or near the Korean DMZ from 1968 to 1971. That is, he did not serve on the landmass, inland waterways, or in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam during the Vietnam era. Procopio, 913 F.3d at 1380-81. Although SPRs establish that the Veteran served in Europe with the U.S. Army for one year and five months in the early 1970s, there is no evidence or allegation that he served in Vietnam or Korea. None of the medals he was awarded are supportive of service in Vietnam or Korea. In fact, during his lifetime, the Veteran filed an October 2009 Application for Compensation (VA Form 21-526) for service connection for hearing loss and tinnitus. In this application, the Veteran specifically denied service in Vietnam. He also denied any exposure to Agent Orange or herbicides or asbestos. Therefore, the Veteran is not presumed to have been exposed to herbicide agents, including Agent Orange, on the basis of any Vietnam or Korean DMZ service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a). In addition, although the presumption of service connection for herbicide-related diseases could apply if exposure to herbicides is shown on a factual basis, neither the Veteran nor the appellant nor her representative have alleged Agent Orange or other herbicide exposure for the Veteran on a factual basis in this case. In fact, once again, he denied such exposure in his October 2009 Application for Compensation (VA Form 21-526). Furthermore, the Veteran’s SPRs and clinical evidence of record do not suggest any in-service Agent Orange or other herbicide exposure for the Veteran. In sum, there is simply no credible, reliable evidence of record of the Veteran’s exposure to herbicides in service. Therefore, service connection for the causes of his death (metastatic lung cancer and coronary artery disease) on a presumptive basis as discussed under 38 C.F.R. § 3.309(e) is not warranted here. With regard to the Persian Gulf presumption, the Board is cognizant section 1117 provides for compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI) that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Notably, signs and symptoms which constitute manifestations of an undiagnosed illness or a MUCMI, include, but are not limited to, respiratory and cardiovascular system manifestations. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b)(8), (b)(11). A “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia Theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Veteran’s DD Form 214 for his period of service in the Navy from 1988 to 1994 documents that he was awarded the Southwest Asia Service Medal. However, the “remarks” section of this DD Form 214 and his SPRs failed to list the dates of any verified Persian Gulf service. Moreover, in his October 2009 Application for Compensation (VA Form 21-526), the Veteran denied being stationed in the Persian Gulf any time after August 1, 1990. He also specifically denied exposure to any environmental hazard during the Gulf War. Therefore, the Veteran’s own admission confirms he did not serve in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). As such, the presumption of service connection under section 1117 for certain chronic disabilities for a “Persian Gulf veteran” does not apply here. However, this does not preclude the appellant from establishing entitlement to service connection for the Veteran’s metastatic lung cancer or coronary artery disease or hypertension with proof of actual direct causation. Combee, 34 F.3d at 1043. With regard to direct service connection, for the presently nonservice-connected causes of death listed on his death certificate (metastatic lung cancer and coronary artery disease and hypertension), the Veteran’s service treatment records (STRs) from the Army and Navy dated from 1971 to 1994 are negative for any complaints, treatment, or diagnosis of any of these conditions. That is, with regard to his STRs, in August 1986, February 1988, August 1990, January 1991, October 1992, November 1993, and September 1994 STR dental health questionnaires, the Veteran denied symptoms or a history of cancer, heart disease, emphysema, hypertension, respiratory problems, or a brain condition. Throughout the 1970s, 1980s, and 1990s, at various STR examinations and STR reports of medical history, no lung condition, no cancer, no heart condition, and no hypertensive condition were reported or observed. Blood pressure readings during service were always normal. On several occasions, the Veteran was treated for several viral upper respiratory conditions and viral pharyngitis, but no chronic lung condition was diagnosed. Most importantly, at his final September 1994 STR retirement examination, upon examination, clinical findings revealed a normal heart, normal lungs, a normal chest, and a normal blood pressure reading (110/84). No lung condition or lung cancer was seen. Moreover, at his final September 1994 STR report of medical history at retirement, the Veteran specifically denied a history of medication use, asthma, shortness of breath, chest pressure, heart palpitations, heart trouble, high blood pressure, a tumor, or any type of cancer. The Board does not find it plausible that the Veteran would fail to report the presence of any lung or cardiovascular symptomatology on multiple occasions during 20 years of active duty if such symptoms were actually present at the time. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of medical condition or symptoms in a service medical record where such notation would normally be expected). Neither the Veteran nor the appellant nor her representative has alleged in-service symptoms or treatment for lung or cardiovascular conditions. That is, although metastatic lung cancer (a malignant tumor), hypertension, and coronary artery disease (a form of arteriosclerosis) are each an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a) (listing named chronic diseases), none of these conditions in the present case are “shown” in service. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). No such manifestations of metastatic lung cancer, hypertension, or coronary artery disease are shown during service. Thus, the Veteran’s STRs provide no evidence in support of the cause of death claim. At his final September 1994 STR retirement examination, the Board is cognizant that the Veteran’s cholesterol was noted to be elevated at 209. But this laboratory finding was not considered disabling according to the military doctor. No heart condition was assessed at that time. The Veteran was not on any medications. High cholesterol is also referred to as hypercholesterolemia or hyperlipidemia. Hypercholesterolemia is an “excess of cholesterol in the blood.” Dorland’s Illustrated Medical Dictionary 792 (28th ed. 1994). Hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc.” Id. at 795. Hyperlipidemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.) Post-service, there is no probative lay or medical evidence of metastatic lung cancer (a malignant tumor), hypertension, or coronary artery disease (a form of arteriosclerosis) at a 10 percent level within one year after retirement from service in 1994. Thus, the Veteran is not entitled to service connection for any of these chronic diseases on a presumptive basis either in-service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-37. Post-service, regarding the third element of service connection, or nexus through continuity of symptomatology under 38 C.F.R. § 3.303(b), neither the Veteran nor the appellant asserts, and the clinical evidence of record does not establish, continuous symptoms of lung cancer, coronary artery disease, or hypertension after his retirement from service in 1994. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1335-1337. In making this determination, the Board has considered that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The mere absence of medical records does not contradict a claimant’s statements about his or her symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). But here, the Veteran and the appellant’s lack of description for his symptom history for the above conditions is consistent with what latter clinical evidence of record describes. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In short, the post-service clinical evidence of record and the Veteran and the appellant’s own silence in lay assertions regarding symptoms for his lung cancer, coronary artery disease, or hypertension in-service and for many years post-service is significantly probative evidence weighing against any continuity of symptoms from the time of separation from service in 1994. In this regard, post-service, the first documentation in the claims file of coronary artery disease and hypertension is dated in 2009, approximately 15 years after separation from service. See e.g., VA treatment records dated in 2009. Likewise, post-service, the first documentation in the claims file for metastatic lung cancer, emphysema, and COPD is dated in 2017, approximately 23 years after separation from service. See private hospital records from Baptist Memorial Hospital and NMMC Cancer Care dated in 2017. All of the above clinical evidence, consistently documenting a clinical history of the date of onset of lung cancer and coronary artery disease and hypertension beginning post-service in the 2000s, weighs heavily against the appellant’s cause of death claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). With regard to a nexus, there is no probative evidence of record establishing a relationship between the Veteran’s causes of death from metastatic lung cancer, coronary artery disease, and hypertension, and his periods of active service spanning from 1971 to 1994. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Absent such evidence of a nexus, service connection is not in order for the Veteran’s immediate cause of death from metastatic lung cancer or for the Veteran’s contributory causes of death from coronary artery disease and hypertension. With regard to lay evidence of a nexus between the Veteran’s metastatic lung cancer, coronary artery disease, and hypertension (his causes of death) to service, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran and the appellant are competent to report any symptoms of the above conditions during and after service. See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09. However, in the present case, neither the Veteran nor the appellant has made any specific allegation of in-service lung or heart or hypertensive symptoms or continuity of symptoms immediately after service. The appellant has never specifically contended, and evidence does not otherwise establish, that the Veteran’s coronary artery disease or hypertension has its onset during active service many years ago. The appellant’s only contention is that the primary cause of the Veteran’s death listed on his death certificate (metastatic lung cancer) should be service connected. See August 2018 NOD (VA Form 21-0958); January 2018 Application for DIC (VA Form 21-534). However, neither the appellant nor her representative have provided any substantive argument of record as to when the Veteran’s lung cancer began and how precisely it is related to his service in the Army from 1971 to 1973 or his service in the Navy from 1976 to 1994. A claimant cannot remain passive if he or she has relevant information in favor of his or her claim. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). The Board has found the appellant’s nonspecific lay assertions regarding the etiology of the Veteran’s cause of death from lung cancer to be less persuasive than the in-service and post-service medical evidence of record. With regard to the Veteran’s documented history of tobacco use, STRs, private treatment records, and VA treatment records repeatedly describe a 40-50 year history of the Veteran smoking at least half a pack a day of cigarettes starting prior to service in 1967 or 1968, and continuing during service and after service until 2017 - the year of his death. See e.g., December 1990 STR (documenting the Veteran’s attempt to quit his tobacco abuse disorder - up to 2.5 packs per day x 23 years since 1967); August 1990 and January 1991 STR dental health questionnaires (recording 2 packs per day of tobacco use); September 1994 STR report of medical history at retirement examination (documenting tobacco use of 1/2 pack per day for 26 years since 1968); 1980s and 1990s STR dental health questionnaires (confirming tobacco use of 1/2 pack day); October 2009 VA addendum note and April 2012 VA H&P note (commenting that the Veteran is a smoker); June 2017 Baptist Memorial Hospital radiology history and physical (noting Veteran is a current smoker every day despite his lung cancer); and October 2017 NMMC Cancer Care radiation oncology consultation (remarking that the Veteran is a current smoker - 1 pack a day for the past 45 years). Thus, the weight of the evidence, including the Veteran’s own reported history, shows that he had a significant pre-service, in-service, and post-service smoking habit for many decades prior to his death from lung cancer. On this point, with regard to tobacco use, for claims filed after June 9, 1998, the law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during active duty service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). “Tobacco products” means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. Id. This is significant because the death certificates of record assessed that the Veteran’s tobacco use “probably” contributed to his death from lung cancer and coronary artery disease and hypertension. However, the Board cannot consider any potential theory of entitlement for service connection based on the Veteran’s in-service use of tobacco products in this case because the appellant’s cause of death claim was received subsequent to June 8, 1998. Thus, VA law prohibits service connection for the cause of the Veteran’s death on the basis of his verified in-service tobacco use. Accordingly, the preponderance of the evidence is against service connection for the cause of the Veteran’s death. Thus, there is no reasonable doubt to resolve in the appellant’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The cause of death claim is denied. III. Section 1318 Claim Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death is service-connected, even though the veteran died of nonservice-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was “entitled to receive,” compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22(a) (2020). The total rating may be schedular or may be a total disability rating based on unemployability (TDIU). 38 C.F.R. § 3.22(c). The term “entitled to receive” means that, at the time of death, the veteran had filed a claim for disability compensation during his lifetime, and the veteran had service-connected disability rated totally disabling by VA for the requisite time period, but was not receiving compensation due to six possible circumstances: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (5) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22(b)(3). In addition, the term “entitled to receive” can mean that the veteran filed a claim for disability compensation during his lifetime and one of the following two circumstances is met: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the veteran's lifetime concerning the issues of service connection, disability evaluation, or effective date; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section. 38 C.F.R. § 3.22(b)(1) and (2). Previously, under the “hypothetical entitlement” approach, for claims for § 1318 DIC benefits filed before January 21, 2000, if the survivor of a deceased veteran could prove that a veteran would have been entitled to receive compensation for a 100% disabling service-connected disability for ten years prior to death, then the survivor may claim DIC benefits under § 1318, even though the deceased veteran did not actually receive such compensation. VA Gen. Coun. Prec. 68-90 (July 18, 1990). See also Green v. Brown, 10 Vet. App. 111, 118-19 (1997); Carpenter v. West, 11 Vet. App. 140 (1998); Wingo v. West, 11 Vet. App. 307 (1998); Cole, 13 Vet. App. at 278. However, the Federal Circuit Court has ruled that § 1318 DIC claims are not subject to a "hypothetical entitlement" analysis. Rodriguez v. Peake, 511 F.3d 1147, 1156 (2008). See also Tarver v. Shinseki, 557 F.3d 1371, 1377 (Fed. Cir. 2009). In essence, under Rodriguez and Tarver, the amended regulation 38 C.F.R. § 3.22 does not have an impermissible retroactive effect, and it may be applied to bar DIC claims filed by survivors under the “hypothetical entitlement” theory, no matter when the § 1318 claim was filed. Simply put, there is no longer “hypothetical entitlement” to DIC benefits under any circumstance. With respect to a claim for benefits under the provisions of 38 U.S.C. § 1318 and certain other cases, the issues involved will be decided with consideration of any prior disposition of those issues during the veteran’s lifetime. 38 C.F.R. § 20.1106. Neither the appellant nor her representative has submitted a specific allegation, or provided any substantive argument, or submitted any evidence pertaining to the section 1318 issue. No explanation was offered as why it should be granted. In fact, neither appellant nor her representative provided any meaningful discussion regarding the section 1318 issue. In any event, the AOJ has adjudicated the section 1318 issue. Moreover, the December 2019 Appellant’s Brief listed the section 1318 issue as being on appeal before the Board. Therefore, the Board will proceed to evaluate the merits of the section 1318 appeal. As discussed above, the Veteran died in December 2017 of nonservice-connected causes. At the time of the Veteran’s death, service connection was established for the following disabilities: tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The combined service-connected disability rating was only 10 percent, effective October 5, 2009. See 38 C.F.R. § 4.25 (combined ratings table). Therefore, for the 10 years immediately preceding his death in December 2017, the Veteran was not in receipt of service-connected disability compensation continuously rated as totally disabling (100 percent) based on a schedular rating or on a TDIU. See 38 C.F.R. § 3.22(a)(2)(i). He also did not have a total disability rating (100 percent) or a TDIU for at least five years from the date of his separation from service in December 1994. See 38 C.F.R. § 3.22(a)(2)(ii). Furthermore, there is no evidence or allegation that he was a former POW. See 38 C.F.R. § 3.22(a)(2)(iii). As such, the Board concludes that the Veteran was not in actual receipt of total 100 percent disability compensation or a TDIU due to service-connected disabilities prior to his death in December 2017 for any of the required periods of time. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). Therefore, the Board finds that entitlement to 38 U.S.C. § 1318 benefits are not met on this basis. To the extent that the appellant believes the Veteran should have been entitled to receive a 100 percent evaluation for at least 10 years prior to his death or for at least five years from the date of his separation from service until his death, any such statements would be construed as a claim for “hypothetical” entitlement. Although the Board is sympathetic to the appellant’s assertions, any potential claim based on “hypothetical entitlement” is now barred as matter of law, no matter when the DIC claim for benefits was filed. Rodriguez, 511 F.3d at 1156; Tarver, 557 F.3d at 1377. Here, the appellant filed her claim for DIC benefits pursuant to 38 U.S.C. § 1318 in January 2018. In any event, as decided in Rodriguez and Tarver, the January 2000 changes to 38 C.F.R. § 3.22 are retroactively applicable and bar recovery on the hypothetical entitlement theory, irrespective of when the § 1318 DIC claim was filed. Accordingly, in as much as the appellant has asserted a claim based on "hypothetical entitlement," the Board concludes any theory of hypothetical entitlement is barred in the present case pursuant to the applicable regulation, 38 C.F.R. § 3.22, as well the Federal Circuit’s holdings in Rodriguez and Tarver. It follows that, because any proffered theory of hypothetical entitlement for § 1318 benefits is barred as a matter of law, the appellant can only establish entitlement to § 1318 benefits if she shows that the Veteran was “entitled to receive” total disability compensation by way of one of the eight possible exceptions listed under 38 C.F.R. § 3.22(b)(1)-(3). However, there is no allegation by the appellant or any evidence of record showing that she has met the criteria for any one of the eight exceptions listed under 38 C.F.R. § 3.22(b). In this regard, there has been no allegation or evidence of CUE in any prior AOJ or Board decision, nor has the appellant or her representative identified any other basis for granting the § 1318 claim. 38 C.F.R. § 3.22(b)(1). With regard to CUE, the appellant has not provided the date or the approximate date of the decision or otherwise provide sufficient detail so as to identify the decision sought to be attacked collaterally, and establish how based on the evidence of record and the law at the time of the decision, the Veteran would have been entitled to receive a total rating. See Cole, 13 Vet. App. at 268. In fact, neither the appellant nor her representative has ever mentioned CUE. In addition, the appellant has not submitted additional service department records that would provide a basis for reopening a previous claim and awarding a total service-connected disability retroactively. 38 C.F.R. § 3.22(b)(2). Moreover, the appellant also does not meet any of the remaining six exceptions listed under 38 C.F.R. § 3.22(b)(3)(i)-(vi). Specifically, there is no simply no indication that VA was paying the compensation to the Veteran's dependents; VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; the Veteran had not waived retired or retirement pay in order to receive compensation; VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22(b)(3). In short, there is no legal basis for granting the appellant’s claim pursuant to 38 U.S.C. § 1318. Her claim for DIC benefits pursuant to 38 U.S.C. § 1318 would essentially be a claim for hypothetical entitlement, which is barred as a matter of law. Accordingly, the appellant’s claim under the provisions of 38 U.S.C. § 1318 must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.