Citation Nr: 1325070 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-01 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for multiple myeloma, to include as secondary to in-service exposure to radiation and chemicals, for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and her sister-in-law ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to May 1972, with active duty for training (ACDUTRA) from November 1990 to June 1991 in the Army National Guard, with service in Southwest Asia from January 15, 1991, to May 17, 1991. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the claims on appeal. The appellant and her sister-in-law testified at a hearing before a Decision Review Officer (DRO) in February 2010 and at a Board hearing, via videoconference, at the RO in Denver, Colorado in December 2011. These transcripts have been associated with the file. At the time of the December 2011 Board hearing, the Veterans Law Judge agreed to hold the record open for 30 days to allow the appellant an opportunity to supplement the record with additional evidence. Since December 2011, the appellant has submitted such evidence. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that the party who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Board hearing, the VLJ and the appellant's representative asked specific questions directed at identifying the specific elements required for the claims, specifically, the etiological relationship between the Veteran's multiple myeloma and his active service. The VLJ specifically sought to identify any pertinent evidence not currently associated with the claims file in that she specifically inquired as to whether all evidence cited by the appellant had been submitted. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Further, a review of the record also reveals no assertion, by the appellant or her representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the appellant is not shown to be prejudiced on this basis. In February 2012, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran died on March (redacted), 2006, as a result of subdural hematoma, due to or as a consequence of advanced refractory multiple myeloma. 2. At the time of his March 2006 death, the Veteran was not service connected for any disability, however a September 2004 claim of entitlement to service connection for multiple myeloma, to include as secondary to in-service exposure to radiation and chemicals, was pending. 3. The most probative evidence of record is against a finding that the Veteran's multiple myeloma was caused by or the result of his active service, including exposure to radiation and chemicals. CONCLUSIONS OF LAW 1. The criteria establishing service connection for multiple myeloma, for accrued benefits purposes, have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 5101, 5103, 5107, 5121 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.303, 3.309, 3.311, 3.1000 (2012). 2. The criteria establishing service connection for cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 5103(a) notice must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the appellant was sent a letter in April 2006 that provided information as to what evidence was required to substantiate her claims and of the division of responsibilities between VA and a claimant in developing an appeal. While the letter did not specifically inform the appellant of the disabilities for which the Veteran was service connected at the time of his death, any failure to do so in this regard is harmless because she is represented by a service organization that is intimately familiar with the adjudication of claims. Moreover, the Veteran was not service-connected for any disability at the time his death, and the appellant's statements and arguments, as well as those made on her behalf; demonstrate actual knowledge of what is necessary to substantiate the claim. Specifically, the appellant clearly asserted that the Veteran died of multiple myeloma, and such should be service-connected on the basis of in-service exposure to radiation and chemicals. Further, the appellant was provided every opportunity to submit evidence and argument in support of her claims and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 44 F.3d 1328 (Fed. Cir. 2006.) With respect to the Dingess requirements, the appellant was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims and thus any questions as to the appropriate disability rating or effective date to be assigned are moot. Next, VA has a duty to assist the appellant in the development of her claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination or opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, including the development contemplated by 38 C.F.R. § 3.311; and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private treatment and VA and Department of the Army opinions. Moreover, the Veteran's statements, as well as those of the appellant, her sister-in-law, and her representative in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. Additionally, the Board finds there has been substantial compliance with its February 2012 remand directives. The Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the RO obtained the Veteran's diary and copies of photographs, and obtained a sufficient VA opinion. The RO later issued a Supplemental Statement of the Case in November 2012. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). Pertinent Regulations Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a). An "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000(c). By statute, the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, "for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See also 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the appellant has standing to file a claim for accrued benefits; (ii) the Veteran had a claim pending at the time of his death; (iii) the Veteran would have prevailed on the claim if he had not died; and, (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C.A. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. Generally, only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits. This includes service department and VA treatment records, which are considered to be constructively in the claims file at the date of death, even though they may not physically be in the file until after that date. 38 C.F.R. § 3.1000(d)(4). Thus, after the Veteran's death the appellant cannot furnish, and VA cannot develop additional evidence that might better substantiate the claim of entitlement to accrued benefits. To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related to death. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992); Ventigan v. Brown, 9 Vet. App. 34, 36 (1996). Only "Veterans" are entitled to VA compensation. 38 U.S.C.A. §§ 1110. The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a),(d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for other periods of service (active duty, etc.) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Certain presumptions that apply to periods of active duty are inapplicable to periods of ACDUTRA, such as regarding the presumptive incurrence of conditions that are considered chronic, per se, including tumors, malignant, if initially manifested to a compensable degree within the initial post-service year, or regarding the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). In order to establish service connection, the evidence must generally show: (1) the existence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection can be demonstrated for a disease diagnosed after service 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). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Tumors, malignant, are listed as a chronic condition under 38 C.F.R. § 3.309(a). Therefore, such can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed Veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii) (2012). Diseases presumptively service-connected for radiation-exposed Veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) include multiple myeloma. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed Veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and include multiple myeloma. 38 C.F.R. § 3.311(b)(2). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2) (2011). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. These records normally include but may not be limited to a Veteran's DD 1141, Record of Occupational Exposure to Ionizing Radiation, if maintained, service treatment records, and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies, and provide an opinion. 38 C.F.R. § 3.311(a)(2)(iii) (2011). Lay and Medical Evidence The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of multiple myeloma. The Veteran filed his claim for multiple myeloma in September 2004. In his September 2004 statement, the Veteran reported that leucopenia and multiple myeloma have been associated with radiation exposure that resulted in chromosomal defects, and that the blood tests used to diagnose his multiple myeloma indicated chromosomal defects that resulted in abnormal growth of platelet cells in his blood. He asserted that he was exposed to depleted uranium (DU) during active service, that his unit, the 1022nd Medical Company, was located in the center of the Republic Guard stronghold in Iraq and Kuwait during Operation Desert Storm for four to six weeks, breathing smoke from the trucks and tanks, sometimes burning vehicles, and being exposed to sand storms and smoke. He reported that he was a master fitness trainer during service, and continued to participate in a significant high-altitude training schedule post-service. He reported that he did not seek medical care due to his lifestyle and physical conditions, and that he began to experience fatigue in the summer of 2004 and was diagnosed with multiple myeloma in August 2004. He concluded that he could not rule out circumstances from his experiences and exposure to DU during service in Kuwait and Iraq from 1991 as possible contributors to the cancer with which he was diagnosed. In an October 2004 statement, the Veteran asserted that he was diagnosed with multiple myeloma at the relatively young age of 55, some 15 years younger than the average person at the time of diagnosis. He reported that without any family history of the disease, and with no history of non-military occupational radiation exposure, the only suspected connection to radiation exposure for any length of time was his history of exposure to DU during active service. Prior to any adjudication of his claim, the Veteran passed away in March 2006. The Veteran died of a subdural hematoma, due to or as a consequence of advanced refractory multiple myeloma. The appellant filed her claim for DIC benefits, including the cause of the Veteran's death and accrued benefits, in March 2006. The evidence of record prior to the Veteran's death consisted of his service treatment and personnel records, including unit histories, his private treatment records, military records including letters sent to the Veteran and to and from the Department of the Army regarding his in-service radiation exposure, and his lay statements. Of record are private treatment records surrounding the time period during which the Veteran was diagnosed with multiple myeloma in August 2004. He reported decreased endurance during physical training and fatigue, and presented with an unremarkable physical history. He reported prior exposure to uranium and other chemicals. In a July 1997 letter from the Office of the Secretary of Defense, the Veteran was informed that they had determined that his unit was near Khamisiyah, Iraq, in early March 1991. The officer stated that when rockets were destroyed in the pit area, the nerve agents sarin and cyclosarin may have been released into the air and that if the Veteran was with his unit at that time, he may have been in an area where exposure to a very low level of nerve agents was possible. The Veteran was informed that their analysis showed that exposure levels would have been too low to activate chemical alarms or to cause symptoms at that time, and that although little is known about the long-term effects from brief, low-level exposure to nerve agents, the current medical evidence indicates that long-term health problems are unlikely. In a December 2000 letter from the Office of the Secretary of Defense, a Special Assistant for Gulf War Illnesses, Medical Readiness, and Military Deployments again informed the Veteran that he may have been exposed to a very low level of chemical agents resulting from the demolition of munitions at Khamisiyah, Iraq. The officer reported that state-of-the art computer modeling technology and more accurate unit locations data improved their analysis of potential exposures to individuals whose units were in the affected area, and the most up-to-date models still predict that he may have been exposed to very low levels of chemical agents for a brief period of time, less than three days, following the demolition. He reported that the possible exposure areas are now considered to be generally smaller than those modeled in 1997, and that based on medical evidence and on-going research; there is no indication that any long-term health effects would be expected from brief, low-level exposure to chemical agents. In December 2004, the RO sought verification of the Veteran's participation in a radiation risk activity from the Defense Threat Reduction Agency (DTRA). In a January 2005 response, the DTRA reported that its review program was limited to Veterans claiming exposure from atmospheric nuclear testing from 1945 to 1962, or the occupation of Hiroshima and Nagasaki, and directed to RO to contact the Proponency Office for Preventative Medicine. In May 2005, the RO sought a DD 1141, Record of Exposure to Ionizing Radiation, or an equivalent record of occupational radiation exposure, from the Proponency Office for Preventative Medicine. In a March 2006 letter, received after the Veteran's death, subsequent to the referral of the issue from the Proponency Office for Preventative Medicine, the Department of the Army, Center for Health Promotion and Preventative Medicine, reported that they were able to determine that the Veteran did not participate in an established dosimetry program administrated by the United States Army Dosimetry Center while on active duty. They reported that they were able to provide an estimate of potential DU inhalation intake and radiation exposure dose based on the fact that the Veteran was an Air Ambulance Medic with the 1022nd Medical Company (MC) attached to the 3rd Armored Division (3rd AD) in support of Task Force Viper and Task Force Care, from February 19, 1991, to April 13, 1991. They reported that their estimates were based on the Capstone DU study. They reported that the Veteran's unit history provided a chronological narrative of the 1022nd MC's participation in the war, and demonstrated that his unit logged 1,300 air hours with 12 helicopter crews, each air crew thus logging an average of 108.34 air hours. Calculating the potential DU uptake by the Veteran from resuspended DU material in the air required consideration of not only the actual amount of time the Veteran spent near vehicles perforated or damaged by DU munitions or near vehicles with a damaged or breached DU armored package, but also the DU air concentration, particle size distribution, breathing rate, respiratory protection used, and aerosol particle solulability in lung fluid. They reported that during the 108.34 average air hours, the 1022nd MC aircrews conducted numerous medical evacuations and that with the understanding that such operations were limited in time; they concluded that the Veteran was potentially exposed to DU only during the time of landing and taking off. As there is no record of the number of evacuations made to the battle zone nor the amount of time each evacuation lasted, it was difficult to calculate the actual time of exposure to potential DU material per operations, thus, they considered the operations to be continuous and took all 108.34 average air hours as the upper-bound value for the estimated time of exposure. They reported that the Veteran's potential DU uptake rate, using the Capstone study data, resulted in a Level III classification; therefore, the Level II inhalation intake rate (0.447 mg/h) from the Capstone report is assumed to be an upper-bound value for the Veteran's potential exposure. The upper-bound value estimate for the Veteran's potential DU inhalation intake was 48.43 mg, however, it was noted that the actual intake, if any, should be substantially less than the estimated upper-bound value because the actual exposure time is probably less than the 108.34 average air hours, and the assumed DU air concentration was measured in and around DU perforated vehicles, and, as stated in the unit history, much of the daily logged air time was expended on transporting soldiers 200 miles way. Assuming continuous exposure of 108.34 average air time, the upper-bound value for peak kidney DU concentration is calculated as 0.31 micrograms U/g-kidney, a factor of 10 below the occupational guideline level of 3 micrograms U/g-kidney. The upper-bound value for the radiation dose resulting from inhalation intake, the 50-year committed effective dose E(50), is estimated using the upper-bound value for time of exposure of 108.34 hours, and is 0.21 rem, considerably lower than the 5 rem limit for occupational exposures. They concluded, according to the Veteran's account of his participation in airlifting injured personnel from the 3rd AD battle zone and the unit information available, his potential DU exposure was brief and incidental. They concluded that as helicopter rotor wash might have resuspended contaminated dust near perforated armor vehicles, the type of potential exposure falls into the Level III category, defined as an "all others" group whose exposures were brief and incidental, including personnel who entered DU-contaminated Iraqi vehicles, were downwind from burning Iraq or U.S. vehicles struck by DU rounds, or were downwind from burning DU ammunition. They reported that while Level III military personnel could have inhaled airborne DU particulates, the possibility to receiving an intake high enough to cause health effects is unlikely. Following the Veteran's death and in compliance with the procedures articulated in 38 C.F.R. § 3.311, VA submitted the Veteran's claims file to the Under Secretary of Health in October 2006, specifically citing the above-described findings. In a May 2007 response, the Chief Public Health and Environmental Hazards Officer reported that they had considered the evidence cited by VA, as well as the statements of the appellant and those of the deceased Veteran, that they believed his multiple myeloma was more likely than not related to his exposure to DU and oil fires, referring to ignited oil wells which generated large plumes of smoke that enveloped some military personnel in the area. They reported that the estimated bone marrow dose, based on the Capstone study, was 5 rem. They asserted that reports had shown that multiple myeloma has been observed to be increased following irradiation more consistently than any other lymphoma and mortality among Japanese atomic bomb survivors has been observed at doses as low as 50 rads; however, more recent studies have questioned whether multiple myeloma is related to radiation exposure. They reported that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was utilized to estimate the likelihood that exposure to ionizing radiation was responsible for the myeloma, and using the reported radiation dose as the dose to the marrow, the results were a 99th percentile value for the probability of causation of 6.32 percent. Thus, they concluded, in light of the above, it is unlikely that the Veteran's multiple myeloma can be attributed to occupational exposure to ionizing radiation in service. In the May 2007 response, the Chief Public Health and Environmental Hazards Officer also reported that they considered the possibility that exposure to low levels of chemical nerve agents sarin and cyclosarin, and exposure to oil well fire smoke, might have caused the Veteran's multiple myeloma, and cited the National Academy of Sciences (NAS) 2000 report and 2004 update on long-term health effects among Veterans of the 1991 Gulf War. They reported that the NAS concluded that there was inadequate/insufficient evidence of an association between exposure to low levels of sarin that are too small to cause any immediate and obvious signs of poisoning, and any subsequent long-term health effects. Neither report found any evidence to support an association between any form of cancer, including multiple myeloma, and exposure to sarin or cyclosarin. They cited the NAS's 2005 study on long-term health effects among 1991 Gulf War Veterans and exposure to oil well combustion products, and noted that such found inadequate/insufficient evidence of an associated with multiple myeloma. They concluded, that while it was possible that the Veteran's multiple myeloma is related to his in-service exposures, based on NAS's studies, it is not possible to report that it is at least as likely as not that his multiple myeloma is related to those exposures. In a May 2007 letter, the Director, Compensation and Pension Service, provided a recitation of all of the above-described letters and opinions from medical and military parties, and based on such, reviewing the evidence in its entirety, opined that there is no reasonable possibility that the Veteran's multiple myeloma resulted from radiation exposure or exposure to sarin, cyclosarin, or oil well fires during active service. In January 2008, the appellant submitted a letter from the VA to the Veteran, dated in January 2005, wherein VA informed the Veteran that he was currently enrolled in Priority Group 6, for health care; and defined such group, in pertinent part, as Veterans solely seeking care for disorders associated with service in the Gulf War. Veteran seeking care for disorders associated with ionizing radiation were limited to those Veterans who served in atmospheric testing or during the occupation of Hiroshima or Nagasaki. In her January 2008 Notice of Disagreement, the appellant asserted, generally, that there is no radiation dose so low that the probability of such causing his multiple myeloma is zero. She submitted a statement, including her comments as to the applicability of VA regulations, as well as those comments already of record from the Veteran, describing the circumstances of his service and the exposure to DU and chemicals he believed he experienced. She submitted copies of articles describing DU and the dangers of low-level radiation, DU cover-up by the military, and the general health risks associated with DU. She submitted a copy of a February 2009 electronic mail message from a service member, advising her to focus on the legal theory that there is a reasonable probability that the Veteran's multiple myeloma had its onset during the active service. He advised the appellant that a prior Board decision granting service connection for multiple myeloma cited that a particular Veteran's physician reported that the latency period of myeloma is usually in the order of 15-20 years, and that another physician opined that the particular Veteran's myeloma was under development for at least 10-20 years. At the time of the February 2010 DRO hearing, the appellant appeared, with her sister-in-law and her representative. The representative stated that they were present to ask if there was a reasonable probability that multiple myeloma had its onset during active, considering the Veteran's exposure to DU, fumes, and fires. The representative cited the Capstone study, and the appellant's sister-in-law, the Veteran's sister, asserted that the average hours of air time estimated were not reasonable, as she had a number of telephone conversations with the Veteran during service wherein he reported that he was busy with rescue operations and that he was exposed to constant ambient radiation when he slept in the helicopters. She reported that the Veteran reported that he went on multiple missions each day, and described oil fires burning. The representative asserted that the Capstone study did not sufficiently estimate the Veteran's ground time and subsequent exposure to DU. The representative asserted that the Veteran was in the prime of his life, a marathon runner, without a family history of cancer. The appellant's sister-in-law reported that the Veteran developed an intense cough when he returned home from service, and that he brought up discolored sputum in May 1991 before his discharge from service in June 1991. She reported that she was a nurse practitioner, and that based on her medical background, she believed that the Veteran's cough was an entry point for ionizing radiation, and that lungs are very vascular and things are absorbed through the lungs. Following the DRO hearing, the appellant supplemented the record with the Veteran's photographs, showing the circumstances of his duties during active service, as well as private treatment records showing laboratory testing completed on a number of occasions in the late 1990's. At the time of the December 2011 Board hearing, the representative asserted that multiple myeloma is related to the Veteran's exposures, including environmental hazards and diet, during active service. The appellant again described the Veteran's cough when he was discharged from active service. She reported that in 2001 or 2002, the Veteran demonstrated some changes in his ability to participate in activities to the fullest, and his laboratory tests showed some changes. The representative asserted that the Veteran experienced shortness of breath and fatigue during physical training during active service, and that sometimes such is attributed to high temperatures during operations and once a service member is home they realize their symptoms are not related to high temperatures. She concluded that she was not asserting that the Veteran developed cancer during service, but that he began to feel the effects of his contaminated environment. The representative also asserted that while there were reports of record estimating the Veteran's exposures during service, she believed that during the first part of the Gulf War, the operations tempo and exposures were much greater than they were five years later. The appellant reported that she did not believe the estimated dosage provided by the military was an accurate depiction of the Veteran's actual exposure. Following the Board hearing, the appellant supplemented the record with the Veteran's photographs, showing the circumstances of his duties during active service, after it had been determined that the RO returned the photographs originally of record. She also submitted pages from the Veteran's diary wherein he described his experiences during active service. An April 2012 VA opinion is of record. After review of the claims file, the examiner concluded that multiple myeloma was not at least as likely as not caused by the low level of ionizing radiation to which he was exposed during his service in Southwest Asia in 1991. He based his opinion on all of the estimates of exposure provided, discussed in full above. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Initially, the Board notes that at his death the Veteran was not service-connected for any disabilities, though he had a pending claim at the time of his death for service connection for multiple myeloma. As the appellant is the Veteran's surviving spouse, she is an appropriate claimant for accrued and cause of death benefits in this case. Such a claim for accrued benefits was properly initiated within a year of the Veteran's death. Accordingly, the appellant's claims for accrued and cause of death benefits are proper and turn on the issues of whether the Veteran would have prevailed on his claim for service connection for multiple myeloma at the time of his death, with respect to the accrued benefits claim, and whether the Veteran died of a service-connected disability, with respect to the cause of death claim. In order to answer these questions, the Board must first turn to the issue of whether the Veteran should be service-connected for his multiple myeloma. The Board finds that service connection for multiple myeloma is not warranted on the evidence of record. Accordingly, the Board finds that entitlement to service connection for the cause of the Veteran's death and entitlement to service connection for multiple myeloma, for accrued benefits purposes, must be denied. The reasoning is as follows. First, the Board notes that while multiple myeloma is a presumptive disease under 38 C.F.R. § 3.309(d), the Veteran is not a "radiation-exposed Veteran" for the purposes of applying the pertinent regulations. Specifically, the Veteran's radiation exposure, which the Board concedes, was incurred during active service in the Gulf War, not the result of any radiation-risk activity as defined under 38 C.F.R. § 3.309(d)(3), contemplating activities related to World War II. Accordingly, the Board cannot award service connection for the Veteran's multiple myeloma under the presumptive provisions in this case. See 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Thus, the Board will consider the second way in which service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established, with the assistance of the procedural advantages for radiogenic diseases prescribed in 38 C.F.R. § 3.311. The May 2007 opinion, received after the Veteran's death, from the Chief Public Health and Environmental Hazards Officer, pursuant to the request of the Under Secretary for Health, discussed in full above, considered the medical literature, the NAS reports, as well as the NIOSH-IREP computerized model study demonstrating a 6.32 percent probability of causation of the Veteran's multiple myeloma by his radiation exposure during service. The above evidence led to the conclusion that it was not at least as likely as not that the Veteran's radiation exposure during service resulted in his multiple myeloma. As the opinion received with the assistance of the procedural advantages for radiogenic diseases prescribed in 38 C.F.R. § 3.311 was negative, the Board will consider the third way in which service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established, on a direct basis. See Combee. In a November 2004 statement, made of record after the Veteran's Veteran's death, the Veteran's physician reported that the Veteran's radiation exposure "certainly could have been" a risk factor for his developing multiple myeloma. He also reported that there was no way to prove such, and that certainly, there are patients in his age group who do develop multiple myeloma. The Board finds such an opinion to be speculative in nature. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative). Accordingly, the Board gives such an opinion no probative value in this case and there is thus no probative evidence that the Veteran's multiple myeloma was incurred in or aggravated by service, including his in-service exposure to radiation. The Board has also considered the assertions of record that the Veteran's multiple myeloma was related to his in-service exposures to substances other than radiation, including nerve agents and oil combustion products. The July 1997 letter, discussed in full above, indicates that the Office of the Secretary of Defense determined that the current medical evidence indicates that long-term health problems from brief, low-level exposure to nerve agents, sarin and cyclosarin, related to rockets being destroyed near Khamisiyah, Iraq, in early March 1991. The December 2000 letter from the Office of the Secretary of Defense, also discussed in full above, indicates that the Special Assistant for Gulf War Illnesses, Medical Readiness, and Military Deployments informed the Veteran that based on medical evidence and on-going research, there is no indication that any long-term health effects would be expected from brief, low-level exposure to chemical agents that may have occurred near Khamisiyah, Iraq. The May 2007 opinion, discussed in full above, concluded, considering the NAS reports, that there was inadequate/insufficient evidence of an association between exposure to low levels of sarin that are too small to cause any immediate and obvious signs of poisoning, and any subsequent long-term health effects, and that there was inadequate/insufficient evidence of an association between oil well combustion products and multiple myeloma. As to each of the theories of entitlement proffered, considering both the Veteran's exposure to chemicals and radiation, as well as etiology of his multiple myeloma, the Board has considered the lay statements of record. The Veteran, the appellant and her sister-in-law, and the appellant's representative have asserted that the Veteran's estimated dose of DU is too low. It appears that they based their assertion on the Veteran's conversations, diary entries, and photographs, indicating that he was very busy during active service with numerous missions and physical training experiences. The Board does not doubt that the Veteran was exposed to the general environment of Southwest Asia, and that he performed training exercises and missions in high temperatures, with wind and debris blowing, that he had to eat what was available to him, that he slept in his helicopter, and that he saw and came into contact with a number of burning service vehicles and oil well fires. However, all of the parties offering lay statements as to the Veteran's estimated DU exposure, or exposure to any agents or chemicals, have not submitted evidence that they possessed or possess specified knowledge to estimate such. No party has indicated that they obtained official scientific or military documents involving the Veteran in the present appeal and his circumstances of service, including exposure to chemicals and radiation. See Jandreau; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions). It is significant that at each opportunity to estimate the Veteran's DU exposure, the medical and military parties provided him the upper-bound values available. As there is no evidence that the Veteran, the appellant and her sister-in-law, and the appellant's representative are competent to offer evidence as to the Veteran's estimated or actual exposure to chemicals and radiation during service, their statements are not probative evidence in the current appeal. The Veteran was competent to report his fatigue and diagnosis of multiple myeloma, as well as the circumstances of his service. The appellant is competent to report what she witnessed the Veteran's cough and declining health, including fatigue, as well as what she heard or read of the Veteran's circumstances of service. The appellant's representative is competent to report what she had been told of the Veteran's cough and declining health, including fatigue, as well as the circumstances of his service. However, there is no evidence that the Veteran, the appellant, or the appellant's representative possessed or possesses scientific expertise sufficient to diagnose his cough or fatigue as early symptoms of multiple myeloma, or otherwise opine as to the etiology of his multiple myeloma. See Jandreau; see also Woehlaert. As there is no evidence that the Veteran, the appellant, or the appellant's representative are competent to offer evidence as to the etiology of the Veteran's multiple myeloma, their statements are not probative evidence in the current appeal. The appellant's sister-in-law is competent to report what she witnessed of the Veteran's cough and declining health, including fatigue, as well as what she heard or read of the Veteran's circumstances of service. However, while she reported that she was a nurse practitioner, there is no evidence that she possesses the scientific expertise to diagnose the Veteran's cough or fatigue as early symptoms of multiple myeloma, or opine as to the etiology of his multiple myeloma. It appears that her medical opinion as to causation is based on her belief that the Veteran's cough served as an entry point for radiation. The Veteran's exposure to radiation has already been conceded. She has not provided evidence as to any specialized training in radiation cases or experience with military operations or long-term health effects. The Board thus finds that the opinion of the medical and military parties is the most probative evidence of record as to whether the Veteran's multiple myeloma was related to service, specifically, in-service exposure to chemicals and radiation, as such is based on medical knowledge of complex issues and scientific evidence as to chemical and radiation use and effects. The Board also notes that in support of her claims, the appellant has submitted a number of articles, described above. 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 discusses 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. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, the articles submitted were not accompanied by the opinion of any medical expert linking the Veteran's multiple myeloma to active service. Thus, the medical articles submitted are not probative evidence in the current appeal. The Board also notes that while the service member who referred the appellant to a prior Board decision which granted service connection for multiple myeloma, prior Board decisions carry no precedential value. 38 C.F.R. § 20.1303 (2012); Lynch v. Gober, 11 Vet. App. 22, 27 (1997). Also, while the January 2005 letter from VA to the Veteran informed him that he was assigned to Priority Group 6 for health care, for, in pertinent part, Veterans solely seeking care for disorders association with service in the Gulf War; such is not an etiological opinion as to the Veteran's multiple myeloma. The priority group assignment appears to simply reflect that the Veteran was not service-connected for any disability and served in the Gulf War. In sum, based on the forgoing, the most probative evidence of record regarding whether the Veteran's multiple myeloma was caused by his in-service exposure to chemicals and radiation is the May 2007 opinion from the Chief Public Health and Environmental Hazards Officer which found it not at least as likely as not that the Veteran's multiple myeloma was caused by his in-service exposures. Such is based on medical literature, the NAS reports, as well as the NIOSH-IREP computerized model study, and significantly, the highest estimate of DU exposure. There is no probative evidence that the Veteran's multiple myeloma was incurred in or aggravated by his period of ACDUTRA, including consideration of his exposure to radiation and chemicals. There is no probative evidence of continuous multiple myeloma, or tumors, malignant, from the time of separation from ACDUTRA to the present. As the preponderance of the evidence in this case is against the appellant's case, the Board must conclude that service connection for multiple myeloma is not warranted. See 38 C.F.R. §§ 3.303, 3.311; Combee, supra. In light of such conclusion, the Board turns now to the appellant's claim of accrued benefits. The Board must deny that claim at this time, because the Veteran, even taking into account evidence which has been developed or made of record after his death, has not prevailed on his claim of service connection for multiple myeloma. Thus, the Board must deny the appellant's claim of entitlement to service connection for multiple myeloma, for accrued benefits purposes. See 38 U.S.C.A. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. Consequently, the Board must also deny the appellant's claim of entitlement to cause of the Veteran's death. The Board acknowledges and concedes that the Veteran's multiple myeloma substantially contributed to his death in this case. However, in light of the finding above that multiple myeloma is not a service-connected disability and the fact that the Veteran has died without any service-connected disabilities, the Board must unfortunately deny that claim. See 38 C.F.R. § 3.312. While the Board is sympathetic to the appellant's claims in this case, and while it is unfortunate that the Veteran died at a relatively young age, in otherwise good health, the Board is without authority to grant benefits simply because the result may be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2011); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Court has held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. In this regard, the Board has specifically considered the appellant's argument that there is a reasonable possibility that the Veteran's multiple myeloma is related to his in-service exposure to chemicals and radiation, and her argument that there is no radiation dose so low that the probability of such causing his multiple myeloma is zero. Again, as discussed at length above, VA sought a medical opinion as to the issue and the Board has found the May 2007 opinion to be the most probative evidence in the current appeal; and the May 2007 opinion found that it was not as least as likely as not that the Veteran's multiple myeloma was related to his in-service exposure to chemicals and radiation. Thus, the preponderance of the evidence is against the appellant's claims, and the doctrine of the benefit of the doubt is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for multiple myeloma, to include as secondary to in-service exposure to radiation and chemicals, for accrued benefits purposes, is denied. Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs