Citation Nr: 1335128 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-29 603 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 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 under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant (the Veteran) is represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is the surviving spouse of a deceased veteran (the Veteran) who had active service from December 1953 to July 1974. The Veteran died in December 2005. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the RO in Waco, Texas. In a July 2007 decision, the Board denied the appeal as to these issues. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Veterans Court) and in a July 2009 Memorandum Decision, the Veterans Court vacated the Board's decision and remanded these issues to the Board for readjudication consistent with its decision. Subsequently, in March 2010, the Board again denied the appeal as to both issues. The appellant appealed that decision to the Veterans Court, and in March 2011, the Veterans Court granted a Joint Motion for Remand, vacated the March 2010 Board decision, and remanded these issues to the Board for compliance with the instructions in the Joint Motion. In August 2011, the Board again denied the appeal as to both issues. The appellant appealed that decision to the Veterans Court; and in an August 2011 Memorandum Decision, the Veterans Court vacated the Board's August 2011 decision and returned the appeal to the Board for readjudication. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). The Board has reviewed all argument submitted by the representative in this matter. In this regard, it is important for representative of the appellant to understand that sending multiple copies of the same argument only delays the adjudication of a case that the VA is attempting to expedite, as all correspondence from the appellant's lawyer must be associated with the claim file before the undersigned can review the case (even if that correspondence is a copy of previous correspondence). The Board thanks the attorney for their assistance in this matter. FINDINGS OF FACT 1. All notification and development needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran died in December 2005; the official cause of the Veteran's death, as listed on the death certificate, was colon cancer due to liver metastases. 3. The cause of the Veteran's death did not have onset during service, did not manifest within one year of service, and was not caused by service, including exposure to an herbicide agent therein. 4. The cancer affecting the Veteran's lungs was metastasized colon cancer and was not primary lung cancer. 5. During the Veteran's lifetime, service connection had been established for psoriasis of the arms and knees, rated as 10 percent disabling, and for residuals of a fracture to the radial head of the right elbow, rated as noncompensable (0 percent); both effective from August 1, 1974. 6. At the time of his death, the Veteran had not been rated totally disabled for 10 continuous years immediately preceding his death; nor was the Veteran rated totally disabled continuously after his discharge from service in July 1974 for a period of not less than 5 years immediately preceding his death. The Veteran was not a former prisoner of war. CONCLUSIONS OF LAW 1. The criteria for an award of DIC benefits based on service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310, 1311, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2013). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.22, 3.102 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in December 2005. The official certificate of death completed by a physician lists the cause of death as colon cancer due to liver metastases. Service Connection Claim DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death, that it combined to cause death, or 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). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served ninety days or more of active military service, and certain chronic diseases, including malignant tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, the following diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, Acute and subacute peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 75 Fed. Reg. 53216 (August 31, 2010) (announcing the revision to 38 C.F.R. § 3.309(e)). A veteran, who during active service, served in the Republic of Vietnam during the Vietnam era 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 service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). At the time of the Veteran's death, service connection had been established for psoriasis of the arms and knees, rated as 10 percent disabling, and residuals of a fracture to the radial head of the right elbow, rated as noncompensable (zero percent). Both disability ratings were made effective from August 1, 1974. There is no evidence that these conditions caused the Veteran's death, nor has the appellant asserted that they caused or contributed to cause his death. The Board has considered whether the appellant's claim can be granted by showing that colon cancer due to liver metastases was directly related to his military service. However, the Veteran's service treatment records reflect no complaints, treatment, or findings related to a colon or liver disorder. The Veteran was afforded a complete physical examination at service separation in 1974, at which time, with the exception of psoriasis of the elbows and myopic astigmatism, all bodily systems were found to be clinically normal. At the same time, the Veteran completed a report of medical history, on which he indicated no history of tumor, growth, cyst, or cancer. There is also no evidence showing that cancer of any kind became manifest to a compensable degree within one year of separation from active service. In this regard, the appellant does not contend that the Veteran any form of cancer became manifest to a compensable degree within a year of service separation. Hence, the presumptive provisions for chronic disease, including the provisions for continuity of symptomatology after service, are not for application. The first treatment for colon or liver disorder after service was in April 2004, which is 30 years after he was separated from service. In addition, there is no medical opinion that purports to relate the onset of colon cancer with liver metastases that is the official cause of the Veteran's death to an injury or disease in service. Indeed, the appellant has not asserted that colon cancer began in service. It is her assertion that the colon cancer is related to herbicide exposure in service with post-service onset, or, in the alternative, that the Veteran's lung cancer (an herbicide presumptive condition) caused or contributed to cause the Veteran's death. The Board obtained a medical opinion in May 2013 based on a review of the claims file. The reviewing physician opined that the Veteran's colon cancer was not caused by or aggravated by possible herbicide (Agent Orange) exposure while serving in Vietnam. The physician reasoned that the Veteran served from December 1953 to July 1974, and thirty years later, at age 71 years, he was diagnosed with metastatic colon cancer. According to the physician, epidemiological studies indicate that increasing age is a major risk factor for sporadic colorectal cancer. The Veterans cancer progressed despite systemic chemotherapy and there was radiologic evidence of disease progression to the lungs. The physician's review of literature did not reveal an epidemiologic connection between herbicide exposure and colon cancer. The Board does not doubt that the appellant sincerely believes the Veteran's colon cancer was related to his exposure to herbicides. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), determining the etiology of cancer falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board finds that the May 2013 opinion is to be assigned the greatest probative weight with respect to the question of a relationship between the colon cancer which caused the Veteran's death and herbicide exposure in service. There is no competent evidence that purports to relate the colon cancer that caused the Veteran's death to herbicide exposure in service. The Secretary of Veterans Affairs (Secretary) has determined that 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. 341-346 (1994); see also Notice, 61 Fed. Reg. 41-442-449 (1996). The Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. As of May 2008, these specifically include colorectal cancer (including small intestine and anus) and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 32540-03 (2010). This finding was based on reports of the National Academy of Sciences and is persuasive evidence against any association between the Veteran's herbicide exposure and the colon cancer that caused his death. Turning to the appellant's alternative argument, she asserts that lung cancer was a contributory cause of death and that lung cancer was a primary cancer rather than cancer metastasized from the colon and, therefore, his death is to be presumed to have been due to a service connected condition. Unlike colon cancer, lung cancer is listed among the diseases presumed to be associated with herbicide exposure. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that lung cancer was not a contributory cause of death, and that, contrary to the appellant's assertions, the colon cancer that caused the Veteran's death was the primary cancer, and the Veteran's lung cancer was a metastasis of the colon cancer. In finding that lung cancer was not a contributory cause of death, the Board attaches great significance to the death certificate, which unequivocally identifies the cause of the Veteran's death as colon cancer, not lung cancer, providing highly probative medical evidence against this claim. The report was signed by a physician, documenting that the Veteran died in December 2005. The causes of death are listed as colon cancer and liver metastases. If the certifying physician believed that cancer of the lungs contributed to cause the Veteran's death, it is reasonable and logical to believe she would have included this on the death certificate. The death certificate provides competent and persuasive evidence against the asserted contributory relationship. Moreover, in Darby v. Brown, 10 Vet. App. 243 (1997) the Veterans Court affirmed a Board decision applying 38 U.S.C.A. § 1113(a) and 38 C.F.R. § 3.307(d) to find that the presumption of service connection based on Agent Orange exposure was rebutted where the Veteran died from stomach cancer that had metastasized to his lungs. The Veterans Court noted that the medical records indicated that Mr. Darby's first diagnosis of cancer was stomach cancer and that the additional cancers metastasized from the stomach cancer. Id. at 246. It then noted that the death certificate, signed by a doctor (as in this case), indicated that the lung cancer was due to, or as a consequence of, the stomach cancer. It concluded that the Board's decision to deny service connection for the cause of Mr. Darby's death on that basis was not clearly erroneous. VA's Office of General Counsel issued a precedential opinion in 1997 holding that presumptive service connection may not be established under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309(e) as being associated with herbicide exposure, if the cancer developed as the result of metastasis of a cancer which is not associated with herbicide exposure. Evidence sufficient to support the conclusion that a cancer listed in section 3.309(e) resulted from metastasis of a cancer not associated with herbicide exposure will constitute "affirmative evidence" to rebut the presumption of service connection for purposes of 38 U.S.C. § 1113(a) and 38 C.F.R. § 3.307(d). Further, evidence that a veteran incurred a form of cancer which is a recognized cause, by means of metastasis, of a cancer listed in 38 C.F.R. § 3.309(e) between the date of separation from service and the date of onset of the cancer listed in section 3.309(e) may be sufficient, under 38 U.S.C. § 1113(a) and 38 C.F.R. § 3.307(d), to rebut the presumption of service connection. VAOGCPREC 18-97. As will next be addressed, the medical evidence establishing that the Veteran's lung cancer was a metastasis of this colon cancer is overwhelming. To the extent that there is evidence to the contrary, it is inconclusive and/or stated without rationale. In April 2004, the Veteran filed an application claiming entitlement to service connection for cancer based on exposure to Agent Orange during service. Included with that claim was an attending physician's statement signed by "J.S.T.," M.D. which included a primary diagnosis of cecal colonic adenocarcinoma, not lung cancer, providing more medical evidence against this claim coming from the Veteran himself. In April 2004, the Veteran presented for treatment complaining of abdominal pain that had persisted for several weeks. He was afforded a CT scan later that month which revealed a large ileocecal valve mass, multiple hepatic metastases, and mesenteric adenopathy. Subsequent treatment records revealed the Veteran also had pulmonary abnormalities in the form of periaortic adenopathy; however, the discharge summary for this period of treatment reflects that the Veteran's diagnosis at discharge was cecal colonic adenocarcinoma, with liver and mesentery metastasis. There is no indication in the treatment records or the discharge summary that the reported pulmonary involvement was confirmed or represented findings suggestive of lung cancer at that time. In fact, the April 2004 CT scan reflects that the Veteran's lungs were clear of suspicious nodules or masses, providing highly probative evidence against the claim that the Veteran had lung cancer at this time, and that therefore, lung cancer was the primary cancer. An April 13, 2004 pathology report provides that microscopic analysis of cecum tissue samples yielded a diagnosis of invasive colonic adenocarcinoma, moderately differentiated. A gastroenterology consult from that date includes that CT of the Veteran's abdomen yielded an impression of diffuse metastatic disease involving the liver as well as mesentery with possible primary region in the region of the ileocecal valve. In October 2004 Hematology/Oncology notes "D.C.H.," M.D. documented that the Veteran had carcinoma of the cecum, metastatic to the liver, mesenteric and periaortic lymph nodes. Findings from a CT scan in January 2005 yielded an impression of progression of metastatic disease involving the liver and peritoneal tissues when compared with studies of November 2004 and findings that possibly represented metastatic disease versus primary malignancy of the sigmoid colon. Dr. D.C.H. again noted in February 2005 that the Veteran had carcinoma of the cecum metastatic to the liver, mesenteric lymph nodes, and periaortic lymph nodes originally diagnosed in April 2004. July 2005 Hematology/Oncology notes signed by "A.C.G.," D.O. include that the Veteran's primary oncologist was Dr. D.C.H. but that Dr. A.C.G. was seeing the Veteran in his absence. The Veteran presented for a follow-up appointment and laboratory findings revealed that his carcinoembryonic antigen (CEA) had increased. These notes show that the Veteran had recently had CT scans of the chest, abdomen, and pelvis. Dr. A.C.G. explained the July 2005 CT of the Veteran's chest revealed worsening metastatic disease with right lower lobe nodule increased from the previous study. Impression was metastatic colon cancer with disease involving the lungs and liver. It is therefore evidence weighing against a finding that the Veteran died from a disease for which service connection may be presumed based on exposure to Agent Orange. The Board emphasizes that the above is medical evidence that the Veteran's primary cancer was colon cancer and that the disease found in his lungs and liver at this time was the metastasized colon cancer. The Board is not making a medical termination in this case, but simply reviewing the medical evidence of record, some of which comes from evidence supplied by the Veteran himself, providing evidence against the argument that the attorney have raised and the Board must address. Beyond the above, August 12, 2005 Hematology/Oncology notes include a letter to Dr. D.C.H. and to "P.D.G.," M.D., who was identified as the Veteran's primary care physician. This letter is signed by "A.E.F.," M.D. Dr. A.E.F. explained that CT from April 2004 showed cecal colon cancer with metastases to the liver. Dr. A.E.F. provided an assessment of metastatic cecal colon cancer to the liver and lungs. Again, this is more evidence against a finding that the presumption at issue applies. It is also evidence that Dr. P.D.G. had been informed by an expert in the field of medicine concerning cancer that the cancer present in the Veteran's lung was cancer that had metastasized from his colon. In an August 25, 2005 Hematology/Oncology note Dr. D.C.H. explained that the Veteran came into the office that day with a need for a letter to take to the Texas Veterans Commission to qualify for disability payments. Dr. D.C.H. dictated the following letter: [The Veteran] is a [ ] year old Caucasian male being treated for cancer in the lungs. It was first recognized in June of this year, and despite ongoing chemotherapy, had increased in size and extent by July 2005. He is now being treated with alternative chemotherapy but prognosis is guarded. He had been previously diagnosed with cecal colon cancer, metastatic to the liver in April 2004. He has been treated with one chemotherapy regimen between April 2004 and November 2004 but progressed. He then was treated with a second-line chemotherapy regiment from January 2005 until June 2005; again, the tumor progressed. He is presently being treated with weekly injections of irinotecan and Erbitux, which he is tolerating well. [The Veteran] is aware this chemotherapy will not cure his cancer and the primary goal of care is comfort, with the secondary goal of care being increased longevity. The letter was typed on Scott and White letterhead and given to the patient to take to the Commission. Patient reports that the need for the letter being phrased in this fashion is that the Commission apparently recognizes disability for lung and prostate cancers, but not for colon. This letter the Board finds particularly probative for reasons which do not support the appellant's claim and provide evidence against this claim. The Veteran's oncologist, an expert in cancer, was well aware (as the letter indicates) that VA made some distinction between lung cancer and colon cancer and that if the Veteran had colon cancer (as opposed to, or in addition to, lung cancer) he would be in a better position to receive compensation benefits. Yet, the oncologist did not state that the Veteran had lung cancer, but rather stated that he had colon cancer that had metastasized, providing evidence against this claim. Given these facts, this is probative evidence that the cancer affecting the Veteran's lungs was metastasized colon cancer. The Board emphasizes the dates of diagnoses identified by the Dr. D.C.H. The colon cancer was first found in April 2004 and the lung cancer was first found in June 2005. This letter is assigned some probative weight and is evidence unfavorable to a finding that the presumptive provisions for service connection due to Agent Orange exposure are applicable to this case. In an August 29, 2005 letter, the Veteran's primary care physician, Dr. P.D.G. stated as follows: [The Veteran] has cancer of the lungs, liver, and colon. The initial diagnosis was a colon cancer, however, with further testing, he has been found to also have involvement of the liver and lungs. The lesion in the lungs may or may not be metastatic from the colon. It is also possible that this may be primary lung cancer. The Board assigns little probative weight to the notation that, it is also possible that there may be primary lung cancer. This is inherently speculative in that it identifies a mere possibility. In this regard, no one would suggest that it is "impossible" for the lung cancer to be primary lung cancer, therefore, a doctor saying it is also "possible" that this may be primary lung cancer says almost nothing. The standard is not one of "possibility" but whether it is as least as likely as not that the lung cancer was primary. The finding that this statement is entitlement to highly limited probative value is made even clearer by this doctor's own treatment notes. For example, an October 20, 2005 note by Dr. D.C.H. provides, in pertinent part, as follows: He is quite distressed over the fact that for some reason the VA Hospital "Doesn't recognize colon cancer" and is thereby denying his disability, though certainly he has progressive widespread colon cancer which has been refractory to all the standard treatments and for which there are no experimental therapies at least in the Scott and White constellation of protocols that we could fall back on. This treatment record provides highly probative evidence against this claim as it clearly indicates a progression of the colon cancer, not lung cancer (which is not even cited). Simply stated, the cancer in the colon had metastasized to other parts of the Veteran's body based on the treatment records of Dr. D.C.H., providing evidence against the claim. The Board, very regrettably, finds no ambiguity at all. In addition, as directed by the Veterans Court in the August 2012 Memorandum Decision, the Board obtained an expert medical opinion in May 2013. The expert reviewed the medical records and opined that the Veteran did not have primary lung cancer, but had colon cancer metastasized to the lungs. Regarding the opinions of P.D.G and A.E.F., the expert disagreed, noting: [H]is serum CEA increased from 12.8 on 05/10/05 to 78 on 07/13/05 indicative of progression of metastatic colon cancer. The CT scan of abdomen and pelvis in July 2005 reported stable disease which should not have been the reason for the elevated CEA. However, the CT chest dated July 18, 2005 revealed three small lung nodules measuring 1.3 cm, 12 mm and 7 mm indicative of metastatic disease. The initial colon biopsy (04/13/04) revealed invasive, moderately differentiated colonic adenocarcinoma. Pathology was consistent with a primary colon cancer and not a metastatic lesion from lung cancer. Subsequent review of medical records from the claims file indicates that the colon cancer progressed to the lungs and bone. Therefore, the patient had metastatic colon cancer with metastases to liver, lungs and bone and not "metastatic lung cancer with metastases to lung, liver and colon" as stated in his primary oncologists' (Dr A.E.F.) letter dated November 01, 2005. In addition to blood test and CT results, which were found to indicate primary colon cancer with metastasis to the lungs, the May 2013 opinion also emphasized that the treatment provided the Veteran was consistent with primary colon cancer. The expert noted: CT chest dated 01/12/05 showed stable nodular opacities within the right lung. These were noted to have progressed on the scans dated 07/18/05. The patient received two different systemic chemotherapy options for metastatic colon cancer. These chemotherapy options are not applicable for primary lung cancer or metastatic lung cancer. If the oncologist had suspected primary lung cancer or metastatic lung cancer, he should have obtained either a lung or liver or bone biopsy to prove this. Once biopsy proven metastatic lung cancer was established, he should have initiated appropriate systemic chemotherapy based on pathology. In my opinion the patient had metastatic colon cancer and there was no misdiagnosis. However, entertaining a diagnosis of primary lung cancer or metastatic lung cancer would put the onus of misdiagnosis and wrongful management towards the primary oncologist managing this case. There is no medical information in the claims file to indicate that he had primary lung cancer. Radiologic evidence indicated that the lung lesions represented progression of the veterans known colon cancer. A lung biopsy would have been the only way to prove this. However, there is no literature support to biopsy all new radiological sites of cancer progression. Therefore, in this case, the possibility of primary lung cancer would be based on speculation of misdiagnosis or remote possibility and not on records or data available in the claims file. The Board finds that the May 2013 provides competent and persuasive evidence against the assertion that the Veteran had primary lung cancer. The opinion is conclusively stated, it is based on a discussion of the pertinent evidence, and it directly refutes the inconclusive non-opinion of P.D.G. In this regard, his oncologists did not ever say that he had "primary" lung cancer and the death certificate provides that he had colon cancer and liver metastases and does not even mention the cancer found in his lungs. The record (in part, due to the clear notes of the Veteran's own doctors) is unusually unambiguous is providing evidence against the claim. As to Dr. P.D.G.'s letter, he does not provide that the Veteran had primary lung cancer but only that such is "possible" and that he may or may not have had a primary lung cancer. As the Board has already noted, there is very little that lies outside the realm of possibility. Dr. P.D.G.'s letter is no more than an acknowledgement of that fact. Given the record, it is nothing more. Dr. P.D.G. is not the Veteran's oncologist but his primary care physician. He has offered no statement to lead the Board to the conclusion that the possibility of primary lung cancer is anything more than a mere possibility. These facts are consistent with a factual finding that the cancer found in the Veteran's lungs and areas other than his colon was metastasized colon cancer. It is important to note that the finding of Dr. P.D.G. neither supports, nor refutes, the Veteran's claim. The fact that the lesion in the Veteran's lungs "may or may not" be metastatic from the colon and that it is "possible" that it is primary lung cancer says very little. The Board does not suggest that it is "impossible" for the Veteran's condition to be based on primary lung cancer and not a lung condition caused by colon cancer. However, the "impossibility" standard is not the standard on which the Board may grant service connection. The Veterans Court has repeatedly and consistently rejected medical opinions raising only a "possibility" of medical nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In essence, a medical opinion that is not conclusively stated, but asserts only the possibility of a relationship, is not probative evidence, or evidence that tends to prove the question at hand. The Board finds, based on the best evidence of record, that the most probative evidence of record shows that the Veteran's lung condition was a progression of his colon cancer, making it more likely (a greater than 50% chance) that the colon cancer spread to the lungs and other parts of the body, ultimately causing death. In addition, the appellant also submitted a statement from Dr. A.E.F., dated November 2005, which states that the Veteran was diagnosed with: "metastatic lung cancer with metastases to the lung, liver, and colon." The Veterans Court in its July 2009 decision emphasized that the Board did not provide adequate reasons and bases for its finding that the medical opinion of November 2005 was entitled to very limited probative weight. The Board notes that it is unclear from this statement whether it even purports to establish lung cancer as the primary cancer. The self-contradictory statement of Dr. A.E.F. ("metastatic" lung cancer does not metastasize to the lungs from the lungs, the brief statement simply makes no sense) is inherently flawed on its face as the doctor stated that the Veteran had metastatic lung cancer with "metastases to the lungs" (if it is "metastatic lung cancer" that spread, where did it begin?). Indeed, it is not logical that cancer affecting a particular region can metastasize to that same region (primary lung cancer that metastases to the lungs makes no factual sense and, in fact, this doctor indicates this is not "primary lung cancer" but "metastatic lung cancer". In this regard, the Board notes that metastasis is defined as the "transfer" of disease from one organ or part to another not directly connected with it. See Dorland's Illustrated Medical Dictionary 1023 (28th ed. 1994). The statement that cancer "A" metastasized to point "A", beyond medicine, makes no logical sense. Second, the medical opinion of November 2005 provides no rationale for its opinion or why it ignores a treatment record that clearly indicates the spread of colon cancer to the lungs. While this statement is considered competent medical evidence, to the extent that it purports to establish lung cancer as the primary cancer, such conclusion is assigned lessened probative value because the physician did not identify medical evidence that supported the conclusion. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits); Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record); Black v. Brown, 5 Vet. App. 177, 180 (1995) (a medical opinion is inadequate when it is unsupported by clinical evidence). Therefore, the Board affords little, if any, probative weight to the statement from Dr. A.E.F. The other statements found in the treatment records which have already been described and which clearly state that the Veteran's colon cancer had metastasized to his lungs are afforded greater weight and outweigh the statement offered by Dr. A.E.F. The Board has considered the appellant's contention that the Veteran died from lung cancer, that the lung cancer was the primary cancer, and that Agent Orange exposure caused his colon cancer. She has not demonstrated any medical expertise as to complex medical matters. As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stating as follows: "[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, 492 F.3d at 1377. The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking that decision, together with the explanation in Layno, leads the Board to the conclusion that whether a non-expert nexus opinion or diagnosis is competent evidence depends on the complexity of the particular question and whether or not a nexus opinion could be rendered based on personal observation. Here, whether or not the Veteran had primary lung cancer as opposed to metastasized colon cancer, whether his lung cancer caused his death, and whether his colon cancer was caused by exposure to Agent Orange, are all complex medical questions, not subject to mere observation by the five senses. It is a matter of general public knowledge that considerable research by scientists and medical professionals is devoted to the causes of cancer. As noted above, the Secretary's determination that colorectal cancers are not presumed to be associated with herbicide exposure was based on research compiled by the National Academy of Sciences. Whether or not colon cancer is caused by Agent Orange exposure or whether the Veteran's colon cancer was caused by his lung cancer are not subject to the opinion of a layperson, because, if they were, there would be little need for such research. Consistent with the example provided by the Federal Circuit in Jandreau, whether or not the Veteran had a primary lung cancer versus metastasized colon cancer is a complex medical question. Along the same lines, whether lung cancer caused a death rather than colon cancer with liver metastases is not subject to mere observation by a layperson and is itself a question too complex to be answered by a layperson. For these reasons, the Board finds that the appellant's opinion with regard to these questions is not competent evidence. In summary, the preponderance of evidence of record shows that the Veteran died from colon cancer that had metastasized, and not from primary lung cancer. There is no competent evidence establishing that his primary colon cancer was caused by service, including exposure to Agent Orange. Hence, the preponderance of the evidence is against the appellant's claim and the appeal as to service connection for the cause of the Veteran's death must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1318 Benefits The appellant is also claiming entitlement to DIC benefits under 38 U.S.C.A. § 1318. Even if the Veteran's death were not due to a service-connected disability, DIC benefits are payable to a surviving spouse where it is shown that the Veteran's death was not the result of willful misconduct, and he (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22. As noted, at the time of the Veteran's death, service connection was established for psoriasis of the arms and knees, rated as 10 percent disabling, and residuals of a fracture to the radial head of the right elbow, rated as noncompensable (zero percent). Both disability ratings were made effective from August 1, 1974. Based upon the foregoing, it is clear that the Veteran had not been rated totally disabled for a continuous 10 year period prior to his death, or that he was continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty. In addition, there is no evidence showing the Veteran was a former prisoner of war. Furthermore, the Veteran was not "entitled to receive" compensation for service-connected disability rated totally disabling within the meaning of the law because none of the circumstances specified in 38 C.F.R. § 3.22(b), under which a veteran might have been entitled to receive compensation but was not in receipt thereof, is shown or alleged in this case. Clear and unmistakable error in the October 2004 or November 2005 rating decisions has not been alleged or demonstrated; additional service department records have not been submitted that would provide a basis for reopening the October 2004 or November 2005 rating decisions; and the Veteran did not have service-connected disability rated as totally disabling with compensation being withheld. 38 C.F.R. § 3.22(b). In view of the foregoing, the Board finds that entitlement to DIC benefits under 38 U.S.C.A. § 1318 is not warranted in this case. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert, 1 Vet. App. 49. Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran as service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a pre-decisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. Review of the record reveals the RO sent the appellant a letter in January 2006 that informed her of the information and evidence needed to substantiate her claim for service connection for cause of the Veteran's death. The letter informed the appellant that, to establish service connection for the cause of the Veteran's death, the evidence must show that the condition causing his death had its onset in service or was permanently aggravated by his service. The January 2006 letter also provided general notice as to how to substantiate a claim under the provisions of 38 U.S.C.A. § 1318 benefits and informed the appellant of her and VA's respective duties for obtaining evidence. Any defect in the notice with regard to the evidence needed to substantiate a claim under § 1318 is harmless error because there is no dispute that the Veteran was not totally disabled for a continuous 10 year period prior to his death, or that he was not continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty or that he was not a former prisoner of war. Hence, there is no evidence that could exist that would show the contrary. Although the 2006 letter did not inform the appellant that service connection had been established for psoriasis of his arms and knees and for residuals of a fracture of the radial head of his right elbow, there is no evidence that these conditions had any contribution to his death and the appellant has never contended that these conditions had any contribution to his death. Failure to provide her VCAA notice of these service connected disability is therefore harmless error and this notice is not essential to a fair adjudication of her claim. See 38 C.F.R. § 19.9 (2013); Cf. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining the rule of prejudicial error in the context of claims for VA benefits). Similarly, to the extent that the letter did not specifically inform her that service connection had not been established for cancer prior to the Veteran's death, the appellant has demonstrated through her argument that she knows that the evidence must establish that his cancer was caused by his service. Throughout the pendency of this claim and appeal, the appellant has been advised of her opportunities to submit additional evidence. The Board also notes the appellant and her representative have consistently argued that the Veteran's death was caused by a disability incurred during military service. Thus, the Board finds the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claims and given ample time to respond. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as any apparent notice error did not affect the essential fairness of the adjudication. The Board also finds VA has satisfied its duty to assist the appellant in the development of the claim. The RO obtained the Veteran's service and post-service treatment records, including records dated from March 2002 to August 2004 from the hospital where he died in December 2005. However, Significantly, it appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In this regard, the Board notes that there are no records which document the Veteran's hospital course just prior to his death. Nevertheless, the Board finds a remand is not necessary to obtain these records because, even if the records showed that lung cancer contributed to cause the Veteran's death, there is no competent and probative evidence of record that shows the lung cancer is related to his military service, to include as due to herbicide exposure, as the Board finds that the Veteran's lung problem was caused by his colon cancer. The Board also finds that VA's duty to assist the appellant in obtaining a medical opinion has been met. Section 5103A(d) concerning obtaining VA medical examination or medical opinion is limited to claims for "disability compensation." See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In DeLaRosa, the Federal Circuit explained that disability compensation is defined as a "monthly payment made by VA to a veteran 'if the Veteran is disabled as a result of a personal injury or disease...while in active service if the injury or disease was incurred or aggravated in line of duty.'" Id. at 1322, n.1. Therefore, by definition, § 5103A(d) does not pertain to a DIC claim. Nevertheless, in a DIC case, VA must, as part of the duty to assist, "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). According to the Federal Circuit, this requirement obligates VA to assess whether it is necessary to obtain a medical opinion in order to substantiate the claimant's claim. Id. VA is only excused from making reasonable efforts to provide assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). Here, the Board notes that a medical opinion was obtained, and finds that the May 2013 VA expert opinion was based on a thorough review of the claims file, which is apparent from a discussion by the specialist of the pertinent evidence. Moreover, the opinion is accompanied by a detailed rationale with reference to the pertinent evidence in the claims file, including other significant opinions, and reference to generally accepted medical principals. The Board finds that this opinion is adequate for evaluation purposes and fully supporting by the evidence of record. The Veteran's attorney asserts that the May 2013 opinion is not adequate because "[t]he examiner failed to provide adequate rationale for his opinion that the veteran's cancer was not related to his exposure to Agent Orange while in service, especially in light of the evidence in the record that the veteran's family history was 'negative for colorectal carcinoma,'" and because "the veteran's medical records showed that he had cancer of the lungs (regardless of whether or not it was primary lung cancer)[, and] the examiner failed to adequately address this when finding that the veteran's cancer was not related to his in-service Agent Orange exposure." The Board disagrees on both counts. The opinion specifically addresses the Veteran's cancer of the lungs, finding that it was not primary lung cancer, but metastatic colon cancer. For reasons set out in detail above, this is a legally significant finding. Metastatic colon cancer affecting the lungs is not subject to the presumption of service connection for diseases associated with herbicide exposure. Regarding the assertion that an adequate rationale was not provided for the opinion that the Veteran's cancer was not related to exposure to Agent Orange, the Board finds that this is simply inaccurate. The examiner specifically noted that "[r]eview of literature does not reveal an epidemiologic connection between herbicide (Agent Orange) exposure and colon cancer." Contrary to the assertions of the attorney, the examiner addressed each significant point and provided an adequate rationale for the opinions rendered. The evidence that supports the opinion of the appellant is highly flawed, for reasons cited above, or does not exist. Very importantly, the Board has found that the post-service treatment records as a whole, and also entirely, provide highly probative evidence against this claim, fully supporting the medical opinion of May 2013. In light of the Board's findings above, establishing that there is no non-speculative medical opinion that purports to establish the Veteran's lung cancer as primary, non-metastatic lung cancer, or that purports to relate the colon cancer or metastatic colon cancer of the lungs and liver to herbicide exposure in service, the Board finds that there is no question of a medical nature left to be resolved, and thus it is not necessary to pursue additional development regarding a medical opinion. Based on the above, it is therefore the Board's conclusion that no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to DIC benefits based on service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs