Citation Nr: 0924517 Decision Date: 06/30/09 Archive Date: 07/07/09 DOCKET NO. 00-04 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970. He died in April 1990. The appellant is his widow. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a February 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appellant testified in support of her claim at hearings held in January 2001 and November 2002, the former before a Hearing Officer at the RO and the latter before an Acting Veterans Law Judge from the Board by video conference. In August 2003, the Board remanded the appellant's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C. In September 2005 the appellant filed a motion for reconsideration by the Board of its August 2005 decision. See 38 C.F.R. § 20.1101 (2008). In May 2006, a Board Deputy Vice Chairman granted the motion, ordering reconsideration of the Board's August 2005 decision by an expanded panel of the Board as provided by 38 U.S.C.A. § 7103(b). Upon reconsideration, a panel re-opened the appellant's claim and remanded the claim for additional development. The claim has now returned to the Board for adjudication. The Board notes that the appellant submitted additional evidence after the final adjudication of her claim by the RO. In June 2009, the appellant's accredited representative waived RO consideration of her additional evidence. Please note 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). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The evidence of record demonstrates the cause of the Veteran's death is not shown to have been proximately due to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care nor was the cause of death shown to have been the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of letters sent to the appellant in July 2006 and November 2007 that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. Although the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case (SSOC) issued in June 2007. Additionally, because of the decision in this case, the requested benefits are not being allowed; thus, there is no disability rating or effective date for the award of benefits. As such, any deficiency in the notice to the appellant of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As the Veteran is deceased, a current VA compensation examination is not possible. However, in this case, private medical opinions have been obtained and are of record. The Board finds that the medical opinions of record are sufficient to make a decision on the claim. The Board notes that the appellant has asserted that records are missing from the file. If records are lost or destroyed while in government custody, there is a heightened duty to assist the appellant in developing evidence that might support her claim. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). This duty to assist has been fulfilled. The RO indicated on two occasions in May 2003 and September 2004 that no additional records from the Veteran's claims file were at its location. The RO was able to obtain copies of the Veteran's service medical records and VA treatment records dated from 1968 to 1990. However, the private treatment records identified in the November 1996 decision could not be reconstructed and those healthcare providers identified by the appellant uniformly indicated that the Veteran's treatment records had been destroyed or were now unavailable. The Veteran's service medical records have been obtained from the National Personnel Records Center (NPRC), to include hospital reports from the Madigan Army Hospital. However, there appears to be missing service records that were reported in the possession of the Madigan Army Hospital. This facility informed VA in November 2004 that no records were found at its location. See Hayre v. West, 188 F.3d 1327, 1332 (Fed. Cir. 1999) (VA has a heightened duty to assist when a veteran's service medical records are missing). In the Board's prior remand of August 2003, letters issued in December 2003 and September 2004, and in the SSOC issued in April 2005, the appellant was informed of the records missing from the Veteran's claims file, the development that would be carried out to obtain these records, and what records had been obtained and reviewed by the RO. In December 2003 and September 2004 she was requested to submit copies of all clinical records in her possession and to complete the appropriate forms so that further development through government archives could be accomplished. As the custodians of the veteran's missing military and post- service records have certified that they are no longer available, the Board finds that further development of these records would be futile. See 38 U.S.C.A. § 5103A(a)(2), 5103A(b); 38 C.F.R. § 3.159(c)(1)(i), (c)(2)(i), (d). The Board also finds that the appellant was notified of the missing records, VA's attempts to obtain these records, and what development would be undertaken. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(c)(e). Regardless, as discussed in the analysis below, the Veteran's death was the result of a disease incurred post-service and the veteran's service medical records would have little probative value in a determination of this appeal. VAMC Houston notified the appellant in May 2009 that no further records could be located for the period requested concerning the Veteran. Finally, the appellant has testified at hearings before VA and transcripts of these hearings are incorporated into the claims file. Based on the above analysis, the Board concludes that all pertinent evidence reasonably obtainable regarding the issue decided below has been obtained and incorporated into the claims file. To the extent that VA in any way has failed to fulfill any duty to notify and assist the appellant, the Board finds that error to be harmless. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2001) (The "harmless error doctrine" is applicable when evaluating VA's compliance with the VCAA). Of course, an error is not harmless when it "reasonably affected the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); see also Mayfield, supra. As all evidence obtainable by VA has been associated with the claims file, the Board finds that the duty to assist has been fulfilled and any error in the duty to notify would in no way change the outcome of the below decision. The notification provided to the appellant in the letters, statement of the case (SOC), SSOCs, and prior Board decision/remands discussed above provided sufficient information for a reasonable person to understand what information and evidence was needed to substantiate the claim on appeal. Mayfield at 121. The Board determines that no reasonable possibility exists that further assistance would aid in the substantiation of the appellant's claim. 38 U.S.C.A. 5103A. In addition, as the appellant has been provided with the opportunity to present evidence and arguments on her behalf and availed herself of those opportunities, appellate review is appropriate at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). LAW AND REGULATIONS VA statutory law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the veteran when the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). The regulations provide that benefits under 38 U.S.C. 1151(a), for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361 (2008). It must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To establish the proximate cause of an additional disability or death it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). FACTUAL BACKGROUND In this case, the appellant essentially contends that the Veteran was prescribed huge doses of Motrin or Ibuprofen; that administration of huge doses of painkillers caused perforation of the colon; and that perforation of the colon led to cancer which produced death. She has argued that VA routinely and regularly prescribed Motrin and Ibuprofen, yet failed to monitor the status of the Veteran's gastrointestinal tract for signs of toxicity. The appellant has further alleged that VA failed to uncover or treat the Veteran's terminal colon cancer when it treated him during 1987. A Report of the Death of an American Citizen Abroad form that reports that the Veteran died on April [redacted], 1990. The cause of death was listed as cancer. VA clinical records dated from 1968 to 1990 reflect that the Veteran was treated primarily for left lower extremity disorders. VA hospitalization records dated in October/November 1968, March/April 1976, June 1976, March/April 1981, July 1982, August 1984, January/February 1986, January/February 1987, and July 1988 reported surgical intervention regarding the Veteran's left knee disability. These discharge summaries do not report any complaints, treatment, or diagnosis for any type of gastrointestinal disability. A VA orthopedic consultation of August 1984 noted the Veteran's complaints regarding his left knee. He denied any other current or chronic medical problem. On examination, his abdomen was soft, non-tender, without masses, and had positive bowel sounds. A January 1985 bone scan revealed a slight diffused increased uptake in the area of the maxilla and the anterior aspect of the mandible. The impression was that the slight uptake in the area of the jaw was most likely secondary to infectious dental disease. Carcinoma of the colon was first referenced in VA clinical records in clinical notations during March 1988. The VA outpatient records confirm that the Veteran took medication to alleviate his pain. The records primarily note complaints and treatment of the veteran's left knee/leg problems. Specifically, the records for the years 1986 and 1987 do not report any complaints, treatment, or diagnosis of any type of gastrointestinal disorder. The Veteran was treated at a private medical facility from December 1987 to January 1988. He gave a history of having experienced very severe abdominal pain about one year before. He reported that he had been seen at a VA hospital and had undergone a barium enema and upper gastrointestinal X-ray series. He claimed that he was told that there was a spot on his intestine, but that nothing further was done. During this hospitalization, it was found that he had perforated adenocarcinoma of the transverse colon, with intra-abdominal abscess. He underwent a right and transverse colectomy. In March 1988, VA treatment records show that the Veteran requested a follow-up for his colon cancer surgery performed in December 1987. The Veteran related that he felt "fine," had normal bowel movements twice a day, had gained weight, and denied any abdominal pain except for some incisional tenderness. On examination, the abdomen was soft, bowel sounds were normal, and there were no palpable masses. There was mild tenderness over the incisional scar. A VA oncology consultation of April 1988 noted the Veteran's history of surgery to remove colon cancer in December 1987. The Veteran was reported as saying "I don't believe I have cancer." On examination, his abdomen was asymptomatic and the examiner commented that there was no evidence of a current disease. The examiner noted that he informed the Veteran his medical records confirmed that he had indeed had colon cancer. The Veteran agreed to undergo colonoscopy and was scheduled for a follow-up visit in early May 1988. It was noted that the Veteran failed to report for this follow appointment. In April 2001, the appellant submitted a VA pre-colonoscopy order that noted a colonoscopy was to be performed on May 24. However, the year of this colonoscopy was not reported. The appellant contented that this was evidence the VA knew of the Veteran's gastrointestinal problems and had destroyed records of the actual colonoscopy that would have implicated its fault in not treating or diagnosing the veteran's colon cancer. Also attached was a medical history taken in March 1987 where the Veteran denied any gastrointestinal problems to include dysphagia, heartburn, nausea, vomiting, hematemesis, melena, abdominal pain, jaundice, food intolerance, change of bowel habit, hepatitis, peptic ulcer, and pancreatitis. Private medical correspondence dated in January 2001 prepared by a private physician (Dr. A.B.) that specialized in internal medicine and oncology indicates that he had reviewed the Veteran's medical records that were provided by the appellant. He noted that he reviewed the private hospital report of December 1987 that noted the Veteran's complaints of abdominal pain, reported history of complaints to a VA hospital the year before, and exploratory surgery that established the existence of perforated carcinoma of transverse colon with intra-abdominal abscess. Dr. A.B. reported that he could not locate any records of VA treatment for abdominal complaints the year before the 1987 surgery. He commented: [The Veteran] apparently was being seen at VA Hospital for many years prior to his diagnosis of cancer [at a private facility.] Available records show that most of those visits were related to problems with knees and bones. [The Veteran] apparently was treated with multiple anti-inflammatory drugs. These drugs are known to cause gastritis in some patients. I am not aware of any causative link between Non-steroidal anti-inflammatory drugs and colon cancer. A private medical evaluation prepared by C.N.B., M.D., in June 2007, states that it is clear that the Veteran died form metastatic colon adenocarcinoma. Dr. B. said that the Veteran was exposed to doses of toxic Agent Orange while in Vietnam. Dr. B. opined that to a high degree of medical certainty that the Veteran's colon cancer and subsequent demise was due to his exposure to Agent Orange as the record did not contain a more likely etiology and the literature supported an association. An additional private medical evaluation was prepared by C.N.B., M.D., in April 2008. Dr. B. commented that the Veteran's claims file did not contain any documentation that the Veteran was actually in Vietnam, so his previous opinion concerning the Veteran's exposure to Agent Orange in Vietnam was not legally relevant. Dr. B. stated that the Veteran had been evaluated by the VA care system for many years, and the VA care team did not notice or diagnose the GI tumor. He said that the Veteran had been losing weight and had abdominal pain, but the VA orthopedists simply treated his orthopedic problems with anti-inflammatories and did not do a complete physical. He opined that the fact that the VA teams did not notice the tumor was below the standard of care because the community hospital team noticed the Veteran's tumor on his first visit and made a diagnosis of cancer immediately. Dr. B. said that the interval between the Veteran's last VA visit and his first visit to the community hospital was not long enough to allow the tumor to either grow significantly or newly develop because tumors were slow growing. He opined that the Veteran had a diagnosable tumor while under the care for the VA that was missed, and he felt to a high degree of medical certainty that the fact that the VA did not find the Veteran's large tumor prior to his December visit to a different hospital was below the standard or care and represented poor judgment, skill, and/or negligence. Dr. B. remarked that according to the Veteran's spouse, the Veteran had several months of pain, blood in his stool, and weight loss while being cared for by the VA. In January 2009, an independent medical evaluation was prepared by J.L.G., M.D., a Professor of Medicine, School of Oncology, at a university medical center. Dr. G. observed that due to chronic pain, the Veteran had been on non- steroidal anti-inflammatory drugs for many years. It was noted that NSAIDs were associated with gastroduodenal toxicity, including inflammation of the lining of the stomach and duodenum, ulcer formation, and possible perforation. Dr. G. opined that there was no evidence in the records that the Veteran was prescribed "huge doses" of NSAIDs; he received standard doses. It was further noted that NSAIDs were not associated with perforation of the large bowel, and there were no standard recommendations to monitor the large bowel in patients who were receiving NSAIDs. Dr. G. remarked that the colon cancer did not develop as a consequence of perforation of the transverse colon. Specifically, Dr. G. described how the Veteran's physical exam at the community hospital in late December 1987 revealed tenderness with suggestion of a vague mass in the epigastric area; the diagnosis of cancer was not made until the time or exploratory laparotomy. As colon and rectal cancer occurred uncommonly in patients under the age of 50 and the Veteran did not have a family history of colorectal cancer, Dr. G. opined that the index of suspicion for a 40 year old male to have colon cancer would be low. It was further noted that there was nothing in the orthopedic clinic notes to indicate that the Veteran complained of abdominal pain or had experienced a change in his bowel habits in his many visits prior to the diagnosis of colon cancer. Dr. G. discussed Dr. B.'s conclusions and noted that they were based on the assertions of the Veteran's spouse that her husband had complained of abdominal pain and bloody stools for two years prior to his cancer diagnosis. Dr. G. said that there was no information in the records to corroborate the Veteran's spouse's contentions. In summary, Dr. G. opined that the medical evidence did not show that the Veteran's death was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran. It was noted that there was no evidence that the proximate cause of death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. Dr. G. added that if there was evidence of anemia through laboratory studies, that should have prompted additional investigation; however, as the Veteran's primary complaint was left knee pain, there would not have been a reason for orthopedic surgeons to order a complete blood count. A hearing was held before a VA hearing officer in February 1996. In testimony, the appellant reiterated her contention that improper care rendered by VA brought about the Veteran's death. The appellant has presented written contentions and testimony noting that the Veteran took large amounts of pain medication to alleviate the symptoms of his service-connected orthopedic disabilities. She asserts that this pain medication led to digestive irritation/ulcers, which, in turn, led to the Veteran's colon cancer and eventual death. She has repeatedly contended that VA healthcare providers failed to appropriately diagnosis and treat his colon cancer which should have been evident to them years prior to his death. The appellant alleges that VA was required to conduct a colonoscopy of the veteran every six months due to his frequent use of large dosages of medication to alleviate the pain caused by his service-connected disorders. She argues that this procedure was denied the Veteran by VA. The appellant has also provided copies of her and the Veteran's lay statements that noted VA healthcare providers had ignored his complaints of gastrointestinal problems prior to his diagnosis of colon cancer. At her Board hearing in November 2002, the appellant claimed that VA had found that the Veteran's sinuses were inflamed and failed to treat this problem. It was contended that drainage from these inflamed sinuses contributed to the cause of his colon cancer. The appellant has also submitted photocopies of the Veteran's pain medication bottles, medical literature for Sulindac and Piroxicam (reportedly pain medication taken by the Veteran) whose adverse reactions could include epigastric distress, nausea, occult blood loss, peptic ulceration, and severe gastrointestinal bleeding. In the literature for the drug Feldene (pain medication), its was noted that this drug was associated with symptoms of gastrointestinal tract irritation. However, clinical studies reported that use of Feldene had not resulted in any significant increase in fecal blood loss or any detectable effect on the gastric mucosa. The appellant has submitted an article from the New England Journal of Medicine published in June 1999 on "Epidemiology of Gastrointestinal Complications." This article noted that nonsteroidal anti-inflammatory drugs (NSAID) were generally well tolerated, but adverse gastrointestinal events occur in a small but important percentage of patients, resulting in substantial morbidity and mortality. The adverse reactions noted to arise from the use of NSAID included upper gastrointestinal bleeding, dyspepsia, and gastroduodenal mucosal injury. Other "less commonly recognized" complications of NSAID use included pill esophagitis, small bowel ulceration, small bowel stricture, colonic stricture, diverticular disease, and exacerbation of inflammatory bowel disease. Gastrointestinal complications were estimated by some studies to range from 10 to 20 percent of users, and the prevalence could be from 5 to 50 percent of users. It was estimated that there were 16,500 NSAID related deaths in the United States in one year. In June 2005, the appellant submitted what appears to be a printout from a "Frequently Asked Questions" Internet site for the drug Nexium. This site noted that individuals over 60 with a history of stomach ulcers who take ibuprofen, naproxen, or aspirin for chronic pain could be at a greater risk for developing stomach ulcers. In March 2007 the appellant submitted a printout from the internet site BrightSurf.com entitled "High doses of Ibuprofen cause significant GI bleeding, despite safety profile." This article remarked that people who take high doses of ibuprofen on a regular basis are three times more likely to experience GI bleeding than those who do not take painkillers. Additionally, the appellant submitted information from the Health Information Encyclopedia concerning upper GI and small bowel tests. This information states that abnormal results of a GI series could mean gastric cancer or ulcers. In April 2007, she submitted information from http://www.healthatoz.com which generally described colonoscopies. ANALYSIS Unfortunately, the VA medical records obtained do not show any complaints, treatment, or diagnosis that would corroborate the Veteran's claimed history reported in the December 1987 private hospital records or in the appellant's allegations. See Robinette v. Brown, 8 Vet. App. 69 (1995) (Lay assertions of what a physician told a lay person do not constitute requisite medical evidence of a medical diagnosis or of medical causation/etiology.) In fact, the VA records show that when questioned regarding gastrointestinal problems in March 1987, the Veteran denied such symptoms. The appellant has argued that the colonoscopy request indicating the procedure was to take place in May of an undisclosed year was evidence that VA had destroyed evidence that would establish the existence of colon cancer prior to December 1987. However, the VA treatment records dated in April 1988 are the only records that note a request for a colonoscopy. These records indicate that the noted colonoscopy was scheduled after the veteran's cancer surgery in December 1987 and, in contrast to the appellant's claims of malfeasance, a colonoscopy report is not of record due to the Veteran's failure to report for the procedure. See Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000) (Government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost irrefragable to overcome that presumption.) Regardless, this colonoscopy (if it was actually performed) happened after the initial private diagnosis of colon cancer and does not show that the Veteran's colon cancer was known to his VA healthcare providers prior to December 1987. Additionally, the appellant has suggested that VA medical center laboratory reports exist that cannot be located. However, as discussed previously, the VA has made extensive attempts to obtain all available pertinent medical reports. In May 2009, VAMC Houston provided official documentation that no additional records for the Veteran are obtainable. It appears that the appellant is making her assumption based on Dr. G.'s January 2009 statement that an unanswered question is whether any laboratory studies were obtained at any time during 1987 during the visits to the VA orthopedics visit. The Board places great weight on Dr. G.'s observation that as the Veteran's primary complaint was for left knee pain, the VA orthopedic surgeons would not have had a reason to order a complete blood count. In light of the VA treatment records of record, VAMC Houston's indication that no additional records are available, and Dr. G.'s statement that the VA orthopedic surgeons would not have had a reason to order a complete blood count, the Board concludes that the appellant's assertions that there are missing VA medical center laboratory reports is merely speculative. The medical articles presented by the appellant indicate that in patients that use NSAID medication in some cases develop gastrointestinal problems. However, this evidence does not indicate that these complications included colon cancer or that an ulcer caused by a NSAID would result or aggravate any type of colon cancer. Regardless, these articles do not indicate that the Veteran himself developed a gastrointestinal disability as a result of use of NSAID. See Sacks v. West, 11 Vet. App. 314 (1998) (Lay inferences made from a medical journal article are no more than an unsubstantiated medical opinion rather than a conclusion based on the medical evidence of record.) In addition, while the letter from Dr A.B. (identified by the appellant as the oncologist that treated the veteran in December 1987) also indicated that patients that use NSAID could develop gastritis, he did not indicate that the Veteran himself had developed such a disorder. In addition, this physician specifically noted that there was no medical evidence he was aware of that had established any causal link between colon cancer and the use of NSAID. This medical evidence does not present evidence that the Veteran had actually developed a gastrointestinal disability due to his use of NSAID, nor does it indicate that a causal link may exist between the Veteran's colon cancer and his use of NSAID. The appellant has alleged that if VA healthcare professionals had exercised the appropriate skill and care, they would have conducted periodic colonoscopy and discovered the Veteran's colon cancer at an early stage, thus preventing his death from this disease. She claimed that in patients that habitually use NSAID they were required to receive a colonoscopy every six months. The appellant has not submitted any medical evidence to show that such a procedure is required. While the medical literature presented by the appellant has shown that some patients that use NSAID develop gastrointestinal problems, this literature does not recommend periodic colonoscopy as a preventive measure. In addition, the medical journal article was published in June 1999, almost a decade after the Veteran's death, and does not show that the ordinary medical skill and care practiced prior to December 1997 required the VA healthcare professionals to seek periodic colonoscopy or even that the medical research had established a link between the use of NSAID and gastrointestinal problems prior to December 1987. The appellant argued that there was evidence in the VA treatment records that the Veteran had inflamed sinuses and that drainage from these sinuses led to colon cancer. There is no evidence in the VA treatment records that the veteran ever complained of sinus problems or was diagnosed with a sinus disorder. A VA bone scan of January 1985 did report an abnormality in the "maxilla" area, but attributed this abnormal result of a dental disease, not any type of sinus disorder. The appellant has not submitted any type of competent medical evidence to support this allegation. The Board has carefully considered the April 2008 statement from Dr. B. which indicates that the Veteran's treatment from the VA was "below the standard of care" and represented poor judgment, skill, and negligence. Unfortunately, Dr. B's credibility is impaired due to statements that he made that are not supported by the evidence of record. For example, Dr. B. stated in June 2007 that it was a fact that the Veteran was exposed to Agent Orange in Vietnam. However, a careful review of the claims file reveals no evidence that the Veteran served in Vietnam. In fact, the National Personnel Records Center stated that there is no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. Also, Dr. B stated in April 2008 that he had reviewed the Veteran's claims file and said that the Veteran had several months of pain, blood in his stool, and weight loss while being cared for by the VA, according to the Veteran's spouse. However, Dr. B. did not mention the medical history of record taken in March 1987 where the Veteran denied any gastrointestinal problems to include dysphagia, heartburn, nausea, vomiting, hematematsis, melena, abdominal pain, jaundice, food intolerance, change of bowel habit, hepatitis, peptic ulcer, and pancreatitis. As the Veteran's March 1987 medical history contradicts the appellant's assertions that the Veteran experienced years of GI problems while treated by the VA, the appellant's assertions are not supported by the evidence of record. The Court has held that an adequate medical opinion cannot be based solely on a Veteran's lay statements if the facts are contradicted by the evidence of record. See Kowalski v. Nicholson, 19 Vet.App. 427, 432 (2006); see also Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (stating that the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been rejected by the Board). Due to Dr. B's statements that are not supported by the evidence of record, the Board finds his opinion to be of less persuasive value. Contrastingly, the January 2009 opinion of Dr. G. is supported by the evidence of record. Dr. G. thoroughly discussed the military, medical, and lay evidence of record, and specifically noted the April 2008 opinion offered by Dr. B. Dr. G. commented on possible side effects of NSAIDs and noted that the Veteran had received standard doses. Dr. G. also observed that the diagnosis of colon cancer was not made until the time of an exploratory laparotomy. Dr. G. discussed the standard of care involving the index of suspicion for colon cancer and determined that the index of suspicion for a 40 year old male to have colon cancer would be low. Dr. G. also observed that there was no information in the records to corroborate the Veteran's spouse's contentions that the Veteran complained of abdominal pain or had experienced a change in his bowel habits in his many VA medical visits prior to the diagnosis of colon cancer. In summary, Dr. G. opined that the medical evidence did not show that the Veteran's death was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran. It was noted that there was no evidence that the proximate cause of death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. The Board finds that Dr. G. supported the given opinion with adequate reasons and bases. The Board has also carefully considered the personal statements submitted by the appellant and notes that lay persons can attest to factual matters of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The appellant has submitted an August 2006 letter from the University of Illinois at Urbana- Champaign which states that she received a Bachelor of Science degree with a major in Biology on August 4, 1975. She also submitted a letter from the University of Iowa dated in August 2006 which states that the appellant first enrolled on August 25, 1977, and last enrolled on July 27, 1979. The letter indicates that the appellant was a student in the Graduate College and had declared a major in Preventative Medicine and Environmental Health. The letter also stated that the certification was valid only when it was signed and impressed with the seal of the University of Iowa. The Board observes that the submitted letter did not have an impressed seal. There is no evidence of record which shows that the appellant has a medical degree. Therefore, while her statements provide competent evidence of her observations, she is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. In summary, the evidence of record does not demonstrate that the cause of the Veteran's death was proximately due to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. The evidence of record does not demonstrate that the cause of the Veteran's death was the result of an event not reasonably foreseeable. Thus, the criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2008). In cases where the service medical records are unavailable through no fault of the claimant, there is a heightened obligation to explain findings and conclusions. See Hayre, supra. The Board believes it has complied with this heightened duty in the above provided analysis. ORDER Entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for the cause of the Veteran's death is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs