Citation Nr: 1333542 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-24 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her son ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active military service from November 1953 to October 1957 and from December 1957 to September 1975, including multiple tours in Vietnam. He died in March 2006. The appellant is his surviving spouse (widow). She appealed to the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied her claim of entitlement to service connection for the cause of the Veteran's death. In October 2009, in support of her claim, the appellant and her son testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, also commonly referred to as a Travel Board hearing. During the hearing, the appellant submitted additional evidence and waived her right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2009). In March 2010, the Board remanded the claim for further development and consideration, including provision of Veterans Claims Assistance Act (VCAA) notice and a VA medical opinion concerning whether the Veteran's terminal cancer was the result of his military service, especially his presumed exposure to Agent Orange in Vietnam. The Board also has since, in March 2013, requested a medical expert opinion from a Veteran's Health Administration (VHA) oncologist concerning the etiology of the terminal cancer. That opinion was provided in August 2013 and the Appellant given a copy of it and provided opportunity to submit additional evidence and/or argument in response. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and, therefore, it is presumed he was exposed to Agent Orange while there. 2. His certificate of death shows he died in April 2006; the immediate cause of his death was colorectal cancer; no other primary or contributory causes of death were identified. 3. At the time of his death, his service-connected disabilities were chronic lumbosacral strain, postoperative residuals of a left knee meniscectomy, tinnitus, hearing loss and malaria. 4. Colorectal cancer is not included on the list of diseases presumptively associated with exposure to Agent Orange in Vietnam; to the contrary, it is expressly excluded from this list. 5. The Veteran's terminal colorectal cancer also has not been directly related or linked to any of his service-connected disabilities or to his military service and, in particular, to his presumed exposure to Agent Orange in Vietnam. CONCLUSION OF LAW The Veteran's death was not due to disease or injury incurred in or aggravated by his military service or from disability due to disease or injury that may be presumed to have been incurred in service, including as a result of his exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist The VCAA enhanced VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In cases involving a claim for Dependency and Indemnity Compensation (DIC), so including for service connection for cause of death, VCAA notice must include: (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). This duty to notify has been satisfied in this particular case by way of a letter from the Appeals Management Center (AMC) to the appellant in April 2010. Indeed, the Board's preceding March 2010 remand was to provide this necessary notice. And, as required, this letter informed her of the conditions for which the Veteran was service connected at the time of his death and an explanation of the evidence and information required to substantiate her claim for service connection for the cause of his death based on a condition not yet service connected. The letter also informed her of her and VA's respective responsibilities in obtaining supporting evidence. Although the letter did not specifically explain the information required to substantiate a claim of entitlement to service connection for cause of death based on a previously service-connected condition, she was not prejudiced by this omission as her claim is predicated solely on an asserted relationship between the Veteran's service and his death-causing cancer, a disease that was not subject to service connection at the time of his death. As well, the AMC since has readjudicated her cause-of-death claim in the January 2012 supplemental statement of the case (SSOC), so since providing that required Hupp notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that, as a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or lack of notice prior to an initial adjudication). See also Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (indicating this preserves the intended purpose of the notice and gives the appellant adequate opportunity to participate effectively in the adjudication of the claim). VA also fulfilled its duty to assist the appellant by obtaining potentially pertinent medical evidence, including the service treatment records (STRs) and other records pertaining to the diagnosis and treatment of the Veteran's ultimately terminal cancer. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated that, while 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical nexus opinion for a DIC claim, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim. See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). With this in mind and pursuant to this March 2010 remand directive, a VA physician reviewed the claims file in May 2010 and addressed the appellant's assertion that the Veteran's terminal cancer was related to events that had occurred during his military service, especially his presumed exposure to Agent Orange in Vietnam. This commenting VA examiner, however, found that it was unlikely that the Veteran's terminal colorectal cancer was the result of his military service, including especially his presumed exposure to Agent Orange in Vietnam. Moreover, the Secretary of VA specifically has determined there is no positive association between Agent Orange exposure in Vietnam and the subsequent development of colorectal cancer, so this disease has been expressly excluded from the list of diseases presumed to be associated with such exposure. And the appellant has not offered or identified any additional medical or other evidence establishing this required correlation between her late husband-Veteran's death and his presumed exposure to Agent Orange in Vietnam, to otherwise establish this required causation on a direct-incurrence basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (indicating that even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established alternatively on a direct-incurrence basis by establishing the required causation). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); and McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). Because, however, the May 2010 VA opinion did not include a significant discussion of its underlying rationale, the Board obtained additional medical comment on the determinative issue of causation from a VHA oncologist. The Board received his response opinion in August 2013. As the VA oncologist came to a similar conclusion, supported by review of the Veteran's medical and other history and citation to the specific facts forming the basis of her opinion, the oncologist's opinion is most probative of this determinative issue of causation, especially absent any equally probative evidence to the contrary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295(2008) ("[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). So, all told, there was compliance with the Board's March 2010 remand instructions, certainly substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). These instructions consisted of sending the appellant-widow Hupp-compliant notice and obtaining the VA medical nexus opinion mentioned. Notably, to the extent the May 2010 VA physician's opinion was inadequate, this deficiency was remedied by the provision of the subsequent August 2013 oncologist's opinion. Once VA undertakes the effort to provide an examination in a service-connection claim, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The appellant-widow also, as mentioned, had a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in October 2009. According to 38 C.F.R. § 3.103(c)(2) (2013), it is the responsibility of the presiding hearing officer to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked and that would be potentially advantageous to her position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the undersigned identified the issue on appeal and during the course of the hearing engaged in a discussion of evidence that would be relevant to the appeal. Indeed, partly out of that discussion came the Board's subsequent need to remand the claim in March 2010 for the additional development and reasons already discussed. Moreover, the Appellant-widow and her son, who also testified, did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the presiding judge's two-fold duty to inform her of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Appellant-widow has not alleged there were any deficiencies in the conducting of her Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming there was such a deficiency, the Board finds that it did not prejudice her claim. In Bryant, 23 Vet. App. at 498-99, the Court held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. In this case, including as reflected in her hearing testimony, the Appellant-widow evidenced her actual knowledge of the type of evidence and information still needed to substantiate her claim, including insofar as providing testimony relevant to showing why the Veteran's death is related to his military service. See Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), overruled on other grounds in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)). Given the ensuing additional development of the Appellant-widow's claim by the AMC as a result of the Board's March 2010 remand, the Board finds that any deficiency in the October 2009 Travel Board hearing was non-prejudicial. See id. The appellant and her representative have not made the RO/AMC or the Board aware of any additional evidence still needing to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the notice or assistance she received with her claim is unduly prejudicial, meaning outcome determinative of her claim. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Accordingly, the Board concludes that VA has satisfied its duties to notify and assist the appellant with her claim. Therefore, the Board may proceed with the adjudication of the underlying merits of her claim. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). II. Analysis The law provides DIC for a spouse of a Veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310. A service-connected disability is one that was incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing this entitlement to service connection for a particular disability resulting in death requires: (1) competent and credible evidence confirming the Veteran had the claimed disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible of a nexus or link between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Malignant (i.e., cancerous) tumors will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Also, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, i.e., Vietnam Era, shall be presumed to have been exposed during such service to an herbicide agent (like the dioxin in Agent Orange), unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception inapplicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a) (6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, "early onset" peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Secretary of VA, however, has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following specific conditions: cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements. First, it must be established the Veteran served in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162 (1997). However, as already alluded to, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude the appellant from establishing entitlement to service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In fact, the Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange. McCartt v. West, 12 Vet. App. 164, 167 (1999). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). 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. Id. It is recognized there are primary causes of death that, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the appellant prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant-widow contends that the colorectal cancer that caused the Veteran's death was the result of his exposure to Agent Orange in Vietnam. She has also essentially contends that he actually died of lung and liver cancer, which had metastasized (spread) to his colon. So she maintains that he actually died from a type of cancer that is presumptively associated with Agent Orange exposure since it had originated elsewhere in his body. According to the death certificate, the Veteran died in April 2006 of colorectal cancer. The medical evidence indicates that a tumor was initially found in his colon during a colonoscopy in April 2004. A subsequent October 2004 biopsy showed an adenocarcinoma with metastasis in 1 to 3 regional lymph nodes with distant metastasis to the iliac, inguinal and mesenteric nodes. Chemotherapy followed by surgery was recommended, but he did not desire to undergo chemotherapy and did not undergo the surgery. He did well clinically until approximately February 2006, when he developed an uncomfortable feeling in his abdomen and pain in his low back and cocygeal area. A CT scan in March 2006 was notable for multiple bilateral lung nodules and multiple metastatic lesions in the liver. There was also a calcified nodule in the left lung base. Although the Veteran clearly served multiple tours in Vietnam and, therefore, is entitled to the presumption that his tours there involved exposure to toxic herbicides (including, specifically, the dioxin in Agent Orange), his death certificate indicates that he died from colorectal cancer. And as already explained, the Secretary of VA has determined there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -27641 (2003). As colorectal cancer is not such a listed disease, it is among the cancers that have been specifically disassociated with exposure to Agent Orange in Vietnam and elsewhere. Nevertheless, as also explained, this does not preclude the appellant from establishing entitlement to service connection for the cause of death based on the Veteran's presumed exposure to Agent Orange in Vietnam with sufficient proof of actual direct causation linking his terminal cancer to his military service. See again Combee, McCartt, supra. Also, if it were shown that he actually had a primary lung cancer, which actually metastasized into his colon, service connection would be warranted on a presumptive basis, as cancer of the lung has been specifically listed as a disease associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). For this reason, and recognizing the holdings in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), and Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Board remanded this claim in March 2010 to have a VA compensation examiner provide medical comment on this determinative issue of causation. In a subsequent May 2010 opinion, a VA physician opined that the Veteran's terminal cancer of the colon was unlikely the result of his military service, and especially his presumed exposure to Agent Orange in Vietnam. In particular, the physician found that the colorectal cancer was unlikely to have originated in an area other than the colon, such as the lungs or liver. The examiner noted that, while metastatic carcinoma was shown in the lymph nodes in May 2004, it was not shown in the lung or liver at that time. That May 2010 VA opinion, however, did not include a significant discussion of the specific rationale for its underlying conclusion. Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although the latter is not itself determinative of the opinion's probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran). So as the Court made clear in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). For these reasons, the Board additionally sought and obtained an expert medical opinion from a VHA oncologist. In her opinion, received in August 2013, this oncologist noted that, although an initial pathology report did not definitively demonstrate invasive adenocarcinoma, it was clear from the clinical picture and the Veteran's clinical course that he had had progressive colon cancer and that this disease caused his death. The oncologist observed that the colon cancer was seen on an endoscopy, meaning that it had originated in the epithelial surface of the colon. Also, the initial pattern of spread to the intraabdominal and left iliac/inguinal lymph nodes was very consistent with the colon as the primary source. This commenting oncologist indicated that, when the tumors did appear in the Veteran's lungs along with liver lesions, they were clearly metastatic in origin, given that they were bilateral and numerous. She also noted that the calcified nodule in the left lung base had remained unchanged during the two years in question, most consistent with a benign process such as an old granuloma and not with a primary lung malignancy. She therefore concluded that, because there was no evidence linking Agent Orange exposure to cancers arising in the colon or rectum (such as the Veteran's cancer), it was very unlikely that his cause of death was due to Agent Orange exposure in service. Given this specific opinion of the August 2013 VHA oncologist, along with the similar findings of the May 2010 VA physician, albeit without the required discussion of the underlying rationale, and given that there is no medical opinion of record to the contrary (i.e., an opinion indicating the Veteran's colorectal cancer was the result of Agent Orange exposure during his service or that he actually had a primary lung or other cancer positively associated with herbicide exposure, the weight of the medical evidence is against awarding service connection for the death-causing cancer on a direct or presumptive basis. The weight of the medical evidence is also against a finding that lung cancer contributed to his death. Notably, the death certificate did not list any contributory causes of death and the medical evidence does not show a diagnosis of lung cancer but, instead, shows only that the colorectal cancer eventually had spread to the lungs. Without an actual diagnosis of lung cancer, there can be no basis for finding this disease contributed to death. In her pleadings and hearing testimony, the appellant has affirmatively alleged both that there actually was an association between the Veteran's colon cancer and his Agent Orange exposure and has essentially alleged that he had a primary lung cancer, which metastasized into his colon. However, as she is a layperson with no demonstrated specialized knowledge, much less expertise, concerning the etiology of cancer, her opinions in this matter cannot be afforded more than very minimal probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). She also has submitted a number of articles pertaining to the relationship between Agent Orange (i.e., dioxin) exposure and cancer. However, these articles only at most tend to show that dioxin is generally carcinogenic; they do not tend to show any specific relationship or association between dioxin exposure and colorectal cancer, in particular. (For example, the appellant highlighted a statistic contained on page 441 of Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam (1994), Institute of Medicine (IOM), indicating that a high number of cases of colon cancer among Vietnam Veterans was expected both in 1995 and 2000. See http://www.nap.edu/openbook.php?record_id=2141&page=441. However, this information only shows that a high number of colon cancer cases (as compared with most other cancers) were expected among Vietnam Veterans and does not tend to show that such cases were related to dioxin exposure). Thus, these submitted articles are minimally probative. This internet and medical treatise evidence does not reference the specific facts of this particular case, so is less probative than the VA examiner's and VHA oncologist's unfavorable opinions. Where medical article or treatise evidence, standing alone, 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 opinion, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or an injury (and, here, eventual death) solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). Here, though, there is no such supporting doctor's statement, only, instead, medical statements against the claim. The medical evidence of record admittedly does not address any potential relationship between the Veteran's colorectal cancer and his military service other than a potential connection to Agent Orange exposure. But there is no evidence suggesting any such relationship outside of this realm, nor for that matter has the appellant or her representative alleged that one is present. Consequently, it was not necessary to obtain a medical opinion concerning such a potential relationship (See DeLaRosa, 515 F.3d 1319, 1322 (Fed. Cir. 2008), and Wood 520 F.3d 1345 (Fed. Cir. 2008)), and there is no basis for awarding service connection under such an alternative theory of entitlement. The Board sympathizes with the appellant's efforts to obtain VA compensation for purposes of her support, also perhaps for others in her family, particularly as these efforts were done in relation to the Veteran's distinguished and selfless military service. However, the Board is bound to apply the governing laws and regulations. Because the evidence weighs against a finding that the Veteran's death-causing colorectal cancer was related to his service, including Agent Orange exposure, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 3.312; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim for service connection for the cause of the Veteran's death is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs