Citation Nr: 1202477 Decision Date: 01/23/12 Archive Date: 02/07/12 DOCKET NO. 03-28 896A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to August 1971. He died in June 1984. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2004, the appellant testified at a personal hearing before a Decision Review Officer (DRO). In her October 2003 substantive appeal, the appellant requested a hearing before a member of the Board. In January 2004, she withdrew that request. She had previously testified before the Board in a May 2002 video conference hearing. Transcripts of the January 2004 DRO hearing and the May 2002 Board hearing are of record. Historically, in November 2006, the Board issued a decision addressing this matter. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2008, the Court granted a joint motion for remand (Joint Motion) of the appellant and the Secretary of Veterans' Affairs (the Parties), vacated the Board decision, and remanded the matter to the Board for compliance with the instructions in the Joint Motion. The Board again adjudicated the appeal in a September 2008 decision. The appellant appealed that decision to the Court and in November 2009, the Veterans Court granted another Joint Motion of the Parties, again vacating and remanding the matter to the Board for compliance with the instructions in the Joint Motion. Pursuant to the November 2009 Joint Motion, the Board requested a Veterans Health Administration (VHA) medical expert opinion concerning the claim pursuant to 38 C.F.R. § 20.903 in November 2010. The letter was received that same month and the Veteran has been provided a copy of the letter. Additionally, in December 2010, the Board remanded this matter to the RO to obtain additional evidence as identified by the VHA medical expert. That action completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board believes that this case is ready for final adjudication. FINDINGS OF FACT 1. The Veteran died in June 1984; a Certificate of Death lists the cause of death as respiratory arrest due to increased intracranial pressure due to grade III Astrocytoma left cerebral hemisphere. 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. The disease that caused the Veteran's death was not caused or aggravated by exposure to herbicide agents during active service. 4. The disease that caused the Veteran's death did not have its onset during his active service, did not manifest within one year of separation from active service, and is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1310, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board acknowledges that the basis for the Court's March 2008 Order remanding this matter, stated in the March 2008 Joint Motion, is for the Board to ensure compliance with its duty to assist and with its previous remand orders. March 2008 Joint Motion at 8. While this is somewhat unclear, the March 2008 Joint Motion stated several points that inform the meaning of that statement: The Parties agreed that the Board did not provide "sufficient" reasons for why the Board found the opinions that were favorable to the appellant's claim, those of "H.A.D.", M.D. and "R.A.F.", M.D., to have less probative weight than a July 2003 opinion rendered by a VA physician. Id. at 6. In this regard, the Board must note the highly subjective nature of the word "sufficient" used in the prior Joint Motion, clearly indicating that the Board did address the issue, but did not address the issue "sufficiently" within the context of prior decisions that underwent meticulous analysis of the appellant's claim. When the Board addresses multiple pieces of evidence, as in this case, to suggest that a review of one piece of evidence (within the context of multiple pieces of evidence) was "insufficient", notwithstanding the review of the case as a whole, can leave the mistaken impression that the parties are actively looking for a raison d'ętre to return the case to the Board notwithstanding any action undertaken by VA. In any event, the March 2008 Joint Motion stated that the Board decision relied on an August 2004 VA medical opinion after having remanded the matter in November 2005 to obtain another opinion. Id at 5. Finally, the March 2008 Joint Motion stated that the Board's express directives in the November 2005 remand were not carried out. Id at 7. Although it is unclear as to why this is so, it appears that the problem is that the Board did not "sufficiently" explain its analysis of the medical opinion evidence of record. Id. Indeed, the basis of the March 2008 Joint Motion is not clear. Regardless, the matter was again adjudicated by the Board in September 2008. Following another appeal to the Court, the November 2009 Joint Motion, granted by the Court, reflected the Parties agreement that a remand was warranted so that the Board could comply with the terms of the earlier March 2008 Joint Motion. Pursuant to the November 2009 Joint Remand, the Board requested a VHA expert medical opinion and subsequently remanded the issue to obtain evidence identified by the VHA medical expert. In this regard, the Board finds that no additional development is necessary. A more detailed discussion is included in the Duties to Notify and Assist section of this decision. In short, sufficient evidence is of record for the Board to make a decision in the matter. The Board reviews the evidence de novo and will endeavor to provide detailed reasons and bases for its decision in this document. By these detailed reasons and bases, the Board will ensure that there has been compliance with the March 2008 and November 2009 Joint Motions. Dependency and indemnity compensation may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 his or her death, or substantially or materially contributed to it. A service-connected disorder is one that was incurred in or was aggravated by active service. Death is deemed to have been caused by a service- connected disability when the evidence establishes that a service- connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service- connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service- connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Certain chronic diseases, including malignant tumors, may be presumed to have incurred in service, although not otherwise established as such, if manifested to a degree of 10 percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1) (West Supp. 2011); 38 C.F.R. § 3.307(a)(3) (2011); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). VA regulations also provide that if a veteran 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 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); 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 (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2011). 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. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27,630 -27,641 (May 20,2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov.2 1999). A veteran, who during active military, naval, or air 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 the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). Presumptions under 38 U.S.C.A. § 1112 and § 1116 are rebuttable. Where there is affirmative evidence to the contrary, or evidence to establish that an intercurrent disease or injury which is a recognized cause of any of the diseases or disabilities within the purview of § 1112 or §1116, has been suffered between the date of separation from service and the onset of any of such diseases, service connection pursuant to § 1112 or § 1116 will not be in order. 38 U.S.C.A. § 1113(a). This case involves weighing competing medical opinions. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As to the Board's determinations regarding credibility, the Federal Circuit has stated "This is not to say that the Board may not discount lay evidence when such discounting is appropriate. Rather, the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006). Specific to evaluating medical opinion evidence, in Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Important for this case, and as stated by the Court itself, the credibility of medical opinion evidence is within the province of the Board. So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). At this juncture, the Board acknowledges that it is precluded from finding that the August 2004 and April 2006 VA examinations are sufficient for rating purposes. In fact, the November 2009 Joint Motion expressly prohibited the Board from relying on these medical opinions in this current decision. See November 2009 Joint Motion at 4. The Board, however, must take exception to the November 2009 Joint Motion. Specifically, the Parties failed to address the adequacy of the July 2003 VA examination as the Board also relied on this evidence as unfavorable to the appellant's claim in its September 2008 vacated decision. Indeed, both the July 2003 and April 2006 examinations were conducted by the same pathologist, Dr. "C.A." Each time, Dr. C.A. provided medical opinions unfavorable to the appellant's claim. Parenthetically, the Board remanded this matter in November 2005 to obtain a VA medical opinion as it found that the July 2003 VA medical opinion was inadequate as the examiner failed to provide a medical nexus opinion. The Joint Motion is unclear as to this issue of whether the findings of the July 2003 examination used in the September 2008 vacated Board decision are sufficient for VA compensation purposes. However, to avoid further litigation of this issue, the Board will proceed in its analysis of the appellant's claim without a discussion of the July 2003 examination report, as well as the August 2004 and April 2006 medical opinions. Notwithstanding, the Board wishes to make one point: the fact that one part of a medical opinion may be inadequate (or arguably "insufficient") does not make the entire opinion "void", particularly dealing with complex medical causation issues, with multiple parts to the causation question, if that part of the medical opinion has actual validity (based on a review of the evidence). While these VA medical opinions (from July 2003, August 2004, and April 2006) were unfavorable to the appellant's claim and other, private medical opinions appear, at first inspection, to support her claim for service connection, the Board ultimately concludes that the evidence weighs against service connection for the cause of the Veteran's death. The Board now proceeds to an analysis of the evidence of record with the exception of the July 2003, August 2004 and April 2006 VA examination reports as instructed by the November 2009 Joint Motion. There is a long line of cases that establish that speculative medical opinions are of little probative value. See Bloom v.West, 12 Vet. App. 185 (1999); Stegman v. Derwinski, 3 Vet. App. 228 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In this decision, the Board finds that the medical opinion evidence from Dr. "C.N.B.," Dr. "R.T.F.," and Dr. "H.A.D." is of little to no probative value because this evidence is speculative, explanations for the conclusions are poorly reasoned, and the evidence is not credible. The Board finds that the June 1984 pathology report signed by "E.DM.," M.D. is of high probative value because it is the only item of evidence contained in the record providing direct medical diagnostic evidence of the disease that caused the Veteran's death. Additionally, the Board finds that the statements provided by VHA expert medical oncologist, Dr. "R.K." to be most probative as the very nature of his statements is not speculative, in contrast to the opinions of Dr. C.N.B., Dr. R.T.F., and Dr. H.A.D. The history of the medical opinions supporting the appellant's claim evolves habitually, with inconsistent medical theories. As will be explained below, the medical opinion evidence offered to support the appellant's claim: (1) began with opinions that the Veteran's brain tumor was properly diagnosed as a Grade III astrocytoma that may have been related to exposure to herbicides during service; (2) progressed to an opinion that the astrocytoma is a first cousin to soft tissue sarcoma and, thus, should presumed under VA regulation to have been due to exposure to herbicides; (3) to an opinion that the Veteran's tumor was not astrocytoma at all, but actually rhabdomyosarcoma (a soft tissue sarcoma subject to presumptive service connection), and then finally; (4) back to an opinion that the tumor was not a soft tissue sarcoma but should be considered as a result of herbicide exposure because some other types of tumors are considered to be the result of herbicide exposure. The Veteran died in June 1984. Of record, is a certificate of death listing the immediate cause of the Veteran's death as respiratory arrest due to or as a consequence of increased intracranial pressure, due to, or as a consequence of Grade III astrocytoma of the left cerebral hemisphere. During the Veteran's lifetime, service-connection had not been established for any disability. The appellant contends that the condition leading to the Veteran's death was caused by exposure to the herbicide agent "Agent Orange" (AO) during his active service. Service medical records are absent for any mention of cancer of symptoms of a tumor. The first evidence of a malignant tumor comes in the terminal treatment notes from June 1984, many years after service. This is evidence against a finding that the Veteran's malignant tumor had its onset during service or manifested within one year of separation from active service, as claim not made by the appellant. A June 1984 operation record indicates that Dr. R.T.F. was the attending physician and signed the Certificate of Death as the certifying physician. Dr. R.T.F. also signed a hospital summary. That summary provided that the Veteran was admitted after experiencing headaches for several weeks. The Veteran underwent a craniotomy which revealed a malignant tumor of the brain. He, very unfortunately, died one day later. Dr. H.A.D. was the surgeon who signed the report of the operation that removed the Veteran's brain tumor. Dr. E.D.M. signed a pathology report of analysis and diagnosis of the biopsied tissue. The operation report states that the symptoms experienced by the Veteran prior to the operation indicated a high grade quickly growing glioma of the cerebrum. Dr. E.D.M. reported that microscopic analysis of three biopsied specimens, each labeled "brain tumor", showed that the lesion was classified as an astrocytoma Grade III, also known as an anaplastic astrocytoma. He also reported that some of the tissue suggested a diagnosis of glioblastoma multiforme, but that the overall characteristics of the tumor were not usual for a frank glioblastoma. Dr. E.D.M. stated that some authors consider astrocytoma of Grade III and IV within the category of glioblastoma. The final diagnosis was Astrocytoma Grade III. The Board notes that the pathology report is the only diagnostic evidence of record deriving directly from the Veteran's tumor. Dr. E.D.M.'s medical opinion is the only opinion of record which was based on a microscopic analysis of the tissue removed from the Veteran, well before any claim was filed in this case. Simply stated, all other opinions come as secondary interpretations of that report. In a letter dated in July 1984, Dr. H.A.D. stated that he become aware of the Veteran's service in Vietnam. Dr. H.A.D. also reported that the Veteran had a hyperactive child. This physician expressed curiosity as to the Veteran's brain tumor and, what he termed an obvious central nervous system disorder of the Veteran's child, as evidenced by the child's hyperactivity. Dr. H.A.D. stated that "[m]any have over the past several years linked the chemical in response to nervous system disease in offspring as well as primary malignant tumors such as one encountered in [the Veteran's] case." This physician stated his opinion that the Veteran's case should be considered along with other cases in review as to the Agent Orange issue as to etiology. Dr. H.A.D.'s July 1984 letter is an opinion that research into etiological relationships between nervous system disorders, including brain cancer, should take into account the Veteran's case, particularly given the disease of his child. The Board finds that this is not a statement of causation, but merely one of speculation as to possible links between the Veteran's brain cancer and his child's hyperactivity, which Dr. H.A.D. characterized as a congenital central nervous system disorder. It is important for the Board (and the Court) to clearly and reasonably assess the logic of Dr. H.A.D. "medical" opinion: Dr. H.A.D.'s rational was, at that time, that: (1) the veteran had brain cancer; (2) his child is hyperactive; therefore (3) since both have to do with the central nervous system, it follows that exposure to Agent Orange could have caused the Veteran's brain cancer. The basis for this logic is found to be very doubtful. The Board finds that this poor reasoning greatly reduces the weight assigned to this opinion. Of note is that in the July 1984 letter, Dr. H.A.D. did not (at that time) deviate from the finding that the Veteran's tumor was a malignant astrocytoma, nor make any mention of a soft tissue sarcoma. Indeed, he referred to the tumor as an astrocytoma. The RO denied the appellant's claim for VA benefits for service connection for the cause of the Veteran's death in September 1984, August 1995, and September 1999. The September 1984 rating decision, an October 1984 Statement of the Case, and the August 1995 rating decision did not mention the term "soft tissue sarcoma." The first mention of that term found in the claims file is in the September 1999 rating decision that new and material evidence had not been submitted to reopen the appellant's claim. Following the September 1999 rating decision that first mentioned soft tissue sarcoma is a September 2000 letter in which Dr. H.A.D. stated that the astrocytoma Grade III is a first cousin to a soft tissue sarcoma "and is diagnosed as a soft tissue sarcoma by some." Dr. H.A.D. stated "it is probable that [the Veteran's] exposure to herbicides/Dioxin in Vietnam was the cause of this central nervous system primary tumor." On a factual foundation, the Board finds that based on review of the record as a whole, the timing of Dr. H.A.D.'s letter, taken with content of his previous letter, is evidence that he embellished the diagnosis to satisfy what was needed by the appellant to secure VA benefits. Hence, the September 2000 letter does not contain a sincere medical opinion based in medical science. Rather than simply an "astrocytoma", a diagnosis that did not meet the presumptive criteria for service connection, Dr. H.A.D. attempted to fit the Veteran's cancer into a category for which presumptive service connection applies. He provided vague support for this recharacterization with a statement that "some" would diagnosis an astrocytoma as a soft tissue sarcoma. Dr. H.A.D. finally states that it is probable that the Veteran's exposure caused his tumor, but his statement is based on the Veteran having died from the equivalent of a soft tissue sarcoma. Had the evidence showed that the Veteran died from a soft tissue sarcoma, VA would likely have already granted service connection and the instant Board decision would be unnecessary. Indeed, the regulations do not provide for presumptive service connection for "first cousins" to soft tissue sarcoma. The situation in this case is clear. Dr. H.A.D. made no mention of astrocytoma being related to soft tissue sarcoma in his 1984 letter. Thus, as is a pattern with most of the medical opinion evidence favorable to the appellant's claim in this case, Dr. H.A.D. merely changed his opinion and qualified the diagnosis to fit what he believed would provide for a grant of VA benefits for the appellant. This impacts negatively on the credibility of the September 2000 opinion. As to Dr. H.A.D.'s statement that it is probable that the Veteran's exposure to herbicides caused his cancer, this opinion is unsupported other than by Dr. H.A.D.'s recharacterization of the Veteran's astrocytoma. As such, it is only a conclusory statement without credible foundation and hence, is of only the slightest probative value. Indeed, the Parties themselves stated (in finding the August 2004 and April 2006 medical opinions insufficient for VA rating purposes) that "[s]uch conclusory opinions do not allow for the Board to weigh the contrary opinions against each other." See November 2009 Joint Motion at 2-3; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this September 2000 letter, Dr. H.A.D. has done little more than argue that VA should extend presumptive service connection to other cancers that are something like the diseases for which the presumption applies. As such, this is a medical opinion in form only and significantly reduces the probative weight that the Board assigns to Dr. H.A.D.'s letter. Other evidence, submitted more recently in support of the appellant's claim, does further damage to this "medical" opinion. In a letter dated in May 2003, Dr. R.T.F. stated that an American Journal of Pathology article from February 2000 reported research findings that Grade III astrocytoma was "of an evolution of the sarcomatous component due to aberrant mesenchymal differentiation in a highly malignant astocytic neoplasm." Dr. R.T.F. stated that this article establishes that the Veteran's tumor was a soft tissue sarcoma and therefore subject to the presumptive service connection provisions of VA regulations. At this juncture, in light of the actions of the Court in this case, the long history of this case, and in the desire to avoid further ligation on this matter, the Board believes it must make its position clear on this point: The Board finds that the medical opinions favorable to the appellant's claim amount to, overall, half-truths, embellishments, obfuscations, untruths, and deceptive misapplication of cited sources to support the opinions boarder-lining on the very thin edge of fraud. While unable to rely on the medical opinions provided in July 2003, August 2004, and April 2006, as instructed by the Parties of the November 2009 Joint Motion, it is undeniable that the evidence in favor of the Veteran's claim is more than lacking in probity. The Board makes such a factual finding in this case. Dr. R.T.F. submitted another letter to VA dated in January 2004. That letter, in its entirety is as follows: Primary Atrocytomas [sic] usually occur in older people and contain epidermal growth factor. Secondary Astrocytomas are usually seen in younger people and are more malignant. They have been found to have certain mutations of the genes caused by "something"; hence it is considered a secondary Astrocytoma. The more the mutations caused by "something" the more malignant and aggressive the malignant astrocytoma becomes. Rarely the mutations are so extensive that sarcomatous changes develop. It follows that the Astrocytoma Grade III (Malignant Tumor) was caused by genetic mutations induced by "something" such as Agent Orange, and it is in the same family of malignancies as the gliosarcoma. (Most pathologists haven't heard of this). In this letter, Dr. R.T.F. shifts to a new theory (apparently having abandoned his previous theories since those were not successful). Dr. R.T.F.'s rationale in the May 2003 letter is flawed, making two poorly reasoned leaps to arrive at his conclusion: First, by his own language, that this rarely occurring mutation leading to sarcamatous changes occurred in the Veteran's case. Second, that since "something" causes these mutations, that "something" is likely exposure to Agent Orange. The flawed reasoning is nearly self-apparent. Finally, he points to no evidence that the Veteran had a genetic mutation, apparently just arriving at that important basis for his opinion because it was necessary to support his already flawed reasoning. There is no mention of genetic mutations in the pathology report. Dr. R.T.F.'s poor and contrived reasoning reduces the probative weight to be assigned to his May 2003 opinion. Finally, his statement that most pathologists are not privy to this apparently esoteric knowledge further lessens the weight of his opinion because he seeks to apply knowledge that, by this very admission, is not part of standard practice. In March 2004, Dr. H.A.D. submitted another letter in support of the appellant's claim. The first two paragraphs are silent as to the nature of the Veteran's tumor. The third paragraph, the last sentence of the fourth paragraph, and a final standalone sentence comprise Dr. H.A.D.'s opinion. In their entirety, these are as follows: It is my medical opinion that the pleomorphism and the abundant eosinophilic cytoplasm makes the diagnosis that of rhabdomyosarcoma (a soft tissue sarcoma) (Youmans, Pathology of Gliomas Including Tumors of Neuronal Origin Vol. I, page 614). The attached Pathology Report describes marked differentiation in large cells and small cells consistent with [the Veteran's] rhabdomyosarcoma. It is almost a certainty that [the Veteran's] exposure to herbicide/Dioxin in Vietnam was the cause of this tumor. It is further almost a certainty that [the Veteran] developed this soft tissue sarcoma during his military career and it slowly progressed. Dr. H.A.D., a surgeon, not a pathologist or an oncologist, fails to explain why he did not diagnose rhabdomyosarcoma in 1984, but instead, according to his letter, allowed a supposed misdiagnosis to stand and be recorded on the Certificate of Death. Dr. H.A.D. also fails to explain why the pathologist, from whose report Dr. H.A.D. now draws language in support of his most recent diagnosis, did not provide the diagnosis that Dr. H.A.D. now proposes. Again, stripped of the medical jargon that seeks to imply an air of scientific validity in the third paragraph of his letter, the letter amounts to no more than a statement that the Veteran had soft tissue sarcoma and was misdiagnosed in 1984. Most importantly, Dr. H.A.D. makes this assertion without the benefit of viewing tissue from which the 1984 pathology report was derived. Furthermore, Dr. H.A.D. selectively pulls words from the pathology report but fails to explain the other findings in the report. He makes no mention of the vast majority of Dr. E.D.M.'s explanation. The selective extraction of words from the report without further explanation is a deceptive exercise in making the data fit a diagnosis rendered 20 years after the fact rather than fitting the diagnosis to the data. Stripped of the obfuscating language, this is all that Dr. H.A.D.'s letter accomplishes. As such, the Board finds that the letter is of limited probative value. This collection of medical opinions from Dr. H.A.D. and Dr. R.T.F., when taken together is a study in proffering one theory after another, hoping that one results in a successful claim for the appellant. The theories started with opinions that the astrocytoma was correctly diagnosed, but was the result of exposure to Agent Orange. Once the appellant's claim was denied on the theory above, they created another. The physicians stated that what the Veteran's astrocytoma was very close to a soft tissue sarcoma. This was interspersed with a theory that the Veteran's tumor had been present since service but had simply laid dormant. When this new theory did not result in a grant of service connection, the theory was again changed. At that point it was asserted that the Veteran's astrocytoma was variously an unnamed soft tissue sarcoma, a cancer resulting from genetic mutations caused by exposure to Agent Orange, and finally, a rhabdomyosarcoma, a named soft tissue sarcoma. Depending on the theory, Dr. R.T.F. and/or Dr. H.A.D. either find that his tumor was: (1) dormant and slowly maturing or (2) that it was aggressive. More recently, in September 2008, the appellant submitted a document entitled INDEPENDENT MEDICAL EVALUATION, dated in August 2008 and signed by Dr. C.N.B. Dr. C.N.B. provided a list of his credentials, including that he was double board certified sub specialist, a senior member of the American Society of Neuro-Radiology, an attending level school of medicine associate professor, and had a masters degree in business administration. He also detailed his work experience and assured the Board that he was a competent actively licensed physician and had performed several hundred VA Independent Medical Examinations. Dr. C.N.B. stated that his opinion was to a high degree of medical certainty and included in parenthesis that this was "much more likely than not." He stated that he reviewed the Veteran's claims file that had been provided to him by the Veteran's attorney. Dr. C.N.B. also stated that his opinion was not "based solely on patient history, but rather I noted pivotal several entries in the medical record and service records because in order to make my opinion, I have carefully reviewed the following information : Service Medical Records, Post service Medical records; Imaging reports, Other medical opinions; Medical literature review." In discussing Dr. C.N.B.'s medical opinion, the Board has also discussed language and findings contained in three texts - Veterans and Agent Orange Updates, from 1996, 2004, and 2006, authored by the Institute of Medicine of the National Academies. The Board commits no "Thurber violation" by this discussion. In Thurber v. Brown, 5 Vet. App. 119 (1993), the Court held that, in rendering a decision on a claim, the Board could not rely on evidence obtained or developed subsequent to the most recent statement of the case or supplemental statement of the case without first providing the claimant with reasonable notice of such evidence and the Board's intended reliance on the evidence. In this case, the appellant introduced the texts into evidence via Dr. C.N.B.'s reference of sources relied on: "Veterans and Agent Orange Updates IOM". Hence, the appellant, not the Board, obtained the evidence and, since the appellant introduced that evidence, the appellant has notice of that evidence. The Board merely discusses that evidence. Dr. C.N.B. first defined astrocytoma as a generic term for a brain tumor and that the "High grade (4) form" was known as Glioblastoma multiforme (GBM)". Apparently, Dr. C.N.B. has upgraded the Veteran's tumor from Grade III to Grade IV without viewing the tissue sample. Thus, Dr. C.N.B. begins his opinion by making an assumption contrary to the record. However, this infraction pales in comparison to what follows. Indeed, the Board rejects this unexplained change in diagnosis and finds that this redefinition without support impacts negatively on Dr. C.N.B.'s opinion. This is characteristic of Dr. C.N.B.'s entire opinion which, at its best, is speculation embellished by scientific language. Dr. C.N.B. opined that the Veteran's cancer was caused by his exposure to Agent Orange during military service. He offered eight reasons for his opinion. The first three reasons are far from compelling. Those reasons are (1) the Veteran entered the service fit for duty; (2) he was exposed to Agent Orange; (3) he developed GBM. As to reasons (1) through (3), these are a study in poor reasoning. Using Dr. C.N.B.'s logic all veterans who are diagnosed with a disease post-service should be awarded service-connection. This faulty reasoning is untenable. Reasons (4) and (5) must be discussed together as the reasons refer to the same data for support. In Reason (4), Dr. C.N.B. asserts that the results of a meta-analysis pertaining to Agent Orange and brain tumors showed "that many studies have a Relative Risk (RR) greater than or equal to one (1) which stratifies the VA's criteria for an as likely as not level of causation." He then referred to a particular study of 447 patients that had a relative risk (RR) of 1.2 and a 2005 study by Lee of 25 patients with an RR of 3.3. Dr. C.N.B. stated that these studies meet the VA's criteria at the "likely as not" level of causation. He reported that the studies with RR's of greater than 1 "support the concept that agent orange more likely than not causes brain tumors according to the IOM epidemiologic literature review below:" The only attachment to Dr. C.N.B.'s opinion is a copy of "Table 6-38" titled "Selected Epidemiologic Studies - Brain Tumors." Reason (5) is in its entirety as follows: "The large study, above, of 447 patients with a RR of 1.2 is very supportive data of a causative link between OA and brain tumor/GBM and IOM states on page 302 '...there are data to suggest an association between exposure to chemicals so interest and brain tumors...'" In his list of references, Dr. C.N.B. listed the "Veteran's and Agent Orange updates IOM". Table 6-38 is contained in Institute of Medicine of the National Academies, Veterans and Agent Orange Update 2006 (2007) (hereinafter IOM AO Update 2006). Dr. C.N.B. did not include any other information associated in that text. Dr. C.N.B. does not refer to the methods of the studies he relies on; rather, he refers to a statistic and then states that the studies support the concept that Agent Orange more likely than not causes brain cancer. However, this statement as to strength of the association is contradicted by other language in his opinion and, most importantly, from the very source from which he extracted Table 6-38, the data that forms the foundation for his opinion. Dr. C.N.B.'s quote "there are data to suggest an association between exposure to chemicals of interest and brain tumors" expresses nothing of the sort of an as likely as not standard, but only an association. Much more damaging to Dr. C.N.B.'s opinion is the remaining language connected to his quote, in addition to the fact that he fails to identify from where he obtained that quote, other than the page number, but rather implies that the quote was extracted from the IOM AO 2006 update (containing Table 6-38) and refers directly to the study of 447 patients; neither of which is true. Page 302 of the IOM AO Update 2006 update does not contain that language but rather contains a page of Table 6-7 dealing with colorectal cancer. Dr. C.N.B.'s quoted language in Reason (5) comes not from the IOM AO Update 2006, nor is the language applied to table 6-38 in the original or to the study involving 447 patients that he cites. Rather, he pulls out of context language from another update, and instead of at least quoting the entire sentence from where he extracted the language, he inserts ellipses around his quote. When one views the language in its entirety, it is clear why Dr. C.N.B. has made these misrepresentations. The language replaced in ellipses contradicts his statements as to "a medical certainty." The quoted language is found on page 302 of Institute of Medicine of the National Academies, Veterans and Agent Orange Update 2004 (2005) (hereinafter the IOM AO Update 2004). On page 302 of IOM AO Update 2004, under a heading of "Conclusions" and subheading of "Increased Risk of Disease Among Vietnam Veterans" is, in full, as follows: Although there are data to suggest an association between exposure to the chemicals of interest and brain tumors and other nervous system tumors, the lack of exposure information on Vietnam veterans precludes quantification of any possible increase in their risk. Simply stated, by positioning selectively chosen words from the 2004 update next to a reference to the study of 447 patients, Dr. C.N.B. attempts to supports his opinion by proposing that this study of 447 patients, the most subjects of any study listed on Table 6-38, is highly probative of a link between Agent Orange and brain cancer. The language he has quoted, in its true context, does nothing of the sort. Rather, the entire sentence containing the quoted language provides evidence that any association between brain cancer and Agent Orange is tenuous at best and certainly not "as likely as not." The Board finds that the doctor is providing false evidence to support his opinion. The language he quoted does not refer to the study of 447 pages. Dr. C.N.B. has merely lifted language out of context and placed it next to a reference to a study to which the language did not refer, hoping that the Board (and possibly the Court) would not review the opinion too closely. This deceptive manipulation of evidence further reduces the weight assigned to Dr. C.N.B.'s opinion as it shows that his opinion is largely based in deception. Table 6-38, attached to Dr. C.N.B.'s opinion, is found on pages 426 through 430 of IOM AO Update 2006. Table 6-38 lists both the 2005 study by Lee and the study involving 447 patients. What Dr. C.N.B. has done is selected from Table 6-38 the study with the largest number of samples and the study with the highest RR. The text also contains analysis and commentary from the IOM. Dr. C.N.B. has conveniently excluded that commentary with his opinion. That commentary and analysis is found following Table 6-38 in the IOM AO Update 2006, on page 431, under a heading of "Vietnam- Veteran Studies". The text under this heading, in its entirety, is as follows: In the mortality update of the CDC VES through 2000, Boehmer et al. (2004) reported nine deaths from cancers of the meninges, brain, or other parts of the CNS (ICD-9 191-192) in the deployed and seven in the non-deployed (CRR = 1.19, 95% CI 0.44- 3.20). Pavuk et al. (2005) reported on the risk of cancer in the comparison group of the Ranch Hand cohort study. Only one case of brain or other CNS cancer was reported; the sparseness of the data preclude risk estimation. The Australian Vietnam Veterans Mortality and Cancer Incidence Studies (ADVA, 2005a,b) reported the risk of brain cancer in a cohort of 59,179 servicemen. The estimated risks of brain cancer (97 cases; SIR = 1.07, 95% CI 0.85-1.28) and brain-cancer mortality (99 cases; SMR = 0.95, 95% CI 0.76-1.13) were not significantly associated with service in Vietnam. The possibility that the comparisons with the general population might be influenced by a healthy-warrior effect was investigated in a separate study that compared the rates of brain and CNS cancer in deployed and non-deployed Vietnam veterans (ADVA, 2005c). Brain-cancer incidence (RR = 1.36, 95% CI 0.73-2.56) and mortality (RR = 1.64, 95% CI 0.89-3.09) were not significantly associated with deployment to Vietnam. On page 433 of the IOM AO Update 2006, under a heading titled Conclusion is, in total: On the basis of detailed evaluation of the epidemiologic evidence from new and previously reported studies of populations with potential exposure to the compounds of interest, the committee concludes that the categorization in prior updates (limited or suggestive evidence of no association) should be revised to inadequate or insufficient to determine whether there is an association between exposure to the compounds of interest and brain cancer and other nervous system cancers. Simply stated, the Board finds that Dr. C.N.B. supports his opinion with a reference to a report that clearly contradicts his opinion. Even more egregious is that Dr. C.N.B. leaves out the commentary that is available with regard to the study of 447 patients to which he refers. When one looks at the IOM analysis of that study, it again is clear why Dr. C.N.B. omits the relevant statements. The only study in Table 6-38, pointed to by Dr. C.N.B., that lists 447 subjects and an RR of 1.2 is Blair et al... 1993 of US farmers in 23 states. As stated in Table 6-38, this study was reviewed in Update 1996. Institute of Medicine, Veterans and Agent Orange: Update 1996 (IOM AO Update 1996) includes on page 229 under a heading of "Update on the Scientific Literature", the following complete text with regard to that study: Since VAO, a number of new studies on brain cancer have been published. A PCMR study was performed for farmers of 23 states, using occupational information from death certificates (Blair et al., 1993). No information on individual exposures to herbicides was available. Based on 447 deaths due to brain cancer in white male farmers, the PCMR was marginally increased at 1.2 (CI 1.1-1.3). Based on much smaller numbers of brain cancer deaths, the rates were not elevated in other race or gender groups. The study that Dr. C.N.B. has cited as the principle support for his opinion involves persons whose individual exposure to herbicides is unknown. They were simply farmers who died of brain cancer. Contrary to Dr. C.N.B.'s disingenuously quoted assertion that "this is very supportive of data of a causative link between OA and brain tumor/GBM", the study of farmers whose exposure to the herbicides is unknown is not supportive of a link between Agent Orange exposure and the cancer suffered by the Veteran. Dr. C.N.B. also referred to the study by Lee with an RR of 3.3, listed in Table 6-38. Dr. C.N.B. again leaves out the commentary by the authors of his supporting text, the IOM, which is found on page 431 following table 6-38 in the IOM AO Update 2006. After explaining how the responses were obtained that formed the study, the IOM authors stated "[t]he pronounced and systematic discrepancy (see Table 6-38) between the results on subject-reported exposure (reduced ORs) and proxy-reported exposure (significantly increased ORs), however, underscores concern about recall bias and casts doubt on any interpretations." Hence, Dr. C.N.B.'s "to a medical certainty" finding is contradicted by the text in which he found his supporting table. This is evidence against assigning more than minimal probative weight to Dr. C.N.B.'s opinion. Reasons (4) and (5), embellished with numbers and quotations to lend validity and an appearance of authority to Dr. C.N.B.'s opinion, depend on mischaracterization of his source document. This is itself evidence that Dr. C.N.B.'s opinion is nearly valueless. Dr. C.N.B.'s Reason (6) is that the Veteran "does not have other risk factors for the development of GBM other than exposure to AO in service." Reason (6) hinges on the speculation offered by Dr. C.B. in his earlier reasons. As just explained, Dr. C.N.B.'s rationale for why AO is a risk factor is no more than sheer speculation supported by misrepresentations. As speculative medical opinion evidence cannot support a grant of service connection (as discussed above and as asserted by the Parties themselves), it therefore logically follows that reasons which rely on that speculation cannot support a grant of service connection. In short, Reason (6) amounts to a merely speculative statement that the Veteran has no risk factors for his brain cancer. For Reason (7) Dr. C.N.B. states that he noted that there were several articles in the claims file discussing sarcomas and agent orange and that "[i]t is well known that AO has a biological plausible mechanism for causing neoplasms and that AO induces several types f tumor cells lines (sarcomas and GBMs) is consistent with current medical knowledge." Dr. C.N.B.'s Reason (7) is more of the same flawed tactics. He disingenuously inserts assumptions that are without any stated support. He states that the articles in the claims file that discuss Agent Orange and sarcomas. This the Board does not dispute. He then states "it is well known that AO has a biologically plausible mechanism for causing neoplasms and therefore the fact that AO induces several types of tumor cell lines (sarcomas and GBMs) is consistent with current medical knowledge..." Dr. C.N.B. has inserted "GBMs" in his parenthetical, however, Dr. C.N.B. has pointed to nothing to justify his inclusion of GBM's in the parenthetical. To find that there is a relationship between a sarcoma, specifically soft tissue sarcomas, one need look no further than VA regulations. Dr. C.N.B.'s Reason (7) adds nothing to that fact. Additionally damaging to the value of Reason (7) is the bulk of the articles to which Dr. C.N.B. refers to as associated with the claims file as supportive of a connection between the Veteran's brain cancer and Agent Orange is supportive rather of a finding that there is no connection. The Board has reviewed those articles and finds that, as to specifics regarding astrocytoma, the material does not provide evidence favorable to the appellant's claim, and overall, provides evidence against this claim. While the treatise evidence does provide evidence that some cancers are associated with exposure to Agent Orange, the treatise evidence is lacking as to the specific type of cancer from which the veteran died, to be not probative of the disputed fact - whether the Veteran's astrocytoma Grade III was related to exposure to Agent Orange. Reason (7), stripped of obfuscations, amounts to a statement that Agent Orange is accepted as causing come malignant tumors; therefore, it follows that Agent Orange causes all malignant tumors. This is simply another example of faulty reasoning. This logic is untenable as it amounts to an argument to place malignant tumors, regardless as to the type of cancer or its origin, on the list of diseases for which the presumption of service connection for exposure to herbicides applies. Finally, Dr. C.N.B. lists Reason (8) as his agreement with the opinions of Dr. R.A.F. and Dr. H.A.D. However, this is also disingenuous as is revealed by his next paragraph. In that paragraph he states that he noted that several physicians in 2003/2004 opined about sarcomas and the Veteran's symptoms during service. He reports that these opinions are not useful because the issue, as he defines it, is the broad concept of whether the Veteran's tumor was caused by Agent Orange. Dr. C.N.B. states "I am in agreement with Dr. [E.D.M.] that this patient's GBM is likely not a form of sarcoma for the purposes of presumptive service connection. Here, Dr. C.N.B. undercuts the medical opinions of the physicians to which he asserts agreements. Reason (8) is simply incredible as it amounts to a statement that the rationale supporting a finding that the Veteran's brain tumor was caused by exposure to Agent Orange does not matter; all that matters is the conclusion. In other words, even contradictory reasons used to support causation do not impact negatively on the ultimate conclusion that Agent Orange caused the Veteran's brain tumor as long as everyone agrees that it did. Dr. C.N.B.'s opinion, at best, is highly speculative and of almost no probative value. His misstatement of data, selective quotations, deception, use of statements and data out of context, and reference to sources that, upon inspection, contradict his conclusion, are evidence that there is no reliable scientific or medical basis for a nexus between the herbicide agent found in Agent Orange and the cancer that caused the Veteran's death. If there was such supporting evidence, there would be no reason to resort to the tactics employed by Dr. C.N.B. Thus, if anything, Dr. C.N.B.'s letter is evidence against the appellant's claim. Based on a review of his statements, the Board finds that the opinion of this doctor has no probative weight and the bases for his views are in serious question. As mentioned above, pursuant to the November 2009 Joint Motion and faced with an inundation of conflicting medical evidence, the Board sought a VHA expert medical opinion in November 2010. In its request, the Board charged an expert in oncology to determine whether the cause of the Veteran's death was due to his military service. The oncologist, Dr. "R.K.," responded in a letter, dated later that month, as follows: I am unable to render an opinion on the case of Veteran [Veteran's name], for the reasons outlined below. The case hinges on whether the patient had a grade 3 astrocytoma (as the original pathology report in 1984 indicated) or a rhabdomyosarcoma (which Dr. Danielson apparently has called it). Rhabdomyosarcoma qualifies as an "Agent Orange"- associated condition, whereas astrocytoma does not. The only way I can tell whether the diagnosis is astrocytoma or rhabdomyosarcoma is to look at the glass microscope slides myself. The glass microscope slides are from Biloxi Regional Medical Center, and they should be labeled S84-791. Based on the oncologist's response, the Board completed VA's duty to assist and remanded the matter to obtain the slides specified by the VHA oncologist and to present those slides to an oncologist for viewing. Subsequently, a response from the Biloxi Regional Medical Center from March 2011 revealed that the slides were no longer available as pathology materials such as the slides are disposed after a period of ten years as a matter of policy. As such, as explained in more detail in the Duties to Notify and Assist section below, any further attempt to obtain these records would be futile. Here, the Board finds that statements from Dr. R.K, an expert in oncology, only serve to bolster the determination that the medical opinions from Dr. R.A.F., Dr. H.A.D., and Dr. C.N.B. are no more than speculative. Indeed, even an expert in oncology could not render an opinion as to the Veteran's cause of death as the only method of diagnosing the Veteran's brain tumor, according to Dr. R.K., is to physically examine the glass microscopic slides containing samples of the Veteran's tumor. This is now impossible, for any medical professional, as the slides have long been destroyed. In short, the only medical professional who based his findings and opinion on a direct, physical, and contemporaneous analysis of the tissue removed from the Veteran is Dr. E.D.M., who signed the pathology report of analysis and diagnosis of the biopsied tissue. Indeed, that pathology report, which ultimately identified the Veteran's tumor as Astrocytoma Grade III, is the only diagnostic evidence of record which was directly drawn from the Veteran's tumor. As such, the Board assigns this evidence the greatest probative value. In summary, the Board finds the June 1984 pathology report of Dr. E.D.M. and the November 2010 letter from Dr. R.K. indicating his inability to render an opinion based on the available evidence of record, are more probative of the type of cancer which caused the Veteran's death and of a relationship, or lack thereof, of that cancer to exposure to herbicides during service or any other connection to service, than are the letters from Dr. R.A.F., Dr. H.A.D., Dr. C.N.B. As to the treatise and article evidence associated with the claims file, this evidence is not favorable to the appellant's claim because it provides no information linking the type of cancer suffered by the Veteran (Astrocytoma Grade III) to his exposure to herbicides or otherwise to his service. Specifically, in a March 2011 submission of a news article, the appellant highlights one instance where service connection for the cause of a veteran's death was granted where it was established that the veteran died of glioblastoma multiform and was exposed to AO in service. Indeed, this article is irrelevant to the appellant's claim as the Veteran's tumor, discussed at length above, is an Astrocytoma Grade III. In fact, neither glioblastoma multiform nor Astrocytoma Grade III is included in the list of diseases warranting presumptive service connection. However, more importantly, it is critical for the appellant to understand that each claim must be reviewed in its entirety while weighing the favorable evidence against the unfavorable evidence. As addressed in detail in this decision, full consideration has been given to all the evidence of record pertaining to the appellant's claim for service connection for the cause of the Veteran's death. Notwithstanding the above, the tragic death of the Veteran cannot be forgotten in this case. Nevertheless, it is the final decision of the Board of Veterans Appeals that the preponderance of the evidence is, and has been, against a finding that the Veteran's tumor otherwise had onset during service, within one year of separation from service, or was directly caused by his service. The service medical records, the long period of time from separation from service to onset of symptoms of the Veteran's cancer, the June 1984 pathology report, and Dr. R.K.'s letter, outweigh the medical opinion evidence favorable to the appellant's claim on this issue. The Board requests the Veterans Court (and the attorney representing VA in this case before the Court) to appraise the true merits of the medical opinions supplied by the appellant in this case, not simply any one medical opinion, but their opinions as a totality over the long history of this case. As to the appellant's own opinion in this matter, she has not demonstrated the requisite medical expertise to offer competent opinion evidence on so complex a matter and a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Because the preponderance of the evidence is against a finding that the Veteran died from a disease caused by or related to his service, the appellant's claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The appellant was not provided with information concerning the evaluations or the effective dates that could be assigned should service connection be granted. See Dingess, supra. However, since this decision affirms the RO's denials of service connection, the appellant is not prejudiced by the failure to provide her that further information. That is, as the Board finds that service connection is not warranted for the claim for service connection at issue on this appeal, no ratings or effective dates will be assigned and any questions as to such assignments are rendered moot. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The Board reopened the appellant's claim in a November 2005 decision, six years ago. As the purpose of the specialized notice required by Kent has been achieved, no prejudice can result to the appellant from the lack of notice as to the requirements necessary to reopen a previously denied claim. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. Because service connection had not been established for any disability during the Veteran's lifetime, the notice required in this case does not include notice regarding disabilities for which service connection had been established during the Veteran's lifetime. That the Veteran's death was caused by a malignant tumor of the brain is not a fact in dispute. Hence, the notice required amounts to notice as to what evidence is required to establish service connection for the disease that caused the Veteran's death and a statement of VA's and the appellant's respective duties in obtaining that evidence. The Board observes that the Federal Circuit had previously held that any error in VCAA notice should be presumed prejudicial and VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). The Supreme Court, however, reversed the Federal Circuit's decision in Sanders, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2) which provides that, in conducting review of decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court essentially held in Sanders that - except in cases where VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - (1) the burden of proving harmful error must rest with the party raising the issue; (2) the Federal Circuit's presumption of prejudicial error in Sanders imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process; and (3) determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The appellant has not contended that any prejudicial notice error occurred in this case. Here, the remaining VCAA duty to notify was satisfied by way of a letter sent to the appellant in May 2003 that fully addressed all three notice elements and was sent prior to the initial RO decision in this matter in July 2003. The letter informed the appellant of what evidence was required to substantiate service connection for the cause of the Veteran's disease that caused his death and of the appellant's and VA's respective duties for obtaining evidence. Indeed, the appellant is represented by counsel for many years. She has repeatedly appealed this matter to the Court and has argued to the RO, the Board, and the Court the very point upon which this case turns -whether the Veteran's fatal disease was caused by his service. The appellant has cited to regulations that govern this matter. She has demonstrated more knowledge as to the requirements to substantiate her claim and what evidence was lacking in this case than she would have been informed of in a completely content complying notice letter sent to her upon receipt of her current claim. Accordingly, in light of the Supreme Court's recent decision in Sanders and the appellant's actual knowledge, the Board finds that any failure to satisfy the duty to notify is not prejudicial. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Associated with the claims file are medical opinion letters from "R.T.F.," M.D., "H.A.D.", M.D., and "C.N.B.", M.D. Also associated with the claims file are terminal treatment records, including a pathology report signed by "E.D.M.," M.D. VA medical opinions were obtained in July 2003, August 2004, and April 2006. In November 2010, the Board obtained a VHA expert medical opinion as to the matter on appeal and received a response from Dr. R.K, a medical expert in oncology. Subsequently, the Board remanded the matter to obtain glass microscopic slides of the Veteran's tumor as identified by Dr. R.K. A response from the Biloxi Regional Medical Center from March 2011 revealed that the slides were no longer available as pathology materials such as the slides are disposed after a period of ten years. As such, any further attempt to obtain these records would be futile. See 38 C.F.R. § 3.159(c)(2); see also Sabonis v. Brown, 6 Vet. App. 426, (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Hence, the medical evidence of record is sufficient for the Board to render a decision in this case. See 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). It is important to note that the Board has reviewed the JMRs in detail. If the parties of the JMR disputed the Board's finding on some other issue that they have not addressed, the prior JMRs would have been the moment to make this point clear, rather than at a later date (after this decision). Decisions from the Court have repeatedly cautioned the parties of JMRs that they should not provide one basis to vacate and remand a decision from the Board, and then (once the actions requested have been undertaken, as in this case) find another reason to vacate and remand a decision from the Board based on the same facts that were before them when the case was first before the Court (as in this case). See Massie v. Shinseki, No. 09-3397 (U.S. Vet. App. Dec. 19, 2011) (in which the Court stated that it is troubled that the current system "provides very little incentive for an attorney practicing before VA to present all available arguments to the agency in one comprehensive appeal to the Board where veterans' claims can be resolved in a timely matter"). Such practices only creates continual litigation that goes on for years, as in this case. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs