Citation Nr: 0918247 Decision Date: 05/14/09 Archive Date: 05/21/09 DOCKET NO. 07-17 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection of the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on the need for regular aid and attendance or being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant's daughter and son-in-law ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from May 1942 to February 1945. He died in June 2006. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island (the RO). In the October 2006 rating decision, entitlement to service connection for the cause of the Veteran's death, and aid and attendance or housebound benefits were denied. In May 2008, the appellant's daughter and son-in-law testified on the appellant's behalf at a hearing held at the RO before the undersigned Veterans Law Judge. The witnesses testified that the appellant could not attend the hearing due to illness and advanced age. A transcript of the hearing has been associated with the claims folder In July 2008, the Board remanded the issues. In a March 2009 Supplemental Statement of the Case (SSOC), the VA Appeals Management Center (AMC) continued the previous denials. The case has been returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). Issue no longer on appeal In its July 2008 decision, the Board denied entitlement to DIC benefits under 38 U.S.C.A. § 1318. That issue has therefore been resolved. See 38 C.F.R. § 20.1100 (2008). FINDINGS OF FACT 1. The Veteran died in June 2006. His death certificate lists the immediate cause of death as chronic obstructive pulmonary disease. No autopsy was performed. 2. At the time of the Veteran's death, service connection was in effect for generalized anxiety disorder, evaluated 70 percent disabling, and a postoperative appendectomy scar, evaluated zero percent disabling. 3. Chronic obstructive pulmonary disease was not present during service or for many years thereafter. 4. The preponderance of the medical evidence of record is against a finding that a service-connected disability caused or contributed to the cause of the Veteran's death; and is against a finding that the Veteran's cause of death was otherwise related active service, to include claimed exposure to asbestos. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2008). 2. The appellant does not meet the legal requirements for DIC benefits based on the need for regular aid and attendance or being housebound. 38 U.S.C.A. § 1311 (West 2002); 38 C.F.R. § 3.10 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for the cause of the Veteran's death as well as DIC benefits based on the need for regular aid and attendance or being housebound. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Stegall concerns In July 2008, the Board remanded the claims to the AMC to provide proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) pursuant to Hupp v. Nicholson, 21 Vet. App. 342 (2007); to obtain VA treatment records; and to obtain a VA medical opinion. In November 2008 , the AMC provided appropriate notice. This will be discussed in greater detail below. In December 2008, the Veteran's VA treatment records were obtained and associated with the Veteran's claims file. In February 2009, a VA medical opinion was obtained and associated with the Veteran's claims file. The claim was readjudicated via the March 2009 SSOC. In a May 2009 appellant's post-remand brief, the appellant's representative made the following argument: The remand noted that the examiner was to review the claims file. The examiner that provided the negative opinion failed to note whether the claims file was reviewed in conjunction with the opinion. There is no indication anywhere that convinces the undersigned that a claims file review was conducted. See May 2009 appellant's post-remand brief, page 2. The Board disagrees with the representative's assertions that the claims file was not reviewed. The opinion instructions reflect that the Veteran's claims file was sent to the VA medical doctor. Moreover, the VA doctor noted specific findings from the Veteran's VA treatment records dated from 1998 to 2002. The appellant's representative has not identified any relevant evidence which was not mentioned by the VA reviewer, or any defect in the reviewer's reasoning which would suggest an inadequate review of the file. The Board additionally notes, as did the representative, that the appellant's representative had requested an advance on the Board's docket due to the appellant's age and terminal illness. The Board finds that the medical opinion which it requested in its previous remand is adequate, and it declines to remand this case for another review. The Board's remand instructions have therefore been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The VCAA The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. With respect to the claim of entitlement to DIC benefits based on the need for regular aid and attendance or being housebound, as will be explained in detail below, the appellant is not eligible for DIC benefits under 38 U.S.C.A § 1310 on the basis of service connection for the cause of the Veteran's death or under 38 U.S.C.A. § 1318. In the absence of eligibility for DIC benefits under 38 U.S.C.A. § 1310 or 38 U.S.C.A. § 1318, the appellant is not eligible for higher DIC benefits based on the need for regular aid and attendance or being housebound. Therefore, the claim of entitlement to DIC benefits based on the need for regular aid and attendance or being housebound fails as a matter of law. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (the Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. Therefore, based on the Court's decision in Manning, the Board concludes that the appellant's claim of entitlement to DIC benefits based on the need for regular aid and attendance or being housebound is not subject to the provisions of the VCAA. With respect to the other issue on appeal, entitlement to service connection for the cause of the Veteran's death, the Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issue of service connection for the cause of the Veteran's death has proceeded in accordance with the provisions of the law and regulations. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Crucially, the RO informed the appellant of VA's duty to assist her in the development of her claim in letters sent in July 2006 and November 2008, which were specifically intended to address the requirements of the VCAA. The July 2006 VCAA letter informed the appellant that the evidence must show either that the veteran died while on active duty, or that he died from a service-connected injury or disease. However, in light of the subsequent Court decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007), more detailed notice must be provided. In the context of a claim for DIC benefits, 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. See Hupp, 21 Vet. App. at 352-53. In the November 2008 VCAA letter, the appellant was informed that the Veteran was service connected at the time of his death for generalized anxiety disorder and a scar. The appellant was told that the medical evidence must show that the Veteran's service-connected disabilities caused or contributed to his death. The appellant was also informed that "[t]o establish service connection for cause of death, it must be shown that the [disability] causing the veteran's death had its onset in service or was permanently aggravated by military service." See the November 4, 2008 VCAA letter, page 1. In short, the appellant was informed of the information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As for the evidence to be provided by the appellant, in the VCAA letters the RO and the AMC asked the appellant to identify and send relevant medical evidence. The RO and AMC provided the appellant with VA Form(s) 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for each private or other non-VA doctor and medical care facility that treated the Veteran for disabilities related to the cause of his death. Moreover, in the VCAA letters, the appellant was informed that VA would provide a medical examination or obtain a medical opinion if it is necessary to make a decision on her claim. [A VA medical opinion was obtained in February 2009.] In the VCAA letters, the appellant was advised that VA was responsible for getting relevant records from any Federal agency, to include records from the military, VA medical centers (including private facilities where VA authorized treatment), and the Social Security Administration. The appellant was also informed that VA make reasonable efforts on her behalf to get relevant records not held by a Federal agency, including records from state and local governments, private doctors and hospitals, and current or former employers. In the VCAA letters, the RO and AMC further informed the appellant that she should submit any evidence in her possession relevant to her claim, as follows: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." See, e.g., the November 4, 2008 VCAA letter, page 2. The VCAA letters thus complied with the "give us everything you've got" requirement of 38 C.F.R. § 3.159(b)(1) because the letters informed the appellant that she could submit or identify evidence other than what was specifically requested by VA. [The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23,353, 23,353-56 (Apr. 30, 2008) [codified at 38 C.F.R. § 3.159 (2008)]. The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim.] In short, the record indicates that the appellant received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1) is not in dispute regarding the deceased Veteran. As detailed above, the VCAA letters contained information which is analogous to elements (2) and (3). Moreover, the RO specifically addressed elements (4) and (5) in the July 2006 letter, even though element (4), degree of disability, is obviously inapplicable to a death claim. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate her claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. The evidence of record includes the Veteran's service treatment records and service personnel records, private and VA treatment records, the Veteran's death certificate, a private medical opinion and VA medical opinions. The Board finds that all relevant evidence necessary for an equitable resolution of this issue has been identified and obtained. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this issue has been consistent with the provisions of the VCAA. The appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2008). The appellant has retained the services of a representative, who has presented argument on her behalf. In her absence, the appellant's daughter and her son-in-law testified on her behalf at a hearing held at the RO before the undersigned Veterans Law Judge. Accordingly, the Board will proceed to a decision on the merits. Pertinent law and regulations Service connection - in general Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C.A. § 1110 (West 2002). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a)(2008). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection - cause of death VA death benefits are payable if a veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5, 3.312 (2008). In order to establish service connection for the cause of a veteran's death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2008). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2008). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2008). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2008); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category, there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2008). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 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) (2008). The regulations also state that 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 affected a vital organ and was of itself of a progressive and debilitating nature. 38 C.F.R. § 3.312(c)(4) (2008). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21- 1MR), Part IV, Subpart ii, Chapter 2, Section C. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The applicable section of M21-1MR also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Analysis The Veteran died in June 2006, over 60 years after his separation from service. The Veteran's death certificate lists the cause of death as chronic obstructive pulmonary disease (COPD). No autopsy was performed. At the time of the Veteran's death, service connection was in effect for generalized anxiety disorder, evaluated 70 percent disabling; and a postoperative appendectomy scar, evaluated zero percent disabling. The appellant's contentions In substance, the appellant asserts that the symptomatology of the Veteran's service-connected generalized anxiety disorder aggravated his COPD because the Veteran had difficulty breathing due to panic attacks (see the hearing transcript, page 7), or that the medications used to treat the Veteran's service-connected generalized anxiety disorder aggravated his COPD. See the hearing transcript, page 12. In the alternative, she contends that the Veteran's COPD was due to exposure to asbestos in service. See the hearing transcript, page 6. The appellant has identified no other possible service- related cause of the Veteran's death, and the record does not remotely suggest that the other service-connected disability, a postoperative appendectomy scar has anything to do with the Veteran's death. Discussion In order to establish service connection for death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson, supra. There is no question that element (1) has been met. The Board's discussion will therefore focus on elements (2) and (3). With respect to element (2), the Board will separately discuss in-service disease and injury. With respect to in-service disease, a review of the Veteran's service treatment records does not suggest that COPD was present in service. The appellant does not so contend. The Veteran's service medical records are completely devoid of any respiratory disease. Concerning in-service injury, the appellant contends that the Veteran was exposed to asbestos in service. During his lifetime, in an August 1996 statement, the Veteran claimed that he was exposed to asbestos during service, when he frequently worked in the holds of ships unloading cargo. The Veteran's service records indicate that he served in United States Navy. His military occupational specialty (MOS) was "carpenter's mate", and his service personnel records reflect that he served in a construction battalion. The M21-1MR provides that some of the major occupations involving exposure to asbestos include carpentry and construction. Taking into consideration the Veteran's MOS, the Board concludes that the Veteran was arguably exposed to asbestos in service, thus satisfying element (2). Therefore, to that extent only, element (2) is satisfied. Further with respect to element (2), the Veteran was service connected for anxiety disorder during his lifetime. With respect to element (3), medical nexus, the appellant has advanced two contentions: first, that the Veteran's service- connected generalized anxiety disorder contributed to his death; and second, that the Veteran's fatal COPD was due to his asbestos exposure in service. The Board will address these in turn. (i.) The generalized anxiety disorder contention Pursuant to the Board's remand, the AMC obtained a VA medical opinion as to whether symptomatology associated with the Veteran's service-connected generalized anxiety disorder, such as anxiety attacks, caused or aggravated his fatal COPD, and whether the medications taken to treat the service- connected generalized anxiety disorder caused or aggravated his fatal COPD. The VA reviewer opined that it was not as likely as not that the Veteran's generalized anxiety disorder caused or aggravated his COPD. The reviewer noted that it is generally accepted that anxiety attacks may exacerbate dyspnea, and that for that reason relaxation techniques are frequently taught to assist patients in controlling their dyspneic symptoms. The reviewer, however, added that there was no evidence, to her knowledge, that indicates that generalized anxiety disorder worsens pulmonary function in COPD, and that there was no evidence that anxiety disorders cause death in patients with COPD. The VA reviewer further opined that it was not as likely as not that the medications taken to treat the service-connected generalized anxiety disorder caused or aggravated the Veteran's fatal COPD. The reviewer noted that there was no evidence, to her knowledge, that sertraline which was used to treat the Veteran's anxiety disorder has any effect in causing or aggravating COPD, or that any other medications would aggravate COPD. The reviewer noted that it is possible that overdoses of sedative hypnotics could decrease respirations in patients with COPD, but that the materials which she was given to review show no evidence that this possibility might have taken place. In short, the medical evidence of record reflects that the Veteran's service-connected generalized anxiety disorder did not contribute substantially or materially to the Veteran's death; combine to cause death; or aid or lend assistance to the production of death under 38 U.S.C. § 3.312(c). There is no competent medical evidence to the contrary. The appellant has been afforded ample opportunity to furnish medical nexus evidence to VA. She did not do so. See 38 U.S.C.A. § 5107(a). The only other evidence which purports to relate the Veteran's service-connected generalized anxiety disorder to his fatal COPD comes from the testimony of the appellant's daughter and son-in-law. However, as persons without medical training, the appellant's daughter and son-in-law are not competent to render an opinion on medical matters such as the etiology of the COPD. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The testimony of the appellant's daughter and son-in-law carry no weight of probative value. See also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). (ii.) The asbestos exposure contention There is conflicting evidence on whether the Veteran's COPD was related to in-service asbestos exposure. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Both the United States Court of Appeals for the Federal Circuit and the Court have specifically rejected the "treating physician rule." See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); see also Guerrieri, supra. Instead, in offering guidance on the assessment of the probative value of medical opinion evidence, the Court has instructed that it should be based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has carefully evaluated the medical evidence, and for reasons stated immediately below finds that the evidence against the claim as to the critical matter of whether the evidence against the claim [i.e., that there is no relationship between the Veteran's cause of death and in- service asbestos exposure] outweighs the evidence in favor. In a March 1996 report, D.P., M.D., gave an impression of chronic pleural disease "which could be related to asbestos exposure." Similarly, in July 2006, A.M, M.D., opined that the Veteran's "pulmonary condition leading to his death may have been associated with prior asbestos exposure." These opinions are speculative and couched in terms of possibility ["could be" and "may have". See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [medical opinions which are speculative, general or inconclusive in nature cannot support a claim]. In addition, these opinions do not provide any rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. However, there is of record a very thorough VA medical opinion dated in April 2007. A VA pulmonologist opined that upon review of the available medical records, chest radiograph reports, and pulmonary function testings (PFTs), the Veteran's COPD was not caused by asbestos. The reviewing physician noted that there was no indication in the available studies that the Veteran had evidence of asbestos-related lung disease (no interstitial markings on chest x-rays and no evidence of restrictive lung disease on PFTs). The VA reviewer stated that the pleural disease noted in the report of the March 1996 chest x-rays [which Dr. D.P. stated "could be related to asbestos exposure."] is not characteristic of the calcified pleural plaques that often reflect previous asbestos exposure. The reviewer added, however, that even with pleural plaques, this would not be evidence of asbestos- related disease. The reviewing VA physician concluded that it was highly unlikely that the Veteran's COPD was related to exposure to asbestos while in the military. The Board observes that the VA physician provided a thorough basis for his opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative 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."] The only other evidence which purports to relate the Veteran's COPD to in-service asbestos exposure comes from the testimony of the appellant's daughter and son-in-law as well as an August 1996 statement from the Veteran himself. However, as has been discussed above, as persons without medical training, the appellant's daughter and son-in-law are not - and the late Veteran was not - competent to render an opinion on medical matters such as the etiology of the COPD. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1). The Veteran's assertion in his August 1996 VA Form 21-4138 that Dr. C.F. and medical professionals at the VA medical center in Providence, Rhode Island diagnosed asbestos in his lungs is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) [a claimant's account of what a physician purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence]. Contemporaneous medical records do not in fact reflect a diagnosis of asbestos-related lung disease. In summary, for reasons stated above the Board concludes that a preponderance of the evidence is against the appellant's claim as to element (3), medical nexus, and the claim fails on that basis. The benefit sought on appeal, entitlement to service connection for the cause of the Veteran's death, is accordingly denied. 2. Entitlement to DIC benefits based on the need for regular aid and attendance or being housebound. Pertinent law and regulations The pertinent law and regulations authorize the payment of additional DIC benefits based on the need for regular aid and attendance or being housebound benefits to a surviving spouse who is already receiving DIC benefits. 38 U.S.C.A. § 1311 (West 2002); 38 C.F.R. § 3.10 (2008). A surviving spouse is eligible for DIC benefits on the basis of service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310 or on the basis of 38 U.S.C.A. § 1318. Analysis The grant of additional DIC benefits based on the need for regular aid and attendance or being housebound benefits under 38 U.S.C.A. § 1311 (West 2002) and 38 C.F.R. § 3.10 (2008) assumes and requires entitlement to DIC benefits. In its July 2008 decision, the Board denied entitlement to DIC benefits under 38 U.S.C.A. § 1318. Moreover, as noted above, the Board has denied entitlement to DIC benefits on the basis of service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310. Therefore, there is no legal basis for providing the benefit the appellant seeks. As there is a lack of entitlement under the law, the application of the law to the facts is dispositive. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appeal is accordingly denied. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits based on the need for regular aid and attendance or being housebound is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs