Citation Nr: 1338155 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-00 336A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from July 1959 to June 1980. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that denied the appellant's claims. The appellant later testified at a hearing before the undersigned Acting Veterans Law Judge in March 2012. The Board remanded the appellant's claims for additional development in an August 2013 decision. The Board notes that the Veteran submitted a notice of disagreement with regard to a claim of service connection for hypertension for accrued benefits purposes. This issue was included on a December 2008 statement of the case. The appellant submitted a VA Form 21-534, Application for Dependency and Indemnity Compsenation, Death Pension, and Accrued Benefits by a Surviving Spouse which was accepted by the RO in lieu of a VA Form 9, Substantive Appeal, with regard to the issues of entitlement to service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) for accrued benefits purposes and entitlement to service connection for the cause of the Veteran's death. Consequently, the issue of entitlement to service connection for hypertension for accrued benefits purposes is not currently before the Board. FINDINGS OF FACT 1. The Veteran had a claim for entitlement to service connection for throat cancer pending at the time of his death, and a claim for accrued benefits was received within one year after his death. 2. The preponderance of the evidence indicates that the Veteran was not diagnosed with throat cancer during service or within one year of separation from service, and there is no competent medical evidence that links throat cancer to the Veteran's period of active service, including exposure to herbicides. 3. The record reflects that the Veteran died in December 2007, and that the immediate cause of death was bleeding from the carotid artery. Advanced inoperable pharyngeal cancer was listed as the underlying cause of death. 4. At the time of the Veteran's death, service connection was in effect for diabetes mellitus, rated as 20 percent disabling and sensorineural hearing loss, rated as noncompensably (0 percent) disabling. 5. The more probative and competent evidence does not show that the Veteran's death was caused by an illness or disease incurred in or aggravated by active duty service, including exposure to herbicides. CONCLUSIONS OF LAW 1. For purposes of accrued benefits, service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) is not warranted. 38 U.S.C.A. § 1110, 1112, 1131, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.1000 (2013). 2. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claims. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claims, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Certain additional notice requirements attach in the context of a claim for service connection for the cause of a Veteran's death. Generally, that notice must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service-connected. The content of the notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007); 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the appellant was notified in a letter dated in January 2008. The appellant was advised in the January 2008 correspondence that in order to support a claim of entitlement to service connection for the cause of the Veteran's death the evidence must show that a disability was incurred in or aggravated during service and was the primary or contributory cause of death. The correspondence also included the elements necessary to establish service connection for death benefits based on a disability that was not service-connected during the Veteran's lifetime and the evidence necessary to establish accrued benefits. While the notice failed to include a statement of the conditions for which service connection was in effect, the appellant did not claim that the cause of the Veteran's death was due to an already service-connected disability. The January 2008 document satisfied the notice requirements. The appellant has been given ample time to respond to that notice and provide evidence that relates to the previously unestablished facts. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the August 2013 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. An expert medical opinion has been obtained with regard to the issue of the cause of the Veteran's death. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Accrued Benefits The appellant seeks to establish entitlement to accrued benefits on the basis that, prior to his death in December 2007, the Veteran had submitted sufficient evidence to VA to establish his entitlement to service connection for his claimed throat cancer due to herbicide exposure. In addition, she asserts that he was exposed to herbicides during the Vietnam era which caused his throat cancer and ultimately contributed to his death. Benefits, to which a beneficiary was entitled at his death, based on evidence on file at the date of death or under existing ratings or decisions, known as accrued benefits, will be paid to survivors as provided by law. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2013). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c) (West 2002); 38 C.F.R. § 3.1000(c) (2013). In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Further, a claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5) (2013). The term finally adjudicated claim means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. §§ 3.160(d), 20.1103, 20.1104 (2013). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if the evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2013); Hayes v. Brown, 4 Vet. App. 353 (1993). In a statement dated in November 2007 and received at VA in December 2007, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he claimed service connection for throat cancer due to exposure to herbicides and hypertension secondary to exposure to herbicides or as secondary to service-connected diabetes mellitus. While the Veteran's service connection claims were being developed, and prior to adjudication of the claims, VA was informed of the Veteran's death. On January 8, 2008, the appellant submitted a claim for accrued benefits with regard to the throat cancer claim. As the Veteran had a claim for service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) pending at the time of his death and the appellant filed a claim for accrued benefits within one year of the Veteran's death, the Board will consider the merits of the claim based on the evidence of record at the time of the Veteran's death. 38 C.F.R. § 3.1000 (2013). Entitlement to accrued benefits is determined based on evidence in the file or constructively of record at the time of his death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2013). Additional evidence in the form of a December 2007 statement from S. Samant, M.D., an October 2011 statement from K. King, F.N.P., testimony from the appellant obtained at a March 2012 Travel Board hearing, and a VHA opinion received by VA in March 2013 was received after the Veteran's death. As this evidence was not constructively of record at the time of the Veteran's death, this evidence may not be considered by the Board in the adjudication of the appellant's claim for accrued benefits. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The chronicity provisions are applicable where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2013). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Although the Veteran served during a period of war, there is no allegation that the claimed throat cancer at issue began in combat, and therefore the provisions pertaining to proof of service incurrence or aggravation of a disease or injury in the case of a Veteran who engaged in combat with the enemy is not applicable. 38 U.S.C.A. § 1154(b) (West 2002). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2013). 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, 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. 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 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The presumptive diseases for exposure to herbicides include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) (2013). Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a Veteran is not precluded from establishing entitlement to service connection by proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran, prior to his death, submitted a statement dated in November 2007 and indicated that he had throat cancer due to exposure to herbicides during service. As an initial matter, the Board notes that the Veteran's DD214 for his period of service from November 1962 to October 1968 reflects that he had service in the Republic of Vietnam. Specifically, he had foreign service for one year, nine months, and twenty-three days and received the National Defense Service Medal, Vietnam Service Medal with 1 star, and Vietnam Campaign Medal with device. The Veteran's service medical records do not show any complaints, findings, or treatment for malignant tumors of the throat or tonsils. A May 2007 statement from A. Tyehimba, M.D., indicates that the Veteran was diagnosed with squamous cell carcinoma of the right tonsil in May 2007. Private treatment records from Dr. Samant dated in November 2007 reflect that the Veteran underwent thirty-five radiation treatments completed in September 2007. The Veteran subsequently underwent surgery in December 2007 but Dr. Samant indicated that the Veteran's advanced head and neck cancer was inoperable. Dr. Samant concluded that the Veteran had less than six months to live and palliative chemotherapy was his only option. Thereafter, the Veteran passed away in December 2007. The appellant claims that she is entitled to accrued benefits for the Veteran's claimed throat cancer because he was exposed to herbicides during his service and that said exposure caused the Veteran's squamous cell carcinoma of the right tonsil. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the appellant is not entitled to accrued benefits for the claim of service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides). As an initial matter, the Board notes that the Veteran's period of active service did include service in country in Vietnam during the period in which exposure to herbicides is presumed. However, cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) is not a disease for which presumptive service connection is warranted and as such the claim may not be granted on a presumptive basis. The Board has also determined that accrued benefits for service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) is not warranted on a direct basis. The Board finds that the competent evidence does not show a relationship between the Veteran's cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) and his period of active service. The post-service treatment records show that squamous cell carcinoma of the right tonsil was diagnosed in 2007, more than 25 years after the Veteran left service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after active service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The amount of time that passed between service and the first indication of a diagnosis and treatment for the claimed cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) is evidence that weighs against the appellant's claim. The evidence of record at the time of the Veteran's death does not show a relationship between the Veteran's cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) and his period of active service. There is no competent evidence which provides a basis for the conclusion that the Veteran's cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) is related to his period of service or that a malignant tumor manifested within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). Although the appellant contends that the Veteran's claimed cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) is related to his active service, specifically to exposure to herbicides in service, neither the Veteran nor appellant submitted competent medical evidence or opinion to corroborate that contention. 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The appellant's opinion is not competent to provide the requisite etiology of the claimed disorder because that matter requires medical expertise. 38 C.F.R. § 3.159(a)(1) (2013); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995). Therefore, appellant's statements and those of the Veteran regarding the Veteran's cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) being related to the Veteran's service are not competent as she and the Veteran are not medically qualified to provide evidence regarding a matter requiring medical expertise, such as an opinion as to etiology. The Board finds that the preponderance of the competent evidence is against a finding that the Veteran had cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) during service and the file does not contain competent evidence linking the claimed disorder to service, including exposure to herbicides. In addition, a malignant tumor is not shown to have manifested to a compensable degree within one year following separation from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) for accrued benefits purposes and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). III. Cause of the Veteran's Death The appellant contends that the Veteran was exposed to herbicides during service and that the claimed exposure caused his cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) which ultimately caused his death. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, certain chronic diseases including malignant tumors may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2013). 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, 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. 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 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The presumptive diseases for exposure to herbicides include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) (2013). A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2013). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(c) (2013). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312 (2013). Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312 (c)(3) (2013). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2013). As noted above, in this case, the Veteran is presumed to have been exposed to herbicides during his time in service. The Veteran's service medical records do not show any complaints, findings, or treatment for malignant tumors of the throat or tonsils. A May 2007 statement from Dr. Tyehimba indicates that the Veteran was diagnosed with squamous cell carcinoma of the right tonsil in May 2007. Private treatment reports from Dr. Samant dated in November 2007 reflect that the Veteran underwent thirty-five radiation treatments completed in September 2007. The Veteran was noted to have a twenty-five year history of smoking one pack of cigarettes per day until 1982. Private treatment reports from Methodist Healthcare dated from May 2007 to October 2007 reflect that a May 2007 computed tomography (CT) scan of the neck revealed a minimally necrotic right tonsillar mass. In May 2007, the Veteran was noted to have a twenty-five year history of smoking one pack of cigarettes per day quitting in 1985. The Veteran subsequently underwent surgery in December 2007 but Dr. Samant indicated that the Veteran's advanced head and neck cancer was inoperable. Dr. Samant concluded that the Veteran had less than six months to live and palliative chemotherapy was his only option. In a statement dated later in December 2007, Dr. Samant reiterated the Veteran's relevant medical history and noted that the Veteran had cancer of the right oropharynx for which he received chemoradiation which was completed in September 2007. He indicated that a surgery performed in December 2007 did not free the Veteran of his cancer and the Veteran was diagnosed with terminal oropharyngeal cancer with metastatic disease to the carotid and trachea. The Veteran thereafter suffered a rupture of the carotid artery and passed away. A statement from K. King, F.N.P., of UT Medical Group, Inc., dated in October 2011 indicates that the Veteran was treated for an advanced head and neck cancer that claimed his life. She reported that chemical exposure can be a factor in the development of head and neck cancer. She concluded that she could not say that the Veteran's chemical exposure during his tour in Vietnam caused the Veteran's cancer but noted that it could have had an influence on it. Later, at a Travel Board hearing before the Board in March 2012, the appellant testified that the Veteran was exposed to Agent Orange during service and that his doctors indicated that head and neck cancer was caused by Agent Orange exposure. She said that the Veteran had sore throats during service but was not diagnosed with cancer until 2007, and that she believed that the Veteran's cancer of the throat was due to his herbicide exposure during service. An expert medical opinion from J. S., M.D., a VA Chief of the Division of Hematology/Oncology was received by the Board in March 2013. Dr. S., reviewed the Veteran's relevant medical history and noted his presumed exposure to herbicides in service. He also indicated that the Veteran had a twenty-five year history of smoking cigarettes. Dr. S. noted that VA does not recognize carcinoma of the oropharynx as a malignant disease related to exposure to herbicides, referring to the Veterans and Agent Orange: Update 2010 by the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides (eighth biennial update, Institute of Medicine). He noted that the Committee concluded that there is inadequate or insufficient evidence to determine whether there is an association between exposure to chemicals of interest and oral, nasal, or pharyngeal cancers. He opined that it is therefore not as likely as not that the Veteran's oropharyngeal cancer was related to or caused by the Veteran's active service and presumed exposure to herbicides. He concluded that the major factor causing the Veteran's oropharyngeal cancer was cigarette smoking. The appellant submitted two Board decisions where service connection was granted to other appellants for the death of other Veterans with similar types of cancer and exposure to herbicides in service. The appellant also submitted an abstract entitled "Military service in Vietnam and the risk of death from trauma and selected cancers." The abstract concluded that the risk of several site-specific cancers were elevated but not statistically significant for U.S. Marine veterans who served during Vietnam. In an informal hearing report dated in September 2013, the Veteran's representative argued that the Veteran's claim should be granted based on the statement from Ms. King because Dr. S.'s statement lacked a rationale for the conclusion and did not consider whether service connection for the cause of Veteran's death was warranted on a direct basis. The Board concludes that the greater weight of probative medical evidence weighs against a finding that the Veteran's cause of death was caused by or related to his active duty service including exposure to herbicides. As an initial matter, the Board notes that while the Veteran had service in the Republic of Vietnam during the period during which exposure to herbicides is presumed, cancer of the right oropharynx is not a disease for which presumptive service connection is warranted. Consequently, service connection for the cause of the Veteran's death is not warranted on a presumptive basis. With regard to service connection for the cause of the Veteran's death on a direct basis, the only probative medical opinion of record, that from Dr. S., a cancer specialist, indicates that it is less likely than not that the Veteran's oropharyngeal cancer is related to or caused by his active service including exposure to herbicides. Dr. S. included reference to a study which indicates that there is insufficient evidence to determine whether there is an association between herbicide exposure and oral, nasal, or pharyngeal cancers. The Board acknowledges the appellant's representative's argument that Dr. S. did not consider whether the Veteran's exposure to herbicides caused his cancer of the right tonsil or provide a rationale for his opinion and that as a result, service connection should be granted based on Ms. King's statement. The representative's argument is flawed, however, because Dr. S included a rationale for his opinion and cited to a study which concluded that there was insufficient evidence to establish a relationship between exposure to herbicides and oral, nasal, or pharyngeal cancers. Moreover, the fact that VA determined that oropharyngeal cancer should not be on the list of presumptive diseases demonstrates that current medical treatise evidence is against a relationship between this type of cancer and herbicide exposure. While Dr. King suggested that exposure to herbicides may have been a factor in the Veteran's development of head and neck cancer, this opinion is speculative in nature and includes no reference to any specific medical literature. Consequently, this opinion lacks probative value as it is speculative in nature. Tirpak v. Derwinski, 2 Vet. App. 609 (1992) Additionally, in considering the other Board decisions submitted by the appellant, although service connection was granted for the causes of death of the Veterans in those cases, those cases include their own specific set of fact patterns and competent medical opinions linking the Veterans' deaths to their service. As noted, the only competent medical opinion of record in this case does not include a link between the Veteran's death and his period of service. Finally, the medical treatise submitted by the appellant does not include a link between the Veteran's cancer and his service and in fact concludes that the risk of several site-specific cancers were elevated but not statistically significant for U.S. Marine veterans who served during Vietnam. The Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general or inconclusive in nature cannot support a claim. Jones v. Shinseki, 23 Vet. App. 382 (2010); Beausoleil v. Brown, 8 Vet. App. 459 (1996); Libertine v. Brown, 9 Vet. App. 521 (1996). As this report is inconclusive, it cannot support the claim. Moreover, the Board finds that the appellant's opinion is insufficient to provide the requisite etiology of the cause of the Veteran's death because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512 (2004); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the appellant's statements maintaining that the Veteran's cause of death was related to his active service, including exposure to herbicides, are merely speculation as she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to etiology. In sum, there is no competent medical evidence establishing a possible relationship between pharyngeal cancer which caused or contributed to cause the Veteran's death and the Veteran's period of active service. Other than the appellant's lay assertions that the cause of the Veteran's death was related to his service, the record is devoid of competent evidence indicating a link between the cause of the Veteran's death and any event, or incident, of the Veteran's service. A mere recitation of possible relationship to service by a nurse practitioner, without any comment regarding rationale, is insufficient. The Board is very sympathetic to the appellant for the loss of her husband. Unfortunately, however, the Board must conclude that the preponderance of the evidence is against the appellant's claim, and service connection for the cause of the Veteran's death must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2013). ORDER Entitlement to service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) for accrued benefits purposes is denied. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs