Citation Nr: 1815655 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 13-31 421A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. 2. Entitlement to service connection for renal cell cancer. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran had active service from February 1972 to March 1976, and from February 1986 to January 1995. The Veteran died in October 2012. The appellant is the surviving spouse of the Veteran and is pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C. § 5121A (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the RO in St. Paul, Minnesota, which denied service connection for the cause of the Veteran's death and renal cancer, for accrued benefits purposes only. Jurisdiction over this case is currently with the RO in Oakland, California. 38 U.S.C. § 5121A (2012) allows substitution in the case of death of a claimant who dies on or after October 10, 2008. This change in law permits any living person who would be eligible to receive accrued benefits to process any pending claim if a veteran dies prior to completion. The eligible person must, not later than one year after the date of death, file a request to be substituted as the claimant for the purposes of processing any pending claim to completion. 38 U.S.C. § 5121A. A veteran's surviving spouse is eligible for receipt of accrued benefits. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). Generally, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of a veteran should file a request for substitution with the Agency of Original Jurisdiction (AOJ) from which the claim originated. See 38 C.F.R. § 3.1010(e) (2017) (the AOJ will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board). The purpose of this administrative procedure is to ensure that an appellant is a qualified "accrued benefits claimant" so as to be eligible for substitution. In April 2013, the appellant (the Veteran's surviving spouse) filed a VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse or Child. The record in this case contains credible evidence that the appellant was married to the Veteran at the time of his death and had been married to the Veteran over one year prior to his death. See June 1999 License and Certificate of Marriage. While the AOJ has yet to explicitly declare the appellant eligible to substitute in the appeal, the AOJ has recognized the appellant as meeting the criteria to be an "accrued benefits" claimant, which, with a timely claim for DIC, is the only criteria necessary to meet the requirements for substitution. The undisputed evidence of record shows that the appellant is the Veteran's surviving spouse who was married to the Veteran for over one year prior to his death, so meets the criteria to substitute as the claimant for the purposes of completing the appeal. In this case, the record already establishes that the appellant is an accrued benefits claimant who is eligible for substitution under 38 U.S.C. § 5121A; therefore, the requirement of sending the claim to the AOJ to verify that the appellant is an eligible accrued benefits claimant has been rendered moot, such that sending the case to the AOJ for such verification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to the requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Since issuance of the Statement of the Case (SOC) and Supplemental Statement of the Case (SSOC) in December 2014, additional evidence has been received by the Board. The appellant's substantive appeal via VA Form 9 was received after February 2, 2013 (received by VA in January 2015); therefore, this evidence is subject to initial review by the Board unless the appellant explicitly requests consideration by the Agency of Original Jurisdiction (AOJ), which has not been requested in this case. 38 U.S.C. § 7105(e) (2012). As such, the Board may consider this evidence in the first instance. In January 2017, the appellant testified at a Board Videoconference hearing in Oakland, California, before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of the hearing has been associated with the electronic file. The Board has reviewed the electronic file on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran died in October 2012; the appellant is the Veteran's surviving spouse, who is substituted as the claimant to continue the Veteran's pending claim and appeal to completion. 2. The Veteran was stationed aboard the USS Denver (LPD-9) beginning in July 1972, during which time the ship was operating temporarily in the Republic of Vietnam's inland waterways and docked to the shore; thus, the Veteran's exposure to Agent Orange during service may be presumed. 3. At the time of death, the Veteran was service connected for right knee meniscectomy with traumatic degenerative joint disease, left knee traumatic degenerative joint disease, tinnitus, left ear hearing loss, a right shoulder disability, partial anosmia due to a head injury, deviated septum, sinusitis, and hemorrhoids. 4. The death certificate lists the sole cause of death as renal cell cancer. 5. Symptoms of the renal cell cancer were not chronic in service, were not continuous since service separation, and were not shown to a compensable degree within one year of service separation. 6. Symptoms of the renal cell cancer first manifested many years after service separation and are not causally or etiologically relate to active service, to include in-service exposure to herbicide agents. 7. The cause of the Veteran's death, to include renal cell cancer, has been attributed to a history of use of tobacco products. 8. Service connection is precluded for disability due to the use of tobacco products. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1103, 1110, 1112, 1116, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.312 (2017). 2. The criteria for service connection for renal cell cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(b), 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, when adjudicating a claim for DIC (to include service connection for the cause of the veteran's death), VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, 38 U.S.C. § 5103(a) notice for a DIC case must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. With respect to the issue of service connection for the cause of the Veteran's death, in this case, the appellant was provided notice in March 2013, prior to the initial adjudication of the claim in July 2013. The appellant was notified of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected, the evidence and information required to substantiate a DIC claim based on a previously service-connected disability, and VA and her respective duties for obtaining evidence. Further, with respect to the issue of accrued benefits, resolution of this issue on appeal is wholly dependent on interpretation of the applicable laws and regulations pertaining to the payment of accrued benefits. As such, no further notice or development under the VCAA is warranted with respect to this issue. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Thus, the Board concludes that VA satisfied its duties to notify the appellant. VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). A VA medical opinion was obtained in August 2014 and a Veterans Health Administration (VHA) medical opinion (the report of which has been associated with the file) was obtained in December 2017. The Board finds that the August 2014 VA medical opinion and the December 2017 VHA medical opinion, taken together with the other evidence of record, are thorough and adequate and provide a sound basis upon which to base decisions with regard to the issues on appeal. The VA examiner and the VHA examiner reviewed the evidence associated with the claims file and provided opinions with supporting rationale. The appellant testified at a January 2017 Board hearing before the undersigned Veterans Law Judge, the transcript for which is associated with the record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board hearing, the VLJ advised the appellant as to the issues on appeal and what was generally required for service connection for the cause of the Veteran's death. Specifically, the VLJ advised the appellant that a new or addendum private medical opinion regarding the cause of the Veteran's death that addressed the Veteran's medical history and is supported by rationale, is still needed. During the January 2017 Board hearing, the appellant presented evidence that she was the surviving spouse of the deceased Veteran and testified as to the Veteran's in-service exposure to herbicide agents. Further, a VHA medical opinion was obtained that provides additional evidence on the question of whether the cause of the Veteran's death is related to service, to include in-service herbicide agent exposure. Moreover, neither the appellant nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and have not identified any prejudice in the conduct of the Veterans Law Judge. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection for Cause of Death and Service Connection for Renal Cell Cancer Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order 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. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the cause of the Veteran's death is renal cell cancer. Malignant tumors (in this case, renal cell cancer) are listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as 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 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: 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, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, renal cell cancer is not a disease for which presumptive service connection based on exposure to herbicides may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant, the Veteran's surviving spouse, seeks service connection for the cause of the Veteran's death. Specifically, the appellant asserts that the Veteran was exposed to herbicide agents while stationed aboard the USS Denver during service, which contributed to the development of the renal cell cancer that ultimately caused the Veteran's death. The appellant alternatively asserts that the Veteran's in-service exposure to asbestos, hydraulic fluids, fuels, and chemical solvents caused the development of renal cell cancer. See October 2010 claim. First, the evidence of record reflects that the Veteran died in October 2012. A death certificate issued in October 2012 lists the sole cause of death as renal cell cancer. At the time of death, the Veteran was service connected for right knee meniscectomy with traumatic degenerative joint disease, left knee traumatic degenerative joint disease, tinnitus, left ear hearing loss, a right shoulder condition, partial anosmia due to a head injury, deviated septum, sinusitis, and hemorrhoids. As none of the service-connected disabilities was listed on the death certificate as a cause of death, a service-connected disability was not the cause of the Veteran's death. Next, the Board considers whether the cause of the Veteran's death, renal cell cancer, was related to any disease, injury, or other incident of service. Initially, the Board finds that the Veteran served in the Republic of Vietnam (Vietnam) during the Vietnam War Era; therefore, he is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service personnel records reflect the Veteran was stationed aboard the USS Denver (LPD-9) beginning in July 1972. VA's Adjudication Procedure Manual includes a list of ships which operated temporarily in Vietnam's inland waterways or those which docked to shore. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated January 2, 2018), VA Adjudication Procedure Manual M21-1, Part IV, Subpart ii, 1.H.2.f. According to this list, the USS Denver transported troops, equipment, and supplies ashore with smaller vessels and docked at Da Nang and elsewhere in Vietnam from February to September 1970, March to June 1971, in November 1971, and from January to August 1972. As stated above, service personnel records show the Veteran was stationed aboard the USS Denver starting in July 1972, when the USS Denver operated in Vietnam's inland waterways and docked to shore. Although the Veteran is presumed to have been exposed to herbicide agents during service, renal cell cancer is not listed as a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e); therefore, service connection for renal cell cancer may not be granted on a presumptive basis. Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection for renal cell cancer with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for claimed residuals of exposure to herbicide agents may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). After review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that symptoms of renal cell cancer were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service separation. Service treatment records from service examinations done in December 1971, November 1979, February 1982, September 1982, December 1983, June 1984, September 1985, December 1988, and at service separation in November 1994, all reflect that urinalysis testing was negative. Further, the first recorded symptomatology of renal cell cancer is not shown until September 2009, nearly 15 years after service separation. See September 2009 private treatment records detailing emergency treatment for gross hematuria and subsequent diagnosis for renal cell carcinoma. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology; however, the appellant has not alleged that the Veteran experienced symptoms of cancer during service, continuous symptoms since service, or symptoms to a compensable degree within one year of service. Based on the above, the Board finds the criteria for presumptive service connection under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 have not been met; therefore, the claim, under a presumptive basis, must be denied. The Board further finds that the weight of the competent evidence demonstrates that the cause of the Veteran's death is not otherwise related to active service, to include in-service herbicide exposure. The favorable evidence of record includes a March 2013 private medical opinion, wherein Dr. S.T. states that the Veteran passed away from metastatic renal cell cancer and that there is evidence that links renal cell cancer with exposure to Agent Orange. Dr. S.T. also opines that it is possible that the Veteran's exposure to Agent Orange during active service may have influenced his risk in developing renal cell cancer, which ultimately caused the Veteran's death; however, Dr. S.T. did not opine that Agent Orange exposure was at least as likely as not the cause of the renal cell cancer, did not provide a rationale for the purported opinion, and did not address the other risk factors for developing renal cell cancer such as the Veteran's 30-year history of tobacco use. As such, the Board finds that the March 2013 private medical opinion is of no probative value in demonstrating a relationship between exposure to Agent Orange during service and the development of renal cell cancer. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (requiring medical examiners to provide a "reasoned medical explanation connecting" observations and conclusions); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The record also includes various internet articles indicating that risk factors for developing renal cell cancer include occupational exposure to petroleum products, heavy metals, solvents, coke-oven emissions, asbestos, and specific herbicides; these same articles also discuss cigarette smoking as a factor that doubles the risk of renal cell cancer and contributes to as many as one third of all cases. See December 2011 correspondence. A June 1984 service examination report reflects the Veteran reported smoking one pack of cigarettes per day and that he was advised to stop. The September 2009 private treatment records reflecting the first diagnosis for renal cell cancer discussed above also show that the Veteran reported a 30-year history of tobacco use, which included smoking cigars and one pack of cigarettes per day for 28 years. Service personnel records also show that during active service, the Veteran was potentially exposed to hazards such as lead or acid based paint, fuel, asbestos, solvents, and hydraulic fluids, but that he was always provided protective equipment such as coveralls, gloves, dust mask, face shields, and goggles. In an August 2014 VA medical opinion, the VA examiner opined that it is less likely than not that the Veteran's exposure to asbestos, hydraulic fluids, fuels, and chemical solvents contributed substantially or materially to the Veteran's death. The VA examiner explained that renal cell cancer is approximately 50 percent more common in men than in women, occurs predominantly in the sixth to eighth decade of life, and known risk factors include cigarette smoking, hypertension, and obesity. Further, the August 2014 VA examiner acknowledged that, while occupational exposure to toxic compounds such as cadmium, asbestos, and petroleum by-products has been associated with an increased risk of developing renal cell cancer, studies of such occupational exposures have been limited by the lack of exposure details and have not proven a causal relationship between occupational exposures and the development of renal cell cancer. The VA examiner concluded that the medical literature did not show a definitive causal association between exposure to asbestos, hydraulic fluids, fuels, and solvents and the development of renal cell cancer, but that the Veteran had a known established risk factor of tobacco abuse that lead to the development of renal cell cancer. In a December 2017 VHA medical opinion, the VHA doctor opined that the Veteran's cigarette smoking was the likely cause of the Veteran developing renal cell cancer, and that it is less likely than not that the renal cell cancer was caused by exposure to herbicide agents during service. The VHA doctor explained that the extensive review conducted by the Institute of Medicine (now known as the Health and Medicine Division of the National Academies (HMD)) and published in its "Veterans and Agent Orange: Update 2014" concluded that there is inadequate or insufficient evidence to determine whether there is an association between exposure to Agent Orange and renal cancers. Additionally, the VHA doctor reviewed other medical literature and reached the same conclusion. The VHA doctor explained that only two case-control studies could be found that showed a possible increase in risk of developing renal cell carcinoma among patients with occupational exposure to herbicides; however, the studies were small and involved prolonged chronic exposures to unknown herbicides, and could not be extrapolated to apply to Agent Orange exposure. Further, the VHA doctor noted that these studies were reviewed and included in the HMD's report. Although the VHA doctor acknowledged that it is impossible to definitively conclude that Agent Orange did not increase the Veteran's risk of developing renal cell cancer, the VHA doctor stated that the association between tobacco use and development or renal cell cancer is much stronger than any possible link between Agent Orange and renal cell cancer; hence, the VHA doctor opined that cigarette smoking was the likely cause of the Veteran's renal cell cancer, and not exposure to Agent Orange. With respect to the history of tobacco use, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110, 1131. The appellant filed the claim for DIC benefits based on service connection for the cause of the Veteran's death in October 2012. VA regulations preclude service connection for a disability etiologically related to smoking, in this case, renal cell cancer. Application of 38 U.S.C. § 1103, as implemented by 38 C.F.R. § 3.300, bars service connection for the cause of a veteran's death from a disability resulting from such use. The Board finds that the August 2014 VA medical opinion and the December 2017 VHA medical opinion are highly probative evidence that renal cell cancer that caused of the Veteran's death was not related to active service, to include in-service herbicide exposure and exposure to asbestos, hydraulic fluids, fuels, and chemical solvents, but rather was a result of tobacco use. Both the August 2014 VA examiner and the December 2017 VHA doctor reviewed the claims file and had the requisite medical expertise to render a medical opinion regarding the etiology of the cause of the Veteran's death (renal cell cancer) and had sufficient and accurate facts, factual assumptions, and data on which to base conclusions, and stated the bases supporting the opinion that the cause of the Veteran's death was related to tobacco use. VA regulations preclude service connection for a disability etiologically related to tobacco use, in this case, renal cell cancer. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. The appellant has contended throughout the course of this appeal that the Veteran's cancer was caused by in-service herbicide exposure. The Board finds that in this case the appellant does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the Veteran's renal cell cancer. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). The appellant is not competent to render an opinion as to the cause or etiology of any cancer because doing so requires medical knowledge or training about the onset and progression of the unseen aspects of the cancer process, in addition to any observable symptoms of such a disorder. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer); Jandreau at 1377, n.4 (lay person is not competent regarding cancer). With regard to the appellant's general contentions throughout the course of this appeal that the Veteran's death is related to in-service herbicide agent exposure, under the facts of this case, the appellant is not competent to provide such medical nexus. The etiology of the cause of the Veteran's death (renal cell cancer), especially as claimed as related to in-service herbicide agent exposure, is a complex medical etiological question involving internal and unseen system processes unobservable by the appellant and requires knowledge of the complex etiology of a relationship of later diagnosed cancer to herbicide agent exposure years prior. Such opinion relating renal cell cancer to herbicide agents would require specialized knowledge of the chemical components of herbicide agents, the known complications from herbicide agent exposure (derived from scientific studies), the disease process (mechanism) as to how herbicide agents cause renal cell cancer, knowledge of other causes and risk factors of the cause of death, and knowledge of factors that differentiate disorders caused by herbicide agents from those caused by other risk factors, and correlating ability to differentiate between competing etiologies. For these reasons, the Board does not find the appellant competent to provide an etiological nexus between the Veteran's in-service herbicide agent exposure and the cancer that manifested nearly 15 years after service separation, especially in this case where there is no diagnosis or treatment for symptoms for many years after service, especially where the cause of death has specifically been attributed to tobacco use, for which service connection is precluded as a matter of law. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the renal cell cancer and the cause of the Veteran's death was not incurred in or otherwise caused by active service, and may not be presumed to have been incurred therein; therefore, service connection for renal cell cancer, for accrued benefits purposes, is not warranted. Further, because none of the Veteran's service-connected disabilities at the time of death have been alleged, or shown to have caused or substantially contributed to death, service connection for the cause of the Veteran's death is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. Service connection for renal cell cancer is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs