Citation Nr: 1304486 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-04 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to January 1969. He died in February 1992. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in May 2008 by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the appellant testified at a hearing conducted before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing has been reviewed and associated with the claims file. In August 2011, the Board found that new and material evidence sufficient to reopen the previously denied claim for service connection for the cause of the Veteran's death had been received and remanded the underlying de novo claim for service connection for the cause of the Veteran's death further development. After completion of the development requested therein, the Appeals Management Center in Washington, D.C. returned the appellant's appeal for service connection for the cause of the Veteran's death to the Board for further appellate review. In August 2012, the Board requested an independent medical opinion. In September 2012, the Board received the requested opinion. In the following month, the Board furnished the appellant with a copy of that opinion and gave her an appropriate amount of time to respond. As will be discussed in further detail in the following decision, the appellant's appeal is now ready for final appellate adjudication. FINDINGS OF FACT 1. The Veteran died in February 1992. The certificate of death lists metastatic carcinoma of the esophagus as the immediate cause of death with no other significant conditions listed as contributing to death. 2. At the time of his death, the Veteran was not service-connected for any disability. 3. Esophageal cancer was not manifested in-service or within the first post-service year (or, indeed, until many years thereafter) and was not due to or aggravated by any other service-related incident, to include Agent Orange exposure. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ U.S.C.A. §§ 1101, 1110, 1112, 1310, 5107 (West 2002 & Supp. 2012); 38 U.S.C.A. §§ C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative 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), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation benefits based on service connection for the cause of death. Generally, section 5103(a) notice for a DIC case 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. In addition, the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Prior to initial adjudication of the appellant's claim a letter dated in March 2008 informed the appellant of the elements of a claim for service connection for the cause of the Veteran's death and provided Hupp compliant notice. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). A November 2008 VCAA notice letter also informed the appellant of information needed to support her claim. Although this letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to her, because the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the appellant. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, the Board acknowledges that the appellant has not been informed of the requirements for establishing an effective date--if her claim for service connection for the cause of the Veteran's death were to be granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Importantly, however, as will be explained in further detail in the following decision, the Board finds that the evidence of record does not support a grant of this issue. As service connection for the cause of the Veteran's death is being denied, no effective date is being assigned. Thus, the Board concludes that VA's failure to notify the appellant of the requirements for establishing an effective date is not prejudicial to her and that a remand to correct this deficiency is not necessary. The Board also finds that VA has satisfied its duty to assist the appellant in the development of her claim. The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); see Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). 38 U.S.C.A. § 5103A(a)(1) requires VA to make "reasonable efforts" to provide assistance when adjudicating cause of death claims. VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2) (West 2002). Relevant in-service and post-service treatment reports are of record. The appellant provided a medical opinion prepared by a private physician in 2008 and she testified at a hearing before the undersigned VLJ in 2011. The Board finds substantial compliance with the prior remand in 2011 for outstanding treatment records and a medical opinion. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Attempts to develop additional treatment records were unsuccessful. The appellant did not respond to a September 2011 request for assistance in developing additional treatment records. Attempts to develop additional records from the Dallas VA Medical Center resulted in a negative response. So, further efforts to develop those records would be futile. A VA medical opinion was developed in February 2012. Additionally, the Board obtained an independent medical expert (IME) opinion in September 2012 which reflects that a medical expert reviewed the claims folders and rendered an appropriate opinion based on the questions presented to her by the Board. The Board finds that this opinion is adequate for decision-making purposes, as it included a review of the Veteran's claims file, including the treatment records and earlier opinions contained therein, and provides a complete rationale for her opinions, supported by the evidence of record. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (which stipulates that, when VA undertakes to obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this case, it is clear on the record that any inability to opine on questions of diagnosis and etiology in the case of the VA physician or the IME opinion provider is not the first impression of these physicians, but rather is an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). Accordingly, the Board finds that the duty to assist has been satisfied with respect to the appellant's claim for service connection for the cause of the Veteran's death. II. Factual Background The appellant, who is the Veteran's surviving spouse, contends that symptoms of esophageal cancer first manifested during the Veteran's period of active service from February 1965 to January 1969 and continued after service. She has also advanced the theory that the Veteran's esophageal cancer is the result of exposure to herbicides during his service in Vietnam. A July 1991 EGD showed a preoperative diagnosis of dysphagia of "recent onset." A mass was observed, which was later determined to be adenocarcinoma of the gastroesophageal junction. The Veteran immediately began a course of treatment for this malignancy. In early January 1992, the Veteran was admitted to a private hospital with a known diagnosis of malignant neoplasia of the cardioesophageal junction with secondary malignant metastatic neoplasia of the retroperitoneum and peritoneum, as well as peritoneal seeding and carcinomatosis, atrial fibrillation, acute and chronic renal failure, myelosuppression secondary to chemotherapy, hypertensive cardiovascular disease, malignant ascites, anemia, thrombocytopenia and episodes of both leukopenia and leukocytosis. As noted above, the Veteran died in February 1992. He was 45 years of age. The hospital summary reported the cause of death as the following diagnoses: metastatic cardioesophageal carcinoma; malignant ascites; renal failure; cardiopulmonary failure; and cardiac arrhythmia. The Veteran's death certificate listed the immediate cause of death as metastatic carcinoma of the esophagus, which had onset approximately 8 months prior to death. No conditions leading to the immediate cause of death were listed. At the time of his death, service connection was not in effect for any disability. The service treatment records (STRs) reflect that the Veteran was treated for fever and sore throat with exudate in March 1965. These symptoms persisted for approximately 3 days and resolved. In October 1966, the Veteran reported vomiting and experiencing a headache. He reported another sore throat in January 1967, which was treated with salt water gargle and over-the-counter remedies. Chest X-rays in November 1967 were normal. No abnormalities of the chest, abdomen or viscera were observed on separation examination in January 1969, nor did the Veteran report chronic sore throat or dysphagia. The appellant asserts that the references to sore throat and vomiting during service are evidence that the Veteran's cancer was, in fact, present during his service. At the April 2012 hearing, the appellant testified that the Veteran had chronic throat trouble in the years immediately following his discharge from service, as well as nosebleeds, dysphagia, reflux, and hematemesis. She stated that the Veteran sought treatment for these symptoms from private doctors, whose records are currently unavailable. In addition, she reported that the Veteran had lost a significant amount of weight prior to his diagnosis. According to private treatment records dated from 1989 to 1992, the Veteran reported a sore throat in December 1990 and was diagnosed with tonsillitis and adenitis. A course of antibiotics was prescribed. In May 1991, the Veteran stated that he had had symptoms of sore throat after being caught in a rainstorm. He was again diagnosed with tonsillitis and adenitis and placed on antibiotics. A September 1992 statement from one of the Veteran's treating physicians, Dr. R.J.D., noted that there was "no clear-cut evidence of Barrett's esophagus" during the Veteran's treatment for esophageal cancer and that the "exact etiology for this lesion was not clear from any of my examinations." In October 1992, D.H.B., MD, the Veteran's treating physician at death and prior to death, reported that the Veteran died as a complication of the progression of metastatic esophageal carcinoma with lung metastasis after having a short period of time in remission after chemotherapy and radiation therapy. He stated that: [T]o say that [the Veteran's] disease may have been caused by exposure to chemical herbicides, also known as Agent Orange, is a founded possibility, according to results from the National Institute of Health, the National Cancer Institute, as well as various research protocols throughout the United States. To state it conclusively would be wrong but there is both a possibility and a probability which exists that the exposure to Agent Orange may have led to the initial manifestation of esophageal carcinoma in this patient. In May 2001, the RO wrote to the appellant and requested that she provide copies of any medical treatises relied upon by Dr. D.H.B. for his opinion that there was a relationship between the Veteran's esophageal cancer and Agent Orange. The appellant did not respond the RO's request. In July 2001, the RO wrote to Dr. D.H.B. and noted that, in October 1992, he had stated that there were studies which found a connection between cancer of the esophagus and exposure to chemical herbicides. The RO informed him that its medical researchers had found no such studies or evidence and asked him to furnish specific information as to the dates of any such studies and the publications in which the studies appeared. Dr. D.H.B. did not respond to the RO's letter. In her notice of disagreement with the denial of her claim, received in November 1994, the appellant stated that there was a report by the Environmental Protection Agency (EPA) which documented dioxin, an element of Agent Orange, as a major cause of esophageal cancer. In July 2001, the RO requested that the appellant provide a copy of any such EPA report. The appellant responded by stating in July 2001 that she expected to submit an EPA report within 30 days, but she did not submit any such report. In June 1997, the Veteran's medical records were reviewed by a VA specialist in oncology, who reported that, according to medical literature, the most likely etiological factors in the development of cancer of the esophagus are use of tobacco and alcohol and that there was no study found showing an association of esophageal cancer and herbicides such as Agent Orange. The oncologist stated that he had no information as to the Veteran's use of tobacco and alcohol. In September 2000, the Veteran's daughter stated that he smoked until 1979. In January 2001, the appellant stated that the Veteran consumed alcohol until 1989. In October 2001, the appellant's representative submitted a copy of a 1997 letter to the publication Occupational and Environmental Medicine from the medical department of a German chemical company which stated that 3 out of 42 workers potentially exposed to polybrominated dibenzo-p-dioxins (PBDDs) and furans (PBDFs) during extrusion blending of resins containing polybrominated diphenal ether (PBDE) flame retardants during a 12 year period ending in 1989 developed digestive tract neoplasms, including squamous cell carcinoma of the esophagus. The employee who developed esophageal cancer had a history of smoking about a pack of cigarettes per day for 40 years and consuming 2 or 3 bottles of beer daily. In October 2001, the evidence of record and medical literature were reviewed by a board certified hematologist/oncologist and the environmental physician (an expert in environmental and toxin exposure) of the VA North Texas Health Care System. The two expert physicians reported with regard to the Veteran as follows: 1. This patient died as the result of adenocarcinoma originating around the gastroesophageal junction and invading the esophagus and cardia of the stomach. This cancer was not the result of herbicide exposure in Vietnam. According to extensive review of the literature performed by the National Academy of Science and published in 3 sequential volumes, the relative risk of developing gastrointestinal cancers in veterans exposed to herbicides in Vietnam is 1.0. That means the risk is the same whether this veteran went to Vietnam or not. This led the Academy to the conclusion that there is evidence (limited) of no association between exposure to herbicides and development of GI cancers (such as the adenocarcinoma that this veteran had). As to the opinion by Dr. [D.H.B.], it is simply incorrect. It was written in 1992 before the National Academy of Science studied the matter in depth and perhaps that is the reason for the error. . . . 3. His cancer was not caused by herbicide exposure. In May 2002, in response to an inquiry by the appellant's representative, the RO informed him that the letter to Occupational and Environmental Medicine from the German chemical company had been reviewed by the physicians who provided the expert opinion in October 2001. In October 2007, Dr. D.H.B. noted that the Veteran's STRs contained several references to sore throat. Dr. D.H.B. also referred to "occasional" episodes of dysphagia and "multiple" episodes of vomiting during service. On the basis of these symptoms, Dr. D.H.B. found that it was "more likely than not, but not less than as likely as not, that [the Veteran] may have manifested an early indolent carcinoma of the cardioesophageal area ... because the natural history of this disease is slow growing, indolent, and may not manifest any symptoms initially." However, without any clinical notes from 1969 to 1990, he would be unable to give any further opinion "without any reasonable doubt." In September 2008, Dr. C.N.B. stated his opinion that the Veteran's esophageal cancer was "very likely . . . caused by his exposure to Agent Orange in service, as his records do not support another etiology." Dr. Bash noted that "22 studies to 14 studies benefit goes to causative link," a reference to a series of studies listed by the 2006 Institute of Medicine (IOM) of the National Academy of Sciences (NAS) report (Update 2006) "which show 22 studies with a relative risk of 1 or greater but only 14 studies with a relative risk less than 1." Dr. Bash noted that new publications were available in 2008 that were not available in 2001 and were more supportive of an association. He also stated that a relative risk of 1 or greater "meets the VA threshold for as likely as not." The Board remanded this issue in August 2011, in an attempt to gather all pertinent treatment records from 1969 to 1990. However, no such records were located. Also, in February 2012, Dr. S.J.C. prepared a VA medical opinion which stated that the diagnosis of metastatic esophageal carcinoma was confirmed on pathological specimens and was "very invasive locally; this of course led to a very rapid demise of the individual." Upon review of the STRs, the examiner found that the reports of sore throat in service were "non-specific, and [do] not equilibrate with esophageal cancer greater than 25 years later." The examiner then went on to state that esophageal cancer is associated with Barrett's esophagus, smoking, and/or a combination of the two, as well as alcohol intake and frequent hot, spicy foods. The September 2012 IME opinion was prepared by E.J.M., MD, PhD, a board-certified internist and gastroenterologist who is an assistant professor of medicine at Wayne State University. Dr. E.J.M. teaches gastrointestinal (GI) fellows, internal medicine residents, and medical students regarding GI clinical health and disease and has clinical care responsibilities for adults with GI diseases of all types. Dr. E.J.M. also has a PhD in endocrinology. Dr. E.J.M. stated that "[i]t is likely less than 50% probability that these symptoms [the sore throat and vomiting in service and assertions of sore throat, dysphagia, vomiting, vomiting blood, and nosebleeds in the year immediately following the Veteran's discharge] represent the onset of esophageal cancer as there is no documentation for the most severe of these reported symptoms." She concluded: [The Veteran's] symptoms while in service do not support specifically onset of a neoplasm. Sore throat commonly means pain with swallowing. Sore throat may or may not be related to development of esophageal cancer. There is no supportive evidence in this veteran's service record to conclude antibiotics failed in resolving the reported fever with sore throat while in service. Two additional incidents recorded in the veteran's medical service record have no evidence to conclude they persisted. These symptoms did not persist, increase, or interfere with his service. This veteran's discharge from the service followed his exposure to a herbicide within days. No esophageal or stomach symptoms were noted in this veteran's separation medical exam which closely followed his exposure to herbicide. If significant[] esophageal or stomach injury occurred, it was asymptomatic. The separation exam shows no symptoms related to indigestion, no stomach problems and no throat problems. III. Law and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. § 3.309(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, include malignant tumor (cancer), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101 1112, (West 2002 & Supp. 2012) 38 C.F.R. §§ 3.307 3.309 (2012). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). To establish service connection for the cause of a Veteran's death, the evidence must show that a disability due to disease or injury incurred in or aggravated by active service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). 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. 38 C.F.R. § 3.312(b). 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. 38 C.F.R. § 3.312(c). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Agent Orange Exposure With regard to the appellant's contention that the Veteran's fatal esophageal cancer was a result of exposure to herbicides in Vietnam, the Board notes first that the Veteran did serve in Vietnam and is for that reason presumed to have been exposed to herbicides. However, esophageal cancer has not been recognized by VA as a disease associated with exposure to herbicides. Therefore, presumptive service connection for the cause of the veteran's death as a result of exposure to herbicides must be denied. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Nevertheless, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The "positive" evidence on this issue includes Dr. D.H.B.'s statement of October 1992 and the September 2008 opinion of Dr. C.N.B. The "negative" evidence on this issue includes the opinion of the 1997 VA oncologist and the VA specialists in hematology/oncology and environmental medicine who reviewed the Veteran's medical records and medical literature in October 2001. The Board finds that the preponderance of the evidence is against the claim in this matter because the "positive" opinions are less probative and persuasive than the "negative" opinions of record. First, the 1992 opinion of Dr. D.H.B. is phrased in vague, speculative terms: esophageal cancer "may have been caused by exposure to . . . Agent Orange, is a founded possibility" and "there is both a possibility and a probability which exists that the exposure to Agent Orange may have led to . . . esophageal carcinoma" (emphasis added). The Court has held that the use of such equivocal language makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Dr. D.H.B.'s opinion is further weakened by the fact that the support for his conclusions, the medical research he references, is not clearly identified. Attempts to associate the research materials with the record have been unsuccessful. This is particularly problematic where his interpretations of these research materials were contradicted by the opinions of the physicians who provided the medical opinions in 1997 and 2001. These VA physicians reported that their search of literature found no such study but rather the National Academy of Science has found after studying the subject that there is no correlation between exposure to herbicides and esophageal cancer. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In Monzingo v. Shinseki, No.10-922, (Vet. App. Nov. 21, 2012) the United States Court of Appeals for Veterans Claims (Court) held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Id. Given the equivocal language and the contradictory information presented regarding the medical evidence upon which Dr. D.H.B. bases his opinion, it has little to no probative value. The Board also finds the "positive" opinion of Dr. C.N.B. to be of limited probative value. Dr. C.N.B. supports his opinion that the Veteran's fatal cancer was "very likely" caused by exposure to Agent Orange with the statement that the "records don't support another etiology." In fact, the record shows that numerous physicians in this case have indicated that the records do support another etiology: the Veteran's long history of tobacco and alcohol use. The 1997 VA oncologist concluded that the Veteran's "dietary habits, his consumption of alcohol, his consumption of tobacco [] are the most likely factors to be associated with cancer of the esophagus according to the available literature." He cited a GI text noting that "studies from several areas of the world strongly suggest relationship [between esophageal cancer and] tobacco and alcohol." Likewise, the 2012 opinion of Dr. S.J.C. found the Veteran's fatal cancer was "more than likely due to smoking . . . as well as being associated with alcohol intake. " Dr. E.J.M.'s 2012 opinion also stated that the "Veteran had risk factors [for esophageal cancer] of male gender, 30 pack year smoking history, and he was overweight for years prior to this diagnosis." Thus, contrary to Dr. C.N.B.'s statement, the record clearly supports another etiology for the Veteran's cancer: his confirmed use of alcohol and tobacco for many years. As such, the Board finds that the Dr. C.N.B.'s opinion is not adequately explained and is based on an incomplete or inaccurate factual basis. For these reasons, it is not probative evidence as to the etiology of the Veteran's cancer. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Dr. C.N.B.'s opinion is also less probative because he supports his positive opinion with 2006 IOM studies (hereinafter referred to as Update 2006) which have been found by VA to be inadequate or insufficient to support an association between esophageal cancer and Agent Orange. In this regard, the Board notes that whenever the VA Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). In July 2007, the NAS issued Update 2006. With respect to esophageal cancer, NAS found that no new data had emerged since Update 2004 to alter the conclusion that the cumulative evidence of such an association between esophageal cancer and Agent Orange is inadequate or insufficient. Based upon Update 2006 and prior NAS reports, the VA Secretary concluded that the evidence and analysis available to VA at that time did not warrant a presumption of service connection for esophageal cancer. See 75 Fed. Reg. 32,540 (June 8, 2010). Although she was specifically requested not to provide an opinion with respect to Agent Orange etiology, the 2012 opinion of Dr. E.J.M. does note that "it is possible that exposure to herbicide rendered [the Veteran] less capable of repair from the effects of subsequent heartburn and reflux. As stated, reflux is thought to predate injury, dysplasia, and malignant transformation. It is somewhat likely, as not, that this individual acquired a condition that led to a rare cancer at such a young age, and may be related to conditions present during active duty" (emphasis added). However, as noted above, such an opinion is too speculative to establish medical nexus. See Bostain v. West, 11 Vet. App. at 127-28, quoting Obert v. Brown, 5 Vet. App. at 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The negative opinions of the VA physicians in 1997 and 2001 are more probative and persuasive than the "positive" opinions noted above. These VA opinions are phrased in unambiguous language and cite to specific medical treatise and medical research which supports their conclusions that there is no relationship between esophageal cancer and Agent Orange. Also, they address the "positive" opinion of Dr. D.H.B. and explain why the research studies he cites do not support his conclusions. The VA oncologist who reviewed the Veteran's medical records in June 1997 reported that scientific studies do not show a correlation between exposure to herbicides and esophageal cancer and that the likely etiological factors for development of esophageal cancer are use of tobacco and use of alcohol. Finally, with respect to the EPA report referred to by the appellant in 1994 and the letter she provided in 1997 noting incurrences of cancer in employees of a German chemical company who may have been exposed to dioxins (a type of chemical also found in Agent Orange), these articles cannot support the claim. They are general in nature and do not specifically refer to the Veteran or the facts of his case. The Board notes such generic texts, which do not address the facts in this particular Veteran's own case, and without a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314, 317 (1998) (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Wallin v. West, 11 Vet. App. 509 (1998). For these reasons, the Board finds that the preponderance of the evidence is against a finding that the Veteran's esophageal cancer was caused by his presumed exposure to Agent Orange. Direct Incurrence With regard to the appellant's contention that the Veteran's fatal esophageal cancer was incurred in service and manifested by complaints of sore throat and vomiting, the "positive" evidence on this issue includes Dr. D.H.B.'s October 2007 medical opinion. The "negative" evidence on this issue includes the opinion of the 2012 VA physician and the 2012 IME opinion. Dr. D.H.B.'s 2007 opinion is of limited to no probative value because it is phrased in vague terms and is based on an inaccurate factual premise. First, Dr. D.H.B. states that it is "more likely than not . . . that [the Veteran] may have manifested an early indolent carcinoma . . . as far back as 1965 to 1968." The Court has held that the use of such equivocal language makes a statement by an examiner speculative in nature. Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Second, Dr. D.H.B.'s opinion is based on inaccurate facts. He refers to "occasional" episodes of dysphagia and "multiple" episodes of vomiting during service. However the STRs only show one episode of vomiting and no reports of dysphagia. Because of the inaccurate factual history upon which Dr. D.H.B.'s opinion is based, the Board finds that the opinion, with respect to the relationship between esophageal cancer and service, is of no probative value. Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board finds the "negative" opinions of the VA physician and the IME opinion provider in 2012 to be more probative and persuasive than the "positive" opinion noted above. The 2012 opinions cite to specific medical evidence in the record as well as medical research which supports their conclusions that it is less likely than not that the Veteran's documented complaints in service and the reports of symptoms in the years shortly after service represent the onset of esophageal inflammation that led to esophageal cancer. As noted by the VA physician in 2012 "a diagnosis of sore throat is very non-specific." The Board finds the opinion of Dr. E.J.M. to be highly probative and persuasive. This is so because she is clearly an expert in the field of gastrointestinal disorders, as evidenced by the qualifications she provides at the beginning of her report. Further, she provided a 10-reference attachment to her report which includes the medical research evidence she compiled in responding to the Board's question regarding the etiology of the Veteran's esophageal cancer. Most significantly, she prepared a 6-page report which details her rationale for the conclusions she provides and addresses the Veteran's in-service and post-service complaints. For example, after detailing (including noting specific dates of records) the pertinent findings during service and shortly following discharge, she opines: Appropriate medical assessment and treatment appear to have been given for episodes of sore throat during the service period. No other mention of throat, headaches or emesis is present in the military medical record for this veteran. The throat troubles outlined by the transcript from the appellant's appeal from service discharge 1/1969 for the subsequent first year or two may or may not be specific. They may be explained by tobacco use. He stopped tobacco use in 1979. No evidence for other medical symptoms is noted so that an alternate process, drug seeking behavior, or malingering, is unlikely. There are no office notes, in the medical files entrusted to me, to confirm medical care was sought or needed between 1969 and 1989. Dr. E.J.M.'s report does contain some language that could be considered equivocal, i.e.,: "it is possible that the sore throat and vomiting in service and assertions of sore throat, dysphagia, vomiting, vomiting blood, and nosebleeds in the year immediately following the Veteran's discharge may represent the onset of esophageal inflammation that led to esophageal cancer." However, it is clear when such statements are read in context that her opinion is that it is less likely than not that the Veteran's esophageal cancer was incurred in service: It is possible that the sore throat and vomiting in service and assertions of sore throat, dysphagia, vomiting, vomiting blood, and nosebleeds in the year immediately following the Veteran's discharge may represent the onset of esophageal inflammation that led to esophageal cancer. The medical probability is unknown. It is likely less than 50% probability that these symptoms represent the onset of esophageal cancer as there is not documentation for the most severe of these reported symptoms. It is not clear to this reviewer why there is no record of medical evaluation for such serious symptoms of dysphagia and hematemesis. She reiterates this negative opinion in another portion of her report wherein she opines that "[i]t is possible, but less likely than a 50% probability, that the veteran developed esophageal inflammation that may have led to cancer." She supports her finding of "less likely than 50% based on the lack of published reports of ANY [emphasis in original] other young veterans who have a similar finding." Furthermore, while not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim); Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Since the initial diagnosis of esophageal cancer occurred in 1991, over 21 years after separation from service, and since the preponderance of the evidence is against a finding that the Veteran's in-service and post-service symptoms (as reported by the appellant) were manifestations of esophageal cancer, it is impossible to grant service connection on the basis of the manifestation of a chronic disability within one year after separation from service. 38 C.F.R. §§ 3.307 and 3.309. The Board recognizes the appellant's sincere belief that her husband's death was related in some way to his military service. Nevertheless, in this case she has not been shown to possess the requisite medical training, expertise, or credentials to provide meaningful evidence regarding the causal relationship between his death and his military service. Nothing in the record demonstrates that the appellant received any special training or acquired any medical expertise in evaluating and determining such causal connections. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board is very sympathetic to the appellant's loss of her husband, the Veteran, but, for the foregoing reasons the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs