Citation Nr: 1304744 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 08-19 608A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The Appellant and P.O. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from June 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the appellant and P.O. testified at a personal hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. The Board remanded the case for additional development in November 2010 and again in December 2011. FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in November 1999, and that the immediate cause of death was metastatic transitional cell carcinoma of the urinary bladder, due to or as a consequence of hypertension. 2. The Veteran was not service-connected for any disabilities at the time of his death. 3. The probative evidence of record indicates that the Veteran's bladder cancer and hypertension first manifested many years after service, and are not causally or etiologically related to service, including exposure to herbicides. 4. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening the Veteran's death. CONCLUSION OF LAW The Veteran's death was not caused, or substantially or materially contributed to, by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the appellant's claim, 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant, prior to the initial adjudication of the claim, 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. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court held that in the context of a claim for cause of death benefits, 38 U.S.C.A. § 5103(a) notice must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Prior to the initial adjudication of the appellant's claim, a letter dated in March 2007 satisfied the duty to notify provisions, with the exception of informing the appellant if the Veteran was service-connected for any disabilities at the time of his death, and if so, which disabilities. A letter dated in December 2010 satisfied this requirement. While the December 2010 letter was issued after the initial adjudication, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA could cure such a timing problem by readjudicating the appellant's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the appellant's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the December 2010 letter was issued, the appellant's claim was readjudicated by the April 2011 Supplemental Statement of the Case (SSOC). Therefore, any defect with respect to the timing of the VCAA notice has been cured and the Board finds that VA has fully complied with its duty to notify. Furthermore, the Board concludes VA's duty to assist has been satisfied. All identified and available private treatment records have been associated with the claims file. 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. In cause of death cases, a medical opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA obtained a medical opinion in connection with the appellant's claim in March 2011, and obtained an addendum to the same in January 2012. The January 2012 opinion, based on review of the claims file and supported by rationale, is adequate to decide the claim herein. Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Additionally, the Board finds there has been substantial compliance with its most recent remand directives. The Court has recently held 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 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC obtained an adequate addendum to the March 2011 VA opinion and readjudicated the appellant's claim by the August 2012 SSOC. Thus, the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders); 38 C.F.R. § 3.655 (2012). The appellant has been afforded a hearing before a VLJ in which she and her witness, P.O., presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the party who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the appellant's claim. The VLJ and the representative asked specific questions of the appellant and her witness, however, directed at identifying elements required to adjudicate the claim. Specifically, the questioning was directed at establishing the Veteran's in-service exposure to herbicides and his medical history as it relates to the causes of his death. The VLJ specifically sought to identify any pertinent evidence not currently associated with the claims file and had a lengthy exchange with the appellant and her witness as to the evidence presented and evidence that may be obtained. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Cause of Death Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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). In addition, certain chronic diseases, including malignant tumors and hypertension, may be presumed to have been incurred or aggravated during service if such diseases become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In making all determinations, the Board must fully consider the lay assertions of record. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, while non-precedential, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and a claimant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran died in November 1999. The death certificate reflects that the immediate cause of death was metastatic transitional cell carcinoma of the urinary bladder, due to or as a consequence of hypertension. The Veteran was not service-connected for any disabilities at the time of his death. The appellant contends, both in numerous written statements and during her Board hearing, that service connection for the cause of the Veteran's death is warranted on the basis that the Veteran, during service in the Republic of Vietnam, had extreme and extensive exposure to Agent Orange such that he developed bladder cancer and hypertension which led to his death. On this issue, the Veteran had active service in the Republic of Vietnam and is thus presumed to have been exposed to herbicides. His service personnel records indicate that he was assigned to the 244th Aviation Company in the Republic of Vietnam from March 1968 to January 1970. A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307(a)(6)(i). Regulations provide that if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type II diabetes mellitus, Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); hairy cell leukemia and other chronic B-cell leukemias; Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e). For purposes of the aforementioned section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 3 (effective August 31, 2010). The regulations do not include bladder cancer or hypertension. Through studies with the National Academy of Sciences, VA has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). Further, based on the findings of studies conducted by the National Academy of the Sciences, the Secretary of the VA has recently concluded that there is no "statistically significant" evidence of a connection between herbicide exposure and "urinary bladder cancer." See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,334 (December 27, 2010); see also 77 Fed. Reg. 47,924-28 (Aug. 10, 2012). Thus, although the Veteran is presumed to have been exposed to herbicides, his bladder cancer and hypertension are not any of the enumerated disabilities and service connection for such may not be presumed. Notwithstanding the provisions relating to presumptive service connection, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Of record is an October 2005 decision of the United States Department of Labor Employee's Compensation Appeals Board wherein the Department found that an employee's bladder cancer was causally related to his exposure to Agent Orange. Service personnel records indicate that the Veteran's military occupational specialty was aviation sensor specialist. His unit histories for the time period during which he was in the Republic of Vietnam describe the unit's mission and activities. His unit was charged with providing the IV corps tactical zone with visual, photo, infrared and side-looking aerial radar reconnaissance. The unit conducted almost-constant missions to assist in detecting enemy movement of personnel and supplies, and to record and report activity along the canals and waterways of the major rivers of the Delta. The unit histories include a description of the topography of the land at issue, as well as lessons learned from failed missions and descriptions of successful missions, including celebratory dinners. There is no indication that the 244th Aviation Company, in the Republic of Vietnam, from March 1968 to January 1970, participated in any defoliation activities. There is no indication that the Veteran, or any individual assigned to the unit, sprayed Agent Orange or stored containers of Agent Orange or any herbicide aboard the unit's helicopters. The Department of the Army, in February 2007, provided an analysis of the spray missions conducted, approximately 263, specific to the Veteran's time period and unit location in the Republic of Vietnam. A February 2011 response from the Defense Personnel Records Information Retrieval System (DPRIS) indicates that the Veteran's unit histories dated during the specified time range do not document or mention that the unit or any individuals assigned to the unit were involved in the spraying of Agent Orange. In a March 2007 statement, the appellant reported that the Veteran frequently told members of the family that he had a regular mission as a helicopter aircraft crewman and actually sprayed Agent Orange in Vietnam. She reported that the Veteran's best friend, R.H. served with the Veteran and also died of cancer. She asserted that the Veteran's bladder cancer and hypertension were a consequence of his exposure to Agent Orange due to his direct involvement in spraying such and his exposure from being sprayed as a member of his unit on 263 occasions. In a July 2008 statement, the appellant provided the same assertions that she did in her prior statement; however, she concluded that the Veteran, from his direct involvement and spraying Agent Orange and his exposure from being sprayed as a member of his unit on 263 occasions incurred extreme and continuous exposure and direct contact with Agent Orange. In an April 2007 letter, the Veteran's private physician, Dr. M., reported that the Veteran died from extensively metastatic transitional cell carcinoma of the bladder in November 1999. He opined that the Veteran was in Vietnam and was involved with the spraying of Agent Orange, and due to his extensive exposure to such an herbicide, it probably contributed to him developing the cancer that took his life. In a September 2008 statement, P.H., the spouse of the friend who served with the Veteran, R.H.; reported that R.H., used to relate how they, the aircraft crewmen, directly sprayed Agent Orange from their helicopters and had frequent direct contact with the Agent Orange canisters. She asserted that she believed such to have resulted in exceptional personal exposure to Agent Orange by both the Veteran and R.H. She reported that R.H. was diagnosed with mouth cancer in 1987 and died in June 1989, and that his physician told her that he had seen the type of cancer R.H. had in people much older than her husband, and heavy smokers. At the time of the Board hearing, the appellant's brother, P.O., reported that the Veteran had spent 22 months in the Republic of Vietnam as an aircraft crewman and his unit was involved in intense operations, conducting more than 2,000 sorties in a three or four month period. He asserted that he had official documentation that the 244th Aviation Company actively sprayed Agent Orange and the Veteran had direct contact to Agent Orange canisters aboard the aircraft. He also asserted that the Veteran incurred extreme Agent Orange exposure from his 263 sprayings. He reported that R.H. was in the same unit as the Veteran and died of cancer within one year of the Veteran. He asserted that the Institute of Medicine had reported findings of limited or suggested evidence that exposure to herbicides is associated with an increase in developing high blood pressure. The appellant reported that after the Veteran's service in the Republic of Vietnam, he complained of headaches and did not seek treatment, as he did not believe in doctors. In an April 2010 letter, Dr. M. again opined that the Veteran's bladder cancer was probably caused by his exceptional exposure to Agent Orange. In a June 2010 statement, Dr. M. reported that he had extensive experience with herbicides, and had a master's degree in physical and inorganic chemistry and worked as a chemist. He reported that the average age of the Veteran's tumor is 68, and that the literature has shown that people at the highest risk for developing bladder cancer are those exposed to chemicals, including dye, rubber, leather working materials, and pesticides. He reported that there is official documentation that substantiates that the Veteran's unit was actively involved in dispensing Agent Orange. He reported that in addition to the Veteran's direct involvement with canisters and spraying, his unit was the recipient of 263 separate sprayings of Agent Orange. He also noted that R.H. served with the Veteran, completing identical tasks. He reported that the history and outcome of the Veteran in the present appeal mirrored that of the employee in the cited Department of Labor case. He cited one of the physician's reports that studies had shown Agent Orange to be a carcinogen and thus the employee's bladder cancer was causally related to Agent Orange exposure. Dr. M. also cited an Institute of Medicine study reporting findings of evidence that exposure to herbicides is associated with an increased chance of developing hypertension, and that while such is in continuous debate, he was of the opinion that the severity of the exposure is probably the significant factor. He concluded that as the Veteran's extreme exposure must be a determining factor and that it is too coincidental that both the Veteran and R.H. experienced the same exposure and died from cancer within one year of each other. He concluded also that there was at the very least ample evidence, considering the Veteran's extreme level of exposure, to award the appellant the benefit of the doubt. In a March 2011 VA opinion, the physician noted the Veteran's extensive documentation of his unfortunate progression of his transitional cell carcinoma of the bladder. The Veteran noted Dr. M.'s opinions, including his experience with chemicals, as well as the opinions of physicians included in the Department of Labor decision and the Veteran's extensive in-service exposure to Agent Orange. The physician asserted that the evidence before him was in relative equipoise, with the consideration of the specialist's opinions shifting the weight of the evidence in favor of the appellant. He thus agreed with Dr. M.'s June 2010 opinion and concluded that a disability of service origin, namely, bladder cancer related to unusually intense and lengthy exposure to Agent Orange, is shown to have been causally or etiologically related to, or to have played any role in producing or hastening the Veteran's death. The physician also opined that hypertension did not factor or even rise near the level of 50 percent probability of being materially or proximately the cause of his death, and reasoned that the Veteran did not have significant end organ damage from his hypertension. The Board, in its December 2011 remand, considered the March 2011 VA opinion, and found that the examiner based his opinion on the unverified report that the Veteran had an "unusually intense and lengthy exposure to the Agent Orange herbicide." The Board thus sought clarification of the VA opinion based upon the verified evidence of record as to herbicide exposure. The Board requested that the VA examiner be informed that it may be assumed, and is documented, that the Veteran was exposed to herbicides during service in Vietnam; but that the official government records presently of record do not demonstrate that he had direct involvement with canisters and spraying of Agent Orange. In January 2012, the VA examiner provided an addendum. He asserted that he reviewed the entire claims file before offering his supplemental opinion. He reported that facts emerged that while the Veteran is presumed exposed to herbicides during his service in the Republic of Vietnam, the Veteran was not in prolonged contact with actual canisters of Agent Orange and that he was not involved with actual direct spraying of Agent Orange. He concluded that as bladder cancer and hypertension are not on the Agent Orange list of presumptive disabilities and given the further evidence that the Veteran was not directly involved in handling or spraying or in direct contact with such canisters, it is less likely as not that the two conditions are 50% proximately or greater due to Agent Orange, rather that the bladder cancer and hypertension causing or substantial contributing to his death were less likely as not Agent Orange-derived. There is no evidence, and the appellant does not contend otherwise, that bladder cancer or hypertension were incurred during service or manifest to a compensable degree within one year of service, or by January 1971. Further, as discussed at length below, there is no probative evidence of a nexus between an event in service, including herbicide exposure, and the Veteran's bladder cancer and hypertension. In this regard, the Board has considered the appellant's lay statements asserting that the Veteran told her and other family members that he had a regular mission as a helicopter aircraft crewman and actually sprayed Agent Orange. She is competent to report that she heard such from the Veteran, as it is within the realm of her personal knowledge. Layno, 6 Vet. App. 465, at 469-70. On this basis, P.H. is also competent to report that R.H. told her that the aircraft crewman directly sprayed Agent Orange from their helicopters and had frequent direct contact with Agent Orange canisters. There is no evidence that the appellant and P.H. are not credible. However, their competent and credible lay statements as to what they were told are not probative evidence in the current appeal, as they are based on statements made by the Veteran and R.H. that the Board finds to be not credible. Both the Veteran and R.H. are competent to report that they were involved in spraying Agent Orange and had contact with canisters of Agent Orange during service. Layno, 6 Vet. App. 465, at 469-70. However, these statements are not credible. The Veteran's unit histories are very clear and are completely silent for any evidence that the Veteran or R.H., or any member assigned to the unit had any duties, much less regular missions, spraying Agent Orange or coming into contact with canisters of Agent Orange aboard the unit's helicopters. The level of detail provided in the unit histories is persuasive. As discussed above, the unit histories discussed the unit's mission, duties, as well as the topography of the land at issue. The DPRIS response also confirms that the unit histories do not document any involvement in the spraying of Agent Orange. Further, the Board has considered that the appellant's brother, P.O., asserted during the Board hearing, that there was official documentation that the Veteran's unit actively sprayed Agent Orange and the Veteran had direct contact to Agent Orange canisters aboard his aircraft. However, he did not cite to a specific document and beyond that of the lay statements of the appellant and P.H., found by the Board herein to be of no probative value, there is no evidence that the Veteran actively sprayed Agent Orange or had direct contact to Agent Orange canisters. Consequently, the Board finds that P.O.'s statements lack the specificity necessary to be probative in this matter. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board notes here that, as discussed above, the Veteran is presumed exposed to herbicides based on his service in the Republic of Vietnam. 38 C.F.R. §3.307(a)(6). While the Department of the Army provided an analysis of the spray missions conducted, approximately 263, specific to the Veteran's time period and unit location in the Republic of Vietnam, such is the exposure to which the Veteran is presumed to have incurred. There is no indication that the Department of the Army's analysis is evidence that the Veteran was exposed to unusually high or extreme exposure to Agent Orange, or any other herbicide. There is no evidence that the appellant, P.O., or P.H. have the training or skills to determine that the exposure to which the Veteran is presumed to have incurred is unusually high or extreme. Further, in his June 2010 opinion, Dr. M. described the Veteran's exposure to herbicides as extreme, however, such clearly considers the lay statements of record asserting that the Veteran had direct involvement in spraying Agent Orange and had contact with canisters of Agent Orange during service, as well as the approximately 263 spray missions. No physician or military official qualified and authorized to opine on such matters has concluded that the approximately 263 spray missions conducted specific to the Veteran's time period and unit location resulted in unusually high or extreme exposure to herbicides. The Board finds that Dr. M.'s April 2007 and April 2010 opinions are speculative, as he opined that the Veteran's extensive exposure to Agent Orange probably contributed to or caused his bladder cancer. Such opinions, using terminology to include 'probably,' are of little probative value. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a Veteran's brain tumor 'may well be' connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term 'could,' without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (noting that the use of the phrase 'could not rule out' was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as 'the Veteran's death may or may not have been averted'). Also, Dr. M.'s June 2010 opinion is based on an inaccurate factual premise. Beyond that of the lay statements of record, which the Board has found to have no probative value; there is no evidence that the Veteran actively sprayed Agent Orange or had direct contact to Agent Orange canisters or otherwise incurred extensive and extreme exposure to Agent Orange during service in the Republic of Vietnam. There is no doubt that Dr. M. has unique experience related to chemicals and the treatment of Veterans in general, however, his statement clearly indicates that his positive nexus opinion is based on, at least in part, the appellant's claim that the Veteran incurred extensive and extreme exposure to Agent Orange. Opinions based on inaccurate factual premises are of no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinions have no probative value when they are based on an inaccurate factual predicate, such as a self-reported and inaccurate history). On the same basis, the March 2011 VA opinion agreeing with Dr. M.'s June 2010 opinion and citing the Veteran's unusually intense and lengthy exposure to Agent Orange, is also based on an inaccurate factual premise and has no probative value. Also, the decision from the Department of Labor is not probative evidence in the current appeal. Indeed, each agency has its own applicable law and regulations. In making its decisions, the Board is bound by applicable statutes, VA regulations, and precedent opinions of the VA General Counsel. 38 C.F.R. § 19.5 (2012). While a decision of another agency must be weighed and evaluated, as with any other piece of evidence, its decisions are not controlling on VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). It is significant that while Dr. M., in his June 2010 opinion, reported that the employee's exposure history and outcome in the Department of Labor case mirrored that of the Veteran in the present appeal, review of the record indicates that such is not the case. The employee in the Department of Labor case had seven years of service in the Republic of Vietnam, and the Agent Orange exposure related to such tenure was considered by the adjudicators and medical specialists. The Veteran in the present appeal was in the Republic of Vietnam for only 22 months. While the Department of Labor weighed the positive and negative evidence of record and concluded that the employee's bladder cancer was related to his exposure to Agent Orange, there is no evidence contained in the Department of Labor decision specific to the Veteran in the present appeal. The only probative evidence in the current appeal is the January 2012 VA opinion, as it is the only opinion rendered with the correct factual premise as to the Veteran's exposure to herbicides during service. The medical opinion by the VA examiner is credible because it is based on a thorough review of the file and available treatment records and the examiner offered a reasonable medical basis for his conclusion. Absent credible evidence to the contrary, the Board is not in a position to further question the opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board has considered that the appellant, as well as P.O. and P.H., asserted that the Veteran's death was caused, or substantially or materially contributed to, by a service-connected disability, namely, bladder cancer and hypertension caused by in-service exposure to Agent Orange, regardless of the degree of exposure. Davidson, 581 F.3d 1313, at 1316. However, the conclusory statements regarding causation are of no probative value, as they are not competent to opine on a medical question. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). There is no evidence that the appellant, P.O., or P.H., have the medical training or skills to opine as to the etiology of the Veteran's bladder cancer and hypertension such that their lay statements may outweigh the probative value of the January 2012 VA opinion. On the same basis, the appellant, P.O. and P.H., are not competent to opine that the Veteran's death from bladder cancer, and that of R.H., from mouth cancer, within one year, are related or otherwise positive evidence in the present appeal. In sum, the Board finds that entitlement to service connection for the cause of the Veteran's death is not warranted. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful. However, the Board has carefully reviewed the record in depth, and it has been unable to identify a basis upon which service connection may be granted. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2011); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) ((citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim of entitlement to service connection for the cause of the Veteran's death must be denied. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs