Citation Nr: 1308796 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-17 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran was on active duty in the United States Air Force from May 1960 to March 1981. He died in February 2008; the appellant is the Veteran's surviving spouse (widow). During the Veteran's lifetime, he was in receipt of VA compensation for a neuroma excision of the left calf, an eye disability, and hemorrhoids, which had been assigned a 10 percent combined disability evaluation. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2012, the appellant testified at a Board hearing at the RO. A transcript of that hearing is of record. At the hearing, the appellant submitted additional evidence directly to the Board accompanied by a signed written waiver of the RO's initial consideration of this additional evidence. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. As such, the Board finds that the duties set forth in 38 C.F.R. 3.103(c)(2) were complied with, and that the Board can adjudicate the claim based on the current record. Upon reviewing the claims folder, the Board referred the matter to the Veterans Health Administration (VHA) for an advisory opinion concerning the appellant's claim for benefits. This occurred in November 2012. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). The advisory opinion has been obtained and has been included in the claims folder for review. It is noted that the appellant was given the opportunity to provide any comments with respect to the opinion and those comments have also been included in the claims folder for review. FINDINGS OF FACTS 1. During his lifetime, the Veteran was in receipt of VA compensation benefits for service-connected ankle disability, eye disability, and hemorrhoids. 2. The Veteran died in February 2008; the Certificate of Death listed the cause of death as chronic obstructive pulmonary disease. No other disabilities, diseases, or conditions were listed as possibly contributory factors in the Veteran's death. 3. The Veteran's death due to chronic obstructive pulmonary disease (COPD) was not etiologically linked to his service or any incidents therein, to include exposure to chemical dioxins, asbestos, or hazardous materials, or his service-connected disabilities. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has come before the VA asking that service connection be granted for the cause of her husband's death. She maintains that while he was on active duty, the Veteran was repeatedly exposed to asbestos and/or chemical dioxins and/or environmental hazards including fuel associated with his service duties as an Air Force aircraft mechanic/technician/repairman. She believes that as a result of this exposure, her husband developed chronic obstructive pulmonary disease (COPD) which ultimately led to his death in February 2008. Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before proceeding with an analysis of the merits, the Board must examine whether the requirements under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 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 his/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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). In the context of a claim for dependency and indemnity compensation (DIC) benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Over the course of this appeal, the RO has sent notification letters to the appellant that have informed her that evidence to support her claim must show that the Veteran died from a service-connected injury or disease or a condition caused by or the result of a service-connected disability, and that she should provide medical evidence showing that service-connected conditions, or purported service-connected conditions, caused or contributed to her husband's death. She was also notified that VA would be responsible for obtaining relevant records from any Federal agency, such as the military, VA medical centers or the Social Security Administration, as well as records from State or local governments, private doctors and hospitals or current/former employers. She was told that she must provide enough information so that VA could request the records from the appropriate person or agency. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012), as indicated under the facts and circumstances in this case. The appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In light of the above, the Board finds that VA has complied with the duty to notify and the duty to assist. Additionally, VA's duty to assist in a claim for dependency and indemnity compensation (DIC) could include a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012). Two such opinions were obtained, and these opinions have been included in the claims folder for review. The opinions involved a review of the claims folder and the Veteran's available service and post-service medical treatment records. The opinions that were provided were supported by sufficient rationale. Therefore, the Board finds that the opinions are adequate for rating purposes. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. Moreover, the appellant was given the opportunity to present evidence and testimony before the RO and the Board. The appellant availed herself of both of these opportunities. It is noted that in both of these hearings, the appellant described some of the symptoms, manifestations, and treatment produced and received by her husband prior to his death. More importantly, the appellant spoke about why she believed there was a link between the Veteran's service and the disability that caused his death. Also, the appellant was given notice that VA would help her obtain evidence but that it was up to the appellant to inform VA of that evidence. During the course of this appeal, the appellant has proffered documents and statements in support of her claim. It seems clear that VA has given the appellant every opportunity to express her opinions with respect to the issue now before the Board, and VA has obtained all known documents that would substantiate the appellant's assertions. Accordingly, the Board finds that the essential fairness was maintained in this case as the claimant has demonstrated actual knowledge of the evidence, which was needed to establish the claim, and because VA has obtained all relevant evidence. The claimant demonstrated an understanding of the evidence required to substantiate the claim for service connection. In sum, the claimant was provided the information necessary such that any defective predecisional notice error was rendered non-prejudicial in terms of the essential fairness of the adjudication. Additionally, the Board notes that the Veteran also had a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. Therefore, the Board will proceed with review of the appellant's claim based upon all relevant evidence. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Laws and Regulations Cause of death Dependency and Indemnity Compensation (DIC) is awarded to a Veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). A service-connected disability will be considered as the principal (primary) cause of death when such disability, 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) (2012). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (2011). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3) (2012). 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2012). Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, a service member who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307 (2012). If a veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2012). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) (2012) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e) (2012). The list of diseases includes chloracne or other acneform disease consistent with chloracne, type 2 diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. See 38 C.F.R. § 3.309(e) (2012). The VA amended 38 C.F.R. § 3.309(e), see 75 Fed. Reg. 53202, effective August 31, 2010. In that amendment, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this amendment was to establish presumptive service connection for this disorder based on herbicide exposure. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction, artherosclerotic cardiovascular disease (including coronary spasm), coronary bypass surgery, and stable, unstable, and Prinzmetal's angina. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA, however, has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular was subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). Subsequently, VA has reorganized and revised this manual into its current electronic form M21-1MR. Although the form has been revised, the information contained therein has remained the same. "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). With asbestos-related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9)(h). VA must also ensure that proper development of the evidence is accomplished to determine whether or not there is pre-service and/or post-service asbestos exposure. Id. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9)(e). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etcetera. M21-1, Part IV, Subpart ii, Chapter 2, § C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 4-2000. III. Background and Discussion The records indicate that the Veteran was on active duty during the Vietnam Era and that he did serve in the Republic of South Vietnam. While on active duty, he was an aircraft technician, mechanic, and repairman. After serving approximately 20 years in the US Air Force, the Veteran retired in March 1981. The service treatment records contain notations of treatment for pneumonia, pneumonitis, and bronchitis. A pulmonary function test performed as part of the Veteran's February 1981 retirement examination contained a diagnosis of mild airflow obstruction. A pulmonary function test shortly after service, in August 1981, was normal. The evidence also reflects that the Veteran smoked cigarettes. The Veteran was subsequently discharged. Shortly after the Veteran retired from the Air Force, he submitted a claim for VA compensation benefits. Upon further medical testing and review of the medical evidence of record, service connection was granted for status post excision of neuroma, left lateral calf with tender scar and loss of sensation over S1 dermatome (left ankle); residuals of laceration and abrasion of left cornea with healed scar visual acuity 20/20 bilateral; and, hemorrhoids, external, status post excision thrombosed hemorrhoids, asymptomatic. The left ankle disability was assigned a 10 percent rating, and the remaining disorders were assigned noncompensable evaluations. See Rating Action, October 9, 1981. No other disability, disorder, disease, or condition was found to be related to service or secondary to a service-connected disability. The Board would also note that the appellant was not awarded a total disability evaluation based on an inability to be employed. Between the publication of this rating action and the Veteran's death, the record is negative for any submission by the Veteran asking that service connection be granted for any disabilities or disorders related to or caused by asbestos, environmental hazards, or chemical dioxins. These same records are also silent for any claims filed by the Veteran asking that service connection be granted for a respiratory disorder to include COPD, emphysema, or carcinoma of the lung. September and October 2003 treatment notes indicate that a lung nodule was discovered, and a physician wrote with regard to this nodule, "malignancy should be a consideration." Approximately 27 years after the Veteran retired from the US Air Force, he died. More specifically, the Veteran died in February 2008. A Certificate of Death was issued that showed that the Veteran's immediate cause of death was COPD. No other disorders, disabilities, or conditions were listed on the Certificate of Death and an autopsy was not performed. Of note, the three service-connected disabilities were not mentioned or referenced on the Certificate of Death, and these same three disorders have not been suggested as a cause of the Veteran's death. Shortly thereafter, the appellant filed a claim for VA compensation benefits claiming that her husband's death was due to service, to include being secondary to exposure to asbestos, hazardous or environmental chemicals, and/or chemical dioxins (Agent Orange). To support her assertions, the appellant submitted a number of articles from the internet concerning COPD, chemical dioxins, hazardous materials, and asbestos. She has not, however, proffered any statements or conclusions from private or VA medical care providers that would relate her husband's death to his military service or any incident therein. After submitting her notice of disagreement with the RO's denial of her claim, the Veteran's claims folder was forwarded to a VA respiratory doctor for review. The reviewer subsequently provided an opinion on March 5, 2010, that has been included in the claims folder for review. The pulmonary specialist reviewed the Veteran's claims folder and provided the following opinion with respect to the assertions made by the appellant: Deceased due to chronic obstructive pulmonary disease (COPD). Less likely than not caused by or related to service. The normal PFT as above indicates that he did not have COPD during service. The spurious borderline result is not relative [sic] as he developed COPD years later after continuing to smoke cigarettes and cigars. Acute bronchitis is consistent with natural exposure and does not cause emphysema (COPD). As such, it is less likely than not that the [V]eteran[']s COPD was caused by or related to service. The preponderance of medical evidence and sound medical reasoning holds that COPD (emphysema) is more likely than not caused by or related to smoking use primarily and/or secondarily. Asbestos, agent orange and hydraulic fluid have not been found to represent significant proximate causes of emphysema (COPD). Therefore, the Veteran's COPD is less likely than not caused by, related to or worsened by military service or in[-]service exposures. On March 11, 2010, the pulmonary specialist added the following paragraph to her opinion: The veteran did not have any lung cancer. The "spot" was a benign lesion. This lesion would have been asymptomatic and of no clinical significance. No[t] related to [V]eteran[']s death. Following a review of the claim and after the appellant provided testimony before the Board, the Board, in November 2012, forwarded the appellant's claim to the Veterans Health Administration (VHA) and asked that an analysis of the appellant's assertions be provided. In response to this request, a VA pulmonologist (medical doctor), in December 2012, provided the following: 1. It is unlikely that the COPD that caused the Veteran's death was related to the Veteran's military service. This is based on the fact that his retirement pulmonary function test (PFT) performed in February 1981 was normal. Any exposures to hydraulic fluid, jet fumes or fuel, episodes of bronchitis, pneumonia, or pneumonitis that occurred during his time as an aircraft maintenance specialist and caused alleged COPD would have manifested at the time of the PFT performed when he retired from the military. Presumably any exposures he had during his military service ceased when he retired, and they did not lead to any deficits in his pulmonary functions based on said PFT's. Beryllium is known to cause both acute and chronic pulmonary disorders. The acute disorder is usually an acute inflammatory condition in the upper airways, bronchiolitis, pulmonary edema, and chemical pneumonitis. Symptoms usually include acute onset of cough, chest pain, bloody sputum, rales and cyanosis on exam, and CXR findings of patchy air-space disease. It usually resolves with removal from the exposure. Chronic beryllium disease is a multisystem disorder characterized by granulomas throughout the body and primarily in the lung. Symptoms usually include insidious onset of cough, chest pain, weight loss, fatigue, arthralgias, and crackles on exam. CXR usually demonstrates ill-defined nodular opacities with hilar adenopathy. PFT patterns for patients with chronic beryllium disease are as follows: Restrictive defect (20%), normal spirometry and lung volumes with reduced DLCO (36%), obstructive defect (39%), and no abnormality (5%). While the Veteran demonstrated an obstructive defect on PFT's obtained years after retirement, there was no evidence by exam or CXR that he had other manifestations of chronic beryllium disease. Hydraulic fluids can contain organophosphates, and generally cause a syndrome consistent with organophosphate poisoning, which is a neurologic crisis consisting of cramps, excessive secretions, diarrhea, bronchoconstriction, weakness, confusion, and coma among other symptoms. It occurs immediately after exposure, and there is no reported chronic condition that appears years after removal from the exposure. Asbestos can cause a multitude of manifestations of the pulmonary system, from benign pleural effusions and pleural plaques to asbestosis and mesothelioma. In general, it is a fibrotic lung disorder that can manifest 20-40 years after exposure. It has typical radiographic features and usually demonstrates a restrictive defect of pulmonary function testing. The Veteran did not demonstrate any of these features of PFT or CXR, so it is very unlikely that he suffered from any effects related to asbestos exposure. The pulmonary response to occupational fumes and gases depends on the chemical nature of the exposure, the site of deposition, contact with the bronchial tree, and host response factors such as smoking. From evidence found in multiple epidemiologic studies involving exposure to gases, dusts, and fumes, it has been found that smokers with occupational exposures have a slight increased rate of decline in FEV 1.0 than smokers without the same occupational exposures. Therefore, it has been concluded with reasonable assurance that occupational exposures to dusts, fumes, and gases make an important contribution to chronic bronchitis and may cause a small increase in the rate of decline in FEV 1.0. The contribution of such occupational exposures to COPD is far outweighed by the contribution of cigarette smoking, however. Based on review of the records provided, the patient smoked 1 to 1.5 packs of cigarettes per day in addition to cigars for 46 years, which would be consistent with him developing severe COPD and respiratory failure [from] which he ultimately died. 2. It is unlikely the [V]eteran had lung cancer, or that it contributed substantially or materially to the Veteran's death. A solitary pulmonary nodule is a spherical mass within the lung. A size of 3.5 cm (35 mm) or larger suggests malignancy. A CT scan obtained on September 12, 2003[,] demonstrated a 5 mm nodule in the left upper lobe of the lung. The Veteran saw Dr. George Torres for evaluation, and because of the Veteran's smoking history, it was advised he have a follow up CXR in 3 months, and a CT scan in 6 months. A CXR was performed in November of 2003, and again on November 24, 2004[,] which did not mention the presence of any nodule in that area. Therefore, the nodule did not appear to grow significantly in the 14 months following initial identification and more likely represented a benign process. While only a biopsy can diagnose a lung cancer with certainty, given the lack of growth in the nodule over that period of time and it's [sic] small size, it is highly unlikely he suffered from lung cancer that contributed to his death. There are no other medical opinions or hypotheses contained in the claims folder. As previously reported, the Veteran's service treatment records have been obtained and included in the claims folder for review. These records contain no complaints, findings, or diagnoses of any lung cancer, COPD, or emphysema during service. On the clinical examination for retirement from service, the Veteran's lungs and respiratory system were evaluated as normal. Thus, there is no medical evidence that shows that the Veteran suffered from any type of lung cancer, COPD, or emphysema during service. As previously indicated, the appellant has suggested that the Veteran's death was due to or the result of or caused by his exposure to chemical dioxins while on active duty. Service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, a veteran must show that he or she served in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6) (2012). A review of the Veteran's DD Form 214 shows that he had service in the Republic of Vietnam. For that service, he was awarded the Vietnam Service Medical with one battle star, the Vietnam Cross of Gallantry with Palm, and the Republic of Vietnam Campaign Medal. Therefore, this requirement has been met. Second, the veteran must be diagnosed as having one of the specific diseases listed in 38 C.F.R. § 3.309(e) (2012) and the recent amendment concerning ischemic heart disease. Brock v. Brown, 10 Vet. App. 155, 162 (1997). In this instance, the Veteran died from COPD. During his lifetime, the Veteran was not diagnosed as suffering from lung cancer or any other disorder, (including chloracne as suggested by the appellant), disability, or disease that has been shown to be a presumptive disability. See 38 C.F.R. § 3.309 (2012). More specifically, COPD is not a disease associated with herbicide exposure. Therefore, the presumptive provisions of 38 C.F.R. § 3.307(a)(7) (2012) and 38 C.F.R § 3.309(e) (2012) do not apply. Again the medical evidence shows that the Veteran died from COPD. Two VA doctors have concluded that the Veteran's COPD was not due to or the result of or caused by his military service or a service-connected disorder. These same doctors have found that the Veteran did not have lung cancer that was possibly due to his service, nor did he exhibit during his lifetime any symptoms or manifestations that would suggest that he was suffering from an asbestos-related or hazardous material-related respiratory disorder. Instead, the reviewers have attributed the Veteran's COPD to his long-term smoking of tobacco products. Both doctors reviewed the Veteran's complete claims file prior to the issuance of their opinions. The VA examiners provided a detailed discussion of the Veteran's service and post-service medical conditions, and the reviewers specifically discussed the assertions proffered by the appellant. The only contrary opinion is the non-medical assertions proffered by the appellant herself. With regard to these pieces of medical evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board 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)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). 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, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-1 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In the case of Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a veteran's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the veteran for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment. Certainly, the particular medical information contained in a claims file may have significance to the process of formulating a medically valid and well-reasoned opinion. The Court further held that a medical opinion that contains only data and conclusions is not entitled to any weight and a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes is derived. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. In this instance, the Board finds that the two VA doctors' opinions were based on a factually accurate history. The examiners pointed to established facts in the opinions. The Board further believes that the doctors provided sound reasoning in the analysis of the Veteran's disabilities and health status. In other words, the VA examiners reviewed in detail the pertinent medical records, discussed the salient facts, and provided complete rationale for all conclusions presented, as noted in the discussion above. The VA examiners supported their conclusions based on the objective evidence of record and sound medical principles. Opposing these opinions were the uncorroborated assertions made by the appellant. The Board would specifically note that although the appellant has expressed disagreement with the medical opinions, she has not provided a detailed analysis as to why they are faulty. Accordingly, the Board attaches the most significant probative value to the VA opinions, as they are well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). With respect to the appellant's claim, the only other opinion addressing whether there is a link between the Veteran's death and his service or with his possible exposure to chemical dioxins, asbestos, or other hazardous materials are those provided by the appellant. Yet, merely the claim has been made that the appellant's death was somehow related to his military service or to his exposure. There has not been a discussion of the salient facts nor has there been provided any type of rationale that would corroborate any of the appellant's conclusions. The Board finds that the generalized statements provided by the appellant are too general in nature to provide, alone, the necessary evidence to show that the Veteran's death was due to a disability that was related to service or that his death was caused by or the result of his exposure to asbestos, hazardous materials, or chemical dioxins. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Nevertheless, in support of her appeal, the appellant has written that it is her belief that her husband's death was related to his military service and that his service caused the disorder that lead to the Veteran's death. The Board does not doubt the sincerity of the appellant in reporting her belief that her husband's death was somehow related to his military service or that the disability listed on her husband's death certificate was caused by or the result of his military service or his exposure to some type of hazardous material, asbestos, or chemical dioxins during his career in the US Air Force. The Board also believes that the appellant is sincere in expressing these hypotheses; however, the matter at hand involves medical assessments that require medical expertise. The appellant is not competent to provide medical opinions regarding the diagnosis and etiology of COPD. Thus, the appellant's lay assertions are not competent or sufficient to support a grant of service connection. The appellant has argued that the multitude of internet articles that she has submitted support her assertions; however, the Court has held that medical evidence which establishes a nexus must demonstrate a casual relationship between the appellant's condition and the disability written about in the medical treatise or paper. See Sacks v. West, 11 Vet. App. 314 (1998). The medical articles as evidence must demonstrate a connection between the present condition and the service-connected disorder. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In other words, a medical article containing a generic statement regarding a possible link between various exposures the Veteran may have endured while on active duty and the disability from which the Veteran died does not satisfy the medical nexus element for service connection. See Sacks v. West, 11 Vet. App. 314 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition, did not satisfy the nexus element of a well-grounded claim). The medical evidence shows that the Veteran died from COPD. COPD was not service connected at the time of death, nor had the Veteran ever submitted a claim for benefits involving this disorder. None of the medical evidence presented links the Veteran's death, and the respiratory disorder he suffered therefrom, with his military service or any incident in service, nor did the Veteran himself ever express such an opinion. Also, the medical evidence does not show that the Veteran was suffering from carcinoma of the lung that might have been caused by exposure to chemical dioxins or any other exposure. In fact, he was never diagnosed as having lung cancer. In this instance, there is no medical evidence in support of a nexus between his fatal COPD and service. Despite the appellant's statements to the contrary, there is no probative and persuasive medical evidence of record to establish that her husband's death was due to a disease or injury incurred in service or to a service-connected disability or to a disability/disorder that was secondary to a service-connected disability or was caused by or the result of the Veteran's exposure to chemical dioxins, hazardous materials, or asbestos. As such, a preponderance of the evidence is against the appellant's claim and the benefit-of-the-doubt doctrine is not applicable. Service connection for the cause of the Veteran's death is not warranted in this case. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs