Citation Nr: 1324925 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 98-08 693A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1970 with prior active service of over three years. He died in February 1998, and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2003 decision, the Board denied the Appellant's claim of service connection for the cause of the Veteran's death. She appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2006 Order, the Court set aside the Board's decision and remanded the matter to the Board for readjudication for reasons set forth in the Order. In December 2006 and November 2007, the Board remanded the case to the RO to ensure due process and in compliance with the Court's Order. In a November 2008 decision, the Board again denied the Appellant's claim of service connection for the cause of the Veteran's death. She again appealed the decision to the Court. In a June 2009 Order, the Court granted a Joint Motion For Remand of the parties (VA Secretary and the Appellant), vacated the Board's November 2008 decision, and remanded the case back to the Board pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. In September 2009 and November 2009, the Board requested VA medical expert opinions from an oncologist and psychiatrist, pursuant to 38 C.F.R. § 20.901(a). The opinions have been furnished to the Appellant and her representative in accordance with 38 C.F.R. § 20.903. In August 2012 and in December 2012, when the initial request had to be re-directed to an appropriate specialist, the Board requested an independent medical expert opinion from a neuropathologist, pursuant to 38 C.F.R. § 20.901(d). The opinion with a clarifying addendum opinion, has been furnished to the Appellant and her representative in accordance with 38 C.F.R. § 20.903. FINDINGS OF FACT 1. The Veteran died in February 1998 and the death certificate lists the cause of death as follows: the immediate cause of death was brain tumor, probable glioma; other significant conditions contributing to death but not resulting in the underlying cause were listed as sacral chordoma and a history of Agent Orange exposure. 2. The fatal brain tumor, probable glioma, with contributory sacral chordoma was not due to a disability that was incurred in service, manifested during the first post-service year, or was otherwise related to service to include exposure to Agent Orange. 3. Following the Veteran's death, service connection was granted for posttraumatic stress disorder as an accrued benefit, and a 30 percent rating was assigned, effective from September 1997; the service-connected disability is not shown to have caused or contributed materially to the cause of the Veteran's death. CONCLUSION OF LAW The fatal brain tumor, probable glioma, with contributory sacral chordoma was not due to disease or injury that was incurred in or aggravated by service; a brain tumor, probable glioma, with contributory sacral chordoma as a chronic disease may not be presumed to have been incurred in service; and brain tumor, probable glioma, with contributory sacral chordoma is not a disease subject to the presumption of service connection due to exposure to herbicides. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473 (2006). In a claim for dependency and indemnity compensation, including a claim of service connection for the cause of a veteran's death, notice under 38 U.S.C.A. § 5103(a) must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on a previously service- connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided post-adjudication VCAA notice by letters, dated in November 2001 and in February 2008. The Appellant was notified of the type of evidence that was required to substantiate the claim for the cause of the Veteran's death. The Appellant was notified of the condition for which the Veteran was service connected at the time of his death, namely, posttraumatic stress disorder, of the evidence and information required to substantiate the claim based on a previously service-connected disability, and of the evidence and information required to substantiate the claim based on a condition not yet service connected, namely, a brain tumor and chordoma of the sacral area as shown on the death certificate. The Appellant was also notified that VA would obtain service records, VA records, and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records, or authorize VA to obtain private medical records on her behalf. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the effective date of the claim and the degree of disability assignable); and of Hupp v. Nicholson, 21 Vet. App. 342 (2007). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated as evidenced by the supplemental statement of the case, dated in August 2008. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). As for the notice of the effective date of the claim and for the degree of disability assignable, as the claim of service connection for the cause of the Veteran's death is denied, no effective date or disability rating can be assigned as a matter of law. Accordingly, there can be no possibility of any prejudice to the Appellant with respect to any defect in the VCAA notice required under Dingess at 19 Vet. App. 473. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records. The Appellant has furnished a copy of the Veteran's death certificate, statements from a private physician, and various physician and hospital records. The RO has obtained private records identified by the Appellant to include those from E.A., D.O., and J.K., M.D. She has not identified any additionally available evidence to include VA records for consideration in her appeal. VA has conducted medical inquiry in an effort to substantiate the Appellant's claim. 38 U.S.C.A. § 5103A(d). VA obtained a VA opinion in February 1998 on the question of whether the condition listed on the death certificate may be construed as a soft-tissue sarcoma, in order to determine whether the cause of death may be a presumptive condition under VA regulations. Further, in September 2009 and November 2009, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901(a), the Board requested medical expert opinions from specialists in oncology and psychiatry from the Veterans Health Administration (VHA), on the broader question of whether the cause of death was related directly to service. In August 2012 and in December 2012, when the initial request had to be re-directed to an appropriate specialist, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901(d), the Board requested an independent medical expert opinion from a specialist in neuropathology at UMASS Memorial Medical Center, also on the question of whether the Veteran's cause of death was related directly to service to include presumed Agent Orange exposure. As the VHA medical opinions and opinion of the independent medical expert contained a review of the Veteran's medical history and describe the fatal condition in sufficient detail and provide a rationale to support the conclusion reached in the opinions, the opinions are adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As there are no additional records to obtain, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service incurrence will be presumed for malignant tumors of the brain and spinal cord, if the disability is manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). When any veteran dies from a service-connected disability, the veteran's surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability, which is causally related to service, was either the principal or a contributory cause of the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to constitute a principal cause of death, it must be shown to be the 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). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312(c). Although there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in some circumstances as early as February 1961, otherwise beginning in August 1964 and ending in May 1975, shall be presumed to have been exposed during such service to herbicide agents, including a herbicide commonly referred to as Agent Orange, 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(a)(3); 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: 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, 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 soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996); 64 Fed. Reg. 59232 (Nov. 2, 1999); 66 Fed. Reg. 2376 (Jan. 11, 2001); 67 Fed. Reg. 42600 (June 4, 2002); 68 Fed. Reg. 27630 (May 30, 2003); 72 Fed. Reg. 32395 (June 12, 2007); 75 Fed. Reg. 32540 (June 8, 2010); and 75 Fed. Reg. 81332 (Dec. 27, 2010). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Facts The service personnel records show that the Veteran served on active duty from October 1965 to August 1970. Prior service from June 1962 to October 1965 has not been verified. The Veteran served in Vietnam in 1968 and 1969. In October 1997, in a buddy statement, it was stated that the Veteran served in Vietnam on the USS Hermitage in 1967 and that the Veteran served in several other deployments to Vietnam. The service treatment records show that in June 1962 on a report of medical examination the head, spine, and neurological system were normal. Service treatment records are negative for any complaint, finding, history, treatment, or a diagnosis of a brain or spinal tumor or other abnormality. On reports of medical examinations, dated in June 1962, in October 1965, in February 1966, and in August 1970, showed normal evaluations of the head and spine as well as normal neurological evaluations. After service, records from Oregon Health Sciences University show that in October 1997 a CT scan and a MRI revealed a lesion in the sacrum, which was diagnosed as a chordoma by biopsy. In December 1997, a biopsy of a brain tumor showed an atypical gliosis, questionable glioma. Records of Pioneer Memorial Hospital and Nursing Home, dated in February 1998, show that the Veteran was terminally ill upon admission with a catastrophic intracranial bleeding, which caused a coma and seizure activity. History included a sacral chordoma. According to Dr. E.A., a CT scan showed intracranial pathology, a brain tumor, metastatic from the sacral chordoma. In a consultation note by K.W., M.D., the attending physician at Pioneer Memorial, the assessment was a significant intracerebral event with associated epileptic seizures, a known brain tumor from an undiagnosed lesion, and a large chordoma of the sacral region. The Veteran's death certificate shows that he died at Pioneer Memorial Hospital in February 1998 and that the causes were listed as follows: the immediate cause of death was brain tumor, probable glioma; other significant conditions contributing to death but not resulting in the underlying cause were listed as chordoma of the sacral area and a history of Agent Orange exposure. An autopsy was not performed. Prior to his death, the Veteran had filed a claim of service connection for posttraumatic stress disorder. Following his death, in a rating decision in July 1998, the RO granted service connection for posttraumatic stress disorder, on an accrued basis, and assigned a 30 percent rating, effective from September 1997. The Appellant was notified of the award of accrued benefits by letter in August 1998. Private and VA medical opinions were obtained on the question of whether the cause of the Veteran's death was related to service to include exposure to Agent Orange. In February 1998, the RO obtained an opinion from a VA physician, who stated that a brain tumor, probable glioma, as denoted on the death certificate, referred to a glioblastoma, astrocytoma, or oligodindroglioma, that is, a kind of brain tumor, which is specifically excluded from a presumption of service connection for Agent Orange. The physician explained that a malignant ganglioneuroma, a soft-tissue sarcoma, listed as a disease associated with Agent Orange exposure, is a rare tumor of infancy and childhood, which is rarely found in individuals of service age and even more rarely found in individuals that are age 53, which was the Veteran's age at his death. The physician further explained that it was "not at all probable that there is any association between Veteran's death of a 'probable glioblastoma' and the rare occurrence of a ganglioneuroma of childhood." In letters, dated in October 1999 and April 2003, K.W., M.D., stated that the Veteran died due to a brain tumor and that the Veteran had served in Vietnam in the 1960s. He also stated that the Veteran was exposed to Agent Orange during service and that Agent Orange was shown to be carcinogenic. In the letter of October 1999, the physician expressed the opinion that the Veteran's cancer was more than likely predisposed by his long and continuous exposure to Agent Orange while on duty in Vietnam. In the letter of April 2003, the physician stated, in reference to the carcinogenic properties of Agent Orange, that the Veteran's brain cancer was just as likely as not to have caused the Veteran's death. In several buddy statements, dated in 1999, it was stated that the Veteran was part of a Navy Seal team that worked in and around the inland waterways, rivers and canals, of Vietnam, where Agent Orange was used to defoliate the river banks and that Agent Orange was so heavily sprayed it dripped from the trees onto members of the team. In September 2009, the Board sought a medical expert opinion through the VA Veterans Health Administration (VHA) on the following questions: Did the factual evidence of record support a medical conclusion that the Veteran's documented behavior problems during service were consistent with a psychiatric disorder that was eventually diagnosed as posttraumatic stress disorder on VA examination in December 1997 and did posttraumatic stress disorder cause or contribute to the cause of the Veteran's death? The question to be answered by an oncologist was whether it is at least as likely as not that the Veteran's documented behavior problems during service were symptomatic of the brain tumor that was initially diagnosed in 1997? In response, a VA oncologist expressed the opinio that it was unlikely that the brain tumor could have been a contributor to the Veteran's behavioral problems while in service. While acknowledging that a definitive diagnosis of the type of brain tumor that the Veteran had was not made, and that low grade astrocytomas or other less aggressive brain tumors possibly had survivals of more than a decade, the physician ultimately concluded that it was unlikely that the Veteran's tumor began to cause symptoms more than 25 years prior to the time of its diagnosis. In October 2009, a VA psychiatrist responded that he was unable to render an opinion, but concluded that it was possible that the Veteran's in-service behaviors may have been impacted by posttraumatic stress disorder or by preexisting organic issues or by both. In November 2009, as the questions to the psychiatrist were not addressed adequately, the Board sought another medical expert opinion from a VHA psychiatrist. The questions were the same as asked in September 2009. In January 2010, a different psychiatrist expressed the opinion that the Veteran's behavior problems during service were consistent with posttraumatic stress disorder, but that the Veteran's posttraumatic stress disorder did not cause or contribute to his cancer, which led to his death. In August 2012 and later in December 2012, when the initial request had to be re-directed to an appropriate specialist, the Board sought an independent medical expert opinion from a physician in the oncology department at UMASS Memorial Medical Center. In the opinion request, the Board noted that the private opinion from Dr. K.W. was inadequate because the opinion was conclusionary without a supporting rationale, and that the VA opinion of February 1998 was inadequate because the rationale was based on the statistical analysis used by VA to decide which diseases would be presumptively associated with Agent Orange, as the physician had noted that the Veteran's brain tumor was of the kind that is specifically excluded from a presumption of service connection for Agent Orange. The question posed was whether it was more likely than not, at least as likely as not, or less likely than not that the fatal brain tumor, probably glioma, or chordoma of the lower spine was actually caused by exposure to Agent Orange? In its request, the Board explained the role of the Institute of Medicine of the National Academies (IOM) committee, convened by the National Academy of Sciences (NAS), to answer whether a statistical association with herbicide exposure existed for a particular disease. Where it is determined that "sufficient evidence of an association" exists for a disease, NAS in its "Agent Orange Updates" recommended inclusion of the disease to which the presumption applies. The VA Secretary takes into account the reports from NAS as well as all other available sound medical and scientific information when prescribing regulations regarding a presumption of service connection for a disease when a positive statistical association exists between Agent Orange exposure and the occurrence of the disease in humans. The Appellant was provided copies of the updated studies of the NAS, as published periodically in the Federal Register, according to the Board's instructions in its remands of December 2006, November 2007 and August 2011. In the opinion request, the Board stated that the IOM studies did not conclude that the medical evidence was against an association between exposure to Agent Orange and a disease that was not a presumptive disease, rather that the information was not sufficient to determine whether there should be a presumed association, which did not preclude proving a direct causal association. The Board noted that the IOM studies or statistical analysis was a factor - not the sole basis for accepting or rejecting actual causation - when assessing whether evidence was sufficient to establish actual causation, and that there were other relevant factors to consider (these were enumerated by the Board, such as whether the Veteran had risk factors other than Agent Orange for the development of a brain tumor or chordoma). In December 2012, the independent specialist explained why he could not consider or was prepared to dismiss consideration of the Veteran's tumors and processes as being caused by or secondary to Agent Orange exposure. He stated that definite risk factors for the brain tumor and chordoma have not been identified and that the 30 year time lag between the Veteran's Agent Orange exposure and the clinical development of his tumors was not meaningful. He found that the chordoma did not manifest in an unusual manner and that there were too few details in the record to answer the question of whether the brain tumor had manifested in an unusual manner. He explained that the IOM studies were persuasive because their conclusions were based on epidemiological data. As the specialist had made references to the fact that NAS did not list either chordoma or brain tumor as epidemiologically linked to exposure to Agent Orange, a clarifying addendum opinion was sought on the issue of whether the Veteran's fatal chordoma or brain tumor was actually caused by exposure to Agent Orange. In a March 2013 report, the specialist enclosed excerpts from medical texts to support his assertion that there were no definitive associations between chemical exposures and the development of brain tumors and that the cause of chordoma was unknown with the only identified risk factors as genetic. In the absence of solid scientific evidence indicating a linkage between Agent Orange exposure and brain tumor or chordoma, the specialist found it impossible to consider a causal relationship and concluded that there was no basis on which to attribute the brain tumor and the chordoma to exposure to Agent Orange. Analysis The Appellant asserts that the Veteran's fatal cancers were related to his exposure to Agent Orange, which lowered his immune system. The service treatment records are entirely negative for evidence of a neurological or spinal abnormality, which may have been symptomatic of a brain tumor or sacral chordoma. Based on the service treatment records alone a brain tumor, probable glioma, with contributory sacral chordoma did not have onset in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As there is no competent evidence either contemporaneous with or after service that a brain tumor, probable glioma, with contributory sacral chordoma was noted during service, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. In this case, the earliest evidence of a brain tumor and of sacral chordoma was in 1997, more than 27 years after the Veteran's discharge from service, well beyond the one-year presumptive period after service for manifestation of a cancer as a chronic disease under 38 U.S.C.A. §§ 1112 and 1131 and 38 C.F.R. §§ 3.307, 3.309. Except for exposure to herbicides, which is addressed separately, there is no competent evidence that the Veteran's brain tumor, probable glioma, with contributory sacral chordoma, first documented after service beyond the one-year presumptive period pertaining to a chronic disease, is otherwise related to an injury, disease, or event in service. 38 C.F.R. § 3.303(d). The death certificate indicates that the Veteran's death was a consequence of a physical condition and not a mental condition, such as service-connected posttraumatic stress disorder. As noted previously, a VA oncologist found it to be unlikely that the Veteran's brain tumor, which was initially diagnosed in 1997, began to cause symptoms more than 25 years prior to the time of its diagnosis, and a VA psychiatrist in January 2010 discounted a causal or contributory relationship between the Veteran's posttraumatic stress disorder and his death from cancer. The Appellant's central claim is that the Veteran's fatal cancers are attributable to his exposure to herbicides during his period of service. While the Veteran had service in Vietnam and his exposure to Agent Orange is presumed, there is no evidence to show that he had a presumptive disease associated with exposure to Agent Orange. The conditions noted on his death certificate are not among the list of presumptive diseases to include soft tissue sarcoma under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A VA physician in February 1998 clarified that the Veteran's fatal brain tumor was not the kind of tumor listed as a disease associated with Agent Orange. While the death certificate lists a history of Agent Orange exposure as a contributing condition to the Veteran's death, it was also of significance that the death certificate indicated that the Agent Orange exposure was not the cause of the Veteran's brain tumor. As neither the brain tumor nor sacral chordoma is among the listed diseases associated with exposure to herbicides, service connection on a presumptive basis due to exposure to herbicides in Vietnam is not established under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As the presumption of service connection due to Agent Orange exposure does not apply to the claim for the reasons articulated, the Appellant may still prove direct service connection for a disease claimed as due to exposure to Agent Orange, without the benefit of a statutory presumption of service connection; however, this requires overcoming the difficult burden of proving actual causation. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). With regard to medical opinions the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). A mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Thoroughness and detail of the opinion are also among the factors for assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran's death certificate lists a history of Agent Orange exposure as a contributory condition, but not resulting in the underlying cause of death from brain tumor, probable glioma. The death certificate does not show on its face that Agent Orange exposure in fact contributed substantially or materially to the development of the Veteran's brain tumor, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The death certificate was not accompanied by any explanation of rationale for the conclusion that Agent Orange exposure contributed to the cause of death. For this reason, the death certificate alone has limited probative value that the Board can consider and weigh against contrary opinions. The Appellant has submitted favorable evidence in the form of the private opinion of K.W., M.D., to the effect that the Veteran's brain tumor was due to Agent Orange exposure. The physician gave no rationale for opinion other than generalized remarks that Agent Orange has been shown to be carcinogenic in animals and humans. The physician did not cite to any medical or scientific study to support his opinion that the fatal cancers were actually caused by exposure to Agent Orange. Further, the Appellant was afforded the opportunity to submit additional evidence concerning the rationale underlying Dr. K.W.'s opinion, but no further evidence has been submitted to support the opinion. For these reasons, the opinion of Dr. K.W. is of limited probative value, and the Board accords the opinion less weight than the contrary medical opinions discussed below. In regard to medical opinions opposing the Appellant's claim, the VA physician in February 1998 expressed the opinion that the fatal brain tumor, probable glioma, was not related to any of the diseases associated with Agent Orange exposure, noting that the brain tumor was of the kind that was specifically excluded from presumption of service connection for Agent Orange. As this opinion was deemed inadequate for the reason that the rationale was based on the statistical analysis used by VA to decide which diseases would be presumptively associated with Agent Orange, an independent medical opinion was obtained to address the likelihood that the fatal brain tumor, probably glioma, or chordoma of the lower spine was actually caused by exposure to Agent Orange. In an opinion of December 2012, which was augmented by a clarifying opinion in March 2013, Dr. S.K., a physician unaffiliated with VA, addressed actual causation. The independent medical expert (IME) concluded that there was no basis on which to find that the Veteran's exposure to Agent Orange led to the development of the fatal brain tumor and chordoma. The IME explained his reasoning by citing to a medical text. The IME addressed the various relevant factors in assessing whether the evidence was sufficient to establish actual causation, including whether the Veteran had other risk factors for a brain tumor or chordoma other than exposure to Agent Orange, whether the 30 year time lag between Agent Orange exposure and the clinical development of the tumors was meaningful, whether the tumors manifested in an unusual manner, and what was persuasive about the medical studies of the IOM. Because the IME articulated a rationale for the conclusion reached in the opinion, which does account for the facts in the case, which the IME supported by a review of a medical text book, the Board finds that the opinion is adequate. Further, it is more persuasive and has greater probative weight than the favorable opinion offered by Dr. K.W., whose opinion was based on Agent Orange as carcinogen. There are no other opinions that address the question of actual causation of the Veteran's fatal tumors. As for the Appellant's statements attributing the Veteran's fatal tumors to Agent Orange, the Appellant as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Cancers are not simple medical conditions capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). As the fatal cancers are not simple medical conditions any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Appellant is otherwise qualified through specialized education, training, or experience to offer an opinion on the cause of the fatal cancers. For these reasons, the Appellant's lay opinion is not competent evidence. Since the Appellant's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. In sum, the favorable competent medical evidence is outweighed by the competent evidence against the claim. As the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs