Citation Nr: 1328426 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-40 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Survivors' and Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who had active military service from June 1946 to February 1950, and from July 1952 to January 1968; with additional service in the United States Marine Corp and the United States Navy Reserves. The Veteran passed away in May 2002. This matter initially came before the Board of Veterans' Appeals, hereinafter the Board, from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Jackson, Mississippi. After perfecting her appeal, the appellant testified at an RO hearing in March 2005 and at a Board video conference hearing before a Veterans Law Judge in August 2005; copies of these transcripts are associated with the claims file. It is noted that the Veterans Law Judge before whom the appellant testified has retired from her position at the Board. The appellant was notified that she could provide testimony before another Veterans Law Judge or proceed with the adjudication of her claim. The appellant subsequently declined the option for another hearing. In February 2006, the Board denied the appellant's claims seeking entitlement to service connection for the cause of the Veteran's death and DEA benefits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Following the review of a "Joint Motion to Vacate and Remand" (Joint Motion), in October 2007, the Court vacated and remanded the Board's February 2006 decision. After the claim was returned to the Board, the Board has concluded that additional development of the appellant's claim was necessary prior to further adjudication on the merits of her claims. Hence, in November 2007, September 2012, and February 2013, the claims were remanded to the RO for additional development. The claims have since been returned to the Board for review. A review of the Virtual VA electronic claims folder (efolder) does not show any additional pertinent evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in May 2002. The certificate of death lists the immediate cause of death as cardiopulmonary failure due to, or as a consequence of, debility due to cancer of the colon. 2. The Veteran served at Korat Air Base in Thailand from July 24, 1966 to February 18, 1967; he is not shown to have set foot in Vietnam or otherwise have any exposure to tactical herbicides during service Thailand. 3. The Veteran did not participate in a radiation-risk activity in service and was not shown to be monitored for radiation exposure. 4. The persuasive evidence shows that the Veteran, at most, had a maximum 5 rem dose of occupational radiation exposure in service. 5. At the time of the Veteran's death, he was service connected only for hearing loss rated as noncompensable and probative evidence does not show that the Veteran's colon cancer or arthrosclerosis was causally related to his military service or any incident thereof, to include radiation exposure, or that it was manifested within one year of service. 6. At the time of his death, the Veteran did not have a service-connected total disability which was permanent in nature. CONCLUSIONS OF LAW 1. The Veteran's death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred in or aggravated by active military service, to include on a presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312, 3.313 (2012). 2. The requirements for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807, 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Initially, with regard to the appellant's DEA claim, the VA's duties to notify and assist claimants do not apply. In Barger v. Principi, 16 Vet. App. 132 (2002), the Court held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases is found in Chapter 53, Title 38, United States Code, and that the provisions of the VCAA are relevant to a different Chapter (that is, Chapter 51). As well, the statute at issue in DEA claims is not found in Chapter 51 (rather, in Chapter 35). Therefore, the VCAA (and, it follows, its implementing regulations) is not applicable. In the context of a claim for DIC benefits, VCAA or § 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). The Board finds that all notification action needed to make a decision has been accomplished. Through January 2003 and February 2009 notice letters, the RO/ agency of original jurisdiction (AOJ) notified the appellant of the information and evidence needed to substantiate a claim of service connection for the cause of the Veteran's death. See id. In the February 2009 letter, the appellant was notified about how VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). She had an opportunity to present additional evidence in light of this notice prior to subsequent adjudication by the AOJ in May 2013. This course of corrective action fulfills VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Board also finds that the February 2009 notice letter substantially satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). The February 2009 letter informed her that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. It also provide her with NA Form 13055 to further assist her in locating missing service treatment records (STR) and provided examples of alternative evidence she could submit as substitutes for the missing STRs. She was invited to submit any evidence in her possession. A remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. Private medical records are associated with the claims file. VA has made extensive efforts to locate missing STRs from July 14, 1958 through July 1968 and verify the appellant's assertions that the Veteran had herbicide exposure in Thailand and occupational radiation exposure. The Veteran's claims file was rebuilt in January 2003. It appears that STRs from July 14, 1958 through July 1968 are missing. The RO's attempts to obtain additional STRs have been unsuccessful, and even the appellant noted in her videoconference testimony that the National Personnel Records Center (NPRC) indicated that some of the Veteran's STRs might have been destroyed in 1973 fire at the center. In February 2009, the AOJ informed her about the missing STRs and provided NA Form 13055 to conduct additional STR searches. No additional information was received to conduct further STR search efforts. In July 2009, the AOJ prepared a Formal Finding of Unavailability for STRs listing all efforts made to obtain STR and responses received. It concluded further search efforts would be futile. 38 C.F.R. § 3.159(c)(2). Notably, the appellant reports that the Veteran had inpatient treatment during service. Inpatient clinical records are often maintained separately from general STRs and filed according to the hospital where treatment occurred. (See www.archives.gov/st-louis/military- personnel/clinical-record-libraries.html, last visited August 16, 2013). Such records need to be specifically requested. In February and March 2009, Lackland Air Force, Corpus Christi Naval Air Station, and William Beaumont Army Hospitals responded that they did not have inpatient STRs for the Veteran. In April 2009, Andrews Air Force Base provided a negative response for inpatient STRs. The AOJ sent an April 2009 letter informing her about the negative responses. It requested detailed information from her to conduct an additional search and again furnished NA Form 13055 to assist her. In April 2009, the appellant responded, through her representative, that she did not have additional evidence. The Board finds that VA has complied with its duty to assist in searching for these missing inpatient STRs. 38 C.F.R. § 3.159(c)(2). When service records are missing, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The AOJ conducted development in compliance with 38 C.F.R. § 3.311. In March 2010, the Air Force reported that they could not locate any records of occupational radiation exposure (also known as Form DD 1141) for the Veteran. They reviewed his personnel file, but declined to provide a dose estimate given the absence of evidence showing direct radiation exposure. In May 2010, VA obtained a pertinent medical opinion from the Acting Deputy Chief Public Health and Environmental Hazards Officer (Chief Officer) on behalf of the Under Secretary for Health. The Compensation and Pension Services (C&P) Director issued a report concurring with the Chief Officer's medical opinion. Additionally, a July 2010 VA medical opinion was also obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.311. Notably, the July 2010 VA examiner expressed an equivocal opinion. He states "it is impossible for me to know whether or not this patient's radiation exposure had anything to do with his colon cancer." His statements are clear that an affirmative answer cannot be made on the current record and he does not identify any obtainable outstanding evidence which would facilitate a non speculative opinion. Thus, his equivocal opinion is adequate for adjudication purposes. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The representative contends that the Chief Officer and VA medical opinions are inadequate. Barr, 21 Vet. App. at 312. He takes issue with the estimated radiation dose (rem) used. However, as detailed below, the Chief Officer carefully considered the Veteran's occupational duties based upon his personnel records in making his rem determination in May 2010. He explained that proper protocol requires dose monitoring for persons likely to have occupational exposure above 0.5 rem annually. Although the appellant asserts the Veteran was monitored, evidence confirming (i.e. DD Form 1141) her reports has not been found. Notably, the March 2010 Air Force response shows that they carefully considered the Veteran's occupational history based upon his personnel records since they could not find records of radiation exposure in the Master Radiation Registry (MRER). The Air Force official determined that there was no direct evidence of radiation exposure and declined to provide an estimate. The Chief Officer presumed that the Veteran had the largest occupational rem exposure possible without necessitating dose monitoring (0.5 rem annually). He used the most favorable possible dose exposure, which would be consistent with the record, for the input in his colon cancer probability modeling. In short, the radiation dose estimates given by the Air Force and VA officials with special expertise in occupational radiation exposure are based upon an accurate factual premise, the Veteran's personnel records and regulations governing occupational radiation exposure. The objections to the assumption of 5 rem radiation exposure in 1958 are without merit. The representative has also averred that the medical opinions obtained by VA were based upon the wrong burden of proof. He observes that VA compensation purposes only require a disease to have "contributed substantially or materially" to the development of colon cancer. 38 C.F.R. § 3.312. Meanwhile, the VA requested opinions used the term "solely attributable" or variants in their opinions. A review of the May 2010 Chief Officer's opinion shows that he concluded "it is our opinion that it is unlikely that the Veteran's colon cancer can be attributed to exposure to ionizing radiation while in military service." The C&P Director concluded "it is our opinion that there is no reasonable possibility that the [V]eteran's colon cancer can be attributed to the occupational exposure to ionizing radiation as during military service." The first entry for the verb 'attribute' is defined as "to explain by indicating a cause." See Merriam-Webster's Collegiate Dictionary, Eleventh Edition (2003), 80. The Board considers the term 'attributable' to be broad enough to encompass substantial or material contributions. Id.; 38 C.F.R. § 3.312. The representative further contends that the July 2010 VA examiner expressed inconsistent conclusions. He acknowledged evidence of radiation exposure, but then reported that there is no way to know the amount of such exposure or any etiology to such exposure. The representative asserted that the legal standard does not require the examiner to know the radiation dosage; rather it only has to be demonstrated by a standard of "as likely as not" or in other words, an equipoise standard. It is well settled law that medical opinions must be based upon scientific principles, not speculation or reference to remote possibility. Jones, 23 Vet. App. at 389; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); 38 C.F.R. § 3.102. The examiner may note speculative aspects of the record in his opinion. Id. Here, the objective evidence does not confirm a specific amount of radiation exposure. Based upon careful review of the personnel file, an estimated dose was given. The July 2010 VA examiner cited the estimated dose and characterized it as "very low." His statements "[t]here is no way I can evaluate his dose of radiation" and "it is impossible for me to know" are simply supporting his conclusion that he cannot give a non-speculative opinion based upon an unknown amount or low estimated dose of radiation exposure. His observation that the amount of radiation exposure is low and speculative is supported by the record. Accordingly, the Board finds the representative's objections to the July 2010 VA medical opinion are meritless. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128-01 (April 18, 2012). At the March 2005 RO hearing and August 2005 Board hearing, the hearing officials identified the issues on appeal. The appellant provided testimony as to the Veteran's radiation exposure and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. The appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearing focused on the elements necessary to substantiate her claim for cause of death. As such, the Board finds that, consistent with Bryant, the hearing officials complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds the record to be in substantial compliance with the prior remands by the Board and Joint Motion directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (remand instructions require substantial compliance as opposed to strict compliance). The February 2009 notification letter was complaint with Hupp, 21 Vet. App. at 342 and Dingess, 19 Vet. App. at 473. It also informed the appellant that she may submit alternative or additional information to facilitate a search at the National Archives and furnished NA Form 13055 to assist her. In July 2009, the AOJ prepared a Formal Finding of Unavailability for STRs. A March 2010 Air Force response showed that occupational radiation exposure monitoring records were searched for the Veteran with no success and the personnel records are negative for direct evidence of radiation exposure. The May 2010 Chief Officer medical opinion on behalf of the Under Secretary for Benefits, C&P Director's concurring opinion, and July 2010 VA medical opinion were obtained to evaluate her contention of an ionizing radiation etiology. The RO/AMC conducted development in accordance with VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q and r. pertaining to herbicide exposure for Veterans serving in Thailand during the Vietnam era. A memorandum regarding herbicide use Thailand was placed in the Veteran's claims folder. The Veteran's personnel file was again requested and obtained. In May 2013, the Jackson RO's Joint Service Records Research Center (JSRRC) coordinator issued a Formal Finding of lack of verification of exposure to Agent Orange in Thailand. It listed the findings supporting her determination. The Board notes that the September 2012 and February 2013 remands instructed the RO/AOJ to contact the Compensation and Pension Service via email to request a review of the Department of Defense (DOD)'s inventory of herbicide operations to determine whether herbicides were used at the base in question, Korat Air Force Base (Korat AFB). The personnel records show that the Veteran was stationed at Korat AFB and do not suggest that he traveled to Vietnam. (See June 1966 to February 1967 Performance Reports). The Memorandum on Herbicide use in Thailand during the Vietnam Era does not show that tactical herbicides, such as Agent Orange, were used at or near the Korat Air Force Base during the Veteran's service there. The RO/AOJ's actions are in substantial compliance with the remand directives. The RO/AOJ readjudicated the issue in the May 2013 supplemental statement of the case. In this case, the Board finds that the actions undertaken by the AOJ satisfy the terms of the Board's remands and Joint Motion. See id.; Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, based on the development undertaken and the negative responses received regarding the availability of the Veteran's STRs, the Board is satisfied that "further efforts to obtain those records would be futile." 38 U.S.C.A. § 5103(b)(3) (West 2002). Accordingly, the Board finds that all available evidence pertaining to the appellant's claim has been obtained. Analysis The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. Service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including malignant tumors, may be presumed to have been incurred in or aggravated by active military service if manifested to a compensable degree within a year of separation from qualifying service. 38 C.F.R. §§ 3.307, 3.309(a). Any Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Although colon cancer is not a disease presumptively linked to herbicide exposure, the appellant may nevertheless claim direct service connection based upon herbicide exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions, such as the etiology of cancer. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). As noted above, the Veteran's STRs after July 14, 1958 are missing. Nevertheless, the appellant does not contend that the Veteran had colon cancer in service or shortly thereafter. The record clearly shows it developed post service. Rather, she contends that the Veteran developed colon cancer following service due to herbicide and/or ionizing radiation exposure. Private medical records from May 1986 show that the Veteran had a persistent history of peripheral vascular disease necessitating a below the knee amputation of his leg. His treating physician remarked: The [Veteran] worked for a long time in the air force. It is possible he had the leg exposed to radium or radiation of the test materials that used to sit under his desk and the leg would be against this. This may or may not be the case. Another physician commented, "[M]ore recently the history of radiation exposure to the right lower extremity has been obtained. There is consequently the possibility that some of the tissue damage and vascular insufficiency is a consequence of radiation injury." He diagnosed arterial hypertension, nephrosclerosis and occlusive vascular disease, right lower extremity. Private medical records from December 2000 reflect that the Veteran apparently underwent a partial resection of the large bowel and had post operative in home nursing care. The Veteran expired in May 2002. His death certificate lists an immediate cause of cardiopulmonary failure, due to debility, due to cancer of the colon. At the March 2005 RO hearing, the appellant stated that the Veteran was exposed to Cobalt-60 and similar radioactive material during service. She believed his below the knee leg amputation was related to radiation exposure since his leg had more Cobalt exposure. A physician had confirmed her suspicion. She recalled that the Veteran had a radiation monitoring device to quantify his radiation exposure. He was formally diagnosed with colon cancer in 1999. The appellant also had an August 2005 Board hearing. She alleged the Air Force was covering up the evidence of radiation exposure for fear of financial liability. She reported that the Veteran was exposed to Cobalt-60 on a daily basis for approximately 10 years in service. She averred that his initial radiation injury resulted in his below the knee leg amputation. The Veteran's private physician believed a lot of the Veteran's medical problems were related to radiation exposure. The appellant also recalled that the Veteran had a seizure and alopecia towards the end of service. She noted that he wore a dosimeter, but no protective gear. In November 2007, the appellant detailed the Veteran's post service medical history. Notably, the Veteran had treatment for gangrene in his toe in January 1985, which ultimately resulted in his below the knee right leg amputation. She noted several of the Veteran's in-service friends developed cancer. She believed that the medical records were missing as part of a cover up operation. In March 2010, the Air Force responded that they had no records of external or internal exposure data for the Veteran from the USAF Master Radiation Registry (MRER). The author explained that the MRER is the single repository for occupational radiation exposure monitoring for all Air Force personnel. Although their records dated as far back as 1947, some older files were maintained in the individual's STRs and were not forwarded to the MRER. Since the Veteran's STRs were missing, the author reviewed the DD 214, chronological listings of service, and Airman Performance reports. Based upon these reports, he found that there was no direct evidence that the Veteran had occupational radiation exposure and declined to provide an estimate. In May 2010, the Acting Deputy Chief Public Health and Environmental Hazards Officer (Chief Officer), on behalf of the Under Secretary for Health, issued a radiation exposure report to the C&P Director. The Chief Officer recited the pertinent military and post service history. He noted the negative findings from the March 2010 Air Force report. He carefully considered the appellant's October 2005 description of the Veteran's radiation exposure and service personnel records. The appellant reported that the Veteran worked for 10 years in an Air Force lab where he was exposed to radiation. The Chief Officer assumed the Veteran had 10 years of occupational radiation exposure without monitoring for period of Air Force service. He noted that individuals likely to receive a dose in excess of 10 percent of the regulatory limit of 5 rem (i.e. 0.5 rem) must be monitored for occupational radiation exposure. See 10 C.F.R. § 20.1201(a). Since the Veteran was not monitored and his personnel records did not otherwise suggest direct radiation exposure, the most radiation he could be exposed to was 0.5 rem per year. Based upon a 10 year history of exposure, his total lifetime accumulated radiation dose would be 5.0 rem. The Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that in-service exposure to ionizing radiation was responsible for the Veteran's cancer. For calculation purposes, the Veteran's total radiation exposure (5 rem) was assumed to have been received as a single acute dose in the earliest year of exposure, 1958 (his entrance into the Air Force). The IREP program calculated a 99th percentile value for the probability of causation of 5.60 percent. The Chief Officer opined that it is unlikely that the Veteran's colon cancer can be attributed to ionizing radiation exposure while in military service. The C&P Director concurred with the May 2010 determination by the Chief Officer on behalf of the Under Secretary for Health. VA obtained a July 2010 medical opinion. The VA physician reviewed the claims folder. He noted that the Veteran had been exposed to Cobalt-62 radiation in service, but at very low levels based upon estimates. He commented that there is a "very slight increased risk" of colon cancer with radiation exposure. However, he determined that it was impossible to state whether the Veteran's radiation exposure was in any way related to colon cancer. He reported "[i]f the radiation exposure did not contribute to his colon cancer then it is very unlikely that any other factor within his military service could be related to a causative fashion to his colon cancer development." In February 2012, Dr. P.C. offered a medical opinion. He recited the pertinent military and medical history for the Veteran. He took issue with the May 2010 Chief Officer's findings. He believed the assigned value of 5 rem was arbitrary. He explained that it is "pure speculation" to assume that the Veteran had the lowest non-monitored dose for calculation purposes. He noted that the Veteran developed colon cancer at age 51. Aside from radiation exposure, he did not have additional risk factors. He cited a 2005 published study that demonstrated a significant increase in development of rectal cancer after radiation treatment for prostate cancer. He further observed that 1986 medical records note that "it is possible" his leg was exposed to radium or radiation test materials and that a surgeon listed his prognosis as guard "because of the poor circulation which may or may not have been secondary to his radiation, work, etc . . ." A 2004 letter from his treating physician noted that "he had a history of exposure to Cobalt 60, which could have been a contributing factor to his health problems." He reported that the epidemiology of colon cancer is well understood. Using National Cancer Institute Department of Cancer Control and Population Sciences-Surveillance Research software, Dr. P.C. stated with adjusted risks the Veteran had a probability of 0.587132 percent of developing colon cancer at age 51 and dying from colon cancer at age 73 was 0.913392 percent. Based upon studies of Japanese atomic bomb survivors, cancer can have a latent period and he believed colon cancer had a latent period of at least 5 years. Given this background, he concluded that the Veteran must have had environmental exposures that led him to develop colon cancer. (Dr. P.C. also presumed that the Veteran also had herbicide exposure while in Thailand. As explained below, VA has determined that the Veteran was not exposed to herbicides during service in Thailand. His portions of the opinion based upon herbicide exposure are not for further consideration). He concluded that Chief Officer's findings of 5.6 percent probability significantly underestimated the Veteran's colon cancer risk because of the arbitrarily assigned 5 rem of in-service radiation exposure. Given the complete absence of additional risk factors and extremely young age, he believed it was more likely than not that in- service ionizing radiation exposure by itself contributed to the development of colon cancer and led to the Veteran's death. In March 2012, Dr. K.D. submitted an opinion advancing the appellant's claim. He recited the pertinent military and medical history for the Veteran. Briefly, the Board notes that a substantial portion of Dr. K.D.'s opinion is based upon assumed herbicide exposure. As explained below, VA has determined that the Veteran was not exposed to herbicides during service in Thailand and portions of the opinion based upon herbicide exposure are not for further consideration. However, Dr. K.D. did find that radiation exposure was linked to the Veteran's development of heart disease and colon cancer. He cited several published medical studies. Dr. K.D. also disputed the May 2010 Chief Officer's conclusions. He believed the Chief Officer was erroneous in assuming that the Veteran had a lifetime dose of 5 rem given his occupational background. He also thought that the IREP program 5.6 percent estimate of colon cancer was misleading. He noted "[f]or the individual who is affected by a radiation induced disorder the percentage estimate is 100." He also cited medical evidence showing a latency period between exposure and subsequent development of colon cancer. He concluded the time lapse between active service and the development of colon cancer was unsurprising. He noted that the premature development of a stroke indicates a much shorter latency period in relationship to radiation exposure. To a reasonable degree of medical probability, he believed the Veteran had generalized atherosclerosis which was manifested by early age stroke and terminally by cardiopulmonary failure. He commented that it is well known that atherosclerosis forms in arteries and may take years to become clinically manifest. He concluded that it was at least as likely as not that Agent Orange and/or radiation exposure contributed the development of the Veteran's heart disease which in turn contributed to his death. In April 2013, the AOJ submitted another NPRC request for personnel records or any related records that would verify Agent Orange exposure. All available personnel records were sent. In May 2013, the AOJ placed a Memorandum for the Record, Subject: Herbicide use in Thailand during the Vietnam Era (Herbicide Memo) in the claims folder. See VA Adjudication Procedures Manual Rewrite M21-1MR, pt. IV, subpt. ii, ch.2, § C.10.q. The Herbicide Memo noted that VA Compensation Service had reviewed a listing of herbicide and test sites outside of Vietnam, furnished by the Department of Defense (DOD). The DOD list only showed limited testing of tactical herbicides in Thailand from April 2, through September 8, 1964 at Pranburi Military Reservation. The memo noted that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. Other than the 1964 Pranburi tests, there are no other DOD records of tactical herbicide storage or use in Thailand. However, the modified aircraft that had been used to spray tactical herbicides also flew 17 insecticide mission in Thailand from August 30 to September 16, 1963 and October 14 to 17, 1966. These missions were not sufficient to establish tactical herbicide exposure for a Veteran stationed solely in Thailand. Notably, commercial herbicides were used for vegetation control on the base perimeters in Thailand and persons having duty near the base perimeter may have had contact with pesticides and herbicides. Of note, the Herbicide Memo additionally concluded that there is no secondary exposure presumption from working or servicing aircraft that flew bombing missions over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam was limited and it was erroneous to presume that herbicides covered every aircraft or piece of equipment used in Vietnam. The memo explained that the high altitude jets stationed in Thailand generally flew far higher than the low altitude aircrafts that sprayed tactical herbicides over Vietnam. There are no studies showing harmful health effects for secondary or remote herbicide contact. In May 2013, the RO/AOJ issued a memorandum of a Formal finding of lack of verification of exposure to Agent Orange in Thailand. After review of the claims folder, it concluded that the Veteran was not exposed to herbicides while stationed at Korat Air Base in Thailand. The evidence shows that the Veteran was stationed at Korat Air Base from June 4, 1966 to February 9, 1967 and assigned to the 388 Armt & Electric Maintenance Squadron. (Briefly, the Board notes a slight variation in dates. The dates used in the memorandum appear from the Veteran's performance appraisal while in Thailand. The AF Form 7 (Airman Military Record) lists July 24, 1966 to February 18, 1967 as dates of Thailand service. In any event, the deviation is minor and does not affect the overall adequacy of the memorandum.) He was a Precision Measurement Equipment Technician. As noted in the memo, there is no presumption of secondary exposure from working with aircraft or equipment that had been used in Vietnam. The memo limited conceded herbicide exposure to persons working near the base perimeter. DOD records only showed use of tactical herbicides in Thailand prior to the Veteran's service in a location that was 292 miles away from his duty station at Korat Air Base. The Veteran was not otherwise assigned duties that would require travel to Vietnam. For all these reasons, the RO/AOJ concluded that the Veteran was not exposed to herbicides while stationed in Thailand and that he did not set foot in Vietnam. The appellant contends that service connection is warranted for the Veteran's cause of death. After careful consideration of all lay and medical evidence, the Board finds the preponderance of the evidence to be against the claim as detailed below. The appellant has made numerous assertions that the Veteran had occupational ionizing radiation and herbicide exposures during service. She has reported that the Veteran was monitored for radiation exposure. She recalled that he worked around Cobalt 60 on a daily basis during his 10 year service in the Air Force. She believed that the Air Force had hid or destroyed the Veteran's records as part of a cover-up. The appellant is competent to report on anything capable of lay observation, such as her recollections of the Veteran's occupational duties and prior conversations with him about service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno, 6 Vet. App. at 469-71. However, her reports must be weighed against the record. Buchanan, 451 F.3d at 1336-7; Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Here, the appellant's reports of direct radiation exposure and dosimetry monitoring are suggestive of a dose exposure above 5.0 rem. However, they conflict with the absence of occupational radiation monitoring records and personnel records. (See March 2010 Air Force report). Although the Veteran's STRs are incomplete, presumably due to the 1973 NPRC fire, personnel records are available. The personnel records are not in any way suggestive of a document keeping irregularity by the Air Force; nor are they suggestive of direct radiation exposure. The Air Force has acknowledged that earlier DD 1141 dosimetry records may have been placed with the STRs instead of the MRER. However, the personnel records do not in any way suggest the Veteran had direct radiation exposure. They do not reference dose monitoring to suggest that a DD 1141 existed and was placed with the missing STRs, rather than the MRER. The appellant's reports about hidden records, direct occupational radiation exposure, and dosimetry monitoring are not consistent with the personnel records. Accordingly, the Board finds her reports to be inconsistent with the record and possess minimal probative value. Caluza, 7 Vet. App. at 510-511. Similarly, the appellant's assertions of herbicide exposure are without merit. Personnel records show that the Veteran served at the Korat AFB in Thailand. As discussed in the Herbicide Memo above, tactical herbicides such as Agent Orange had very limited use in Thailand and there is no evidence establishing secondary type exposure from working with aircrafts and equipment from Vietnam. Personnel records do not suggest that the Veteran ever set foot in Vietnam. Haas, 525 F.3d at 1197; 38 C.F.R. § 3.307(a)(6)(iii). In short, her contentions of Agent Orange exposure have no probative value. (See May 2013 RO/AOJ Formal Finding of lack of verification of exposure to Agent Orange in Thailand; Id.). The appellant has also provided various lay reports of a positive nexus. However, she is not a medical professional and the medical issues in this case are complex. Competent medical evidence is required to establish an etiology. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Since the appellant is not competent to report on a nexus, her assertions of a nexus have no probative value. Woehlaert, 21 Vet. App. at 456; see also Waters, 601 F.3d at 1274. The Board has carefully considered the February and March 2012 medical opinions supporting the claim. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on such factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 336 (1994). Briefly, the May 1986 private medical reports and reports by the appellant at the hearings are suggestive of medical evidence supporting a relationship between the Veteran's in- service radiation exposure and subsequent illness. These reports are based upon a self-reported history of radiation exposure by the Veteran or appellant, rather than review of service records. To the extent any treating clinician informed the appellant or noted in medical records a positive etiology to radiation exposure, such a determination is based upon lay reports. The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Hence, such reports have minimal probative value. Id. Here, both Drs. K.D. and P.C. take exception to the radiation dosage estimates used by the Chief Officer in his May 2010 probability assessment. The dose estimate given by the Chief Officer is supported by the record. He clearly explained the procedures for monitoring occupational radiation exposure. The Air Force did not locate the Veteran's name in the Master Radiation Registry. It acknowledged a possibility that the DD Form 1141 was placed with the missing STRs, and reviewed the personnel records to ensure that they were not suggestive of direct occupational radiation exposure (they were not). Due to the absence of supporting evidence, they declined to estimate an exposure dose. After reviewing the Air Force findings, the Chief Officer used the most favorable evidence which would be consistent with unmonitored personnel. The Board finds Drs. K.D. and P.C.'s assertions that the Chief Officer underestimated the amount of radiation exposure unconvincing. Gabrielson, 7 Vet. App. at 336; Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value for a medical opinion depends on its rationale); See also Stegman, 3 Vet. App. at 230; Obert, 5 Vet. App. at 33 (1993) (medical opinions cannot be based upon speculation or remote possibility); 38 C.F.R. § 3.102. In Dr. P.C.'s analysis, the Veteran had a less than one percent risk adjusted chance of dying from colon cancer at age 73 based upon a software program from the National Cancer Institute. He concludes that the Veteran must have had environmental exposures, but fails to take the next step and run calculations based upon the best estimate of 5 rem exposure in 1958. Meanwhile, the Chief Officer does so and obtains a 5.6 percent risk using a similarly reputable software program. For this reason, Dr. P.C.'s assertions about a relationship to generalized in-service environmental exposure are not persuasive in light of the Chief Officer's May 2010 report using similar software and inputting dosage estimates which are supported by the record. See id. Dr. K.D. further opined that the Veteran's generalized atherosclerosis was related to occupational radiation exposure and cited an article showing that peripheral artery disease is related to radiation exposure. However, he did not specify the amount of cardiovascular harm from the Veteran's estimated dose of 5 rem in 1958. Again, the generalized assertion without reference to the specific circumstances of the case at hand renders his opinion less persuasive. See id. By contrast, the May 2010 Chief Officer's opinion is probative to show that the Veteran's colon cancer is unrelated to occupational radiation exposure. Id. As detailed throughout the record, his estimated dose assessment of 5 rem is consistent with service personnel records. He estimated the risk for colon cancer based upon such a dose using a reputable software program. In other words, the opinion was formed with an accurate review of the Veteran's medical history and is accompanied by a rationale that is supported by the record and includes an explanation of how he reached his medical conclusions. Id.; see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the May 2010 Chief Officer's opinion to be persuasive. The July 2010 VA examiner issued a negative opinion on whether there was any other service nexus, aside from occupational radiation exposure. His report was based upon review of the record and clinical experience. It is consistent with the record and plausible. It remains uncontroverted by the additional medical evidence, as Drs. K.D. and P.C. do not suggest an in-service nexus other than occupational radiation and herbicide exposure. For these reasons, the Board considers the July 2010 VA examiner's opinion to be probative (to this limited extent). For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit-of-the-doubt doctrine, even under VA's heightened obligations, is therefore not helpful to the appellant, and the claim for service connection for colon cancer must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57; O'Hare, 1 Vet. App. at 367. Entitlement to DEA benefits In pertinent part, Chapter 35, Title 38, United States Code extends the VA educational program to surviving spouses of Veterans who died of service-connected disabilities and to the surviving spouse of a Veteran who, when he died, had a service-connected total disability that was permanent in nature. See 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3021 (2012). The record shows that at the time of the Veteran's death in May 2002, he was service connected for hearing loss rated as noncompensably disabling. Moreover, the record shows that his service-connected disability was not, at any point during his lifetime, rated as 100 percent disabling. Since service connection for the cause of the Veteran's death is not warranted, and as the Veteran, when he died, did not have a service-connected total disability that was permanent in nature, the Board concludes that the criteria for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have not been met. ORDER Service connection for colon cancer is denied. Basic eligibility for DEA under Chapter 35, Title 38, United States Code is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs