Citation Nr: 1119425 Decision Date: 05/19/11 Archive Date: 05/27/11 DOCKET NO. 04-21 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Ann L. Kreske, Associate Counsel INTRODUCTION The Veteran served on active military duty from October 1967 to May 1969. He died on July [redacted], 1999. The appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter initially came before the Board in May 2006, at which time it was remanded for further evidentiary development. In May 2007, the Board requested a medical opinion from the Veterans Health Administration (VHA). The opinion was received in June 2007. In August 2007, pursuant to the appellant's request, the case was remanded to the RO for consideration of the VHA opinion prior to appellate review. In January 2009, the Board denied the issue currently on appeal. The appellant appealed the January 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2010 Court Order, the Court remanded the matter for compliance with the instructions in an April 2010 Joint Motion for Remand (Joint Remand). Specifically, the April 2010 Joint Remand indicated that the Board failed to provide adequate reasons and bases for its decision by failing to discuss all the medical opinions of record and to adequately discuss the various medical opinions' findings, including a discussion of its rationale for assigning greater probative weight to the June 2007 VHA opinion. The Joint Remand also indicated that, should the Board determine that another medical opinion to be necessary to adequately answer the question of causation based on the "more likely than not" standard, then it should remand the case for a medical opinion from an appropriate VA practitioner. To comply with the Court Order, the Board requested in December 2010 another opinion from VHA based on the "more likely than not" standard. Following receipt thereof, the VHA opinion was forwarded to the appellant's representative for review. Additional arguments were provided by the representative in February 2011. The case has returned to the Board and is again ready for appellate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and was, therefore, presumed to have been exposed to Agent Orange or other herbicides. 2. The Veteran died on July [redacted], 1999. The death certificate lists the cause of death as kidney cancer. 3. At the time of his death, the Veteran had no service-connected disabilities. 4. There is an approximate balance of favorable and unfavorable evidence insofar as whether the Veteran's cause of death by kidney cancer is due to presumed Agent Orange or other herbicide exposure during his Vietnam service. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for kidney cancer as the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1113, 1116, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the appellant dated in June 2001, March 2003, and May 2006. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by (1) informing the appellant about the information and evidence not of record that was necessary to substantiate her claim for service connection for cause of death, (2) informing the appellant about the information and evidence the VA would seek to provide, and (3) informing the appellant about the information and evidence she was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Thus, the Board finds that the RO has provided all notice required by the VCAA as to the three elements of notice. 38 U.S.C.A. § 5103(a). See Pelegrini II, Quartuccio, supra. Furthermore, the May 2006 VCAA letter from the RO further advised the appellant that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, she has received all required notice in this case, such that there is no error in content. However, the Board acknowledges the RO did not provide VCAA notice that an effective date for the award of benefits will be assigned if service connection for the cause of the Veteran's death is awarded until after the rating decision on appeal; thus, there is a timing error as to the additional VCAA notice. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Pelegrini II, the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, Dingess notice was provided in May 2006, after issuance of the initial unfavorable AOJ decision in April 2003. However, both the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) and the Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, with a subsequent readjudication of the claim, so that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, after initially providing VCAA notice in June 2001 and March 2003, followed by subsequent VCAA notice and notice required pursuant Dingess in May 2006, the RO readjudicated the claim in SSOCs dated in November 2006 and September 2007. Thus, the timing defect in the notice has been rectified. In any event, the appellant has never alleged how any timing error prevented her from meaningfully participating in the adjudication of her claim. As such, the appellant has not established prejudicial error in the timing of VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). With regard to content of VCAA notice for claims for Dependency and Indemnity Compensation (DIC) benefits, Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), requires that such a notice letter include 1) a statement of the conditions for which a Veteran was service-connected at the time of his 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. The appellant was not provided with this notice. However, the Veteran was not service-connected for any disabilities in his lifetime and the appellant does not contend that he was, as she bases her claim on exposure to Agent Orange that happened in service which caused his death. The Board observes that the nature of the appellant's claim reflects her actual knowledge that the Veteran was not service-connected for any disabilities. In any event, because the Board is granting the appellant's cause of death claim, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of Hupp, supra, because any noncompliance is inconsequential, and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), service personnel records (SPRs), private medical records as identified and authorized by the appellant, and death certificate. The appellant and her representative also had submitted various lay statements and private medical opinions regarding the link between the Veteran's cause of death and his exposure to Agent Orange during service. Further, the RO has obtained a VA medical nexus opinion regarding the Veteran's cause of death and his exposure to Agent Orange. The Board also has obtained VA examinations or VHA opinions with respect to the Veteran's cause of death. In this regard, in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require the Secretary to assist the claimant in obtaining a medical opinion or examination for a DIC claim, but it requires VA to assist a claimant in obtaining such an examination or opinion whenever it is necessary to substantiate the DIC claim. Thus, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Finally, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its May 2006 and August 2007 remands. Specifically, the May 2006 Board remand instructed the RO to issue a corrective notice in compliance with Dingess, supra, and to obtain any missing medical records from Vanderbilt Hospital in Nashville, Tennessee, from 1999. The August 2007 Board remand instructed the RO to readjudicate the appellant's claim with consideration of a June 2007 VHA medical opinion and any other additional evidence added to the record. The Board finds that the RO has complied with these instructions by providing notice pursuant to Dingess, supra, in May 2006, and by obtaining the treatment records from Vanderbilt Hospital. The RO also readjudicated the claim in an SSOC dated in September 2007. Stegall v. West, 11 Vet. App. 268 (1998). The Board also is satisfied as to compliance with its December 2010 VHA opinion request. Specifically, in December 2010, the Board again referred this matter for a medical expert opinion with regard to the question of whether the Veteran's cause of death, kidney cancer, was due to exposure to Agent Orange during service. In January 2011, a VHA expert opinion was provided; however, the VA examiner indicated that he could not provide competent medical evidence with regard to the question without resorting to speculation. Thus, the Board finds the January 2011 VHA opinion report complies with the instructions in its December 2010 VHA expert opinion request to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). Analysis DIC benefits may be awarded to a surviving spouse upon the service-connected death of the Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a); see 38 U.S.C.A. Chapter 11. Generally, a Veteran's death is service-connected if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). VA considers the Veteran's death as due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). A principal (primary) cause of death is one that singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, hastened it, or aided or lent assistance to death. 38 C.F.R. § 3.312(c). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In such case, the physician must relate the current condition to the period of service. Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus), Hodgkin's disease, chronic lymphocytic leukemia, 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 certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence that it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the appellant contends that the Veteran's death is attributable to his military service, including his presumed exposure to Agent Orange or other herbicide while in Vietnam. The Veteran died in July 1999. The death certificate lists the primary cause of his death as kidney cancer, with no contributory causes listed. The Veteran was not service-connected for any disability at the time of his death. Therefore, in order to establish service connection for the cause of the Veteran's death here, the evidence of record must demonstrate that the cause of his death listed may be service-connected based on the presumption afforded for certain specific diseases associated with exposure to herbicides, specifically Agent Orange, or that it was actually incurred in or aggravated by his military service. In this case, SPRs confirm that the Veteran served in the Republic of Vietnam during the Vietnam Era. Therefore, the Veteran is presumed to have been exposed to an herbicide agent during service, to include Agent Orange. The key question here is whether the Veteran's kidney cancer was caused by, or the result of, his presumed exposure to Agent Orange during service. See appellant's statements dated in July 2001, February 2004, July 2007, and January 2009; and appellant's letters to Congressmen dated in November 2003. With regard to presumptive service connection based on herbicide exposure, the Veteran's SPRs show that he had service in Vietnam, such that exposure to herbicides to include Agent Orange is presumed. 38 C.F.R. §§ 3.307(a)(6), 3.313(a). However, the cause of the Veteran's death due to kidney cancer is not on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Thus, the automatic presumption of service connection afforded for certain specific diseases associated with exposure to herbicides, specifically Agent Orange, is not for application for his cause of death. In fact, VA also has specifically determined that renal cancer is not associated with exposure to herbicide agent for purposes of the presumption. See 72 Fed. Reg. 32,395 (June 12, 2007) (emphasis added). That is, taking account of the available evidence and National Academy of Science's analysis, the Secretary has found that the credible evidence against an association between herbicide exposure and kidney cancer outweighs the credible evidence for such an association, such that he has determined that a positive association does not exist. This determination was based on thorough and substantive medical research, and provides very strong evidence against presumptive service connection for the Veteran's cause of death due to kidney cancer. Thus, the Board turns to service connection on a direct basis. In this respect, if the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, as is the case here, an appellant may establish service connection for the disease by (1) showing that the disease actually occurred in service, or (2) by submitting medical evidence of a nexus between the disease and exposure to herbicides during military service. Combee, 34 F.3d at 1043-1044. In fact, the Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999). A review of the Veteran's STRs is negative for diagnosis or treatment of kidney cancer, the cause of his death. The STRs also do not indicate the existence of any problems with the Veteran's kidney. His separation examination in May 1969 also was unremarkable for any such problems. Post-service, the first evidence of kidney cancer is in February 1999, prior to the Veteran's death and decades after his military service. Therefore, service connection for the cause of the Veteran's death may not be established based on chronicity in service or continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97. Therefore, for purposes of direct service connection, the central issue in this case is whether there is sufficient medical nexus evidence between the Veteran's death due to kidney cancer and his presumed Agent Orange exposure during his Vietnam service. 38 C.F.R. §§ 3.1(k), 3.303, 3.312; Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). In this respect, there are conflicting medical opinions and evidence in the claims folder as to this central issue. In this regard, the medical evidence of record on this determinative issue includes several favorable medical opinions and one unfavorable VHA medical opinion. As to the positive opinions, the Veteran's treating physician before his death, F. Miranda, M.D., provided a statement in May 1999, indicating that the Veteran was a Vietnam Veteran who was exposed to Agent Orange and that the Agent Orange was most likely the cause of the Veteran's aggressive cancer at such a young age. In a March 2000 statement, F. Miranda, M.D., indicated that, although the Veteran's carcinoma was not included in the list of presumptive diseases in accordance with 38 C.F.R. § 3.309(e), "it is more likely than not that [the Veteran's] carcinoma was associated with Agent Orange." The physician further indicated that it is likely that more Veterans will develop other types of malignancies that are not currently included in 38 C.F.R. § 3.309(e), with the implication that the Veteran's kidney cancer would be one of these diseases. In an April 2001 statement, this physician again indicated that the Veteran's exposure to Agent Orange during service most likely caused his kidney cancer. Additionally, in a May 2001 statement, he also opined that, if Agent Orange was not the initiating cause of the Veteran's aggressive cancer, it most likely played a very important component in the development of the malignancy. A medical opinion obtained from a VA physician in November 2001 also indicated that while "[t]he medical information linking renal cancer to Agent Orange is not strong,...it is as least likely as not that the Veteran's renal cancer was due to exposure to Agent Orange...," with the rationale being that there was no evidence to show that there was no relationship between renal cancer and Agent Orange. See VA opinion dated in November 2001 and VA Form 119 dated in December 2001. Another positive opinion, from C. Bash, M.D., dated in May 2005, indicated that a meta-analysis done of studies concerning Agent Orange and renal cancer revealed 35 studies with a relative risk greater than or equal to 1, and only 9 studies with a relative risk less than 1. As such, C. Bash, M.D., indicated that a relative risk greater than 1 satisfied the legal requirement of "as likely as not". Thus, he opined that the Veteran's kidney cancer more likely than not was caused by his exposure to Agent Orange in service for several reasons, including that the Veteran entered service fit for duty; that he was exposed to Agent Orange; that he developed kidney cancer at a young age and died from the cancer in July 1999; that the literature supports an association between exposure to Agent Orange and kidney cancer; and that the Veteran's record contains no other plausible cause for his cancer. C. Bash, M.D., also emphasized that his opinion was consistent and in agreement with the medical opinions of F. Miranda, M.D., and the November 2001 VA physician. Here, the Board finds these favorable medical opinions to be of great probative value. Specifically, the opinions from F. Miranda, M.D., are thorough and based on the physician's treatment of the Veteran's cancer and his familiarity with the Veteran's medical history, in conjunction his knowledge of Agent Orange as a cause of various cancers. The private opinion from C. Bash, M.D., also opined that it is more likely than not that the Veteran's kidney cancer, from which he died, was caused by his in-service Agent Orange exposure. In providing this opinion, C. Bash, M.D., not only reviewed the Veteran's medical history, but also cited medical treatise evidence, other favorable evidence in the claims folder, and probability theories. In contrast, as to the negative evidence, in a June 2007 VHA opinion, a VA physician indicated that the Veteran's prior medical history included a family history of breast cancer in his mother and cancer of unknown type in his grandmother. In addition, he indicated that the Veteran was a former smoker. He then opined that literature on Agent-Orange association with renal cell cancer projects a relative risk ratio that is not suggestive of causation. Furthermore, most studies are based on industrial exposure to dioxin at much larger doses and are not controlled for additional etiological factors, such as smoking. The review of literature also fails to yield any support for Agent Orange exposure as a cause for renal cell cancer. The VA physician continued by opining that the onset of kidney cancer in the Veteran was not likely to have been present within one year of discharge. In summary, the weight of medical evidence in this case does not support a service-related cause for the etiology of the renal cell cancer, which was the cause of the Veteran's death. In addition, in another VHA opinion, dated in January 2011, another VA physician stated that he did not consider himself an expert in epidemiology of malignant disease; thus, he could not adequately opine about the standards to be employed in the determination of whether herbicide exposure in the late 1960s led to the principal cause of renal cell cancer 30 years later in the Veteran. The VA physician further indicated that he also did not consider the medical opinions from the Veteran's private oncologist, F. Miranda, M.D., and C. Bash, M.D., a private neuroradiologist, to be expert. He concluded that he could not provide any competent medical evidence to speak for or against the appellant's allegations that the Veteran's death due to kidney cancer was due to exposure to Agent Orange without resorting to speculation. In this case, the Board finds the June 2007 and January 2011 VA examiners' negative and inconclusive medical opinions to be of limited probative as those examiners failed to address the favorable evidence of record. The June 2007 VA examiner, in particular, failed to even mention any of the favorable opinions of record. Furthermore, both the June 2007 and January 2011 VA examiners failed to apply the "least as likely as not" standard. Therefore, for the above-cited reasons, they are entitled to limited probative value. In adjudicating this claim, the Board has also considered the doctrine of reasonable doubt. As the Court has written: A unique standard of proof applies in decisions on claims for Veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a Veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the U.S. Supreme Court, the Court in Gilbert noted that the standard of proof is to instruct the fact-finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See, too, 38 C.F.R. § 3.102. The Court noted that, under this standard, when the evidence supports the claim or is in relative equipoise (about evenly balanced for and against), the appellant prevails. Where the "fair preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in an approximate balance." Id. at 58. The Court has further held that, where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet. App. 270, 273 (1993). Here, there is an approximate balance of the positive and negative evidence. In particular, the medical opinions from F. Miranda, M.D., and C. Bash, M.D., are probative. These opinions were given after a thorough review of the Veteran's medical records and provide adequate reasons and bases for their respective conclusions. In such situations, the benefit of the doubt is resolved in the appellant's favor. Accordingly, service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The appellant's cause of death claim is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs