Citation Nr: 1308905 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 04-03 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151, as a result of medical treatment by the Department of Veterans Affairs. REPRESENTATION Appellant represented by: James G. Fausone, Esq. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. He died in May 1975, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. No hearing was requested. By decision dated July 2006, the Board denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death, to include under the provisions of 38 U.S.C.A. § 1151 as a result of medical treatment by VA. In February 2008, counsel for the appellant and the Secretary of VA filed a Joint Motion for Remand. An Order of the United States Court of Appeals for Veterans Claims (Court) dated March 5, 2008 granted the motion, vacated the Board's July 2006 decision, and remanded the case to the Board. The Board subsequently remanded the claim for additional evidentiary development in October 2008 and June 2012. Such was accomplished, and in February 2010 and June 2012 the RO issued supplemental statements of the case (SSOC) which continued to deny the appellant's claim. The case has been returned to the Board for further appellate proceedings. A decision of the Board in May 1997, which is final, see 38 U.S.C.A. § 7104(b) (West 2002), denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death, to include claimed as a result of exposure in Vietnam to herbicides. In March 2006, the Board received from the appellant additional evidence, including a statement of medical opinion by a private physician, which she had submitted to VA in an attempt to reopen her claim for service connection for the cause of the Veteran's death. The additional evidence on that issue, which is not inextricably intertwined with the current appeal, has been associated with the other documents in the Veteran's claims file. The issue which the appellant raised by submitting additional evidence of whether new and material evidence has been received to reopen the claim for service connection for the cause of the Veteran's death was denied by the RO in a rating decision dated November 2006. As evidenced by the claims folder, the appellant did not express disagreement with that rating decision. Accordingly, that issue is not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. VA medical treatment of the Veteran for carcinoma of the nasopharynx with metastases to the lungs and brain did not involve any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment. 2. The proximate cause of the Veteran's death was not VA medical treatment or an event which was not reasonably foreseeable. CONCLUSION OF LAW Entitlement to compensation for the Veteran's death under the provisions of 38 U.S.C.A. § 1151 is not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks entitlement to service connection for the cause of the Veteran's death, to include under the provisions of 38 U.S.C.A. § 1151 as a result of medical treatment by VA. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Compliance with the Court's directives As was noted in the Introduction, this claim involves a JMR by the Court. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. The February 2008 JMR found that the Board provided an inadequate statement of reasons or bases for its July 2006 decision which denied the appellant's claim of compensation for the Veteran's death under the provisions of 38 U.S.C.A. § 1151 as a result of medical treatment by VA. Specifically, the Board did not address a fully favorable medical opinion rendered by R.L., M.D., F.A.C.P., dated in February 2006. Accordingly, remand was in order for the Board to address Dr. R.L.'s medical opinion, and provide an adequate statement of reasons or bases for its determination. Moreover, in the medical opinion rendered by Dr. R.L., he indicated that a copy of a pathology report pertaining to the cause of the Veteran's death would have been helpful in evaluating the Veteran's condition. As such, the Court held that VA must notify the appellant that upon proper authorization, VA would furnish the pathology report to the examiner. The Board is confident that if any additional problems existed, the Court would have brought them to the Board's attention. See Harris v. Derwinski, 1 Vet. App.180, 183 (1991) [holding that the "Court will [not] review BVA decisions in a piecemeal fashion"]. Stegall consideration As was alluded to in the Introduction, the Board remanded the appellant's § 1151 claim in October 2008 and June 2012. In essence, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain an April 1973 VA chest X-ray of the Veteran as well as obtain outstanding private treatment records. Further, the AOJ was directed to notify the appellant that upon proper authorization, VA would furnish copies of requested medical evidence to Dr. R.L. or any private medical provider of her choice. Additionally, the AOJ was directed to obtain an opinion from a VA oncologist pertaining to the appellant's § 1151 claim. A review of the claims folder shows that the RO attempted to obtain outstanding private treatment records pertaining to the appellant's § 1151 claim in December 2008. Moreover, in March 2010, the RO contacted the appellant and requested that she submit an authorization form in order for copies of medical evidence to be forwarded to Dr. R.L. or any other private medical provider. Finally, a VA medical opinion was obtained in February 2010 in connection with the appellant's § 1151 claim. Thereafter, the matter was readjudicated via the October 2010 and June 2012 SSOCs. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by letters mailed in December 2002, November 2005, and September 2006. Although the November 2005 and September 2006 VCAAs letters were provided after the initial adjudication of the claim, the Board finds that the appellant has not been prejudiced by the timing of these letters. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the appellant's claim in February 2010 and June 2012 SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. The Board notes that the December 2002, November 2005, and September 2006 VCAA letters did not explain how disability evaluations and effective dates are assigned. However, as the instant claim denies a grant of service connection, no rating percentage or effective date will be assigned, and thus this notice deficiency is deemed moot. The appellant has had a meaningful opportunity to participate in the decision on her claim at all stages of the process. Hence, the Board finds VA complied with the notice provisions of the VCAA. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate her claim and there is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes statements from the appellant and other individuals, the Veteran's service treatment records, as well as post-service VA and private treatment records. Additionally, the Board obtained a Veterans Health Administration (VHA) opinion in November 2011 with respect to the appellant's § 1151 claim. The VHA report reflects that the examiner reviewed the Veteran's claims folder, reviewed his past medical history, documented his medical conditions, and rendered an appropriate opinion consistent with the remainder of the evidence of record. The Board therefore concludes that the VHA opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board notes that the appellant indicated that the Veteran received treatment for his fatal carcinoma of the nasopharynx from Dr. S. at the Jones Ear, Nose, and Throat Hospital and Dr. T.P. at Memorial Hospital. Moreover, as discussed above, the appellant submitted a private opinion from Dr. R.L. dated February 2006 in which he stated that a copy of an April 1973 pathology report would be necessary to verify whether VA accurately diagnosed the Veteran's condition. As such, the RO requested that the appellant submit signed and dated VA Form 21-242 Authorization and Consent to Release Information in order to obtain records from Dr. S and Dr. T.P. and also to obtain authorization to furnish copies of requested medical evidence to Dr. R.L. Although the appellant returned signed and dated authorization forms for Dr. S. and Dr. T.P., her previous attorney subsequently informed the RO in April 2009 that these facilities are closed and "what medical evidence that is available is already held within the claims file." Furthermore, with regard to sending medical evidence to Dr. R.L., the appellant also stated in April 2009 that all of the available documentation that was requested is held within the claims folder and that she had no more evidence to submit at that time. The RO also contacted the appellant's previous attorney in March 2010 and informed his office that if the appellant still desired medical records to be sent to Dr. R.L. or any other private medical provider, she must so state. However, neither the appellant nor her attorney has since requested any medical records be sent to Dr. R.L. or submitted an authorization form for such. Although the absence of the private treatment records from Dr. S. and Dr. T.P. is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records because the RO made a sufficient attempt to locate the private treatment records. Moreover, the RO made a sufficient attempt to send medical records to Dr. R.L. or any other private medical provider. Further, the appellant indicated that she did not desire the RO to attempt to obtain records from Dr. S. or Dr. T.P. or send medical records to Dr. R.L. or any other medical provider. As such, the Board finds that another remand is not necessary. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim). Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the appellant's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The appellant has been accorded the opportunity to present evidence and argument in support of her claim. She has retained the services of an attorney. In her February 2004 substantive appeal [VA Form 9], the appellant declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issue on appeal. Cause of death under § 1151 Title 38, United States Code § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in death or additional disability by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the death or additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or the proximate cause of death or additional disability was an event which was not reasonably foreseeable, compensation shall be awarded in the same manner as if such death or disability were service connected. The requirement to show that the proximate cause of the veteran's death or additional disability was fault on VA's part or an event which was not reasonably foreseeable was added by amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 and applies to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. As the appellant filed her claim well after October 1, 1997, the amendments to the law apply to this case. To establish causation, the evidence must show that VA hospital care or medical or surgical treatment resulted in the veteran's death or additional disability. Merely showing that a veteran received care or treatment and that he died or has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care or medical or surgical treatment proximately caused a veteran's death or additional disability, it must be shown that the VA hospital care or medical or surgical treatment caused the veteran's death or additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable during VA treatment is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Competent medical evidence means evidence provided by a person who is qualified by education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1) (2012). The Veteran's death certificate listed his immediate cause of death as carcinoma of the nasopharynx with metastases to the lungs and brain. When she asserted her claim of entitlement to compensation for the Veteran's death under the provisions of 38 U.S.C.A. § 1151 in June 2002, the appellant alleged that the medical treatment rendered by VA physicians to the Veteran in the period from 1973 to his death in May 1975 was negligent or involved an error in judgment or lack of proper skill because the VA physicians should have ordered an X-ray of the Veteran's chest earlier than they in fact did and, if they had ordered a chest X-ray earlier, the Veteran's cancer of the lung would have been detected earlier and could have been treated to the Veteran's benefit. All available VA and private treatment records now appear to have been associated with the claims folder. Such evidence includes an April 1973 chest X-ray report, which indicates "no essential change" since January of 1972 and a diagnosis of a "healthy chest." The Veteran's sinuses and skull were also X-rayed at that time. VA conducted another chest X-ray in April 1974, and the report states that "compared with the study approximately one year ago, there is now evidence of multiple, round, coin-like lesions scattered throughout both lung fields compatible with metastatic disease." The April 1973 pathological report conducted at Memorial Hospital is also of record. Private pathologist Dr. T.P. interpreted this biopsy to show grade III squamous cell carcinoma involving the nasopharynx and the posterior aspect of right nostril. The two slides and pathology report were forwarded to VA providers, and this interpretation was noted by for the purposes of subsequent treatment. A VA provider also reviewed the slides and diagnosed squamous cell carcinoma, moderately differentiated. He noted that the "histologic appearance is suggestive of so-called lymphoepithelioma." In September 2011, due to the complexities of the medical issues involved, the Board, pursuant to 38 C.F.R. § 20.901 (2012), requested a VHA opinion from an otolaryngologist to respond to the following questions: (A.) To the extent possible, identify the specific primary and metastatic sites for the Veteran's cancer. (B.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran was initially misdiagnosed with nasopharyngeal carcinoma? In responding to this question, please specifically address whether the Veteran's primary tumor was at least as likely as not lung cancer, or aggressive non-Hodgkin's lymphoma. (C.) If the above question is answered in the affirmative, state whether the misdiagnosis or any subsequent VA medical treatment proximately caused the continuance or natural progress of the Veteran's disease or his death. (D.) If VA medical treatment (or absence thereof) was the proximate cause of the Veteran's death, opine whether the diagnosis and medical treatment of record represents carelessness, negligence, lack of proper skill, error in judgment or similar incidence of fault on the part of VA. (E.) Also, if VA medical care was the proximate cause of the Veteran's death but there was no incidence of fault on the part of VA, opine whether the Veteran's death was directly caused by an event not reasonably foreseeable. In his November 2011 report, the VHA doctor reported that based on review of the April 1973 pathology reports and documentation from the nasopharynx and right posterior nostril, that the Veteran was diagnosed with grade III squamous cell carcinoma of the nasopharynx. The report described this as moderately differentiated, and described the histology further as "neoplastic cells arranged in irregular masses within fibrous stroma which is infiltrated with small numbers of lymphocytes." He also noted that radiology X-ray reports of the chest dated April 1973 described the chest as "Reexamination: no essential change since January of [1972] DIAGNOSIS: Healthy chest." He further noted the X-ray report dated April 1974 documenting "multiple, coin-like lesions scattered throughout both lung fields compatible with metastatic disease." The VHA doctor therefore concluded that "[the Veteran's] primary diagnosis was nasopharyngeal carcinoma and approximately one year after diagnosis he had obvious metastatic disease in the lungs." He opined that the April 1973 pathology report is consistent with the typical description of squamous cell carcinoma and not lymphoma. Moreover, at the time of the biopsy, X-ray evidence showed no disease of the lungs, which would further discount the possibility that the Veteran's primary diagnosis was lung cancer. He additionally reported that it is unlikely to be primary lung cancer because of the multiple and bilateral lesions described. No X-rays described a lung mass. He also concluded that he did not find the VA treatment the Veteran received to be the cause of his death, and that based on the documents he reviewed he found no evidence of carelessness, negligence, lack of proper skill, or error in judgment. In this regard, he reported that physical examination is the most valuable tool to assess for recurrent disease, and that this appeared to have been done with routine nasopharyngeal mirror exam and palpation of the neck lymph nodes. He also noted that adequate initial screening and staging includes chest X-rays, and then yearly thereafter, which in this case was done. He further reported that the Veteran appeared to have had good and complete treatment by the standards at the time of diagnosis, and that the Veteran was additionally treated when new metastatic disease was discovered. The VHA doctor further opined that the Veteran had progression of his disease that led to his death, despite treatment, and that this was a reasonably foreseeable event given the known metastatic disease in 1974. The report of the November 2011 VHA reviewer appears to have been based upon thorough review of the record and analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board notes that the appellant submitted a February 2006 opinion by a private physician, Dr. R.L., in support of her claim. Dr. R.L. opined that the Veteran "could potentially have had a type of tumor generally caused by Agent Orange exposure while serving in Vietnam, such as aggressive non-Hodgkin's lymphoma, and that such condition "could potentially" have been misdiagnosed as nasopharyngeal carcinoma. Dr. R.L. specifically stated that the copy of the April 1973 pathology report was not in the records provided for his review, and this information would be necessary to determine whether VA accurately diagnosed the Veteran's condition. It appears Dr. R.L. only had a February 1974 pathology report concerning a biopsy of the nasopharynx before him. The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board notes that both the United States Court of Appeals for the Federal Circuit and the Court have specifically rejected the "treating physician rule." See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). Rather, in evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds the opinion of Dr. R.L. to be of no probative value. Crucially, the Court has held that medical evidence which is speculative, general or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). Moreover, Dr. R.L. specifically stated that the copy of the April 1973 pathology report was not in the records provided for his review and it appeared that that he only had a February 1974 pathology report concerning a biopsy of the nasopharynx before him. As discussed above, VA has attempted to furnish a copy of the April 1973 report to him for review. See Watai v. Brown, 9 Vet. App. 441, 444 (1996) (the Court remanded the veteran's claim, inter alia, where it found that the Board did not inform the veteran that he could choose to authorize disclosure of medical records to his private physician and obtain another opinion, where his private physician indicated that, if he had been permitted access to the service medical records, he might have been able to provide a more fully informed opinion). However, the appellant did not respond to VA's request for such. The Board therefore finds that Dr. R.L. did not provide adequate rationale for his conclusion in his February 2006 opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). On the contrary, as discussed above, the November 2011 VHA reviewer indicated a review of the April 1973 pathology report, as well as the Veteran's medical history, and concluded that the medical evidence of record supported a finding that the primary diagnosis was nasopharyngeal carcinoma and that lymphoma was not evidenced. Accordingly, the Board finds the September 2011 VHA opinion to be of greater probative value than the February 2006 report by Dr. R.L. In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board observes that the appellant has submitted lay statements from D.P. and B.B., who stated that they knew of the Veteran's treatment for his nasal cavity and his fatal cancer. The Board further notes that the appellant, D.P., and B.B. were competent to report the Veteran's symptoms (including difficulty breathing). However, the appellant has presented no clinical evidence that VA medical treatment of the Veteran for carcinoma of the nasopharynx with metastases to the lungs and brain involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or that the proximate cause of the Veteran's death was VA medical treatment or an event which was not reasonably foreseeable. The Board finds that the appellant, D.P, and B.B. as lay people are not competent to base such a determination. Such opinion requires specific medical training and is beyond the competency of the appellant or any other lay person. In the absence of evidence indicating that the appellant, D.P., or B.B have the medical training to render medical opinions, the Board must find that their contentions with regard to a finding that VA medical treatment of the Veteran for carcinoma of the nasopharynx with metastases to the lungs and brain involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or that the proximate cause of the Veteran's death was VA medical treatment or an event which was not reasonably foreseeable, to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the appellant, D.P., and B.B. in support of her own claim are not competent evidence that VA medical treatment of the Veteran for carcinoma of the nasopharynx with metastases to the lungs and brain involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or that the proximate cause of the Veteran's death was VA medical treatment or an event which was not reasonably foreseeable. In summary, the Board finds that the competent and probative evidence of record demonstrates that VA medical treatment of the Veteran for carcinoma of the nasopharynx with metastases to the lungs and brain did not involve any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, and that the proximate cause of the Veteran's death was not VA medical treatment or an event which was not reasonably foreseeable. The preponderance of the evidence of record is therefore against the claim of entitlement to compensation for the Veteran's death under the provisions of 38 U.S.C.A. § 1151, and entitlement to that benefit is not established. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to compensation for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151, as a result of medical treatment, by VA is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs