Citation Nr: 1022084	
Decision Date: 06/14/10    Archive Date: 06/24/10

DOCKET NO.  06-00 206	)	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:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

J. Connolly, Counsel





INTRODUCTION

The Veteran served on active duty from May 1948 to February 
1973.  He died in December 2003 and the appellant is his 
widow.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a March 2005 rating decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in St. 
Petersburg, Florida, that denied service connection for the 
cause of the Veteran's death.  

When this case was originally before the Board in February 
2008, it was stayed pursuant to Ribaudo v. Nicholson, 21 Vet. 
App. 16 (2007) (per curiam order).  On May 8, 2008, the U.S. 
Court of Appeals for the Federal Circuit (Federal Circuit) 
issued its decision in Haas v. Peake, 525 F.3d 1168 (Fed. 
Cir. 2008), reversing the decision of the U.S. Court of 
Appeals for Veterans Claims in (Court) Haas v. Nicholson, 20 
Vet. App. 257 (2006).  The Federal Circuit's decision upheld 
VA's interpretation in 38 C.F.R. § 3.307(a)(6)(iii) providing 
that in order to benefit from the regulation's presumption, a 
service member's presence at some point on the landmass or in 
the inland waters of Vietnam was required.  Accordingly, the 
Ribaudo stay of Haas-related cases is no longer in effect and 
the Board resumed adjudication of the previously stayed 
cases.  In February 2009, the Board remanded this case.  

The appellant has claimed entitlement to death pension 
benefits based upon aid and attendance or housebound status.  
This matter is referred to the RO for appropriate action.  




FINDINGS OF FACT

1.  At the time of the Veteran's death, service connection 
was in effect for osteoarthritis  of the spine, rated as 20 
percent disabling; renal calculus, right, rated as 
noncompensable; bilateral hearing loss, rated as 
noncompensable; right leg varicose veins, rated as 
noncompensable; and pilonidal cyst, postoperative, rated as 
noncompensable.  

2.  The Certificate of Death reflects that the Veteran died 
in December 2003.  The immediate cause of death was 
emphysema, end stage, due to or a consequence of coronary 
artery disease (CAD), end stage, due to or a consequence of 
cor pulmonale, due to or a consequence of diabetes mellitus 
(DM).  There were no significant conditions contributing to 
death.

3.  The Veteran's service-connected varicose veins and 
arthritis aided or lent assistance to the production of 
death.


CONCLUSION OF LAW

Disabilities incurred in or aggravated by service contributed 
substantially or materially to the cause of death.  38 
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303. 3.304, 3.307, 
3.309, 3.312 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant change in the law with the 
enactment of the Veterans Claims Assistance Act of 2000 
(VCAA).  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.  The 
appellant's claim is being granted.  As such, any 
deficiencies with regard to VCAA are harmless and 
nonprejudicial.

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 valvular heart disease and DM, 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.

Further, VA regulation provides that, with chronic disease 
shown as such in service (or within an applicable presumptive 
period under section 3.307) so as to permit a finding of 
service connection, subsequent manifestations of the same 
chronic disease at any later date, however remote, are 
service connected, unless clearly attributable to 
intercurrent causes.  For the showing of chronic disease in 
service there is required a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  When the disease identity is 
established (leprosy, tuberculosis, multiple sclerosis, 
etc.), there is no requirement of an evidentiary showing of 
continuity.  Continuity of symptomatology is required only 
where the condition noted during service (or in the 
presumptive period) is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately 
questioned.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  38 C.F.R. 
§ 3.303(b).

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection, the evidence must 
show: (1) the existence of a present disability; (2) 
inservice incurrence or aggravation of a disease or injury; 
and (3) a causal relationship between the present disability 
and the disease or injury incurred or aggravated during the 
service."  Shedden v. Principi, 381 F. 3d 1163, 1166-67 
(Fed. Cir. 2004).  

There must be 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).

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 Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court 
found that provisions in former paragraph 7.68 (predecessor 
to paragraph 7.21) of VBA Manual 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 
4-00.

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).  

M21-1, Part VI, para. 7.21 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.  
Noted is that the latent period 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).  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.  

With regard to herbicide exposure, a chronic, tropical, or 
prisoner-of-war related disease, or a disease associated with 
exposure to certain herbicide agents, listed in 38 C.F.R. § 
3.309 will be considered to have been incurred in or 
aggravated by service under the circumstances outlined in 
this section even though there is no evidence of such disease 
during the period of service.  No condition other than the 
ones listed in 38 C.F.R. § 3.309(a) will be considered 
chronic.  38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 
3.307(a).

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 that service.  The last date on which such a veteran 
shall be presumed to have been exposed to an herbicide agent 
shall be the last date on which he or she served in the 
Republic of Vietnam during the period beginning on January 9, 
1962, and ending on May 7, 1975.

If a veteran, who served in the Republic of Vietnam was 
exposed to an herbicide agent during active military, naval, 
or air service, the following diseases shall be service- 
connected if the requirements of 38 U.S.C.A. § 1116, 38 
C.F.R. § 3.307(a)(6)(iii) are met, even though there is no 
record of such disease during service, provided further that 
the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 
38 C.F.R. § 3.307(d) are also satisfied: chloracne or other 
acneform diseases consistent with chloracne, Hodgkin's 
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and 
subacute peripheral neuropathy, porphyria cutanea tarda, 
prostate cancer, respiratory cancers (cancer of the lung, 
bronchus, larynx, or trachea), soft-tissue sarcomas (other 
than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or 
mesothelioma), type II diabetes, and chronic lymphocytic 
leukemia.  38 C.F.R. § 3.309(e).

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, except that chloracne or other acneform disease 
consistent with chloracne, porphyria cutanea tarda, and acute 
and subacute peripheral neuropathy shall have become manifest 
to a degree of 10 percent or more within a year after the 
last date on which the veteran was exposed to an herbicide 
agent during active military, naval, or air service.  38 
C.F.R. § 3.307(a)(6)(ii).

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.  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).

In addition, the Secretary has published a list of specific 
conditions for which a presumption of service connection 
based on exposure to herbicides used in Vietnam during the 
Vietnam era is not warranted.  These include hepatobiliary 
cancers, nasal/nasopharyngeal cancer, bone cancer, female 
reproductive cancers, breast cancer, renal cancer, testicular 
cancer, leukemia, abnormal sperm parameters and infertility, 
cognitive and neuropsychiatric disorders, motor/coordination 
dysfunction, chronic peripheral nervous system disorders, 
metabolic and digestive disorders, immune system disorders, 
circulatory disorders, respiratory disorders (other than 
certain respiratory cancers), skin cancer, gastrointestinal 
tumors, bladder cancer, brain tumors, and any other condition 
for which the Secretary has not specifically determined a 
presumption of service connection is warranted.  See Notice, 
64 Fed. Reg. 59232-59243 (1999).

At the time of the Veteran's death, service connection was in 
effect for osteoarthritis  of the spine, rated as 20 percent 
disabling; renal calculus, right, rated as noncompensable; 
bilateral hearing loss, rated as noncompensable; right leg 
varicose veins, rated as noncompensable; and pilonidal cyst, 
postoperative, rated as noncompensable.  

The Certificate of Death reflects that the Veteran died in 
December 2003.  The immediate cause of death was emphysema, 
end stage, due to or a consequence of CAD, end stage, due to 
or a consequence of cor pulmonale, due to or a consequence of 
DM.  There were no significant conditions contributing to 
death.  An autopsy was not performed.  

The appellant has three main contentions regarding the cause 
of the Veteran's death.  First, the appellant asserts that 
the Veteran's death was related to his claimed inservice 
exposure to Agent Orange.  She alleges that this exposure 
lead to the development of the disabilities which contributed 
to cause death.  Second, the appellant contends that the 
Veteran had inservice asbestos exposure in the Navy which 
resulted in his lung disorders and other disabilities which 
contributed to cause death.  Third, she contends that the 
Veteran's service-connected varicose veins played a role in 
his death.  

At the outset, the Board notes that the RO determined that 
the Veteran did not serve in-country in Vietnam.  As such, 
the Vietnam presumption for herbicide exposure is 
inapplicable.  With regard to asbestos, the Veteran served in 
the Navy and it is possible he was exposed to asbestos during 
that service.  In addition, he had emphysema and COPD which 
contributed to cause death and are lung disorders.  It is 
unclear if he had pleural effusions and/or fibrosis based on 
the available evidence of record.  In addition, the RO did 
not follow all of the procedures regarding the claim of 
asbestos exposure; however, that matter need not be resolved 
since service connection for the cause of the Veteran's death 
is being granted on the third basis, per below.  

The appellant contends that the Veteran's service-connected 
varicose veins played a role in his death.  Although the 
Veteran was not compensably service-connected for varicose 
veins when he died, the private medical records preceding 
death showed that he had significant problems with his 
vascular disease involving chronic edema (related to his 
varicose veins) as well as extensive deep venous thrombosis.  

In February 2005, a VA examiner provided an opinion that the 
Veteran's service-connected varicose veins did not cause his 
CAD and did not aggravate or increase the disability or 
manifestations of the CAD which caused his death.  The 
examiner indicated that atherosclerotic cardiovascular 
disability was a diffuse condition that involved the arterial 
circulation of the heart, brain, kidneys, and limbs, but was 
not a disease process related to varicose veins.  The 
examiner listed various risk factors for atherosclerotic 
cardiovascular disability, including cigarette smoking, male 
gender, hypertension, and hyperlipidemia, which were all 
positive factors in the Veteran's case.  

The Veteran's private physician, Melchor Carbonell, M.D. has 
provided alternate opinions.  In November 2004, he indicated 
that the Veteran had been treated in his office for COPD, 
hypertension, hyperlipidemia, aneurysm, varicose veins, deep 
vein thrombosis, and CAD.  He stated that the Veteran died 
due to CAD and its complications.  Thus, it was established 
by this physician that he had treated the Veteran for the 
myriad of his disabilities, including for his vascular 
disabilities.  In an April 2005 letter, Dr. Carbonell further 
provided that the Veteran had a history of COPD, CAD, 
degenerative joint disease, varicose veins, and 
nephrolilithiasis.  He stated that the Veteran's varicose 
veins had worsened (prior to death) and contributed to his 
sudden death.  In May 2009, he again indicated that the 
Veteran had been a patient for many years and reiterated his 
many disabilities, including varicose veins.  He noted that 
the Veteran had not been working for the last few years of 
his life due to his severe arthritis and his varicose veins 
as these disabilities limited his ability to walk and stand 
for extended periods.  He provided the opinion that these 
medical problems aggravated his deteriorating total health 
condition, rendering him unable to ambulate and exercise as 
well as  aggravated his pedal edema and fluid retention which 
lead to his CAD.  Thus, Dr. Carbonell indicated that the 
physical limitations caused by service-connected disabilities 
essentially aided or lent assistance to the production of 
death and contributed to the development of CAD.  This 
position is not inherently in conflict with the VA examiner's 
opinion as the VA examiner did not provide any opinion on the 
matter of whether the service-connected disabilities in 
question affected his physical well-being, which aided or 
lent assistance to the production of death and contributed to 
the development of CAD on that basis.

In sum, Dr. Carbonell indicated that the Veteran's service-
connected varicose veins and arthritis aided or lent 
assistance to the production of death.  He provided a causal 
connection between these disabilities, particularly varicose 
veins, and the Veteran's death.  

The Board must weigh the credibility and probative value of 
the medical opinions, and in so doing, the Board may favor 
one medical opinion over the other.  See Evans v. West, 12 
Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 
429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 
362, 368 (2001) (it is not error for the Board to favor the 
opinion of one competent medical expert over that of another 
when the Board gives an adequate statement of reasons and 
bases for doing so).  The Board must account for the evidence 
it finds persuasive or unpersuasive, and provide reasons for 
rejecting material evidence favorable to the claim.  See 
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  In 
determining the weight assigned to this evidence, the Board 
also looks at factors such as the health care provider's 
knowledge and skill in analyzing the medical data.  See 
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also 
Black v. Brown, 10 Vet. App. 279, 284 (1997).

In the recent case of Nieves-Rodriguez v. Peake, 22 Vet. App. 
295 (2008), the Court held that a claims file review, as it 
pertains to obtaining an overview of a veteran's medical 
history, is not a requirement for private medical opinions.  
A review of the claims file by a VA examiner, without more, 
does not automatically render the VA examiner's opinion 
competent or persuasive since the claims file is a tool to 
assist in familiarity for the physician with the claims file, 
and conversely a private medical opinion may not be 
discounted solely because the opining clinician did not 
review the claims file as  there are other means by which a 
physician can become aware of critical medical facts, such as 
a history of treating a veteran for an extended period of 
time and/or reviewing pertinent medical literature.  The 
relevant focus is not on whether the clinician had access to 
the claims file, but instead on whether the clinician was 
"informed of the relevant facts" in rendering a medical 
opinion.  

Thus, when VA refers to facts obtained from review of the 
claims file as a basis for crediting one expert opinion over 
another, it is incumbent upon VA to point out those facts and 
explain why they were necessary or important in forming the 
appropriate medical judgment.  Certainly, the particular 
medical information contained in a claims file may have 
significance to the process of formulating a medically valid 
and well-reasoned opinion.  In sum, in Nieves-Rodriguez, the 
Court indicated that it is the factually accurate, fully 
articulated, sound reasoning for the conclusion, not the mere 
fact that the claims file was reviewed, that contributes 
probative value to a medical opinion.  

The Board may not base a decision on its own unsubstantiated 
medical conclusions but, rather, may reach a medical 
conclusion only on the basis of independent medical evidence 
in the record.  Hensley v. Brown, 5 Vet. App. 155 (1993).  
Neither the Board nor the Veteran is competent to supplement 
the record with unsubstantiated medical conclusions.  Colvin 
v. Derwinski, 1 Vet. App. 171, 175 (1991).  Conversely, 
health professionals are experts and are presumed to know the 
requirements applicable to their practice and to have taken 
them into account in providing a diagnosis.  See Cohen.  

The Board finds that the medical evidence of record is in 
relative equipoise as to the matter of whether the Veteran's 
death is related to service.  As noted, there are 
contradictory opinions, but the Board finds that they are of 
equally probative value as they were provided by medical 
specialists and were based on accurate medical histories.  
Both the VA and private opinion are competent and both 
provided reasonable rationale.  As such, the evidence in this 
case is so evenly balanced so as to allow application of the 
benefit-of- the-doubt rule as required by law and VA 
regulations.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  
Accordingly, service connection for the cause of the 
Veteran's death is warranted.



ORDER

Service connection for the cause of the Veteran's death is 
granted.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs