Citation Nr: 1317818 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-00 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from March 1966 to June 1974. He died in May 2008; the appellant claims as his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The appellant presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at the RO, in June 2010. A transcript of the hearing is associated with the claims file. This claim was previously denied by the Board in March 2011. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2012 Order, the Court granted a Joint Motion for Remand (Joint Motion), which vacated the Board's denial and returned the issue to the Board for further consideration. In September 2012, the Board remanded the claim to the RO for additional development. As will be explained in more detail below, the RO obtained a supplemental statement from E.M., M.D., and obtained an opinion from a VA physician that answered all of the questions posed in the September 2012 remand. As such, the RO complied with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA claims file reveals that all evidence contained therein is duplicative of evidence already contained in the paper claims file. FINDINGS OF FACT 1. The Veteran died in May 2008, at age 62, more than 33 years after service separation; the certificate of death listed the immediate cause as ascites. 2. During the Veteran's lifetime, service connection had been established for diabetes mellitus, type II (20 percent disabling), for posttraumatic stress disorder (10 percent disabling), for a bilateral hearing loss disability (10 percent disabling), for tinnitus (10 percent disabling), and for peripheral neuropathy of both upper extremities and both lower extremities (each 10 percent disabling). 3. There is no relationship between any disorder that caused his death and the Veteran's active service. 4. The Veteran's service-connected disabilities were not a direct or contributory cause of death. 5. Cirrhosis of the liver was not shown in service or within one year of separation. CONCLUSION OF LAW The Veteran's death did not result from a disability incurred in or aggravated by service, and cirrhosis of the liver may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310, 1312 (West 2002); 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in her possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (CAVC) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a June 2008 pre-rating letter, the RO notified the appellant of the evidence needed to substantiate her claim. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist her in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). A supplemental letter with this information was also provided in April 2009. The appellant has substantiated the status of her spouse as a Veteran. She was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of her claim, in the June 2008 and April 2009 letters. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). The information required by the CAVC in Hupp was addressed in the June 2008 and April 2009 letters, including a list of the Veteran's service-connected disabilities, and an explanation of the evidence pertinent to both methods of establishing service connection for the cause of death. When conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the reasons for the RO's denial of the claim were addressed, as well as the type of evidence that was need. Specifically, the Judge addressed the need to supplement the record with additional discussion by the physician who signed the death certificate. Moreover, the file was left open for 30 days in order to supplement the record. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In a DIC case, VA must, as part of the duty to assist, "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1); Wood v. Peake, 520 F.3d 1345, 1348 (Fed.Cir.2008). This requirement obligates VA to assess whether it is necessary to obtain a medical opinion in order to substantiate the claimant's claim. Id. VA is only excused from making reasonable efforts to provide assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. A VA medical opinion was obtained in this case. For the reasons discussed below, the opinions and addenda provided by the VA physicians on this matter, when taken together, are adequate to form a basis of this decision. II. Applicable Law and Regulations DIC Benefits Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if such veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. Service Connection In General In general, service connection is available for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, there must be: "(1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cirrhosis of the liver, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As cirrhosis of the liver is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Cause of Death In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Agent Orange Presumptions A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, 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), All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, Acute and subacute peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) A disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service, provided that such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a) The Secretary of Veterans Affairs (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41-442-449 (1996). The Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. As of May 2008, this list included gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers). See Notice, 75 Fed. Reg. 32540-03 (2010). The stated reason for the inclusion of such disorders is that, a 2006 report of the National Academy of Sciences (NAS) noted there is no evidence that Vietnam Veterans are at greatly increased risk for serious liver disease, and reports of increased risk of abnormal liver-function tests have been mixed. Although increased rates of gastrointestinal disease have not been reported, the possibility of a relationship between dioxin exposure and subtle alterations in the liver and in lipid metabolism cannot be ruled out. On the basis of its evaluation of the evidence reviewed in the 2006 report and in previous reports, NAS concluded that there is inadequate or insufficient evidence to determine whether there is an association between herbicide exposure and gastrointestinal and digestive diseases. In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the Veteran died of a disability recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but must also determine whether his death was the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). III. Analysis The Board notes initially that, although the Veteran served in combat during a period of war, the evidence does not suggest, and the appellant does not contend that the claimed cause of death is related to combat. Rather, the appellant claims that it is a result of his exposure to Agent Orange or secondary to the Veteran's service-connected diabetes mellitus. As such, the combat rule is not determinative. 38 U.S.C.A. § 1154(b) (West 2002), 38 C.F.R. § 3.304(d) (2012). The Veteran in this case died in May 2008, more than 33 years after he left the service. The death certificate identifies the immediate cause of death as ascites (occurring hours before death), which is due to or as a consequence of Cirrhosis (occurring years before death), which is due to or as a consequence of "Liver disease due to exposure to Agent Orange" (occurring years before death). At the time of the Veteran's death, service connection was in effect for diabetes mellitus, type II, evaluated as 20 percent disabling, for posttraumatic stress disorder, evaluated as 10 percent disabling, for a bilateral hearing loss disability, evaluated as 10 percent disabling, for tinnitus, evaluated as 10 percent disabling, and for peripheral neuropathy of both upper extremities and both lower extremities, each evaluated as 10 percent disabling. As to whether service connection is warranted on a herbicide presumptive basis, the Board notes that liver disease and cirrhosis of the liver are not diseases that are presumed to be associated with Agent Orange exposure, and the Secretary of VA has included such disorders on a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. As such, service connection on this basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. Regarding direct service connection, i.e., a disability or death resulting directly from an injury or disease in service, the evidence does not suggest, and the appellant does not appear to contend, that ascites, cirrhosis, or liver disease, were noted in service or became manifest until very near the Veteran's death. There is certainly no reference to these conditions in the service treatment records, and at discharge, all pertinent systems, including genital-urinary, vascular, and abdomen and viscera, were found to be normal. Thus, there is an affirmative finding of no disability at discharge. With regard to cirrhosis, to determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. There is not a showing of a combination of manifestations sufficient to identify cirrhosis of the liver during service or sufficient observation to establish chronicity during service. The evidence also does not reflect continuity of symptomatology, as demonstrated by the passage of many years before onset of cirrhosis. Furthermore, since cirrhosis was first identified decades after service, it necessarily follows the cirrhosis was not manifest within one year of separation. See, 38 U.S.C.A. § 1101, 1112, 1113. As noted above, while service connection for one of the causes of the Veteran's death is not warranted on a presumptive basis, this does not preclude consideration of service connection on a direct basis, even as related to exposure to Agent Orange. One of the appellant's contentions is that the Veteran's death is related to such exposure. The Board concedes that it is significant that the death certificate, signed by E.D., M.D., specifically states that the Veteran's liver disease is due to Agent Orange exposure. However, this assertion is entirely unexplained on the death certificate. In addition, Dr. D, in a September 2012 written statement, further explained that the Veteran had given a positive history of Agent Orange. Dr. D had no other evidence than that which was told to him by the Veteran and his mother. He opined that, if the Veteran had been in contact with Agent Orange, there was a strong possibility that it caused his liver disease. The defoliating agents are very toxic to the human body. However, as to whether there was a cause and effect relationship, Dr. M left that to VA to decide. In rendering an opinion on this matter in September 2008, the VA examiner based her conclusion wholly on the findings of the NAS, set out above, and VA's decision to exclude gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers) from the Agent Orange presumptive diseases. In an October 2012 opinion, a VA physician reviewed the claims file and provided the following conclusions. Agent Orange exposure did not cause or result in the Veteran's liver cirrhosis that led to his death. The rationale was that there was no association in the medical literature between Agent Orange exposure and liver problems decades later. It was also less likely that any service-connected condition, when taken individually or as a whole, caused the Veteran's liver disease that led to his death, because the liver disease was not service connected nor is liver disease a presumptive disease associated with Agent Orange exposure. The Veteran died of cirrhosis of the liver, and no etiology had been found for the steatohepatis that caused the cirrhosis. The examiner explained that steatohepatis is a multifactorial disease, with alcohol, central obesity, type 2 diabetes mellitus, dyslipidemia, and metabolic syndrome being common risk factors. The Veteran had a documented history of heavy alcohol use, and it had been noted that the liver inflammation decreased when he discontinued use in 2004. He also had morbid obesity and well-controlled diabetes with no evidence of dyslipidemia that required treatment. While his alcohol use ceased in 2004, his weight increased from 2004 to 2006, during which his diabetes was well-controlled. After reviewing all of the evidence of record, the VA physician concluded that the most obvious and serious risk factors for the liver disease were alcohol use and central obesity. With regard to the death certificate, the examiner indicated that there was no association in medical literature between Agent Orange and liver problems. In weighing the probative value of these opinions on the issue of whether liver disease or cirrhosis is related to Agent Orange exposure during service, the Board first finds that the opinion of the September 2008 VA examiner is given no probative value, because it only addresses the issue of presumptive service connection, which must be denied on the basis of the diagnosis. As such, when comparing the opinions of Dr. M and the October 2012 VA examiner, the Board finds that the conclusions provided by the VA examiner are more probative. Dr. M's statement is uncertain and does little more than suggest that it is possible that the Veteran's liver disease was due to Agent Orange exposure. This statement is given relatively little probative value because the possibility of a relationship between liver disease and Agent Orange exposure was stated in uncertain terminology. See Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to "may or may not" is an insufficient basis for an award of service connection). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The examiner also outright stated that he deferred a determination as to cause-and-effect to VA, saying only generally that defoliating agents were toxic to the human body. Much more probative is the opinion provided by the VA physician in October 2012, which is well-reasoned and takes into account medical literature. The examiner concluded that the causes of the Veteran's liver disease, which led to his death, were alcohol consumption and obesity, neither of which is service-connected or related to service. The Board notes that a February 2007 treatment report contains a diagnosis of hepatitis and worsening cirrhosis of uncertain etiology along with the notation that "We have openly voiced wonder if this may be related to Agent Orange exposure or other exposures during active service." However, the report is ultimately inconclusive on this point, and is therefore not probative of the relationship asserted by the appellant. While the appellant has at times endorsed the Agent Orange etiology, it would appear that this assertion is based entirely on E.D.'s statement on the death certificate, which has been found to be less probative than the other competent evidence of record. Nevertheless, to the extent that the appellant asserts such a relationship, the Board finds that the opinions provided by medical professionals, that are well-reasoned and supported by medical literature, are more probative than the appellant's lay statements. As such, the Board concludes that the opinion provided by the October 2012 VA physician is the most probative evidence regarding whether liver disease was caused by exposure to Agent Orange, and service connection for the cause of death based on exposure to Agent Orange is not in order. Turning then to the secondary service connection theory of entitlement (i.e., the appellant's assertion that the liver disease that caused the Veteran's death resulted from his service-connected diabetes mellitus), in addition to the statement of E.D. noted above, there are several other opinions of record that address this relationship. However, those opinions are decidedly against the asserted relationship. A May 2004 needle biopsy confirmed a diagnosis of cirrhosis and steatohepatitis, but noted that the etiology of this cirrhosis is somewhat difficult to ascertain. A November 2004 VA examination report includes a discussion of moderate to heavy past alcohol use, especially during years in service when it was not uncommon to drink a pint or so of hard liquor. It was noted that his alcohol use moderated after service, though he continued to drink three mixed drinks on a daily basis for the past several years. It was also noted that prior to January, he would routinely use Tylenol, lately increasing to 6-8 doses per day. The examiner specifically opined that the Veteran's cirrhosis is less likely as not (less than 50/50 probability) caused by his diabetes. It was noted that the liver biopsy showed evidence of no clear-cut or definitive etiological cause of his cirrhosis but stated steatohepatitis as a possible etiology. Chronic cholestatic conditions including primary biliary cirrhosis was also noted as a possible etiology but that the workup would most likely result in nonspecific findings. Finally, Wilson's disease was also included as possible etiology but this is usually found in younger individuals. Therefore, again there is no definitive etiology. It was noted that the Veteran had a history is significant for alcohol until 10 months ago along with moderate Tylenol use, these factors cannot be discounted. In September 2008, a VA opinion was obtained to directly address the assertion of E.D. on the death certificate regarding a relationship between diabetes mellitus and the cause of death. A VA medical professional (J.L.) reviewed the claims file and opined that diabetes with diabetic neuropathy did not contribute substantially or materially to death, combine to cause death, or aid or lend assistance to the production of death. She further stated that there no reasonable basis for holding that his service-connected diabetes with diabetic neuropathy was of such severity as to have a material influence in accelerating death, his diabetes with diabetic neuropathy was not of such a progressive and debilitating nature as to have influenced the acceleration of death. She based her conclusion on what she interpreted as good control of the Veteran's diabetes, as well as studies showing no relationship between Agent Orange itself and liver disease. In a February 2010 report, the same VA medical professional (J.L.) discussed the issue with a pathologist, who reviewed the pathology report and had it evaluated by a specialist at the Mayo clinic in Arizona, J.G.S., M.D. An attached letter from J.G.S. states his agreement that the liver biopsy shows steatohepatic cirrhosis. He cautioned with respect to etiology, steatohepatitis is often times multifactorial, and it is impossible to entirely compartmentalize various contributing factors in many cases. He noted that the Veteran was morbidly obese (BMI 41). In addition, he noted a significant history of alcohol consumption through 2004. He stated that the Veteran's obesity and alcohol consumption "would certainly be enough to result in the changes we see here without inclusion of the diabetes." J.L. went on to discuss literature showing an increased incidence of cirrhosis in diabetic patients, and conversely, a high incidence of glucose intolerance in patients with cirrhosis. She acknowledged that diabetes increases the risk of steatohepatitis, which can progress to cirrhosis. However obesity and morbid obesity is a significant confounding variable in determining the prevalence of cirrhosis in diabetes. Even with normal glucose tolerance, obesity and more significantly morbid obesity can cause steatohepatitis and cirrhosis. Based on lab test results, J.L. noted that the Veteran's diabetes mellitus was well controlled and not of such severity has to have a material influence the acceleration of death; nor was glipizide a contributing factor. Based on these factors, she concluded that the Veteran's diabetes mellitus did not contribute substantially to cause of death. The June 2010 letter, cited above, from the physician who completed the death certificate, E.M., states as follows: "I feel that, in review of the literature and of [the Veteran's] case, he may have, at least as likely as not, a relationship between his diabetes and his liver disease." There is no explanation of this conclusion. E.M. did include a photocopy of an article entitled Liver Disease and Diabetes Mellitus. That article discusses a variety of liver conditions associated with abnormal glucose homeostasis. These conditions include steato- and nonalcoholic steatohepatitis as well as cirrhosis. The article specifically states that such association may explain the pathogenesis of liver disease or of the abnormal glucose homeostasis, or may be purely coincidental. As reported above, the October 2012 report provided by the VA physician indicated that the causes of the Veteran's liver disease were alcohol use and central obesity. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (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). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the February 2010 VA opinion is adequate for purposes of this appeal. Specifically, J.L. reviewed the claims file (which contained critical information), and consulted with an appropriate specialist. There is no indication that she was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Therefore, the Board finds her opinion to be of great probative value. However, the opinion of E.M., as stated on the death certificate and in the June 2010 letter, is somewhat theoretical in its reasoning and does not include a discussion of alternatives, or of the factors present in the Veteran's specific case. He reasoned, by way of the enclosed article, that diabetes mellitus has been shown to play a role in liver disease, such as the steatohepatitis as well as cirrhosis found in this case. However, this role was also acknowledged by J.L. and the specialist she consulted. They found the Veteran's obesity and history of alcohol use to be more likely the cause of his liver disease than diabetes mellitus. This was supported by the reasoned conclusion provided in the October 2012 VA opinion from a separate physician, who pointed out that the Veteran's diabetes had been well-controlled. E.M. did not acknowledge or discuss these factors. His opinion is simply not as well-reasoned and supported as that of J.L. Therefore, the Board adopts the opinions of J.L. and the October 2012 VA physician, that the cause of the Veteran's death is not related to his service-connected diabetes mellitus. Regarding the articles submitted by the appellant, the CAVC has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). In this case, however, the medical text evidence submitted by the appellant (as opposed to that submitted by E.M.) is not accompanied by the medical opinion of a medical professional. Additionally, although it does establish a relationship between diabetes mellitus and the type of liver disease diagnosed in this case, it fails to demonstrate with any degree of certainty a relationship between the Veteran's service-connected diabetes mellitus, or an in-service injury or disease, and his death. As already discussed, the opinion of J.L. acknowledges the relationships discussed in these articles, but concludes that, in the Veteran's case, this is not the most likely etiology of his liver disease. In any case, an opinion as to a possible relationship between diabetes and liver disease that specifically discusses the Veteran's medical history is more probative in determining etiology than a general article on the matter. In sum, a preponderance of the evidence in this case demonstrates that service connection for the cause of the Veteran's death is not warranted. We conclude that a disability incurred in or aggravated by service did not cause, contribute substantially or materially to the cause of death. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs