Citation Nr: 0937806 Decision Date: 10/05/09 Archive Date: 10/14/09 DOCKET NO. 03-12 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from November 1942 to February 1946, and from January 1956 to March 1973. The Veteran died in December 2000. The appellant is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2008, the appellant testified at a Travel Board hearing. In December 2008, the Board remanded this case. 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 & Supp. 2008). FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for post-traumatic compression fracture of the left knee, rated as 20 percent disabling; his other disabilities were rated as non-compensable: residuals of an injury to the left hip with fracture of the pelvis; residuals of a fracture of the left tibia, with bone graft; scar of the left iliac crest, residuals of donor bone graft; impaired vision; and high frequency hearing loss; the combined rating was 20 percent. 2. The Certificate of Death reflects that the Veteran died in December 2000. The immediate cause of death was coronary artery disease due to or as a consequence of atherosclerosis due to or as a consequence of diabetes mellitus. There were no other conditions contributing to death. 3. A heart disability and diabetes mellitus were not manifest during service nor within one year of separation; competent medical evidence does not show that the post- service diagnoses of heart disability and diabetes mellitus were attributable to service. 4. The Veteran's service-connected disabilities were not the immediate or underlying cause of the Veteran's death, and were not etiologically related to the cause of death; the Veteran's service-connected disabilities did not contribute substantially or materially to cause the Veteran's death and they was not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease causing death. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303. 3.304, 3.307, 3.309, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. VCAA letters dated in January 2002, July 2003, July 2005, March 2008, and March 2009, fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although the notification letters were not sent prior to the initial adjudication of the claimant's claim, this was not prejudicial to the claimant since the claimant was subsequently provided adequate notice and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the claimant. The United States Court of Appeals for Veterans Claims ("the Court") issued certain directives pertinent to cases where the issue is service connection for the cause of the veteran's death in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court held that there is no preliminary obligation on the part of VA to perform, what in essence would be, a predecisional adjudication of a claim prior to providing to the claimant section 5103(a) notice. Although section 5103(a) does not require a "predecisional adjudication" of the evidence in each case, the notice must be responsive to the particular application submitted. See Kent v. Nicholson, 20 Vet. App. 1 (2006), at 9 ("The legislative interest underlying the VCAA notice requirement is the intent of Congress to provide claimants a meaningful opportunity to participate in the adjudication of claims"). This means that there is a middle ground between a predecisional adjudication and boilerplate notice with regard to the amount of detail and degree of specificity VA must provide for section 5103(a)-compliant notice. The Court later stated that a more detailed notice potentially discourages a claimant from submitting additional or corroborative notice, and is contrary to the VCAA's purpose. However, in DIC cases where the veteran was service-connected during his lifetime, the Court found 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 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. However, where a veteran was not service-connected during his lifetime, the same did not apply. The Court held that in those cases, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Further, section 5103(a) preadjudication notice, the Secretary or VA is not required to inform a DIC claimant of the reasons for any previous denial of a veteran's service-connection claim. In this case, the Veteran was service-connected for multiple disabilities during his lifetime. The March 2009 VCAA notification was Hupp compliant. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Veteran's service treatment records, personnel records, and pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. As discussed in greater detail below, a VA medical opinion has been obtained which is sufficient because it included a review of pertinent records and supporting rationale. The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In summary, the Board finds that it has not determined that there is additional guidance VA could have provided to the claimant regarding what further evidence she should submit to substantiate her claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Competency and Credibility As lay persons, the appellant and her representative have not been shown to be capable of making medical conclusions, thus, their statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, that veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. However, although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the appellant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. In addition, the Board must assess the probative value of the evidence. Service Connection for the Cause of Death The Veteran died in December 2000. According to the Certificate of Death, the immediate cause of death was coronary artery disease due to or as a consequence of atherosclerosis due to or as a consequence of diabetes mellitus. There were no other conditions contributing to death. At the time of the Veteran's death, service connection was in effect for post-traumatic compression fracture of the left knee, rated as 20 percent disabling. His other disabilities were rated as non-compensable as follows: residuals of an injury to the left hip with fracture of the pelvis; residuals of a fracture of the left tibia, with bone graft; scar of the left iliac crest, residuals of donor bone graft; impaired vision; and high frequency hearing loss. The combined rating was 20 percent. The appellant has made various contentions regarding the Veteran's death. She contends that the Veteran had diabetes mellitus on his retirement examination so he had it in service and that this condition contributed to death. In addition, she asserts that his service-connected left lower extremity disabilities contributed to cause the Veteran's death. She also maintains that the Veteran was exposed to lead-based pain, herbicides, and asbestos, which also contributed to the cause of the Veteran's death. A review of the service treatment records shows that the Veteran was not diagnosed as having any heart disease or injury during either period of service. His separation examination for his first period of service reflects that his cardiovascular system, endocrine system, urinalysis, and blood testing were all normal. On his November 1972 retirement examination, the heart and vascular system were normal. His blood pressure was 138/70. At that time, the Veteran underwent multiple sugar fasting tests. He had elevated blood sugar on 3 random tests as well as on a 2 hour testing. The examiner attributed the abnormal tests to obesity and the Veteran was diagnosed as having exogenous obesity. In June 1973, the Veteran was afforded a VA examination. It was noted that he was obese. His cardiovascular system was examined. He had regular sinus rhythm with no murmurs. His exercise tolerance was poor. Blood pressure was normal. He was not diagnosed as having a heart disability or diabetes mellitus. The claims file contains a multitude of post-service medical evidence. The Veteran was given a provisional diagnosis of diabetes mellitus in November 1991. The next month, in December 1991, the diagnosis of adult onset diabetes mellitus was confirmed. In addition, it was noted that the Veteran had borderline hypertension. Thereafter, the Veteran was diagnosed with hypertension. Over the next 9 years, until his death, the Veteran received treatment for both of these disorders. In the mid-1990's, the Veteran had a left great toe amputation and then a right below the knee amputation due to diabetic and vascular complications. The Veteran was also diagnosed as having Alzheimer's disease which reportedly led to weight loss which improved his blood sugar levels. In December 2008, the Board remanded this case. The Board requested the following action: Obtain a VA medical opinion. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's death from coronary artery disease due to atherosclerosis due to diabetes mellitus, was in any way etiologically related to service. The examiner should specifically comment on the Veteran's abnormal blood sugar readings as documented on his November 1972 retirement examination and indicate whether they were manifestations or the initial onset of his subsequently diagnosed diabetes mellitus. A VA medical opinion was furnished in April 2009. The claims file was reviewed. The examiner reviewed the pertinent medical history. The examiner indicated that diabetes mellitus II was diagnosed in December 1991. The examiner stated that the Veteran died at the age of 80 years due to coronary artery disease and atherosclerosis. The examiner opined that these disabilities were not caused by or related to service or any service-connected condition including spurious hyperglycemia. The examiner explained that hyperglycemia did not equal diabetes mellitus. Transient hyperglycemia can be caused by a variety of events such as obesity, stress, acute infection, and medications. The examiner indicated that the Veteran very clearly did not meet the criteria for diabetes in service which means that he did not have diabetes during service. He also did not meet the criteria for diabetes for 18 years after service which was indicative that it was not progressive hyperglycemia, but in fact transient hyperglycemia. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). 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). 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. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. 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)(4). Therefore, in order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310. To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In addition, service connection may be granted for a chronic disease, including arteriosclerosis, cardiovascular- renal disease, and diabetes mellitus, if manifested to a compensable degree with one year following service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Board will initially address the matter of whether the Veteran incurred diabetes mellitus due to inservice herbicide exposure since the appellant and her representative assert that the Veteran was exposed to Agent Orange which resulted in his diabetes mellitus. The representative indicated that it is possible that the Veteran stepped on land in Vietnam while he was stationed in Guam and/or Okinawa. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, 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), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). The United States Department of Defense (DOD) has confirmed that Agent Orange was also used from April 1968 through July 1969 along the demilitarized zone (DMZ) in Korea. DOD defoliated the fields of fire between the front line defensive positions and the south barrier fence. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Chapter 2, Section C; see also Veterans Benefits Administration Fast Letter 09-20, May 6, 2009 (Developing For Evidence of Herbicide Exposure in Haas- Related Claims from Veterans with Thailand Service during the Vietnam Era). In the recent decision in Haas v. Peake, 525 F.3d 1168 (2008), the Federal Circuit held that VA's regulation defining "served in the Republic of Vietnam," under the Agent Orange Act, to mean "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam," was reasonably interpreted by VA to require that a service-member had set foot within land borders of Vietnam in order to be entitled to statutory presumptions of both exposure and service connection for specified diseases under the Act. Haas, 525 F.3d at 1187; 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). The Federal Circuit also stated that a veteran who had served on board a Navy ammunition supply ship operating in the Vietnamese coastal waters had not "served in the Republic of Vietnam" under the Agent Orange Act and regulations since he had never gone ashore from the ship and set foot within land borders of Republic of Vietnam. Haas, 525 F.3d at 1193; 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). 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. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4 (Act), codified in pertinent part at 38 U.S.C.A. §§ 1116(b) and (c), provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association (i.e., the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he is to publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. Although 38 U.S.C. § 1116 does not define "credible," it does instruct the Secretary to "take into consideration whether the results [of any study] are statistically significant, are capable of replication, and withstand peer review." Simply comparing the number of studies which report a positive relative risk to the number of studies which report a negative relative risk for a particular condition is not a valid method for determining whether the weight of evidence overall supports a finding that there is or is not a positive association between herbicide exposure and the subsequent development of the particular condition. Because of differences in statistical significance, confidence levels, control for confounding factors, bias, and other pertinent characteristics, some studies are clearly more credible than others, and the Secretary has given the more credible studies more weight in evaluating the overall weight of the evidence concerning specific diseases. Section 3 of the Act directs the Secretary of VA to seek to enter into an agreement with the NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. Claims based on Agent Orange exposure are unique in that entitlement, under the presumptions codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on an analysis of scientific evidence. Section 3 of the Agent Orange Act of 1991 directed the Secretary of VA to seek to enter into an agreement with NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. The Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). The statutory provision specifically covering herbicides is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. The presumption of exposure to herbicides is provided to all veterans who served in Vietnam during the Vietnam era. Initially, the Board notes that the causes of the Veteran's death are listed on the Certificate of Death as coronary artery disease, atherosclerosis, and diabetes mellitus. Only diabetes mellitus is a presumptive disorder for the purpose of herbicides presumptions. The appellant maintains that the Veteran was exposed to Agent Orange in Vietnam. However, in this case, the Veteran did not serve in Vietnam. His personnel records as well as other documentary evidence in the claims file do not show that the Veteran had any service or visitation of any kind in Vietnam, Korea or Thailand. Therefore, he is not entitled to the statutory presumption of exposure to herbicides while in service. 38 U.S.C.A. § 1116(f). Thus, the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) also do not apply. The Board also notes that the record on appeal also does not contain competent evidence directly linking the cause of the Veteran's death to exposure to herbicides in service to include working on aircraft that had flown in Vietnam as is also alleged. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the veteran was not precluded under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 494-95 (1991) (laypersons are not competent to render medical opinions). The appellant also claims that the Veteran was exposed to asbestos during service which played a role in his death. However, the Board finds that the directives regarding asbestos exposure are also not for application in this case. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 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 Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. 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 M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. See M21- 1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 also contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. In this case, none of the causes of the Veteran's death were asbestos-related lung disorders or cancers, as noted above. The record is devoid of supporting evidence and there is no competent nexus evidence that any of the causes of death are asbestos-related. The appellant is not qualified to render a complex medical opinion attributing heart disease and/or diabetes mellitus to service when the guidelines cited above do not provide any basis for those diseases to be asbestos- related. Her contentions are simply not competent or probative in that regard. Turning to the matter of whether the causes of the Veteran's death were incurred in service or the one year presumptive period following service, the Board finds that they were not. The service treatment records do not show complaints, findings, treatment, or diagnosis of heart disease or injury. Heart disease was not manifest during service or within 1 year of separation. With regard to diabetes mellitus, there was no inservice diagnosis. As noted, the Veteran underwent multiple sugar fasting tests at the time of his retirement examinations. He had elevated blood sugar on 3 random tests as well as on a 2 hour testing. The examiner attributed the abnormal tests to obesity and the Veteran was diagnosed as having exogenous obesity. The Board obtained a medical opinion in order to ascertain if these blood tests signified diabetes mellitus. The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). The VA examiner concluded that diabetes mellitus II was diagnosed in December 1991. This finding is consistent with the documentary record. The examiner stated that the Veteran died at the age of 80 years due to coronary artery disease and atherosclerosis. This finding is consistent with the Certificate of Death. The examiner opined that these disabilities were not caused by or related to service or any service-connected condition including spurious hyperglycemia. The examiner provided rationale for that opinion and indicated that the inservice findings were indicative of transient hyperglycemia and no diabetes mellitus. The examiner cited to the onset as occurring nearly 2 decades after service separation. In the informal hearing presentation, the appellant's representative asserted that transient hyperglycemia plays a significant role in the development of diabetes to include in the Veteran's case. The representative cited to purported highly technical medical findings found in "available medical literature." However, none of this literature was provided. The Board finds that the VA examiner's opinion is more probative than these allegations since there is no supporting documentation regarding the literature and since the VA examiner reviewed the claims file, the pertinent medical history, and provided rationale. Similarly, the appellant has alleged that the Veteran incurred diabetes mellitus and/or heart disease during service to include as due to exposure to lead-based paint. The appellant can testify to what she has observed. However, while the appellant is competent to report her observations, the VA medical opinion is more probative since the issue at hand does not involve a simple medical assessment, but rather requires a complex medical assessment with regard to etiology. See Jandreau; see also Woehlaert. Thus, the Board finds that the VA examiner's opinion that the Veteran's death was unrelated to service is more probative than the appellant's assertions that his death resulted from heart disease and diabetes mellitus which were incurred in service, to include as due to lead-based paint exposure. Thus, the most competent evidence establishes that there is no nexus between service and post-service diagnose of heart disease and diabetes mellitus nor is there competent evidence that heart disease or diabetes mellitus was manifest within one year of the Veteran's separation from service. Thus, there is no etiological nexus between the Veteran's cause of death from heart disease and diabetes mellitus and service. It is also the appellant's contention that the Veteran's service-connected left lower extremity disabilities caused or contributed substantially or materially to cause the Veteran's death. The Board notes that this assessment is also medically complex in nature and the appellant is not qualified to make such an assessment. Moreover, there is no supporting evidence for that assertion in the record. Rather, the VA examiner opined that there was no relationship between the Veteran's death at 80 years old and service. As noted, the Veteran only had one compensable service- connected disability when he died. The overall combined rating was 20 percent. Prior to death, the Veteran was having considerable medical problems other than his service- connected disabilities and he unfortunately succumbed to those other disabilities which were not etiologically related to his service-connected left knee, left hip with fracture of the pelvis; fracture of the left tibia, with bone graft; scar of the left iliac crest, residuals of donor bone graft; impaired vision; and high frequency hearing loss disabilities. In considering this matter on appeal the Board is required to base its decisions on independent medical evidence rather than rely upon its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, as a medical professional has determined that the Veteran's death was unrelated to service, and that medical opinion is the most probative evidence of record, the Board cannot substitute its own medical judgment. Likewise, the Board attaches greater probative weight to the findings of skilled, unbiased professional than to the statements of the appellant and her representative. The appellant is sincere in her contentions, but they are not as probative as the VA examiner's opinion and not supported by the record. Thus, the Board concludes that the Veteran's service- connected disabilities were not the immediate or underlying cause of the Veteran's death, and were not etiologically related to the cause of death. Furthermore, the fatal disease processes were not manifest during service or within one year of separation. The Veteran's service-connected disabilities did not contribute substantially or materially to cause the Veteran's death and were not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease causing death. The appellant's assertions are unsupported by the most probative and competent evidence and do not serve as a basis to allow the claim. The Board concludes that the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs