Citation Nr: 0813840 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-24 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependents' educational assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from January 1966 to July 1969 and died n April 1998. The appellant, who is the veteran's widow, initially appealed a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2006, the Board remanded the appellant's claim to the RO for further evidentiary development. FINDINGS OF FACT 1. The veteran served in Vietnam during his period of active duty, and he died in April 1998, at the age of 51. According to the death certificate, the immediate cause of his death was metastatic appendix cancer. 2. The medical evidence of record indicates that the veteran was diagnosed with cancer in 1997. 3. The competent and objective medical evidence of record demonstrates that no appendiceal cancer disorder was manifested during the veteran's period of active military service or within one year after his separation from service. 4. At the time of his death, the veteran was not service- connected for any disorder. 5. The probative and competent medical evidence of record preponderates against a find that would demonstrate that the veteran's death was related to service, including through exposure to Agent Orange or other herbicide agents. CONCLUSIONS OF LAW 1. The cause of the veteran's death was not related to an injury or disease incurred in or aggravated by active military service, nor may the cause of his death be presumed to be service-connected. 38 U.S.C.A. §§ 1101, 1102, 1110, 1112, 1113, 1310, 1116, 1137, 5100-5103A, 5106, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2007). 2. The basic eligibility requirements for entitlement to Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3500, 3501(a)(1), 3510 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Court acknowledged in Pelegrini that where the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. As the appellant's claims for service connection for the cause of the veteran's death and DEA benefits are being denied, as set forth below, there can be no possibility of prejudice to her. As set forth herein, no additional notice or development is indicated in the appellant's claim. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, such as this one, the Court has held that section 5103(a) 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, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. In an April 2003 letter, issued prior to the June 2003 rating decision, and in February 2005 and March 2007 letters, the RO informed the appellant of its duty to assist her in substantiating her claims under the VCAA and the effect of this duty upon her claims. We therefore conclude that appropriate notice has been given in this case. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. This notice was sufficient with regard to the Court's language in Hupp. Because service connection was not in place for any disabilities suffered by the veteran, properly tailored notice need not have included the items listed as (1) and (2) above. Furthermore, the appellant indicated in her April 2003 formal claim that the veteran's death was due to exposure to Agent Orange, and did not assert that he was service-connected for any disability during his lifetime. Given these facts, the April 2003, February 2005, and March 2007 letters provided the appellant with properly tailored notice in that the letter informed her that the evidence need show that the veteran died from a service-related injury or disease; notice that encompasses, in layperson's terms, the requirements for substantiating a claim that the veteran died of a condition that warranted service connection The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that she has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to her claims has been obtained and associated with the claims file, and that she has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In fact, in a March 2007 signed statement, the appellant said that she had no additional evidence to submit. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background The appellant is seeking service connection for the cause of the veteran's death. She argues that he was exposed to Agent Orange during military service, particularly while on temporary duty (TDY) assignments in the Republic of Vietnam, and that this exposure led to the metastatic appendiceal cancer from which he died. The appellant maintains that the veteran had cancer of the liver, lung, and other organs (noted in her April 2003 formal claim). In her August 2003 notice of disagreement, she indicated that he died with lung cancer as a factor. In her July 2004 substantive appeal, the appellant said that the veteran had cancer in many parts of his body and that there was "no way to assume where the cancer started". According to the evidence of record, the veteran died in April 1998 at the age of 51. The death certificate lists the cause of death as metastatic appendix cancer. An autopsy was not performed. During the veteran's lifetime, he was not service-connected for any disability. Private medical records dated, from 1994 to 1998, indicate that, in November 1994, the veteran was hospitalized for treatment of pancreatitis. The private hospital records further show that, during the summer of 1997, the veteran developed rectal pain. In September 1997, diagnostic tests of a liver mass were positive for malignant cells consistent with adenocarcinoma. The record shows that the veteran was thought to have adenocarcinoma of unknown primary site that was treated with chemotherapy. According to these medical records, the primary site was thought most likely to be gastrointestinal, but was unidentified at that time. Disability records completed by the veteran's physician in September and October 1997 include a diagnosis of metatstatic cancer of unknown primary with liver metastasis. The private medical records also reflect that, in October 1997, the veteran was shown to have a partial small bowel obstruction and, in November 1997, underwent a laparotomy that showed peritoneal carcinomatosis and liver metastases. He underwent an ileoceal resection in November 1997 during which he was found to have a mass in the appendix consistent with appendiceal primary. A November 1997 pathology report indicates that the veteran had "moderately differentiated adenocarcinoma. Adenocarcinoma arising in appendix with penetration through muscular wall of appendix. Periappendiceal adipose tissue extensively involved by adenocarcinoma". As noted above, the veteran died in April 1998 from metastatic appendix cancer with new lung metastasis also noted as a discharge diagnosis on the private hospital record. In an October 2006 memorandum to the veteran's service representative, A.M.G., M.D., M.P.H., a medical consultant, said that she reviewed the veteran's claim file and pertinent records and observed that the veteran was diagnosed with metastatic appendiceal cancer to the liver in October 1997. She noted the findings of a Septemer 1997 cytopathology report that described the appearance of malignant cells consistent with moderate to poorly differentiated adenocarcinoma. It was noted that in October 1997 the veteran was hospitalized with complaints of severe anemia secondary to gastrointestinal blood loss and a partial small bowel obstruction for which an exploratory laparotomy of the abdomen was performed. Dr. A.M.G. said that the discharge diagnosis included partial small bowel obstruction secondary to underlying malignancy, metastatic adenocarcinoma of probable appendiceal origin with abdominal carcinomatosis and liver metastases. She noted that, in April 1998, the veteran was hospitalized, found to have new lung metastatic disease, and died the next day. Further, Dr. A.M.G. said that the veteran was diagnosed with metastatic appendiceal cancer at a relatively young age (50 years old), from which he died approximately one year after it was diagnosed. She stated that cancer of the appendix was an uncommon diease and was rarely suspected before surgery. According to this physician, the "age adjusted incidence of this type of cancer was 0.12 cases per 1,000,000 per year based on a population-based study reported in Cancer 2002 [94(12);3307-12]". Dr. A.M.G. said that numerous studies were conducted to determine if an association existed between Agent Orange exposure and certain disabling conditions specifically cancer. She said that, although definite casual relationship has not yet been established for many malignancies, sufficent data associated Agent Orange with certain cancers and many other conditions. According to Dr. A.M.G., the occurrence of such a rare cancer at such an early age, as well as the absence of other risk factors except for a remote history of smoking, "suggests that it is at least as likely as not that Agent Orange exposure could be a contributory cause of [the veteran's] metastatic appendiceal cancer and subsequent demise". In an April 2007 written opinion, the Chief of Hematology/Oncology at a VA medical center (VAMC), said he reviewed the veteran's "entire claim file" and said that there were no records for the veteran available in the VAMC electronic record system (the veteran was not treated there). The VA medical specialist noted the veteran's November 1994 private hospitalization for pancreatitis and his 1997 treatment for rectal pain and described the results of the veteran's diagnostic test findings from August and September 1997. The VA physician noted the initial medical opinion of adenocarcinoma of unknown primary site and the veteran's subsequent laparotomy in November 1997 with the pathology findings, also described above. According to the VA hematologist/oncologist, the website for the Washington Hospital Center (in Washington, D.C.) indicates Dr. A.MG.'s specialties as Internal Medicine and Occupational Medicine. The VA physician noted that Dr. A.M.G. opined that Agent Orange could be a contributory cause of the veteran's appendiceal cancer and that her rationale was that the veteran had a rare cancer that developed at '"such an early age'" and the absence of other risk factors except for a remote history of smoking. In the VA hematologist/oncologist's opinion, the record indicated quite clearly that the veteran had appendiceal cancer. The VA doctor said that, on initial presentation the primary site was not ascertained, but pathological examination of the ileocceal resection specimen showed "adenocarcinoma arising in appendix". According to the VA medical specialist, "[a]ppendiceal adenocarcinoma is indeed a rare tumor. The median age of diagnosis among one of the largest case series of such patients (36 patients) seen at Brigham and Women's Hospital was 52 years (Dis Colon Rectum. 2004 Apr; 47(4);474-80)". Furthermore, this VA physician was "unaware of any epidemiological study reported on risk factors for development of adenocarcinoma of the appendix and it is unlikely that such a study could be performed given the rarity of the malignancy". The VA hematologist/oncologist further noted that the Institute of Medicine has published a report on the data of association of Agent Orange and cancer and stated that"[c]ancer of the appendix is not mentioned in the most recent version of the report". He said that, given the rarity of this cancer among the general population, a markedly increased risk from Agent Orange would be more easily detected than an increase in risk in a more common cancer. Furthermore, the VA medical specialist said that there was "little data on which to base an opinion as to whether or not [the veteran's] cancer was caused by Agent Orange. However, what little information is available leads [the VA hematologist/oncologist] to conclude that it is less likely than 50% that Agent Orange exposure was etiologically related to the cancer development". (CONTINUED ON NEXT PAGE) II. Legal Analysis A. Service Connection Pursuant to 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. In addition, the law provides that, where a veteran served ninety days or more of active military service, and a malignant tumor becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). In this case, the appellant contends that the veteran was exposed to Agent Orange in service, and that such exposure caused his claimed disabilities. The specific statute pertaining to claimed exposure to Agent Orange is 38 U.S.C.A. § 1116. Regulations issued pursuant thereto previously provided that, if a veteran who served on active duty in Vietnam during the Vietnam era developed one of the diseases which is presumed to have resulted from exposure to herbicides, the veteran would then be presumed to have been exposed to Agent Orange or similar herbicide. See McCartt v. West, 12 Vet. App. 164 (1999). These regulations also stipulated the diseases for which service connection could be presumed due to an association with exposure to herbicide agents. The specified diseases which have been listed therein are chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, 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), and chronic lymphocytic leukemia (CLL). 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In December 2001, the President signed into law the Veterans Education and Benefits Expansion Act of 2001 (VEBEA), Public Law No. 107-103, 115 Stat. 976 (2001). Among other things, the VEBEA removed the 30-year limitation on presumptive service connection for respiratory cancers due to herbicide exposure; added Type 2 diabetes mellitus to the list of presumptive diseases based upon herbicide exposure (codifying a VA regulation that was in effect since July 2001, see 66 Fed. Reg. 23,166-169 (May 2, 2001)); and provided a presumption of exposure to herbicides for all veterans who served in Vietnam during the Vietnam era, not just those who have a disease on the presumptive list provided in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e) (thus reversing the Court's holding in McCartt v. West, supra). These statutory provisions became effective on the date of enactment, December 27, 2001. The Board notes further that the Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. In this regard, the Board observes that VA has issued notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain conditions. See, e.g., Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003), and Notices at 61 Fed. Reg. 57,586-589 (1996); 64 Fed. Reg. 59,232-243 (1999); and 67 Fed. Reg. 42,600-608 (June 24, 2002). See also Veterans and Agent Orange: Update 2006 (2007). Notwithstanding the foregoing presumption provisions, which arose out of the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S. Court of Appeals for the Federal Circuit has determined that 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); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, service connection may be presumed for residuals of Agent Orange exposure, or for death caused thereby, by showing two elements. First, it must be shown that the veteran served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or a nexus between the cause of death and service must otherwise be established. See Brock v. Brown, 10 Vet. App. at 162. The first question is whether the veteran was exposed to Agent Orange during service. The above-described presumptions apply only to veterans who actually served in Vietnam (although there is no minimum time frame provided by the law). In this case, the RO accepted (in the June 2007 supplemental statement of the case) and the Board has no reason to doubt, that he served in Vietnam during the Vietnam era (service records document his TDY assignments there); thus, he is presumed to have been exposed to Agent Orange during such service. But, as noted above, diseases or disorders that have been positively associated with Agent Orange do not include metastatic appendiceal cancer and, accordingly, the veteran's unfortunate death from this condition is not entitled to a presumption of service connection under the statutes and regulations. Thus, even conceding the veteran's exposure to Agent Orange, metatstatic appendiceal cancer is not a disorder that is presumptively service connected on the basis of herbicide exposure. See 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.307, 3.309. Although the appellant also asserted that the veteran had lung cancer, the record does not support her assertion. However, as noted above, a claimant is not precluded from presenting proof of direct service connection between a disorder and exposure to Agent Orange, even if the disability in question is not among statutorily enumerated disorders which are presumed to be service related, the presumption not being the sole method for showing causation. See Combee v. Brown, supra. Hence, the appellant may establish service connection for the cause of the veteran's death due to metastatic appendiceal cancer, by presenting competent evidence which shows that it is as likely as not that the disorder was caused by in-service Agent Orange exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, supra. Initially, the Board points out that the veteran's appendiceal cancer problems were not shown during service or for years thereafter and the appellant does not claim otherwise. In support of her claim that the veteran's metastatic appendiceal cancer was caused by his exposure to Agent Orange during service, the appellant would point to the October 2006 memorandum from Dr. AM.G., who said that, while "a definitie causal relationship has not yet been established for many malignancies, sufficent data associate Agent Orange with certain cancers", and it was "at least as likely as not" that exposure to Agent Orange "could be a contributory cause" of the veteran's metastatic appendiceal cancer and subsequent death. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the VAMC Chief of Hematology/Oncology who also reviewed the veteran's medical records in light of hid medical expertise as an oncologist. This medical specialist had the opportunity to completely review the veteran's entire medical history and all the medical records. This examiner explained the veteran's initial symptoms, presented a complete medical opinion, and concluded that it was less likely than 50 percent that Agent Orange exposure was etiologically related to the development of the veteran's cancer that caused his death. The VA examiner also reported that the website for the Washington Hospital Center showed that Dr. A.M.G.'s specialties were Internal Medicine and Occupational Medicine. The April 2007 VA memorandum from the hematologist/oncologist described his longitudinal review of the veteran's service and medical records, even noting the absence of VAMC records in the electronic medical system. He noted the results of diagnostic tests performed on the veteran during August and September 1997 and explained that he was initially thought to have adenocarcinoma of unknown primary site treated with chemotherapy. But, subsequently, a laparotomy performed in November 1997 showed peritoneal carcinomatosis and liver metastases and pathological findings were consistent with adenocarcinoma arising in the appendix. Further, the VA examiner acknowledged that appendiceal adenocarcinoma was a rare tumor and said that the median age of the diagnosis among one of the larges cases series of such patients was 52 years old (the veteran was 51 at his death). However, this medical specialist was unaware of any epidemiological study reported on risk factors for development of adenocarcinoma of the appendix and stated that it was unlikely that such a study could be performed given the rarity of the malignancy. Additionally, the VA medical specialist commented that cancer of the appendix was not mentioned in the most recent version of the Institute of Medicine's report on the data of association of Agent Orange exposure and cancer. Moreover, according to the VA hematologist/oncologist, given the rarity of this cancer among the general population, a markedly increased risk from Agent Orange would be more easily detected than an increase in risk in a more common cancer. The VA medical specialist opined what little information was available led him to conclude that it was less likely than 50 percent that Agent Orange exposure was etiologically related to the veteran's cancer development. The Board is persuaded that the April 2007 VA medical opinion is most convincing in that the examiner, with expertise in hematology and oncology, expressly stated that he reviewed the medical evidence in the file. See e.g., Wray v. Brown, 7 Vet. App. 488 1995). When a medical expert has fairly considered all the evidence, his opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Id. The Board does, in fact, adopt the April 2007 VA medical opinion on which it bases its determination that the veteran's active military service, including his exposure to Agent Orange, was not implicated in the cause of his death from metastatic appendiceal cancer. As to the opinion of Dr. A.M.G. in October 2006, who said that exposure to Agent Orange could be a contributing factor in the veteran's death, the Board finds that this physician did not clearly attribute the veteran's death from metastatic appendiceal cancer to his exposure to Agent Orange. Rather, she simply said that "it could be a contributory cause". Nevertheless, service connection may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Perman v. Brown, 5 Vet. App. 237, 241 (1993) (an examining physician's opinion to the effect that he cannot give a "yes" or "no" answer to the question of whether there is a causal relationship between one disorder and another is "non-evidence"); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by in- service events is insufficient to establish service connection). Nor did Dr. A.M.G. provide clinical evidence to support her beliefs, other than a reference to medical literature regarding age adjusted incidence of this cancer based on a population-based study, and her opinion, although doubtless sincerely rendered, is for that reason not accorded great weight by the Board. See Bloom v. West, Black v. Brown, supra. On the other hand, the April 2007 memorandum from the VA hematologist/ oncologist stated that he had reviewed the medical evidence of record. His report reflected review of the relevant medical and other evidence in the veteran's claims file and provided a rationale for his opinion. This medical specialist explained how the evidence in the veteran's claim file pertained to the cause of the veteran's death in light of his medical expertise. Thus, the opinion of Dr. A.M.G. is accorded less weight than that of the April 2007 VA hematologist/oncologist. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. The Board does not disregard the opinion rendered by Dr. A.M.G., an internist and occupational medicine specialist. With due consideration to Dr. A.M.G., the Board is constrained to accord more weight to the conclusions proffered in April 2007 by the VA hematologist/oncologist who reviewed the veteran's complete medical, noted that, given the rarity of the veteran's cancer among the general population, a markedly increased risk from Agent Orange would be more easily detected than an increase in risk in a more common cancer, and opined that what little information was available led this medical specialist to conclude that it was less than 50 percent likely that Agent Orange exposure was etiologically related the veteran's cancer development. Thus, Dr. A.M.G.'s October 2006 opinion is accorded less weight than that of the April 2007 VA hematologist/oncologist. Upon careful review of this case and the appellant's contentions, the Board finds that no medical or other evidence has been submitted to relate the veteran's death to service. The appellant has variously contended in this appeal, without any probative support in the medical record, that her husband suffered from metastatic appendiceal cancer due to his exposure to Agent Orange in service. Thus, given a finding that he died of the disorder that evidently metastasized to his lungs, she apparently believes that he died from a presumptive disease under 38 C.F.R. §§ 3.307, 3.309. In evaluating this premise, the Board notes that the veteran was not service-connected for any disorder during his lifetime. Furthermore, the Board notes that he died from metastatic appendiceal cancer. However, the evidence provided by the appellant cannot be relied on by the Board to conclude that the veteran's metastatic appendiceal cancer was due to his exposure to Agent Orange and that such exposure was the immediate or underlying cause of the veteran's death, or that the condition played a contributory cause, i.e., that there was a causal connection. Moreover, as set forth above, there is no indication that metastatic appendiceal cancer was related to service, as it was first diagnosed in 1997, nearly 30 years after the veteran's discharge from service. We recognize the appellant's sincere belief that the veteran's death was related in some way to his military service. Nevertheless, in this case the appellant has not been shown to have the professional expertise necessary to provide meaningful evidence regarding a causal relationship between the veteran's death and his active military service, including exposure to Agent Orange. See, e.g., Routen v. Brown, 10 Vet. App. 183, 186 (1997); ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied 119 S. Ct. 404 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, although we are deeply sympathetic with the appellant's loss of her husband, we find a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." See Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit any competent medical evidence to provide a nexus between any in- service injury or disease and the conditions that caused or contributed to cause the veteran's death. The preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death. B. Eligibility to DEA benefits In pertinent part, Chapter 35, Title 38, United States Code extends VA educational program benefits to surviving spouses of veterans who died of service-connected disabilities and to the surviving spouse of a veteran who, when he died, had a service-connected total disability that was permanent in nature. See 38 U.S.C.A. §§ 3500, 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3020, 21.3021. As service connection for the cause of the veteran's death is not warranted, as detailed above and, as the veteran, when he died, did not have a service-connected total disability that was permanent in nature, the Board concludes that the criteria for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have not been met. ORDER Service connection for the cause of the veteran's death is denied. Dependency Educational Assistance under 38 U.S.C. Chapter 35 is denied ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs