Citation Nr: 1230791 Decision Date: 09/07/12 Archive Date: 09/10/12 DOCKET NO. 07-37 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicides and/or microwave (non-ionizing) or ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force (USAF) from March 1968 to March 1972, with service in the Republic of Vietnam (Vietnam). His military occupational specialty (MOS) was that of radar repairman. The Veteran died in August 2005; the Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The Appellant submitted a notice of disagreement with this determination in May 2007, and timely perfected her appeal in October 2007. In February 2008, the Appellant participated in an informal conference with a Decision Review Officer, the details of which are included in the associated Informal Conference Report. In March 2011, the Appellant testified before the undersigned Veterans Law Judge, sitting in Cleveland, Ohio. A transcript of that proceeding has been prepared and incorporated into the evidence of record. This claim came before the Board in April 2011, at which time it was determined that additional evidentiary development was necessary prior to the adjudication of the claim. Such development having been accomplished, the claim has been returned to the Board for adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). See 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in August 2005 at the age of 56, due to metastatic cholangiocarcinoma; other significant conditions contributing to his death but not resulting in the underlying cause were sigmoid colon cancer and left common femoral vein thrombosis. 2. The probative and credible evidence of record demonstrates that the Veteran served in Vietnam during his period of active duty between March 1968 and March 1972. 3. The probative medical evidence of record indicates that the Veteran was diagnosed with metastatic cholangiocarcinoma in January 2005 and with left common femoral vein thrombosis and sigmoid colon cancer in August 2005. 4. The competent and objective medical evidence of record demonstrates that no metastatic cholangiocarcinoma, sigmoid colon cancer or left common femoral vein thrombosis manifested during the Veteran's period of active military service or within one year after his separation from active service. 6. At the time of his death, the Veteran was not service-connected for any disorder. 7. The probative and competent evidence of record preponderates against a finding that the Veteran's death was related to his active military service, including through exposure to Agent Orange or other herbicide agents and exposure to microwave or ionizing radiation. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The cause of the Veteran's death was not related to an injury or disease incurred in or aggravated by active military service, nor may the cause of his death be presumed to be service-connected, including exposure to herbicides and microwave and ionizing radiation. 38 U.S.C.A. §§ 1101, 1102, 1110, 1112, 1113, 1310, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist With respect to the Appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. The Court held that 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 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). VA provided the Appellant with notice of its duties to notify and assist her with respect to her DIC claim in December 2005; however, at that time Hupp had not yet been decided. In April 2011, the Appellant was provided with appropriate Hupp-compliant notice. Although this letter was not sent prior to initial adjudication of the Appellant's claim, this was not prejudicial to her, since she was subsequently provided adequate notice in April 2011, she was provided ample time to respond with additional argument and evidence, the claim was readjudicated and an additional supplemental statement of the case was provided to her in June 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2011) (harmless error). In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate her claim, as well as the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, personnel records, and relevant private medical records are in the file. There is no indication that there is any outstanding relevant evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Appellant was provided with two VA medical opinions as to whether the Veteran's cause of death could be directly attributed to service. Further opinion is not needed on the claim because, at a minimum, there is no persuasive and competent evidence that the Veteran's cause of death may be associated with his military service, as is discussed in more detail below. Additionally, the Board finds there has been substantial compliance with its April 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the Appeals Management Center (AMC): (1) issued the Appellant a notice letter consistent with the holding in Hupp detailed above; (2) requested the Appellant provide the names and addresses for any records pertaining to the Veteran's hospitalization and treatment for his fatal cancer; (3) requested the complete record of all of the Veteran's VA medical treatment; and (4) obtained a VA medical opinion as to the cause of the Veteran's death. The AMC later issued a supplemental statement of the case in June 2012. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Appellant is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Appellant has had a meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Board has reviewed all the evidence in the claims file, which includes the Appellant's written contentions and oral testimony, the Veteran's service treatment and personnel records, and private medical records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Appellant seeks service connection for the cause of the Veteran's death. Specifically, she contends that while the immediate cause of the Veteran's death was metastatic cholangiocarcinoma, he was also diagnosed with simultaneous cancers of differing origins, including lung cancer, which was the result of his exposure to herbicides while serving in Vietnam. Alternatively, the Appellant contends that the Veteran's death was caused by his in-service exposure to radiation. The Board notes that the Veteran was not service connected for any disability at the time of his death. While he had initiated a claim of entitlement to service connection for liver cancer, to include as secondary to herbicide exposure, immediately prior to his death, this claim was denied by the RO on an accrued benefits basis and the Appellant did not appeal this determination. See Rating Decision, October 18, 2006. As such, the Board will focus its analysis on the claim of entitlement to service connection for the cause of the Veteran's death. Factual Background In January 2005, the Veteran was diagnosed with obstructive jaundice. Upon further evaluation, he was found to have a very large liver mass in the left lobe, which extended slightly over into the right lobe and appeared to involve the porta hepatis. Later in January 2005, he underwent a biliary percutaneous transhepatic cholangiogram (PTC) to drain his bile. Following the procedure, the impression included moderate right intrahepatic biliary dilation, leading to central right hepatic ductal encasement and placement of a 10 French internal-external biliary drainage catheter with added side holes between the right hepatic ductal distribution and duodenum. See Private Treatment Record, O.S.U.M.C., January 21, 2005. Thereafter, the Veteran was placed on antibiotics and prepared for an operative exploration in order to determine resectability of his liver mass. On February 3, 2005, the Veteran underwent an exploratory laparotomy with intraoperative ultrasound and liver biopsy. Following electrocautery, the left lobe of the liver was noted to be markedly atrophied. The mass was clearly visible anteriorly and extended up almost to the substernal area. There were also some sporadic lesions in the right lobe of the liver. An intraoperative ultrasound was then performed, which determined the Veteran's unresectability. A small biopsy was then taken from the anterior portion of the lesion. See Private Treatment Record, O.S.U.M.C., February 3, 2005. The following day, pathology results from the Veteran's liver biopsy revealed an adenocarcinoma morphologically compatible with cholangiocarcinoma. See Private Treatment Record, O.S.U.M.C., February 4, 2005. In March 2005, the Veteran was seen at his private clinic appointment for follow up of his biliary drain. Upon his arrival, he was more jaundiced and was found to have an elevated bilirubin level. He was admitted for PTC to evaluate and possibly replace his biliary tube. On admission, he was afebrile with stable vital signs. Of note on his physical examination was a palpable liver edge below the costal margin and a nontender and nondistended abdomen. He was jaundiced with sclera icterus. In interventional radiology, his drain was replaced with a larger drain and his bilirubin levels were monitored over the next several days and did decrease. The goal for the Veteran was to get his bilirubin down to less than two so that he could become a candidate for hepatic artery embolization to manage his Klatskin's tumor. He was discharged several days later with his drain to a straight drain bag. See Private Treatment Record, O.S.U.M.C., March 3, 2005 to March 6, 2005. On March 11, 2005, the Veteran underwent non-neuro embolization, an angiography on an additional selective vessel, and a selective visceral arteriogram. Following the procedure, the impression was: (1) hypovascular left hepatic lobar mass abutting the interlobar fissure and supplied by the left hepatic artery, a small middle hepatic artery and isolated right hepatic arterial branches; (2) replaced left hepatic artery to the left gastric artery; (3) patent portal venous system; and (4) embolization of the left hepatic artery and selective right hepatic arterial branches. See Private Treatment Record, O.S.U.M.C., March 11, 2005. In April 2005, a chest computed tomography (CT) scan revealed a large metastatic right juxtapericardial lymph node, one subcentimeter pulmonary nodule suspicious for metastatic disease, pericardial thickening or effusion, and extensive hepatic metastases and lymphadenopathy in the upper abdomen. See Private Treatment Record, O.S.U.M.C., April 4, 2005. A corresponding CT scan of the abdomen revealed pericardial effusion and a stable mass anterior to the pericardium, a large stable tumor in the left lobe of the liver, as well as multiple small masses throughout the right lobe of the liver without significant interval change, percutaneous biliary catheter in place and air fluid level seen in the gallbladder, fairly stable enlarged lymph nodes in the celiac axis and periaortic area, slightly dilated loops of small bowel without interval change and minimal atelectasis in the right lung base posteromedially. See Private Treatment Record, O.S.U.M.C., April 4, 2007. The Veteran also underwent an entire body positron emission tomography (PET) scan. The PET scan revealed prominent hypermetabolic focus within the sigmoid colon concerning for primary neoplastic change and multiple hypermetabolic liver lesions with the dominant lesion present in the left hepatic lobe consistent with metastatic disease. See Private Treatment Record, O.S.U.M.C., April 7, 2005. In August 2005, the Veteran was admitted to the O.S.U.M.C. He was found to have a biliary obstruction, with elevated liver function tests and an elevated white blood cell count. Hypotension and tachycardia occurred while in the radiology suite while the Veteran was undergoing a procedure to clear obstruction of his biliary drain. Several days after his admission, the Veteran's internal/external biliary catheter was changed without evidence of acute complications. Corresponding CT scans of the chest, abdomen and pelvis were also performed. Contrasted with the April 2005 CT scan reports, the August 12, 2005 CT scan reports revealed: (1) left common femoral vein thrombosis, which was new since the April 2005 study; (2) marked interval progression of metastatic disease within the right lobe of the liver, with redemonstration of metastatic disease replacing the left lobe of the liver in its entirety, with multiple foci of air compatible with necrosis and possible superinfection; (3) stable juxtapericardial mass, which likely represented metastatic disease; (4) interval appearance of moderate abdominal and pelvic ascites not identified on prior examination; (5) stable internal/external biliary drain; (6) new moderate right pleural effusion with associated compressive atelectasis; (7) prostatic enlargement; (8) stable splenomegaly; (9) and a stable subcentimeter pulmonary nodule. See Private Treatment Record, O.S.U.M.C., August 12, 2005. The Veteran was discharged to home with hospice care on August 15, 2005. His discharge diagnoses were obstructed biliary drain, cholangiocarcinoma, carcinoma of unknown primary situs, hypotension and hyperbilirubinemia. See Private Treatment Record, O.S.U.M.C. Discharge Summary, August 8, 2005 to August 15, 2005. The Veteran expired several days thereafter. Cause of Death To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2011). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. See 38 C.F.R. § 3.312(b) (2011). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c) (2011). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. See 38 C.F.R. § 3.312(c)(2)(3) (2011). Herbicide Exposure The Appellant contends that she is entitled to service connection for the cause of the Veteran's death due to his exposure to herbicides while serving in Vietnam. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). These diseases include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e) (2011). A recent regulatory change has established presumptions of service connection, based upon exposure to herbicides for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. See 75 Fed. Reg. 53,202 - 53, 216 (August 30, 2010). VA has verified that the Veteran's active duty service from March 1968 to March 1972 includes time spent in Vietnam. He is therefore presumed to have been exposed to Agent Orange. The Board notes that a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 (June 12, 2007). This presumption is expressly noted not to apply to oral, nasal, and pharyngeal cancers. Id. In the present case, the cause of the Veteran's death was cholangiocarcinoma (a cancerous growth in one of the ducts that carries bile from the liver to the small intestine). Other significant factors contributing to the Veteran's death but not contributing to the underlying cause were sigmoid colon cancer and left common femoral vein thrombosis. These are not conditions listed among the disabilities for which presumptive service connection as a result of Agent Orange exposure is warranted. The Appellant contends that, although the Veteran's death certificate does not reflect that his death was due to a cancer or disease which warrants presumptive service connection under 38 C.F.R. § 3.309(e), the Veteran had simultaneous cancers of different primary origins, to include the lungs and heart. See Notice of Disagreement, May 16, 2007; Travel Board Hearing Transcript, March 3, 2011. Notably, respiratory cancers may be presumptively service-connected under 38 C.F.R. § 3.309(e). The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In support of her claim, the Appellant submitted a letter from R.E., Jr., M.D., received in May 2007. Dr. R.E. stated that he had reviewed the Veteran's medical record and was unable to make a statement that the Veteran's malignancies were included with those known to be associated with exposure to Agent Orange. However, it was noted that the Veteran's case deserved further review based upon the fact that he presented with simultaneous malignancies of different primary origin. Dr. R.E. noted the simultaneous diagnoses of colon cancer with hepatic metastasis and metastatic cholangiocarcinoma. It was noted that while metastatic colon cancer was not an unusual malignancy in a 56 year old man, metastatic cholangiocarcinoma was indeed an uncommon malignancy. Dr. R.E. also stated that individuals presenting with separate primaries simultaneously usually have underlying participating factors beyond that found in the regular population. The Veteran's family history did not yield any information that would suggest that he was at high risk for multiple or simultaneous malignancies. In the absence of genetic history, Dr. R.E. argued that environmental factors, such as a known carcinogen like Agent Orange, likely played a role in the Veteran's unusual presentation and rapid clinical deterioration. See Physician's Statement, R.E., Jr., M.D., May 15, 2007. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Initially, the Board notes that the first mention of the Veteran suffering from metastatic cholangiocarcinoma and colon cancer is in 2005, over 30 years after his separation from service. Dr. R.E. failed to address the lack of continuity of symptomatology between the date of the Veteran's discharge and his cancer diagnoses. He also failed to provide any relevant medical authority in support of his rather vague conclusion that the Veteran's metastatic cholangiocarcinoma and colon cancer were due to Agent Orange exposure. Rather, Dr. R.E. merely noted that environmental factors, such as Agent Orange, "likely played a role" in the Veteran's clinical deterioration. Due to the lack, the Board does not find this opinion to be persuasive evidence in support of the Appellant's claim. In February 2008, the Appellant was afforded a VA medical opinion to determine the cause of the Veteran's death. The VA examiner noted that a review of the Veteran's claims file revealed that during his active military service, the Veteran had a short tour of duty for temporary duties in Vietnam. The first was in August 1974 for a duration of 12 days and his duty was not specified. However, in January 1971, he had another temporary assignment for a duration of 20 days, during which time he was a courier of electronic cargo. In total, the Veteran served 32 days in Vietnam. The VA examiner stated that the Veteran's 32 day period in Vietnam was a short period to expose him to carcinogens enough to cause any cancer. Further, cholangiocarcinoma and sigmoid colon cancer were not known to be cancers caused by Agent Orange. "If the Veteran is exposed to any carcinogens at all, there are a lot of carcinogens in the environment that the Veteran could be exposed to that would lead to cholangiocarcinoma. Moreover, genetic disposition could also be the reason why this Veteran had cholangiocarcinoma." Accordingly, it was the VA examiner's opinion that the Veteran's tour of duty in Vietnam was too short to cause any exposure. He was not involved in any fighting unit, nor was he involved in dispersion of Agent Orange. The VA examiner also stated that Dr. R.E.'s medical opinion was mere speculation. See VA Medical Opinion Report, February 21, 2008. To address the Appellant's contentions in greater detail, a second VA medical opinion was obtained in June 2011. It was noted that the Veteran's claims file had been reviewed and that he had a history of colon cancer with liver metastasis and cholangiocarcinoma. The primary sites were the colon and the bile duct. The liver was considered the secondary malignancy site. The lung was not considered a secondary malignancy site because the indeterminate nodular opacity identified on the CT scans performed in April and August of 2005 were not evaluated, and there was no evidence to indicate that this was considered a malignancy. The VA examiner opined that it was considered less likely than not that a primary or secondary cancer site involved the respiratory system. See VA Medical Opinion Report, June 1, 2001. Here, the Board finds the VA medical opinions to be the most probative evidence of record. VA has conceded that the Veteran was exposed to Agent Orange during his brief time in Vietnam, however, there is no probative medical evidence that establishes that the conditions that caused and/or contributed to his death were the result of Agent Orange exposure. Microwave Radiation The Appellant alternatively contends that the Veteran's death was due to his exposure to microwave or ionizing radiation in his MOS as a radar repairman during active duty service. The Board notes that specific to a claim based upon exposure to ionizing radiation during service, service connection can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a veteran was exposed to radiation during active duty and later develops one of the diseases listed in 38 C.F.R. § 3.309(d)(2), a rebuttable presumption of service connection arises. See 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Second, service connection may be established if a radiation-exposed veteran develops a "radiogenic disease". See 38 C.F.R. § 3.311 (2011). Third, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Despite the fact that the Appellant clearly delineated her claim as one for microwave radiation, VA continued to develop her claim with respect to possible ionizing radiation exposure. In February 2009, VA contacted the United States Department of the Air Force (USDAF), Radiation Protection Division, to determine if the Veteran had been exposed to radiation during his time in active duty service. In a March 2009 response to VA's radiation exposure/dose inquiry, the USDAF queried the USAF Master Radiation Exposure Registry (MRER) for any records of the Veteran's occupational ionizing radiation exposure monitoring. No internal or external exposure data was located for the Veteran. It was noted that the MRER is the single repository for occupational radiation exposure monitoring for all Air Force personnel. Even though these records date back to 1947, there appeared to have been some cases where early records, especially DD Form 1141, were maintained in the individual's military medical record or by the local unit and were not forwarded for inclusion in the central repository. The letter also stated that the potential for exposure to ionizing radiation when working near some radar systems does exist, but that the USDAF was unable to determine what specific exposures may have resulted for the Veteran. A meta-analysis was performed on all Air Force personnel who were entered in the Air Force dosimetry program based on their potential for exposure to radar systems. Over 46,000 dosimetric readings were reviewed from personnel that included radar operators, radar maintenance technicians, and radar administrative/supply personnel. Based on this research, the maximum lifetime dose recorded for any of the individuals monitored was 670 millirems (mrem) (radar maintenance technician). It was also noted that, of the 4,138 individuals monitored, only 5 percent (217) had any measureable dose, and only four individuals had lifetime doses greater than 300 mrem. For comparison, the average annual exposure to background radiation for people in the United States is 240 mrem. With respect to radio-frequency radiation (RFR), the consensus of scientific advisory bodies, such as the National Council on Radiation Protection and Measurements (NCRP), the World Health Organization (WHO), and the National Radiological Protection Board (NRPB) is that there are no long-term effects (including cancer) from low-level exposures to RFR. An extensive epidemiological study of Navy personnel working with radar systems did not find any adverse health effects that could be attributed to RFR exposure. See NCRP, Report No. 86, "Biological Effects and Exposure Criteria for RFR Electromagnetic Fields," 1986; WHO Fact Sheet N183: "Health Effects of Radiofrequency Fields," May 1998; NRPB, "Health Effects from Radiofrequency Electromagnetic Fields: Report of an independent Advisory Group on Non-ionizing Radiation," Volume 14, No. 2, 2003. Further, VA afforded the Appellant a VA medical opinion in June 2011 to determine whether exposure to radiation was the cause of the Veteran's death. The VA examiner noted that the Veteran was assigned to a radar unit and may have been exposed to ionizing radiation during service. "Unfortunately, the dose is not ascertainable, and it does not appear that an estimate has been made." Regardless, the VA examiner concluded that even if the Veteran was exposed to radiation in service, the exposure level would be low. As noted by the authorities cited above, the VA examiner stated that the risk of cancer from low level exposures to RFR is low. As such, the Veteran's cancers of the colon, liver and bile duct were considered less likely than not to be caused by or the result of exposure to radiation. See VA Medical Opinion Report, June 1, 2011. Here, however, the Appellant has alleged that the Veteran's death was caused by his exposure to microwave radiation from handling radar equipment during service. The Court has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the ionizing radiation statute and regulations. See Rucker, 10 Vet. App. at 72-74. The Appellant's radiation claim is solely based upon the Veteran's exposure to non-ionizing radiation through the use of radar equipment. Thus, as radar and electromagnetic frequency fields are forms of non-ionizing radiation, and there is no evidence or allegation of ionizing radiation exposure, the presumptions for service connection under 38 C.F.R. §§ 3.309(d) and 3.311 (cited above) are not applicable. As such, the basic legal authority governing claims for service connection is applicable here. Considering the pertinent evidence in light of such authority, the Board finds that service connection for the cause of the Veteran's death, as due to radiation exposure, must be denied on a presumptive basis. Direct Service Connection Notwithstanding the above, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the fact that a veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation. Review of the Veteran's service records reveals that prior to his enlistment into the USAF in March 1968, he participated in an examination in December 1967. Clinical examination findings revealed that all of the Veteran's systems were normal. The Veteran himself indicated that he was in good health and specifically denied stomach, liver or intestinal trouble, as well as jaundice and hepatitis. See Standard Forms (SFs) 88 & 89, Service Entrance Examination Reports, December 5, 1967. The balance of the Veteran's time in active duty service was completely negative for any complaints of or treatment for his stomach, liver, intestines, heart and lungs. Prior to his discharge, the Veteran participated in an examination in November 1971. Clinical examination findings revealed that all of the Veteran's systems were normal. The Veteran again specifically denied stomach, liver or intestinal trouble as well as jaundice and hepatitis. See SFs 88 & 89, Service Discharge Examination Reports, November 10, 1971. The record is devoid of any treatment for a disability of the liver, colon or bile duct until January 2005. As detailed above, there is no credible evidence of record to establish that the Veteran's diagnoses of liver, colon and bile duct cancer were the result of his time in active duty service. In reaching this determination, the Board does not question the Appellant's sincere belief that the cause of the Veteran's death is disease due to service, and specifically, as a consequence of exposure to Agent Orange and/or exposure to radiation. She has submitted lay statements expressing her belief that the Veteran's fatal cancer was related to service and specifically to his in-service exposure to Agent Orange and/or exposure to radiation. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009). As a lay person, however, she is not competent to establish a medical diagnosis or show a medical etiology merely by her own assertions as such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (2010) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer). As she is not professionally qualified to offer a diagnosis or suggest a possible medical etiology, the Board finds that the preponderance of the evidence is against the claim and service connection for the cause of the Veteran's death must be denied. Although the Board denies the Appellant's claim because the preponderance of the evidence is against service connection, the Board is sympathetic to her claim. The Board, however, is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicides and/or radiation, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs