Citation Nr: 1303291 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 11-06 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. 3. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to December 1970. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from January and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In the January 2010 decision, the RO denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. In the April 2010 decision, the RO denied entitlement to service connection for the cause of the Veteran's death. In her February 2011 substantive appeal (VA Form 9), the appellant requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). In May 2012, she withdrew her hearing request. In January 2013, the Board granted the appellant's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claims. The documents in this file have been reviewed and considered as part of this appeal. The issue of entitlement to burial benefits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran died in October 2008; the immediate cause of death was a brain tumor not otherwise specified (NOS). 2. At the time of the Veteran's death, he did not have any service-connected disabilities; his fatal brain tumor did not have its clinical onset in service, may not be presumed to have been incurred therein, is not otherwise related to active duty, and was not exhibited within the first post service year. 3. The Veteran's death was not caused by VA hospitalization or medical or surgical treatment. CONCLUSIONS OF LAW 1. The Veteran's fatal brain tumor was not incurred or aggravated in service and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 1131, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307(a), 3.309, 3.312 (2012). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A § 1151 for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in her possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in January 2009, the RO notified the appellant of the evidence needed to substantiate her claims of service connection for the cause of the Veteran's death and for compensation under the provisions of 38 U.S.C.A. § 1151. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist her in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In the context of a claim of service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the disabilities, 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 claim of service connection for the cause of a veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim of service connection for the cause of a veteran's death based on a disability not yet service-connected. Unlike a claim to reopen, an original claim of service connection for the cause of a veteran's death imposes upon VA no obligation to inform a claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). At the time of his death, the Veteran did not have any service-connected disabilities. Nevertheless, the January 2009 letter provided the appellant with an explanation of the evidence and information required to substantiate her claim based on a previously service-connected disability. The Veteran's status as a Veteran has been substantiated. However, the appellant did not receive any pre-adjudication notice of the other elements of the Dingess notice, including the existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. In this regard, she did not receive any pre-adjudication explanation of the evidence and information required to substantiate her claim based on a disability not yet service-connected. The appellant was notified of the evidence and information required to substantiate a service connection claim (i.e. the evidence required to substantiate her claim based on a disability not yet service-connected) in a February 2011 statement of the case. Such a post-decisional document could not serve to provide legally compliant VCAA notice. Mayfield v. Nicholson, 444 F.4d 1328 (2006). It should, however, have served to put the appellant on notice as to what evidence was required and she had years within which to submit additional evidence and argument. To the extent that the appellant was not provided with pre-adjudication notice of some of the information required by the VCAA, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication. Id. See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As the appellant's claims are being denied, and no rating or effective date is being assigned, she has suffered no prejudice from the deficiency with regard to these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Furthermore, actual knowledge of the evidence needed to establish service connection (i.e. the existence of a disability and a connection between service and the disability) has been demonstrated as the appellant received the information in the February 2011 statement of the case and she has provided numerous statements as to why she believes the cause of the Veteran's death is related to his service. Thus, no showing of prejudice has been made in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claims. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, all of the identified relevant post-service private medical records, and some of the relevant identified post-service VA treatment records. In addition, VA medical opinions as to the etiology of the Veteran's cause of death were obtained. The Veteran and the appellant had reported treatment for the Veteran's fatal brain tumor at the VA Medical Center in Milwaukee, Wisconsin (VAMC Milwaukee) from September to October 2006. However, in an August 2008 statement (VA Form 21-4138), the Veteran and the appellant alluded to the fact that the Veteran had recently been placed on blood thinners by VA. Also, a December 2011 opinion from a VA physician makes reference to the fact that the Veteran had been placed on anticoagulation medication in June 2008. Such evidence appears to show that there may be treatment records from VAMC Milwaukee dated in 2008. However, the only treatment records from VAMC Milwaukee in the claims file are dated from September to October 2006 and there are no additional treatment records among the paperless records in the Virtual VA system. In light of the fact that the appellant's 1151 claim is premised on a contention that the Veteran was prescribed excessive blood thinners, any such additional records would be relevant to the 1151 claim currently on appeal. In October 2011, the agency of original jurisdiction (AOJ) contacted VAMC Milwaukee and requested all records of treatment for the Veteran at that facility, including any records that had been retired to the archives. VAMC Milwaukee subsequently provided a single record dated in September 2006 and explained that it was the only record included in the Veteran's retired file. Therefore, any further efforts to obtain any additional VA treatment records would be futile and VA has no further duty to attempt to obtain any additional VA treatment records. 38 C.F.R. § 3.159(c)(2). The Veteran reported on several occasions prior to his death, including on a December 2007 "Veteran's Application for Compensation and/or Pension" form (VA Form 21-526), that he was in receipt of Social Security Administration (SSA) benefits. However, he specified that he had never claimed and was not in receipt of any SSA disability benefits. Also, at the time of his December 2007 claim he was 64 years old. He never reported receipt of SSA disability benefits and the appellant has not reported otherwise. Thus, as any SSA benefits were "old age" benefits and not disability benefits, such records are not relevant to the appellant's claims and need not be obtained. See 42 U.S.C.A. § 402 (West 2002). Analysis Service Connection for the Cause of the Veteran's Death Pursuant to 38 U.S.C.A. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as brain tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in October 2008. His death certificate listed the immediate cause of his death as a brain tumor NOS. There were no other conditions listed as contributing to the Veteran's death. At the time of his death, the Veteran did not have any service-connected disabilities. Thus, the remaining question is whether benefits are payable on the basis of the fatal brain tumor. Service treatment records include a July 1965 report of treatment for headaches following a motor vehicle accident. Examination revealed that there was no significant underlying pathology. However, the appellant has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology with regard to the Veteran's fatal brain tumor. There is no evidence of any complaints of or treatment for a brain tumor or symptoms specifically attributed to a brain tumor in the Veteran's service treatment records and his November 1970 separation examination was normal. If a chronic disability, such as a brain tumor, is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). There must, however, be sufficient observations in service to identify the disease entity. Id. As discussed above, there is no evidence showing any diagnosed brain tumor in service, and the appellant has not otherwise reported that the Veteran had any brain tumor in service. Hence, service connection cannot be granted on this basis here. The objective evidence otherwise indicates that the Veteran's fatal brain tumor did not manifest until many years after service. The first post-service clinical evidence of a brain tumor are private treatment records dated in September 2006 from Langlade Memorial Hospital and Wausau Hospital which reflect that the Veteran experienced a mild headache, weakness, difficulty speaking (aphasia), noisy respirations, vision problems, and tremors/seizures. He was diagnosed as having, among other things, a left temporal lobe mass with MRI findings suggestive of a neoplasm. Also, during a June 2007 examination at United Hospital System he reported an approximately 1 year history of a brain mass. There is no lay or clinical evidence of any earlier symptoms of a brain tumor following service. The absence of any evidence of a brain tumor for decades after service weighs the evidence against a finding that the Veteran's fatal brain tumor was present in service or in the year or years immediately after service. Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection for the cause of the Veteran's death on this basis. Statements from the Veteran prior to his death and from the appellant include contentions that the Veteran's fatal brain tumor was related to exposure to the polio vaccine and other various unspecified biological, chemical, and other health hazards while serving aboard various Naval ships in service. For example, the appellant submitted a news article which states that some Navy Personnel may have been exposed to nerve gas and other lethal substances during tests of toxic warfare defense measures conducted on ships in the Pacific Ocean from 1964 to 1968 (i.e. Project SHAD). Also, in statements dated in June 2011, she contended that numerous service members had been exposed to such toxic substances as asbestos and Agent Orange. The Board notes, however, that she has never specifically asserted that the Veteran himself was a participant in Project SHAD or that he was exposed to herbicides or asbestos in service. Nevertheless, service personnel records reflect that the Veteran served on various Naval ships during the period from 1964 to 1968. However, in October 2009 the AOJ confirmed that according to the Department of Defense's database, the Veteran had not been a test participant in Project Shad or any mustard gas, chemical, or biological test program. Hence, in-service exposure to various toxins on the basis of participation in Project Shad or any other testing programs has not been demonstrated in this case. With respect to herbicides (including Agent Orange), the appellant has not identified any specific circumstances under which the Veteran was exposed to the toxin. In July 2011, the AOJ contacted the National Personnel Records Center (NPRC) and requested information concerning whether the Veteran had served in Vietnam. The AOJ responded that the Veteran served aboard the U.S.S. Piedmont and that the ship was in the official waters of the Republic of Vietnam from July 1, 1964 to July 11, 1964. However, the record provided no conclusive proof of any in-country service. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Federal Circuit has held that in order for the presumption of herbicide exposure to apply under this regulation, qualifying service in the Republic of Vietnam must have involved service on the landmass of Vietnam (often referred to as service "in country") or, at the very least, on the inland waterways ("brown water"). Such qualifying service does not include mere service on a deep-water naval vessel in the waters offshore ("blue water"). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 129 S. Ct. 1002 (2009); VAOPGCPREC 27-97. The term "inland waterways" is not defined, however VA's Adjudication Procedure Manual Rewrite indicates that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. However, service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. However, there is exception regarding veterans who served as a coxswain. VA Adjudication Manual Rewrite, M21-MR, Part IV.ii.2.C.10.k (December 16, 2011). Service personnel records confirm that the Veteran served aboard the U.S.S. Piedmont in July 1964. However, as explained above, the NPRC explained that there was no conclusive proof that the Veteran had any service on the landmass of Vietnam ("in-country service"). The U.S.S. Piedmont is not included among VA's list of ships which operated primarily or exclusively on Vietnam's inland waterways, ships which operated temporarily on Vietnam's inland waterways or docked to the shore, and ships which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. The Veteran did not receive any medals, ribbons, or other decorations indicative of Vietnam service. Moreover, he never contended and the appellant does not now contend that the Veteran ever disembarked from the U.S.S. Piedmont onto the Vietnam land mass or that his ship ever operated on the inland waterways of Vietnam. Thus, the Board finds that the Veteran did not have qualifying service in the Republic of Vietnam during the Vietnam era. Haas v. Peake, 525 F.3d at 1168. Additionally, there is no other evidence of any herbicide exposure in service. Hence, exposure to herbicides has not been shown in this case and service connection for the cause of the Veteran's death cannot be granted on a presumptive basis due to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309(e). There are conflicting medical opinions as to the etiology of the Veteran's fatal brain tumor. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). In a March 2008 letter, Dr. Kenneth C. Tennant opined that it was likely ("at least as likely as not") that "the condition" the Veteran was suffering from and "that which brought him to Wausau Aspirus Hospital" was "service connected." There was no further explanation or reasoning for this opinion provided. The Board notes that in June 2011 the AOJ sent the appellant a letter and asked her to provide additional information concerning Dr. Tennant and his March 2008 opinion, including information concerning his medical specialty and qualifications, what records he reviewed prior to providing his opinion, and what his rationale was for the opinion. The appellant did not specifically respond to these inquiries. In December 2011, a VA physician reviewed the Veterans claims file and opined that the Veteran's potential exposure to asbestos and the polio vaccine (to possibly include SV40) in service did not cause or substantially contribute to his death. He reasoned that based on MRI appearance, the cause of the Veteran's death was likely a high grade glioma. Gliomas were not caused by asbestos exposure or the polio vaccine, including SV40. Dr. Tennant's March 2008 opinion is of little, if any, probative weight because it is vague and otherwise unclear as to the "condition" to which it refers. Additionally, it was not accompanied by any specific explanation or reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The December 2011 opinion, however, was based upon a review of the Veteran's medical records and reported history and is accompanied by a specific rationale which is not inconsistent with the evidence of record. Thus, this opinion is entitled to substantial probative weight. See Id. The appellant has expressed her belief that the Veteran's fatal brain tumor was related to exposure to various toxins in service. However, as a lay person, she can only comment as to her observations of the Veteran's symptoms and immediately-observable relationships. She lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that the Veteran's fatal brain tumor was related to exposure to toxic substances in service, as opposed to some other cause. Rather, it would require medical expertise to evaluate the brain tumor, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the appellant's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). Although the Veteran had received treatment from medical professionals for his fatal tumor, none had attributed this specific disability to any disease or injury in service. Rather, the only adequate medical opinion of record reflects that no relationship existed between the fatal brain tumor and service. There is no other evidence of a relationship between the Veteran's fatal brain tumor and service, and neither the appellant nor her representative have alluded to the existence of any such evidence. The Board does acknowledge that both the Veteran and the appellant had submitted medical literature pertaining to possible adverse effects of vaccinations, including the polio vaccine. However, generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection. See Sacks v. West, 11 Vet. App. 314 (1998). In this case, no medical professional has specifically related any such information contained in medical literature to the Veteran. Also, as discussed above, the record fails to demonstrate any evidence of a continuity of symptomatology with respect to the Veteran's fatal brain tumor. Thus, the preponderance of the evidence is against a finding that the Veteran's fatal brain tumor was related to service, manifested in service, or manifested within a year after his December 1970 separation from service. The Veteran clearly had admirable service and made sacrifices for his country. However, the evidence weighs against a link between the cause of his death and that service. Absent such a link, VA cannot grant the benefit sought. For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim of service connection for the cause of the Veteran's death must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. 1151 The appellant filed her claim for compensation under the provisions of 38 U.S.C.A § 1151 in December 2008. The version of 38 U.S.C.A. § 1151 applicable to claims filed on or after October 1, 1997 provides that compensation shall be awarded for a qualifying death of a Veteran in the same manner as if such death were service-connected. 38 U.S.C.A. § 1151. A death is a qualifying death if the death was not the result of the Veteran's willful misconduct and (1) the death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C.A. § 1701(3)(A), and (2) the proximate cause of the death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. Id. The implementing regulation applicable to 1151 claims received on or after October 1, 1997 is 38 C.F.R. § 3.361, which provides that in order to establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the death as explained in 38 C.F.R. § 3.361(c) and that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In her written statements, the appellant has contended that there is a relationship between the Veteran's cause of death and VA's use of a radioactive contrast dye (Gandolinium) and an alleged overdose of blood thinners. However, the only medical opinions of record reflect that the Veteran's cause of death was not related to any such VA care. In December 2009, a VA physician reviewed the Veteran's claims file and opined that there was no evidence of willful misconduct and that the Veteran's fatal brain tumor was not caused by VA hospital care, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or an event not reasonably foreseeable. This opinion was based on the fact that the Veteran was initially hospitalized at Aspirus, Wausau Hospital in September 2006 for evaluation of new onset headaches, visual changes, and seizure. An MRI revealed a brain tumor, but the Veteran left the hospital against medical advice before any further workup or treatment could be initiated. He was admitted to VAMC Milwaukee in September 2006 with right homonymous hemianopia, but did not report his recent seizure or his recent hospitalization with a diagnosis of a brain mass. An evaluation at VAMC Milwaukee revealed a left brain mass and neurosurgery suspected a high grade glioma and advised the Veteran that a biopsy was necessary. However, the biopsy was never completed because the Veteran and the appellant refused the procedure, despite the fact that they had been counseled to have the procedure done and the fact that the biopsy would have allowed definitive treatment. The Veteran's symptoms progressed over time with progressive deterioration and his death was attributed to the brain tumor. The progression of his brain tumor with eventual death is what would be expected in the case of a brain tumor without definitive treatment. The VA physician who provided the December 2011 opinion pertaining to the cause of the Veteran's death concluded that he completely concurred with the December 2009 opinion and he opined that the Veteran's death from brain cancer was not caused by negligent care from VA providers. He reasoned that the Veteran had received the standard of care with early and timely intervention. It was exceedingly clear from his treatment records that the treatment providers made multiple attempts to schedule and perform the needed biopsy of his brain, but the appellant and Veteran declined to have the procedure. The documented conversations by the treatment providers in September 2006 showed that things were clearly explained to both the Veteran and the appellant and that multiple attempts were made to provide him with the care that he needed. Additionally, with respect to the appellant's contentions concerning the use of contrast dye and blood thinners, the physician explained that the Veteran's kidney function was normal and contrast dye for CT scans or MRI scans does not cause brain cancers. In addition, there was no evidence of any overmedication by the treatment providers at VAMC Milwaukee. A few months before the Veteran's death (in June 2008), he had been diagnosed as having a pulmonary embolus and deep vein thrombosis. Thus, he was placed on anticoagulation medications. Venous thromboembolisms are known complications of active cancers and he was appropriately treated with anticoagulation medications. Overall, there was no evidence of any excessive or inappropriate use of anticoagulation medications. The December 2009 and December 2011 opinions were based upon a review of the Veteran's medical records and reported history and are accompanied by detailed rationales which are not inconsistent with the evidence of record. Thus, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Although the appellant has expressed her opinion that VA's use of contrast dyes and anticoagulation medications caused the Veteran's death, there is no indication that she possesses the specialized medical expertise that would be needed to conclude that such a relationship existed. Therefore, the appellant's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1). Furthermore, medical literature has been submitted which pertains to the possible effects of gadolinium use. However, as explained above, such generic medical literature does not specifically address the facts of this individual case. Hence, it does not provide competent evidence to satisfy the nexus element for an award of compensation under the provisions of 38 U.S.C.A. § 1151. See Sacks, 11 Vet. App. at 314. Rather, medical professionals have specifically reviewed the Veteran's medical records and the appellant's contentions and have concluded that there is no relationship between VA medical care and the cause of the Veteran's death. In sum, the evidence is against a link between the Veteran's cause of death and VA medical treatment, including the use of contrast dye and anticoagulation medications. Thus, the weight of the evidence is against the claim, reasonable doubt does not arise, and the claim for compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death must be denied. 38 U.S.C.A. §§ 1151, 5107(b); 38 C.F.R. § 3.361; see also Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied. REMAND In a January 2010 decision, the RO denied entitlement to burial benefits. In February 2010, the appellant submitted a notice of disagreement with that decision. A statement of the case has not been issued as to the claim for burial benefits. 38 U.S.C.A. § 7105(a) (West 2002). The Board is required to remand this claim for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The AOJ shall issue a statement of the case as to the issue of entitlement to burial benefits. This issue should not be certified to the Board unless a sufficient substantive appeal is submitted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs