Citation Nr: 1310023 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 05-32 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to June 1974. The Veteran died in 2004. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2012, after the issuance of the most recent Supplemental Statement of the Case (SSOC), the appellant, through her representative, submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) review. In December 2012, the Board obtained an Independent Medical Opinion. The appellant was provided an opportunity to review the opinion and offer any additional evidence or argument. She did not respond. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's death certificate lists the immediate cause of death as bleeding (erosion of vessels by tumor) as a consequence of metastasis to groin nodes, due to carcinoma of the foreskin/penis. 2. The Veteran was service-connected for diabetes mellitus type II, evaluated as 10 percent disabling; a history of left ureterolithiasis, also called renal calculus, evaluated as noncompensable (zero percent disabling); and scars of the forehead and nose, evaluated as noncompensable (zero percent disabling). 3. The Veteran did not have any disability of service origin that contributed substantially and materially to his death, or hastened it, or otherwise aided or lent assistance to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("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, 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 a claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the claimant prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice requirements apply in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of a veteran's death. In such a case, VA must provide a claimant: (1) a statement of the conditions, if any, for which the 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 (2007). VA provided the appellant with a Hupp-compliant VCAA letter in April 2010. VA notified the appellant of the evidence needed to substantiate the claim, whether based on a service-connected or nonservice-connected disability, identified the type of evidence that would best do so, notified her of VA's duty to assist, and indicated that it was developing her claim pursuant to that duty. VA also identified all of the conditions for which the Veteran was in receipt of service connection at the time of his death. VA noted that it would make reasonable efforts to assist the appellant in obtaining all other outstanding evidence provided she identified its source(s). VA also noted that it was the appellant's ultimate responsibility to ensure VA's receipt of all pertinent evidence. Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, VA sent the required VCAA notice letter after initially deciding the appellant's claim; the April 2010 letter was thus untimely. VA cured this timing defect later, however, by readjudicating the appellant's claim in a SSOC issued in January 2011. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, and multiple VA medical opinions and an independent medical opinion regarding the nature and etiology of the Veteran's fatal cancer. The Board remanded the appeal in November 2009 so that VA could both provide the appellant with a proper VCAA notice, in compliance with the Hupp decision, as explained previously, and procure additional service records. After the Appeals Management Center's (AMC's) compliance with the terms of the November 2009 Remand, the Board remanded the appeal again in April 2011 so that VA could procure a VA medical opinion regarding the nature and etiology of the Veteran's fatal cancer, written by a qualified medical expert. Although the AMC obtained an August 2011 VA medical opinion in attempted compliance with the terms of the April 2011 Remand, the Board found that the August 2011 VA medical opinion, written by a physician's assistant not working under the supervision of a physician, was not written by a qualified medical expert and remanded the appeal again in December 2011 for the procurement of a VA medical opinion from a medical expert. Although the AMC procured a September 2012 VA medical opinion in compliance with the terms of the December 2011 Remand, the appellant, through her representative, filed additional evidence after the procurement of the September 2012 VA medical opinion. Finding that an additional medical opinion was required in light of the newly filed evidence, in November 2012, the Board requested an independent medical opinion from an (non-VA) clinician regarding the nature and etiology of the Veteran's fatal cancer. In December 2012, the medical opinion, complying with the Board's November 2012 independent medical opinion request, was associated with the claims file. Therefore, the Board finds that that the directives of the November 2009, April 2011, and December 2011 Remands have been complied with sufficiently. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Pursuant to 38 C.F.R. § 3.655 (2012), all relevant evidence necessary for an equitable disposition of the appeal has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of death of a veteran, the evidence must establish that a disability of service origin caused, hastened, or substantially and materially contributed to the veteran's death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The principal cause of death is one which singularly or jointly with some other condition was the immediate cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Accordingly, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6) (2012). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e) (2012), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Under 38 U.S.C.A. § 1116(b) and 38 C.F.R. § 1.17 (2012), the Secretary of VA is required by law to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to herbicides. The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as diabetes mellitus type II), Hodgkin's disease, chronic lymphocytic leukemia, 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), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). During the pendency of this appeal, on August 31, 2010, the Secretary published a final rule in the Federal Register amending 38 C.F.R. § 3.309(e). See 75 Fed. Reg. 53,202. The final rule was effective August 31, 2010. Specifically, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina) to the list of diseases associated with exposure to certain herbicide agents. A newly added Note 3 at the end of 38 C.F.R. § 3.309 states that "for purposes of this 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." Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to prevail on the issue of service connection in the context of this claim, once the death of the Veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999) (both discussing the factors of service connection). In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused veteran's death). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's death certificate lists the immediate cause of death as bleeding (erosion of vessels by tumor) as a consequence of metastasis to groin nodes, due to carcinoma of the foreskin/penis. The appellant essentially contends that the Veteran developed carcinoma of the foreskin/penis due to exposure to claimed carcinogens, such as asbestos and herbicides, during service. Having considered the entire record of evidence, both lay and medical, the Board finds that the preponderance of evidence is against the appellant's claim for service connection for the cause of the Veteran's death. At the time of his death, the Veteran was in receipt of service connection for a history of left ureterolithiasis, evaluated as noncompensable (zero percent disabling). Ureterolithiasis means "the formation or presence of calculi in the uterer." Dorland's Illustrated Medical Dictionary, 2034 (31st ed. 2007). Therefore, the terms renal calculus or stones and ureterolithiasis, meaning the presence of such calculus or stones, will be used almost interchangeably by examiners throughout the record of evidence. In April 2004, the Veteran filed additional claims for service connection. In September 2004, the RO granted service connection for diabetes mellitus type II, related to presumed in-service herbicide exposure, evaluated as 10 percent disabling; and scars of the forehead and nose, evaluated as noncompensable (zero percent disabling). The Veteran's service personnel records indicate that he served in the Republic of Vietnam during the Vietnam War and, therefore, the Veteran is presumed to have been exposed to herbicides during service. However, the Veteran's service treatment records contain no notation indicating treatment or diagnosis for cancer, to include carcinoma of the penis or foreskin, during service. In an August 1962 service treatment record, the Veteran reported experiencing sudden onset of severe pain in the suprapubic area while at quarters. Upon examination, the service examiner noted that the Veteran had passed a stone into the glans urethra, but was unable to pass it through the meatus due to a marked meatus stricture. The service examiner reported performing an operation that removed a four by four millimeter black stone from the urethra. April 1970 service treatment records indicate that service examiners performed a left calculus transurethral manipulation and urethral meatotomy to remove another stone. In a June 1971 service treatment record, the Veteran was admitted to a hospital for evaluation of a tuberculin test conversion. After an examination, a service examiner diagnosed both a purified protein derivative (tuberculin) convertor and a urinary tract infection (UTI). In a February 1973 service treatment record, the Veteran reported experiencing vague discomfort in the right flank for the previous two to three months. The Veteran specifically denied experiencing any difficulty with the urinary stream. After an examination, the service examiner diagnosed UTI and rule-out calculus. In subsequent February 1973 and March 1973 service treatment records, service examiners reported treating the Veteran for a diagnosed e. coli infection. In an April 1973 service treatment record, the Veteran reported experiencing left flank pain radiating to the left testicle. After examination, the service examiner diagnosed a left renal stone and a probable urethral stricture. In a March 1974 service treatment record, a service examiner diagnosed the Veteran as having possible prostatic calculi and incomplete bladder emptying. In a May 1974 service treatment record, a VA examiner noted that the Veteran had an asymptomatic left varicocele not otherwise disqualifying. In a May 1974 service discharge medical examination report, a service examiner noted that the Veteran's genitourinary system was normal. The post-service February 1999 and May 1999 private treatment records indicate that the Veteran underwent excisions of the left and right epididymis due to recurrent epididymitis. In a June 2001 private treatment record, the Veteran reported noticing irritation of the glans and the foreskin ventrally beginning in April 2001 - approximately 27 years after service. The Veteran reported that the symptomatology did not resolve after antibiotic or ointment treatment. The Veteran indicated that he had noticed that his urinary flow sometimes occurred with a split stream. After an examination, the private examiner noted performing a urethral dilation and a revision circumcision, specifically an excision of the irritated area of the skin. The diagnoses were foreskin irritation, slow flow, balanitis, and urethral stricture. In a July 2001 private treatment record, the private examiner noted that the skin excised in June 2001 was tested and found to contain a moderately invasive squamous cell carcinoma. The private examiner indicated that the carcinoma had been entirely excised. The private examiner reported performing a re-excision of the area. In a March 2002 private treatment record, a private examiner diagnosed the Veteran as having no evidence of recurrence of cancer of the penis. Private treatment records indicate that the Veteran was found to have a metastatic squamous cell carcinoma of the left groin in April 2003. Subsequent treatment records report treatment for the Veteran's cancer, to include radiation treatment, until his death. In a May 2004 claim for benefits, the Veteran indicated that he developed cancer due to exposure to asbestos during service aboard several ships. The Veteran stated that he served as a deck hand from 1955 to 1958, when he had to paint, chip, repair, and reinstall asbestos installation on the walls of two ships. The Veteran wrote that he also had to use asbestos blankets to cover his lower body and legs to prevent burning accidents while performing welding duties during the same time period. The Veteran indicated that he served aboard other vessels during subsequent years that were known to have asbestos insulation on them. In a December 2006 VA medical opinion, a VA clinician indicated that he reviewed the claims file, but noted no evidence indicating that the Veteran had significant exposure to asbestos. Moreover, the VA clinician wrote that there was no evidence linking the Veteran's service to his foreskin cancer. Therefore, the VA clinician stated that there was no evidence supporting the contention that the Veteran's asbestos exposure caused his penile cancer. In an August 2010 VA medical opinion, a VA clinician reported that he had researched the website of the National Cancer Society and found no mention of any type of skin cancer related to asbestos exposure. The VA clinician indicated that searches of other sources resulted in similar findings. Therefore, having reviewed the claims file and the above-noted medical resources, the VA clinician stated that the Veteran's squamous cell carcinoma of the skin of the penis was not a residual of in-service exposure to asbestos. In an August 2011 VA medical opinion, a VA clinician, specifically a physician's assistant, indicated he had reviewed the medical literature and found no evidence of a relationship, association, or causality between penile squamous cell carcinoma and asbestos. Therefore, the VA clinician concluded that medical literature did not indicate that the Veteran's squamous cell carcinoma of the skin of the penis was a continuation of symptoms that started in service, caused by, a result of, aggravated by, or aggravated beyond its natural progression by asbestos exposure. The VA clinician also reported that he had reviewed the medical literature and found no evidence of a relationship, association, or causality between penile squamous cell carcinoma and Agent Orange. The VA clinician also stated that the Veteran's squamous cell carcinoma of the foreskin of the penis was not related to other medical events during the Veteran's service, such as renal calculus, constricted urethral meatus, tuberculin skin test, urinary tract infection, and left ureterolithiasis. The VA clinician stated that the post-service private treatment records noted that the Veteran was diagnosed with balanitis, an inflammation or infection of the head of the penis, in April 2001. The VA clinician wrote that it was more likely than not the balanitis, being a chronic irritation of the penis, was the precursor of the squamous cell carcinoma of the foreskin of the penis. In an April 2012 brief, the appellant's representative noted that the Veteran was treated for several urinary tract infections, a probable urethral stricture, and a urethral stone during service. In support of the claim, the representative included a March 2012 article written by a certified urologist. In the article, the urologist stated that penile trauma, usually consisting of small tears or abrasions involving the prepuce, and a history of chronic balanitis that occurred more than two years prior to diagnosis had an odds ratio of 23 for carcinoma in situ and 4.6 for invasive cancer. The urologist also noted that circumcision had been established as an effective prophylactic measure for penile cancer. The urologist also noted that phimosis was present in 25 to 75 percent of men with penile carcinoma. In addition, the urologist reported that smoking and chewing tobacco were also considered risk factors. In a September 2012 VA medical opinion, a VA clinician noted that the Veteran reported having a "lesion" on his penile skin on April 24, 2001. The VA clinician indicated that treatment for the lesion was unsuccessful and a circumcision was performed in June 2001. The VA clinician noted that a July 2001 private treatment record indicated that the Veteran had penile cancer and that resection was incomplete requiring an additional procedure. The VA clinician indicated that the Veteran was diagnosed with squamous cell cancer and underwent a second surgery in July 2001. At that time, private examiners reported that the margins were clear of cancer. The September 2012 VA clinician noted that both the Veteran and the private examiners decided in September 2001 not to perform a total penectomy, a partial penectomy, or a lymph node dissection. The VA clinician indicated that subsequent treatment records did not indicate recurrent cancer for 12 to 15 months. The VA clinician reported that an August 2003 private treatment record reported a groin surgery that identified cancer-positive lymph nodes. The VA clinician noted that the Veteran's cancer was treated unsuccessfully with radiation and chemotherapy, and that the Veteran died from complications of penile cancer. The September 2012 VA clinician indicated that penile cancer was associated with the following: an uncircumcised penis or partially circumcised penis due to irritation/inflammation, human paploma virus and Lichen sclerosus, smoking, UV light treatment of psoriasis, age and family history, AIDS/HIV infection or weakened immune system due to other etiologies, and spontaneous occurrence. The September 2012 VA clinician noted that literature from the National Institutes of Health (NIH), National Cancer Institute, American Cancer Society, Urological Cancer Society, and American Urological Association, and urological textbooks indicated that penile cancer was associated with the causes he had listed previously; however, the VA clinician also noted that there was no mention in the literature of asbestos being an etiological factor for penile cancer. The September 2012 VA clinician indicated that lung cancer caused by asbestosis was of the small cell or non-small cell variety, as opposed to the squamous cell cancer experienced by the Veteran. The VA clinician noted that penile cancer was rare, occurring in approximately one out of every 100,000 men in the United States. The VA clinician reported that the lifetime risk for developing penile cancer for United States male citizens was one in 1,437, but was one in 600 for uncircumcised men. The VA clinician indicated that, in countries were circumcision was performed rarely, penile cancers accounted for 10 percent of all cancers. After reviewing the claims file, the September 2012 VA clinician concluded that there was no evidence indicating that the Veteran's squamous cell cancer of the penis was etiologically related to asbestos exposure. In an October 2012 brief, the appellant's representative contended that the Veteran's cancer might have been related to exposure to herbicides, especially Agent Blue, during service. In a Wikipedia entry submitted by the representative, the Wikipedia authors indicated that Agent Blue was a combination of two arsenic-containing compounds. In an article printed from the Mayo Clinic's website also submitted by the appellant's representative, the article's author indicated that exposure to arsenic was a well-known cause of squamous cell carcinoma. In a December 2012 independent medical opinion, an clinician, specifically the chief of the division of urology at a state university school of medicine/medical center, indicated reviewing the claims file prior to writing his opinion. When asked to comment as to whether the Veteran's service-connected left ureterolithiasis caused or contributed substantially to the Veteran's death, the clinician opined that the calculi had no connection with the Veteran's death. The clinician stated that renal calculi were not associated with skin cancers in any form. The clinician noted that the Veteran's death was secondary to advancement of the Veteran's skin cancer to the lymph nodes and that this advancement had no relationship to the Veteran's stone disorder. When asked to opine as to whether the Veteran's service-connected diabetes mellitus caused or contributed substantially and materially to his death, either by an etiological link between diabetes and cancer, or by his diabetes reducing his ability to resist or survive his cancer, the December 2012 expert clinician stated that, while diabetes mellitus could depress the immune system, the Veteran's diabetes mellitus did not contribute substantially or materially to the Veteran's death. The clinician stated that diabetes could be a contributing factor to poor hygiene and foreskin inflammation in the uncircumcised male; however, the clinician noted that the Veteran did not have documented phimosis associated with diabetes. The clinician reported that, while phimosis in an uncircumcised male might lead to chronic irritation in the diabetic male, which could be associated with penile cancer, that did not appear to be the case with the Veteran. The clinician noted that, in one private treatment record, an examiner noted that the Veteran had a mild hypospadias which would be usually associated with a non-phimotic condition. Therefore, the clinician stated that the Veteran's cancer was not etiologically related to his diabetes mellitus. When asked to opine as to whether the urological disorders documented in the Veteran's service treatment records, including pain with constricted urethral meatus on April 6, 1970, marked meatus stricture, urinary tract infection, possible prostatic calculi, pain in the flank experienced on February 27 to February 28, 1973 with e. coli infection treated with antibiotics, renal calculus, and left ureterolithiasis, were risk factors or etiological factors for the Veteran's penile cancer, the December 2012 expert clinician stated that they were not risk factors or etiological factors because there was no relationship between any of those conditions and penile cancer. The clinician opined that the Veteran's restricted meatus most likely resulted from hypospadias, a congenital disorder that was non-service related. The clinician also reported that the Veteran's stone disease and UTI were not related to the penile cancer that began as a skin disorder. The clinician also indicated that the Veteran's ureterolithiasis had no anatomic or physiological connection. The clinician reported that only long-term infections would have any relationship to any type of urological cancer and the Veteran did not have any such infections. When asked to opine as to whether the Veteran's in-service exposure to Agent Orange was a cause of or a risk factor for his penile cancer, the December 2012 clinician stated that it was not. The clinician noted that, while Agent Orange had been associated with several cancers, he had not found any definitive association between Agent Orange and penile carcinoma in his review of the current medical literature. When asked to opine as to whether the Veteran's exposure to Agent Blue while serving in Vietnam was a cause of or a risk factor for his penile cancer, the December 2012 clinician stated that it was not. The clinician noted that he had not found any definitive association between Agent Blue and penile carcinoma in his review of the current medical literature and the information on Agent Blue included in the claims file. When asked to opine as to whether the Veteran's exposure to asbestos during active service was a cause or a risk factor for his penile cancer, the clinician stated that it was not. The clinician noted that he had not found any definitive association between asbestos exposure and penile carcinoma in his review of the current medical literature. When asked to opine as to whether any disease or injury related to service (i.e., that began during, chronically worsened during, or resulted from any incident of service), either singly or in combination, caused or contributed substantially or materially to the Veteran's death, the December 2012 clinician stated that he did not believe that any incident or duty during service led to the Veteran's death. The clinician noted that penile cancer could be caused by many things as noted in the records, such as viruses, poor hygiene, or an immune system weakened by HIV. The clinician stated that he could not find a connection between any incident, exposure, or other factor involving the Veteran's service and his penile cancer. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for the cause of the Veteran's death. First, the Board finds that the preponderance of the evidence weighs against finding that any of the Veteran's service-connected disabilities was either a principal or a contributory cause of the Veteran's death. 38 C.F.R. § 3.312(a). In this instance, the Veteran was service connected for diabetes mellitus, left ureterolithiasis, and scars of the forehead and nose. The record of evidence clearly shows that the Veteran died due to diagnosed skin cancer of the penis/foreskin, and not a service-connected disorder. The evidence indicates that service-connected diabetes mellitus did not cause or contribute materially or substantially to the Veteran's death. As noted above, the evidence clearly demonstrates that the Veteran died as a result of a fatal skin cancer of the foreskin/penis. The appellant has not submitted any evidence indicating an etiological connection between the Veteran's service-connected diabetes mellitus and his fatal skin cancer. Reviewing the medical evidence, in the December 2012 independent medical opinion, the December 2012 clinician stated that diabetes mellitus could depress the immune system, but also indicated that he did not believe that the Veteran's diabetes mellitus contributed substantially or materially to the Veteran's death. The clinician stated that diabetes could be a contributing factor to poor hygiene and foreskin inflammation in the uncircumcised male; however, the clinician noted that the Veteran did not have documented phimosis associated with diabetes. The clinician reported that, while phimosis in an uncircumcised male might lead to chronic irritation in the diabetic male, which could be associated with penile cancer, that did not appear to be the case with the Veteran. The clinician noted that, in one private treatment record, an examiner noted that the Veteran had a mild hypospadias which would be usually associated with a non-phimotic condition. Therefore, the clinician stated that the Veteran's cancer was not etiologically related to his diabetes mellitus. The December 2012 expert's opinion is competent medical evidence as it was provided by a qualified medical examiner. 38 C.F.R. § 3.159(a)(1). Moreover, the Board finds no reason to doubt the credibility of the clinician's findings, as they were based on a review of the evidence in the claims file and the available medical literature. See Madden, 125 F.3d at 1481 (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, the evidence, to include the treatment records and the December 2012 medical opinion, indicates that the Veteran's service-connected diabetes mellitus did not cause the Veteran's death by cancer. The Veteran's death was not etiologically related to either the Veteran's service-connected ureterolithiasis or any nonservice-connected infections or disorders diagnosed during service. As noted above, the evidence clearly demonstrates that the Veteran died as a result of a fatal skin cancer of the foreskin/penis. In an August 2011 VA medical opinion, a VA clinician stated that the Veteran's squamous cell carcinoma of the foreskin of the penis was not related to other medical events in service, such as renal calculus, constricted urethral meatus, tuberculin skin test, urinary tract infection, and left ureterolithiasis. The VA clinician stated that the post-service private treatment records noted that the Veteran was diagnosed with balanitis, an inflammation or infection of the head of the penis, in April 2001. The VA clinician observed that it was more likely than not the balanitis, being a chronic irritation of the penis, was the precursor of the squamous cell carcinoma of the foreskin of the penis. In the December 2012 independent medical opinion, the expert opined that the calculi had no connection with the Veteran's death. The clinician stated that renal calculi were not associated with skin cancers in any form. The clinician noted that the Veteran's death was secondary to advancement of the Veteran's skin cancer to the lymph nodes and that this advancement had no relationship to the Veteran's stone disorder. Moreover, the December 2012 clinician stated that the nonservice-connected disorders that were diagnosed during the Veteran's service, to include pain with constricted urethral meatus, marked meatus stricture, urinary tract infection, and pain in the flank with e. coli infection, were not risk factors or etiological factors for the Veteran's fatal skin cancer. The clinician opined that the Veteran's restricted meatus most likely resulted from hypospadias, a congenital disorder that was non-service related. The clinician also reported that the Veteran's stone disease and UTI were not related to the penile cancer that began as a skin disorder. The clinician also indicated that the Veteran's ureterolithiasis had no anatomic or physiological connection. The clinician reported that only long-term infections would have any relationship to any type of urological cancer and the Veteran did not have any such infections. As noted previously, in the December 2011 Remand, the Board found that as the August 2011 VA medical opinion was signed by a physician's assistant without the accompanying signature of a physician, an additional opinion was required. Yet, the August 2011 VA medical opinion probative because it was written by a medical professional after a review of the claims file and the medical literature. See Madden, at 1481. Moreover, the Board notes that the December 2012 clinician, a recognized professional urologist, reached similar conclusions based on the evidence of record. The Board again finds that the December 2012 clinician's opinion is both factually informed as to the facts of this matter, competent in expertise and therefore of great probative value. See 38 C.F.R. § 3.159(a)(1); Madden, at 1481. As noted above, the appellant's representative submitted a March 2011 article by an urologist, indicating that penile trauma could cause skin carcinoma. The Board has carefully considered the cited article, but finds it of little probative value when evaluated with the other medical evidence. As opposed to the December 2012 medical opinion, which was generated towards resolution of the Board's specific inquiry, the generic text of the March 2011 article does not address the facts in this particular Veteran's case with any medical certainty. See generally Mattern v. West, 12 Vet. App. 222 (1999) ("Generally, an attempt to establish a medical nexus . . . solely by generic information in a medical journal or treatise is too general and inconclusive..."); see also Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). The Board has also considered the appellant's representative suggestion that the Veteran's in-service urinary tract infections, urethral strictures, and stones were examples of the type of "penile trauma" suggested by the urologist in the March 2011 article. The Board notes that the March 2011 article was actually discussing small tears or abrasions involving the prepuce, commonly called the "foreskin." Dorland's, 1534. The Board notes that the internal urinary disorders, urethral strictures, and stones noted in the Veteran's service treatment records are not equivalent to the external abrasions described by the March 2011 urologist's article. Moreover, in the March 2011 article, the urologist mentioned that a chronic history of balanitis was a possible indicia of skin carcinoma of the penis. Although the Veteran was diagnosed as having balanitis in 2001, decades after his discharge from service, the record contains no notation indicating diagnosis or treatment for such a disorder during service. Accordingly, the March 2011 article is less probative than the December 2012 independent medical opinion. Therefore, the Board finds that the evidence indicates that the Veteran's service-connected ureterolithiasis and nonservice-connected infections or disorders diagnosed during service were not etiologically related to the Veteran's fatal skin carcinoma of the foreskin/penis. Finally, the Board finds that the preponderance of the evidence is against a finding that the Veteran's death was related to in-service exposure to asbestos and/or herbicides during service. In an April 2004 statement, submitted prior to his death, the Veteran wrote that his squamous cell carcinoma of the penis was related to asbestos exposure during service. The Veteran indicated that he experienced several instances of asbestos exposure while serving aboard ships during his almost two decades of service. The appellant and her representative have submitted statements suggesting that the Veteran's death was caused by either exposure to herbicides, to include both Agent Orange and Agent Blue, during service. In particular, in the October 2012 brief, the appellant's representative argued that the Veteran's death was related to Agent Blue exposure. The appellant's representative argued that, because Agent Blue was composed of two arsenic-containing compounds and arsenic was known to be a cause of general squamous cell carcinoma, the Veteran's fatal carcinoma was related to the in-service Agent Blue exposure. Squamous cell carcinoma of the foreskin/penis is not among the diseases listed as presumptively associated with herbicide exposure at 38 C.F.R. § 3.309. Thus, the Board cannot grant service connection for the cause of the Veteran's death on a presumptive basis due to herbicide exposure. 38 C.F.R. § 3.309(e). Nonetheless, the service connection may be established if the evidence shows that the Veteran's squamous cell carcinoma of the foreskin/penis was, in fact, caused by exposure to herbicides during service. See Combee, 34 F.3d at 1043. As noted above, in assisting the appellant with her claim, VA has acquired several VA medical opinions regarding the etiology of the Veteran's cancer. In a December 2006 VA medical opinion, a VA clinician stated that there was no evidence of record supporting the contention that the Veteran's asbestos exposure caused his penile cancer, because, in part, there was no evidence to suggest that the Veteran experienced significant asbestos exposure. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this instance, the Board notes that the December 2006 VA clinician stated that the Veteran did not experience substantial asbestos exposure during service. Yet, as noted above, VA has conceded that the Veteran was exposed to asbestos for many years during service. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the December 2006 VA medical opinion lacks probative value in this matter. Apart from the question of the amount of asbestos exposure, the preponderance of the evidence is against a finding of nexus between any asbestos exposure and the Veteran's cancer. In an August 2010 VA medical opinion, a VA clinician wrote that the Veteran's squamous cell carcinoma of the skin of the penis was not a residual of in-service exposure to asbestos. The clinician indicated that he had based this opinion upon his inability to find any mention of a nexus between skin cancer and asbestos exposure at the National Cancer Society website and other sources. Reiterating the August 2010 opinion of a lack of connection as asserted by the appellant, in an August 2011 VA medical opinion, a VA clinician, specifically a physician's assistant, concluded that the Veteran's squamous cell carcinoma of the foreskin was not etiologically related to in-service asbestos or herbicide exposure because the medical literature did not indicate any evidence of a relationship, association, or causality between the disorder and such exposure. The VA clinician stated that the post-service private treatment records indicated that the Veteran was diagnosed with balanitis, an inflammation or infection of the head of the penis, in April 2001. The VA clinician wrote that it was more likely than not the balanitis, being a chronic irritation of the penis, was the precursor of the squamous cell carcinoma of the foreskin of the penis. A further opinion of the lack of such nexus is contained in the September 2012 VA medical opinion. The expert stated that there was no evidence indicating that the Veteran's squamous cell cancer of the penis was etiologically related to asbestos exposure during service. The VA clinician specifically noted that the Veteran was diagnosed with a skin lesion that would later be diagnosed as skin cancer in April 2001, decades after the Veteran's discharge from service. The September 2012 VA clinician indicated that penile cancer was associated with the following: an uncircumcised penis or partially circumcised penis due to irritation/inflammation, human paploma virus and Lichen sclerosus, smoking, UV light treatment of psoriasis, age and family history, AIDS/HIV infection or weakened immune system due to other etiologies, and spontaneous occurrence. The VA clinician also noted that there was no mention in the current medical literature of asbestos being an etiological factor for squamous cell cancer of the penis. The September 2012 VA clinician indicated that lung cancer caused by asbestosis was of the small cell or non-small cell variety, as opposed to the squamous cell cancer experienced by the Veteran. The VA clinician noted that uncircumcised males were at greater risk for developing penile skin cancers than uncircumcised males. After reviewing the file and the evidence, the September 2012 VA clinician concluded that there was no evidence indicating that the Veteran squamous cell cancer of the penis was etiologically related to asbestos exposure. Finally, in the December 2012 independent medical opinion, the expert opined in concurrence with all of the other experts that the Veteran's squamous cell carcinoma of the foreskin was not related to exposure to any substance during service, to include asbestos, Agent Orange, and Agent Blue. The clinician indicated that he based his opinion on a review of the claims file and the current medical literature. Of note, the clinician repeatedly indicated that the medical literature did not indicate any definitive connection between penile carcinoma and Agent Orange, Agent Blue, or asbestos. In conclusion, the clinician again noted that penile carcinoma was known to be caused by factors unrelated to the Veteran's service, such as viruses, poor hygiene, or an immune system weakened by HIV. The clinician stated that he could not find a connection between any incident, exposure, or other factor involving the Veteran's service and his penile cancer. There is no other medical investigation that can be reasonably undertaken in support of the claim. All of opinions, all written by acknowledged medical professionals after a review of the claims file and the medical literature, indicate that the Veteran's fatal skin cancer was not caused by exposure to a foreign substance, to include asbestos and herbicides. Of note, the September 2012 VA clinician and the December 2012 clinician also noted causes, unrelated to asbestos or herbicide exposure, considered by the medical community to be more likely causes for the Veteran's cancer. As noted above, in October 2012, the appellant's representative contended that the Veteran's fatal cancer might have been related to exposure to herbicides, especially Agent Blue, during service. In a Wikipedia entry submitted by the representative, the Wikipedia authors indicated that Agent Blue was a combination of two arsenic-containing compounds. In an article printed from the Mayo Clinic's website, also submitted by the appellant's representative, the article's author indicated that exposure to arsenic was a well-known cause of squamous cell carcinoma. The Board has carefully considered the Wikipedia entry and the Mayo Clinic printout, but finds that they are of little probative value when evaluated with the VA medical opinions and independent medical opinion of record. As opposed to the opinions from medical professionals, to include the December 2012 independent medical opinion written by a chief of urology after a review of the claims file, the generic text of the articles submitted by the appellant's representative do not address the facts in this particular Veteran's case with any medical certainty. See generally Mattern, 12 Vet. App. at 222; see also Wallin, 11 Vet. App. at 509; Sacks v. West, 11 Vet. App. at 314. The Board also notes that Wikipedia articles are of limited value as they are edited by members of the general public and, therefore, are notoriously open to falsifications. As for the Mayo clinic printout, the Board notes that the article is a generic one written on the subject "squamous cell carcinoma." The article does not specifically address the squamous cell carcinoma of the foreskin as experienced by the Veteran. As noted above, VA clinicians and an specialist in urology, having reviewed the record and the medical literature, each indicated finding no evidence suggesting a connection between herbicide exposure, to include Agent Blue, and the Veteran's fatal cancer. Accordingly, the October 2012 submissions are of less probative value in this matter than the various medical opinions of records. In addition, the Veteran and the appellant both submitted lay statements, indicating their belief that there was a link between asbestos and/or herbicide exposure and the Veteran's fatal carcinoma. Yet, although lay persons may present evidence as to matters of which they have knowledge, the Board finds that their opinions are outweighed by those found in the various medical opinions written by medical professionals based upon a review of the record and the medical literature. See Madden, at 1481. It is very clear that the Veteran had long and honorable service for which the Board is grateful. However, the Board is unable to find a legal basis upon which to grant the benefit the appellant seeks and the appeal must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs