Citation Nr: 1327414 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 07-12 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE 1. Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death. 2. Entitlement to DIC benefits based on the Veteran having a total service-connected disability rating at the time of his death (previously developed as 38 U.S.C.A. § 1318). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1970. In January 2006, the Veteran died. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Entitlement to service connection for the cause of the Veteran's death and to DIC under 38 U.S.C.A. § 1318 was denied therein. The appellant has challenged both of these determinations. In August 2010, the Board remanded this matter for additional development. Supplemental development also thereafter was undertaken. The Board's directives have been completed or at least substantially completed given all of this development. Adjudication thus may proceed if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). No bars to adjudication are found at this time. Thus, the following determinations are made based on review of the Veteran's claims file and his Virtual VA "eFolder." FINDINGS OF FACT 1. None of the Veteran's service-connected disabilities was the principal or a contributory cause of his death, and neither the respiratory distress syndrome nor underlying metastatic renal cell carcinoma resulting in his death was related to his service in any manner such that it could have been service-connected. 2. The Veteran's death was not due to willful misconduct, but he was not a former prisoner of war and was not receiving or entitled to receive compensation for a service-connected disability rated as totally disabling for a continuous period of at least 10 years immediately preceding his death or continuously since his separation from service and for a period of not less than five years immediately preceding his death. CONCLUSIONS OF LAW 1. The criteria for establishing DIC benefits based on service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 1153, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). 2. The criteria for establishing DIC benefits based on the Veteran having a total service-connected disability rating at the time of his death are not met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Yet these duties are not applicable when the law and not the evidence is dispositive. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Mason v. Principi, 16 Vet. App. 129 (2002); Manning v. Principi, 16 Vet. App. 534 (2002); Livesay v. Principi, 15 Vet App 165 (2001); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). This is the case regarding entitlement to DIC benefits based on the Veteran having a total service-connected disability rating at the time of his death. Discussion of VA's duties therefore is not necessary for this issue. Discussion of the duties to notify and assist is necessary with respect to entitlement to DIC benefits based on service connection for the cause of the Veteran's death. VA generally must notify the claimant and her representative prior to the initial decision by the agency of original jurisdiction (AOJ) of any information or evidence that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification of how a rating and effective date are assigned if the benefit sought is awarded also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for DIC benefits, VA specifically must provide a statement of the disabilities for which the Veteran was service-connected at the time of his death and notification of any information and evidence necessary to substantiate the claim based on a service-connected disability and based on a disability that was not service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Neither the appellant nor her representative has alleged notice prejudice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)). Indeed, none is found. How a rating would be assigned is irrelevant. An April 2006 letter informed the appellant and her representative of her and VA's duties for obtaining evidence and how an effective date would be assigned. This letter predated the initial adjudication by the AOJ, which also is the RO, in the June 2006 rating decision. In compliance with the Board's remand, August and September 2010 letters informed the appellant and her representative of the Veteran's service-connected disabilities at the time of his death, the criteria for establishing DIC benefits based on a service-connected disability and on a disability that was not service-connected, the evidence required in these regards, her and VA's duties for obtaining evidence, and how an effective date would be assigned. These letters were dated after the initial adjudication by the RO/AOJ, but they were dated prior to the RO/AOJ readjudication via a November 2011 supplemental statement of the case (SSOC). As such, the timing defect has been cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Of final note, the SSOC reiterated how an effective date would be assigned. Pursuant to VA's duty to assist, aid must be given to the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(a). The criteria for when such an opinion or a VA medical examination is needed for a claim of disability compensation (set forth in 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4)) do not apply to a claim for DIC benefits, however. Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The Veteran's service treatment records and VA treatment records have been obtained by VA. The VA treatment records dated most contemporaneous to his death were obtained in compliance with the Board's remand. Private treatment records have been obtained by VA in the past, but none have been obtained with respect to the instant claim. Neither the appellant nor her representative identified any such records as pertinent despite opportunities to do so. VA medical examinations have been conducted in the past, but none was conducted with respect to the instant claim given the Veteran's death. VA medical opinions were obtained in May 2005 and, pursuant to the Board's remand, in September 2010. Medical opinions from experts at the Veteran's Health Administration (VHA) were obtained in December 2012 and April 2013. The April 2013 VHA opinion provides enough detail so that the determination made herein is fully informed. Thus, it is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is significant that neither the appellant nor her representative has identified any further development necessary for fair adjudication on the merits that has not been completed. The record also does not indicate any further development. Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Appellate review therefore may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection for the Cause of the Veteran's Death When a veteran dies after December 31, 1956, from a service-connected disability, VA shall pay DIC benefits to the Veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310. A Veteran's death is considered to be due to a service-connected disability when the disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. A service-connected disability is the principal or primary cause of death when it, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability is a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the disability casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1110. To establish service connection, there generally must be a current disability, in-service incurrence or aggravation of an injury or disease, and a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303. Service connection also may be established for any disease diagnosed after discharge when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Malignant tumors constitute a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. Id. Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). If certain requirements are met, service connection is presumed for chronic diseases and diseases associated with exposure to an herbicide agent. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A requirement for both is that service must have been for 90 days or more either during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). With respect to diseases associated with exposure to an herbicide agent, exposure during service is required. Such exposure exists if there was service in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Lastly, the chronic disease or disease associated with exposure to an herbicide agent must be manifested within a particular time period. Manifestation of a chronic disease, though not necessarily diagnosis, also must be to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2-3), (c). Manifestation of respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), which have been associated with exposure to an herbicide agent, must be to a compensable degree at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease or disease associated with exposure to an herbicide agent must be taken into consideration even if the aforementioned requirements are met. 38 C.F.R. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). Where service connection cannot be presumed, service connection still may be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997); McCartt v. West, 12 Vet. App. 164 (1999). This includes as due to exposure to an herbicide agent. The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay (non-medical) evidence may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Reasonable doubt, which means there is an approximate balance of positive and negative evidence such that entitlement to the benefit sought is within the range of probability as opposed to being remotely possible or purely speculative, is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.312(a); Gilbert, 1 Vet. App. at 49. The claimant is given the benefit of the doubt, in other words. Thus, the claimant prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, but all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Given this review, the Board finds that DIC benefits based on service connection for the cause of the Veteran's death are not warranted. At the time of his death in January 2006, he was service-connected for posttraumatic stress disorder (PTSD), a shell fragment wound to the left lumbar region with retained foreign body, residuals of a left fourth metatarsal fracture, and left leg scars. There is no indication in the medical evidence that any of these service-connected disabilities was either the principal or a contributory cause of his death. Indeed, his death certificate shows that his immediate cause of death was respiratory distress syndrome and that his underlying cause of death was metastatic renal cell carcinoma. It also shows that there were no other conditions that contributed to his death. The Veteran's service-connected shell fragment wound to the left lumbar region with retained foreign body further was determined to be less likely than not associated with his renal cell carcinoma in the September 2010 VA medical opinion. All of his service-connected disabilities were concluded not to have caused this carcinoma in the December 2012 VHA medical opinion. The same conclusion was reached in the April 2013 VHA medical opinion. The Veteran's service-connected disabilities additionally were concluded not to have made his carcinoma permanently worse. Greater discussion in this regard, in particular an assessment of these opinions, is unnecessary because the appellant does not contend that any of these service-connected disabilities was either the principal or a contributory cause of the Veteran's death. Of note, however, is that such assessment essentially would follow that set forth below for the other portions of the aforementioned opinions. The Veteran unsuccessfully alleged during his lifetime that his renal cell carcinoma was due to his exposure to Agent Orange during service. The appellant alleges that both the renal cell carcinoma which was a contributory cause of his death and the respiratory distress syndrome which was the principal cause of his death could have been service-connected. Specifically, she contends like he did that he incurred renal cell carcinoma because he was exposed to Agent Orange during service. She makes the same contention concerning respiratory distress syndrome. She notes that these conditions are similar to those for which service connection is presumed due to association with exposure to an herbicide agent like Agent Orange. The appellant also contends that the Veteran may have had renal cell carcinoma by March 1971, arguing that it could have remained undiagnosed until many years thereafter because it was slow-growing. She suggests that his elevated white blood cell count ever since his service was indicative of this carcinoma. There can be no valid claim for service connection if there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability typically exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, the relevant period here is while the Veteran was living. VA treatment records reveal that he was diagnosed with renal cell carcinoma, conventional (clear cell) type, in July 2004. They also reveal that this cancer subsequently metastasized to his lungs and liver despite treatment. While they do not document a diagnosis of respiratory distress syndrome, these records finally reflect that his cough worsened and he developed shortness of breath and dyspnea beginning in December 2005 and that pneumonia was suspected in January 2006. As such, it is undisputed that the Veteran had metastatic renal cell carcinoma and respiratory distress syndrome before he died. Additionally, it is undisputed that the Veteran served for more than 90 days after December 31, 1946. He served for almost three years from the late 1960's into 1970. Carcinoma is defined as a malignant new growth. Dorland's Illustrated Medical Dictionary, 294 (31st ed. 2007). A tumor is a new growth of tissue. Id. at 2012. Renal cell carcinoma thus is one form of malignant tumor. Yet service connection cannot be presumed for renal cell carcinoma as a chronic disease since it did not manifest within the Veteran's first post-service year. The first diagnosis in July 2004 equates to over 34 years following his March 1970 separation from service. That the Veteran likely manifested renal cell carcinoma before it was diagnosed is conceded. Diagnosis of any condition indeed typically is not perfectly coincident with manifestation. However, there is no basis for concluding that the Veteran's renal cell carcinoma manifest by March 1971. This would mean that it would have remained asymptomatic for over three decades, which is not very plausible. Of further note is that normal white blood cell, or leukocyte, count is between 4,800 and 10,800 per microliter. Stedman's Medical Dictionary, 990-991, 2077 (27th ed. 2000). The medical evidence confirms that the Veteran's white blood cell count was elevated above the high end of this range at times after his separation from service, to include during the period between March 1970 and March 1971. It nevertheless shows that at no point prior to mid 2004 was renal cell carcinoma suspected to be the cause. There further were no other findings made and no symptoms reported by the Veteran supporting a suspicion of this carcinoma noted in the medical evidence prior to mid 2004. Finally undisputed is that the Veteran served in the RVN. His DD-214 conveys that he served in the RVN from April 1969 to March 1970, service for which he received a Purple Heart. This entire period falls between January 9, 1962, and May 7, 1975. The Veteran therefore is presumed to have been exposed to an herbicide agent such as Agent Orange during his service. Lay evidence from his father G.S. and the appellant in this regard need not be considered. However, service connection cannot be presumed for renal cell carcinoma or for respiratory distress syndrome as a disease associated with exposure to an herbicide agent. Neither association has been proven. Indeed, it specifically has been determined that there is insufficient evidence of an association between herbicide exposure and renal cancer (kidney and renal pelvis). Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 (Aug. 10, 2012). The same determination has been made with respect to respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disease, and farmer's lung). Id. To the extent respiratory distress syndrome does not qualify as a respiratory disorder, it has been determined that there is no association between herbicide exposure and any condition for which service connection cannot be presumed. Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Only respiratory cancers qualify in this regard. While the Veteran is presumed to have been exposed to an herbicide agent such as Agent Orange during service, his service treatment records are silent with respect to renal cell carcinoma. They do reflect that he had an elevated white blood cell count in May 1969, but renal cell carcinoma was not suspected to be the cause. The records further do not document that any other findings were made or that any symptoms were reported by the Veteran supporting a suspicion of this carcinoma. It was not shown or even noted during service, in other words. Service connection for renal cell carcinoma as a chronic disease accordingly cannot be established on the basis of chronicity or continuity of symptomatology. That continuity of symptomatology also cannot be established in light of the aforementioned lack of a diagnosis or other indication that the Veteran manifested renal cell carcinoma until over three decades after his separation from service is reiterated. The appellant clearly believes there is a relationship between the Veteran's presumed herbicide exposure during service and his renal cell carcinoma. There is no indication that she has a medical background, and therefore she is a lay person. Lay evidence is competent if it relates a personal experience or something personally observed. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence regarding nexus also sometimes is competent. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the question of whether there exists a nexus here falls outside the province of a lay person. It rather is a medical question. Of import in this regard are the complexities of renal cell carcinoma and the number of years since the Veteran's service and therefore presumed exposure to an herbicide agent. Only those with a medical knowledge, training, and/or other expertise are competent where the determinative issue is one of medical causation. Jones v. West, 12 Vet. App. 460 (1999); Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372. Lacking this background, the appellant lacks competence to provide a nexus opinion. Her credibility thus need not be addressed. Four medical opinions exist, as noted above. All were negative. In other words, each concluded that it is not at least as likely as not that the Veteran's renal cell carcinoma is due to his exposure to an herbicide agent such as Agent Orange. The two VHA medical opinions additionally concluded that it is not at least as likely as not that this carcinoma is due to service otherwise. Factors for assessing medical opinions include the qualifications and expertise of the author, access to the claims file or other pertinent evidence, the scope of any examination performed, the accuracy of the factual premise underlying the opinion, the rationale offered for it, and the degree of certainty provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Although the May 2005 VA medical opinion was rendered while the Veteran was still alive, it was not rendered following an examination. None of the other opinions were rendered following an examination either, as they all were rendered after his death. All of the opinions were rendered following review of the Veteran's claims file. There is no indication whether or not any was rendered following review of his "eFolder." However, this is of no great import since it does not contain any medical evidence. All of the opinions were rendered with certainty. Indeed, none utilized any equivocal language. Both the May 2005 and September 2010 VA medical opinions were rendered by physicians. Both the December 2012 and April 2013 VHA opinions were rendered by physicians specializing in oncology. It follows that all of the opinions were authored by qualified individuals but that the VHA opinions were rendered by more qualified individuals than the VA medical opinions. With regard to the rationale offered, the VA medical opinions and VHA medical opinions continue to diverge even more. The rationale for the May 2005 VA medical opinion, that renal cell cancer is not known to be associated with Agent Orange exposure, was deemed insufficient in the Board's remand. It indeed is too terse to be useful. Noted as rationale for the September 2010 VA medical opinion was that the exact cause of renal cell cancer is not known, that it most commonly occurs between the ages of 50 and 70 with men twice as likely to develop it as women, and that its risk factors include cigarette smoking, obesity, hereditary predisposition, tuberous sclerosis, renal dialysis, and exposure to petroleum products, heavy metals, solvents, coke oven emissions, and asbestos. Also noted was that there is no medical evidence of an association between renal cell carcinoma and herbicide exposure. Finally, it was noted that there was no indication that the Veteran was exposed to any of the aforementioned substances and that he was in the normal age range when he was diagnosed at 55. The Board deemed this rationale insufficient in requesting a VHA medical opinion in November 2012, principally because there was no discussion of whether the Veteran displayed any of the risk factors and because an article thereafter was submitted by the appellant's representative. This article concerned a study of 297 individuals diagnosed with renal cancer between 1987 and 2009 when they were 39 to 63 years old, 13 of whom claimed Agent Orange exposure and 10 of whom had sufficient documentation for review. It concluded that a better determination on whether exposure to Agent Orange is a risk factor for kidney cancer may be needed. The rationale for the December 2012 VHA medical opinion was that there is no known etiology for renal cell carcinoma though risk factors include smoking, analgesic abuse, obesity, and exposure to heavy metals and degreasers. It was noted that there was no known established connection between this carcinoma and Agent Orange exposure; that there are numerous articles claiming causes that are not medically proven; and that the Veteran's passing in 2006 was very typical of the overall survival rate for progressive renal cell carcinoma, as there is no effective therapy for this stage of it. The Board deemed this rationale insufficient in requesting another VHA medical opinion in February 2013, once again because there was no discussion of whether the Veteran displayed any of the risk factors and also because there was no specific discussion of the submitted article. The rationale for the April 2013 VHA medical opinion was that there is no evidence linking renal cancer to Agent Orange exposure. Cited in this regard was a 2010 Institute of Medicine study regarding Veterans and Agent Orange (the Fed. Reg. Update cited above). The aforementioned submitted article was characterized as an abstract of a study, the results of which have not been published and therefore subject to peer review. It was noted that no conclusions can be drawn as of yet, since there was no information on whether there was a higher incidence of renal cancer in those with Agent Orange exposure or on the incidence of such exposure in a similar age group without renal cancer. It further was noted that the Veteran's exposure was 34 years before he developed renal cancer. Studies were cited identifying smoking, being overweight, obesity, germline mutations of specific genes, hypertension, and advanced kidney disease requiring dialysis as confirmed risk factors. Physical activity, dietary habits, high parity among women, exposure to specific carcinogens such as trichloroethylene as well as to glass fibers, mineral wool fibers, brick dust, and nitrite from animal sources were identified as suspected risk factors. Alcohol consumption was identified as another suspected risk factor, but it also was noted that it seemed to have a protective effect. One study of males was cited in which tobacco use was the responsible risk factor in 29 percent of cases, being overweight in 25 percent of case, and all risk factors in 47 percent of cases. It thus was noted that identifying no responsible risk factor is not unusual, as such happens in about half of the cases. No responsible risk factors were identified with respect to the Veteran, as he had no positive family history, did not smoke, was not hypertensive or obese, though it was acknowledged that he had lost 30 pounds, as of June 2004. Finally, a cited was cited showing that median overall survival was 18.3 months. It was noted that the Veteran survived 18 months, and thus concluded that his course with cancer was anticipated. Unlike all of the previous opinions, the rationale supporting the April 2013 VHA medical opinion is sufficient. Both the submitted article and the risk factors were discussed in detail. Regarding the risk factors displayed by the Veteran, the factual premise of the opinion is terse but accurate. The medical evidence documents that the Veteran denied anyone in his family having renal cell carcinoma and repeatedly reported smoking one half to one pack of cigarettes per day for 25 years but quitting by 1988 or 1989. His height was approximately 72 inches, while his weight was 144 pounds in May 1970, 186 pounds in June 2001, and 158 pounds with an indication that he had lost 30 to 35 pounds in the past six months in June 2004. It follows that he either was of normal weight or was overweight, but only to some extent short of being obese. Hypertension generally is defined as systolic blood pressure at some point above 140 millimeters of mercury or diastolic pressure at some point above 90 millimeters of mercury. Dorland's at 909; Stedman's at 855. The Veteran's blood pressure was 112/70 in May 1970, 130/80 in April 1989, 130/81 in June 2001, 140/86 in November 2001, and 128/70 in June 2004. He was advised to monitor it in November 2001, given his elevated reading and reported family history of hypertension. However, neither hypertension nor high blood pressure ever was diagnosed. There is, in sum, no deficiency with the April 2013 VHA negative medical opinion. The probative value of this opinion accordingly is high. It indeed is the most persuasive evidence of record. Though the May 2005 and September 2010 VA medical opinions as well as the December 2012 VHA medical opinion each were supported by an insufficient rationale, of import is that they all also were negative. Both general physicians and oncologists unanimously agree that the Veteran's renal cell carcinoma is less likely as not due to his service to include exposure to an herbicide agent such as Agent Orange therein, in other words. A link between renal cell carcinoma and this exposure simply has not been proven medically. Other than this exposure, all indications are that the Veteran's case was normal. He was more likely to develop renal cell carcinoma since he was male, developed it at the typical age, did not have any responsible risk factors like usual, and survived for about the average period of time. It follows from the above that the criteria for establishing service connection for renal cell carcinoma or for respiratory distress syndrome have not been met. Thus, neither could have been service-connected. Awarding DIC benefits from a disability that was not service-connected at the time of the Veteran's death therefore is not possible. As the same is true with respect to an award of DIC benefits from a disability that was service-connected at the time of the Veteran's death, DIC benefits based on service connection for the cause of his death are denied. This determination is supported by the preponderance of the evidence. As such, the benefit of the doubt is inapplicable. III. A Total Service-Connected Disability Rating at the Time of the Veteran's Death When a veteran's death is not the result of a service-connected disability, VA nevertheless shall pay DIC benefits to the veteran's surviving spouse and children in the same manner as if the death were service-connected under certain circumstances. 38 U.S.C.A. § 1318(a); 38 C.F.R. § 3.22(a). The veteran's death must not be the result of his willful misconduct. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). At the time of death, the veteran also must either have been receiving or have been entitled to receive compensation for a service-connected disability rated as totally disabling for a continuous period of at least 10 years immediately preceding death, continuously since the veteran's release from active duty and for a period of not less than five years immediately preceding death, or for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. Id. The veteran is entitled to receive compensation for a service-connected disability if the veteran filed a claim for such compensation during his lifetime and would have received it but for clear and unmistakable error in the decision made, the discovery of service records which existed at the time of the decision but were not considered therein, or the compensation was being paid to others or withheld for various reasons. 38 C.F.R. § 3.22(b). Here, the Board finds that entitlement to DIC benefits based on this Veteran having a total service-connected disability rating at the time of his death are not warranted. It is undisputed that his death was not the result of willful misconduct. Though he died after September 30, 1999, he was not a former prisoner of war. He further was not receiving compensation for a service-connected disability rated as totally disabling since his separation from service, which was well more than five years prior to his death, or since at least 10 years prior to his death which equates to January 1996. The Veteran was service-connected for residuals of a left fourth metatarsal fracture and left leg scars the day following his separation from service. However, they were rated as noncompensable at that time. The aforementioned remained the Veteran's only service-connected disabilities as of January 1996. Once again, they were rated as noncompensable at that time. It was only in October 2000 that the Veteran was service-connected for PTSD and a shell fragment wound to the left lumbar region with retained foreign body. He was granted a total disability rating based on individual unemployability due to all of his service-connected disabilities as of that time. In other words, he began receiving compensation for a service-connected disability rated as totally disabling just over five years prior to his death. The Veteran finally was not entitled to receive compensation for a service-connected disability since his separation from service, which was well more than five years prior to his death, or since at least 10 years prior to his death which equates to January 1996. His disability compensation was not being paid to others or withheld for any reason. Along with renal cell carcinoma, he filed but was denied service connection for lung cancer, liver cancer, a right foot contusion, and a herniated disc at L-5 S-1 (a back condition) during his lifetime. No new service records were discovered after the rating decisions containing the denials were issued. Indeed, no new service records ever were discovered. There further is no indication of clear and unmistakable error in the aforementioned rating decisions. Such has not been alleged by the appellant or her representative. The above confirms that denial was appropriate. ORDER DIC benefits based on service connection for the cause of the Veteran's death are denied. DIC benefits based on the Veteran having a total service-connected disability rating at the time of his death are denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs