Citation Nr: 22017779 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 10-33 051 DATE: March 26, 2022 ORDER The May 3, 2021, decision of this Board denying the appellant's claims for accrued benefits (the several service-connection claims below) and for Dependency and Indemnity Compensation (DIC) benefits is VACATED. Entitlement to service connection for lung cancer is denied. Entitlement to service connection for brain cancer is denied. Entitlement to service connection for loss of hair is denied. Entitlement to service connection for loss of balance, lower right extremity, is denied. Entitlement to service connection for loss of balance, lower left extremity, is denied. Entitlement to service connection for blood clots in the legs is denied. Entitlement to service connection for a disability manifested by loss of right-hand coordination is denied. Entitlement to service connection for a disability manifested by loss of left-hand coordination is denied. Entitlement to service connection for a disability manifested by loss of ability to focus is denied. Entitlement to DIC benefits, to include service connection for the cause of the Veteran's death, lung cancer, is denied. FINDINGS OF FACT 1. On May 3, 2021, the Board issued a decision denying the appellant's claims for DIC benefits and for accrued benefits on the premise of entitlement to service connection for lung cancer, brain cancer, loss of hair, loss of balance in the lower extremities, blood clots in the legs, loss of coordination in the hands, and loss of ability to focus. 2. That May 3, 2021, decision, however, was sent to the appellant's previous representative, rather than to her current representative, so there was denial of procedural due process in appropriately notifying them of that decision denying these several claims. 3. The Veteran died in March 2009. 4. The death certificate shows that his immediate cause of death was metastatic lung cancer. 5. The Veteran's widow, the appellant, timely filed a claim for DIC benefits alleging entitlement to service connection for the cause of his death. 6. But the evidence of record does not show the Veteran was exposed to levels of ionizing radiation during his service that could have caused his terminal metastatic lung cancer, and a VA compensation examiner has determined on remand that, even if the Veteran was exposed to low levels of ionizing radiation, that exposure still did not cause or contribute substantially or materially to his terminal metastatic lung cancer. 7. The most persuasive evidence of record also does not support the notion that the Veteran's terminal metastatic lung cancer was as likely as not due to his military service in any other way, including to any potential exposure to other toxins namely, environmental contaminants, asbestos, or to any respiratory issues during his service. 8. A January 2009 rating decision, so just two months before the Veteran's death, denied his claims for service connection for lung cancer, brain cancer, loss of hair, loss of balance in his lower extremities, blood clots in his legs, loss of coordination of his hands, and loss of ability to focus. 9. The appellant's March 2009 VA Form 21-534, application for DIC, death pension and accrued benefits by a surviving spouse or child, has been deemed a timely Notice of Disagreement (NOD) with the January 2009 rating decision denying the several service-connection claims, so these claims for service connection for lung cancer, brain cancer, loss of hair, loss of balance in the lower extremities, blood clots in the legs, loss of coordination of the hands, and loss of ability to focus were pending at the time of the Veteran's death. 10. However, his brain cancer, loss of hair, loss of balance in his lower extremities, blood clots in his legs, loss of coordination of his hands, and loss of ability to focus were all attributable to his terminal metastatic lung cancer which, in turn, has not been shown to be attributable to his service, so not a service-connected disability. These other claimed conditions consequently cannot be linked to his service by way of his terminal metastatic lung cancer. CONCLUSIONS OF LAW 1. The Board's prior May 3, 2021, decision is VACATED. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria are not met for entitlement to service connection for lung cancer. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria also are not met for derivative entitlement to service connection for brain cancer, loss of hair, loss of balance in the lower extremities, blood clots in the legs, loss of hand coordination, and loss of ability to focus, including as secondary to the lung cancer. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. As well, the criteria are not met for entitlement to DIC benefits, including for service connection for the cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1970. Unfortunately, he died in March 2009. The appellant is his surviving spouse, so widow. This appeal to this Board of Veterans' Appeals (Board) from January and November 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The appellant-widow testified in support of these claims during a hearing in April 2014 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board remanded the cause-of-death claim in July 2014 and June 2015 for further development, also, on the latter occasion, the several other claims. In April 2018, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The Board also determined that the several other claims previously remanded were not before the Board since appeals concerning them had not been completed ("perfected"). Those other claims concerned entitlement to service connection for brain cancer, a disability manifested by loss of balance right lower extremity, a disability manifest by loss of balance left lower extremity, blood clots in the legs, loss of hair, a disability manifested by loss of right-hand coordination, a disability manifested by loss of left-hand coordination, and a disability manifested by loss of ability to focus, also a petition to reopen a claim of entitlement to service connection for a low back disability on the premise there was new and material evidence. The appellant-widow appealed the Board's April 2018 decision to the higher U.S. Court of Appeals for Veterans Claims (CAVC/Court). In an April 2020 Memorandum Decision, the Court vacated (set aside) the Board's April 2018 decision denying the claim of entitlement to service connection for cause of death and remanded this claim back to the Board for further development and readjudication in compliance with directives specified. The Court also reversed the Board's decision that the remaining claims were not before the Board and remanded these other claims back to the Board for adjudication on their merits. In October 2020, in furtherance of this, the Board, in turn, remanded the claim for service connection for cause of death and the several other service-connection claims back to the RO for still more development and consideration. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The October 2020 Board decision also denied the petition to reopen the claim for service connection for a low back disability because there was not the required new and material evidence. And, absent an appeal to the Court regarding that denial and vacating of that decision concerning this claim, it will not be addressed in this additional decision. Finally, as will be discussed, in May 2021, the Board issued a decision denying all these claims. In this decision, the Board is vacating that decision and, at the request of the appellant's attorney, readjudicating the claims considering new evidence submitted by the appellant's attorney in the interim. 1. The May 3, 2021, decision of this Board denying the appellant's claims for accrued benefits (the several service-connection claims) and for DIC benefits is VACATED. The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board's own motion, when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The Board's prior May 3, 2021, decision was sent to the appellant's previous representative of record, the Military Order of the Purple Heart, rather than to the attorney that is now representing her and who had been designated as her new representative before issuance of that decision. Consequently, the attorney was not duly notified of that Board decision, thus, denied procedural due process in his representation of the appellant. Recognizing that, the Board's prior May 3, 2021, decision hereby is VACATED in accordance with more recent February 2022 correspondence to this Board from the attorney requesting this immediate action. This supplemental decision is being issued in place of the prior decision. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 2. Entitlement to service connection for lung cancer The appellant has contended multiple theories of entitlement for service connection for the cause of the Veteran's death, lung cancer. These theories include that he was exposed to ionizing radiation, environmental contaminants, asbestos, and that his lung cancer also was related to respiratory issues he had during his service. The Board is addressing each of these contentions piecemeal. Ionizing Radiation The basis of this theory of entitlement is that the Veteran served in a general area where bombs were stored. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). Moreover, diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma. Effective March 26, 2002, cancers of the bone, brain, colon, lung, and ovary were added to the list of diseases specific to radiation-exposed Veterans set forth at 38 C.F.R. § 3.309(d). See 67 Fed. Reg. 3612-01 (Jan. 25, 2002); see also 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). The records concerning the Veteran's service indicate he is not considered to be a "radiation-exposed veteran" for purposes of determining whether a presumption applies because he did not participate in a "radiation-risk activity". If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that colon cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). The Veteran's cause of death was metastatic lung cancer, which is considered a radiogenic disease according to 38 C.F.R.§ 3.311(b). In March 2009, the appellant submitted a note from the Veteran's private treating oncologist, Dr. J.R. In this note, Dr. J.R. stated, "[i]t is my understanding that [the Veteran's] military background may have exposed him to low dose radiation many years ago. His wife asked me if it is possible that this could have increased his risk of developing lung cancer." Dr. J.R. then stated, "[i]t is my professional opinion that if he was indeed exposed to ionizing radiation as a young adult, this exposure could lead to development of a secondary malignancy, such as lung cancer, 10-30 yrs later. [italics added for emphasis]" As Dr. J.R. conceded in this letter, his opinion was based solely on the appellant's statements that the Veteran was exposed to ionizing radiation. Of significant note, during the April 2014 hearing the appellant testified that she was not married to the Veteran during his service and only heard of the circumstances of his service second hand from him many years later. She is not competent to report the circumstances of his service as she, herself, was not present during his time in service, and they were not married until many years after his separation from service. That said, a clinician's independent review of the claims file is not necessarily determinative of the probative weight or value of a medical opinion because the commenting clinician may rely on a credible recitation of relevant history. But if there was not consideration of relevant facts in the history relied on and reconciliation of any conflict or inconsistency, this would tend to undermine the basis of the opinion or ultimate conclusion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) and Coburn v. Nicholson, 19 Vet. App. 427 (2006). Here, this is significant because the relevant fact not accounted for in Dr. J.R.'s opinion as even he seemingly contemplated is that the Veteran was not exposed to any level of ionizing radiation above what is considered safe for the general public at large. Moreover, a VA compensation examiner determined on remand that, even if the Veteran had relatively low level of exposure to ionization radiation during his service, it had nothing to do with his unfortunate eventual death from metastatic lung cancer. In April 2010, the appellant's representative stated that the Veteran reported working with and around nuclear weaponry. Specifically, while on active duty, he would load and unload bombs and provide security for B-52s. The representative further stated that the hangar where the Veteran worked was used as a storage facility for these weapons. The appellant also submitted a written statement in April 2010 attesting the Veteran had breathing issues since they met in the 1980s, but his service ended in 1970. In accordance with the requirements of 38 C.F.R. § 3.311, VA requested records of occupational exposure to radiation, including for duties of military security and material handling. In January 2013, the Air Force provided a MSA memorandum concluding the Veteran was not exposed to high levels of ionizing radiation and, thus, no testing for radiation exposure for him was ever conducted. However, the memorandum then states that the Air Force "periodically conducted radiation exposure evaluations on individuals and operations involving nuclear weapons. These studies have consistently demonstrated that Air Force exposures are low, and typically well below 100 millirem (mrem) in a year, with the exception of small groups of personnel that performed nuclear munitions maintenance operations on a routine basis." The Veteran is not considered a radiation-exposed veteran under 38 C.F.R. § 3.309(d)(3). Further, if the veteran was exposed to any ionizing radiation, it was at levels "well below 100 millirem (mrem) in a year...." In October 2014, a VA examiner provided an opinion that it was less likely than not that the Veteran's lung cancer was due to his service. Concerning possible radiation exposure, the examiner stated that there was no conceded exposure to ionizing radiation, and that the Air Force MSA stating exposure to well below 100 mrem in a year is consistent with background radiation exposure and not above normal exposure rates and fell well within safety levels established for the general public. Because the examiner found that the Veteran did not have the requisite level of exposure to ionizing radiation during service, the examiner did not provide any further opinion. In the more recent October 2020 remand, however, the Board, in part, remanded this claim for an opinion from a VA examiner concerning whether the potential level of exposure to ionizing radiation at even low levels, meaning less than 100 mrem over the course of one year, either caused or contributed substantially or materially to the Veteran's eventually terminal metastatic lung cancer. In February 2021, to this end, a commenting VA oncologist stated that it is not at least as likely as not that the Veteran's annual reported exposure to well below 100 millirem (mrem) of ionizing radiation was sufficient to either have caused or contributed substantially or materially to his lung cancer. Further, added this reviewing oncologist, "[s]pecifically, assuming there was at least some exposure to ionizing radiation during the Veteran's service (even if reportedly "low"), there is still NO correlation ("nexus") between that exposure, so no matter the amount, and his eventual death in 2009 from lung cancer." As rationale, the examiner then stated, "...the patient's widow [appellant] was concerned that proximity to non-nuclear bombs could have led to exposure to radiation, despite the fact that tactical nuclear weapons were never deployed during that conflict [referring to the Veteran's period of service]." In August 2021, the appellant submitted a private opinion from Dr. V.C., an occupational and environmental physician. In this opinion, Dr. V.C. stated that she agrees that the Veteran was not exposed to any radiation that would have greatly increased his risk of lung cancer. The Board resultantly finds that the Veteran was not exposed to significant levels of ionizing radiation during his service. But, regardless, according to the most recent VA examiner (an oncologist no less) and private practitioner Dr. V.C., even if accepting the Veteran was exposed to some level of ionizing radiation (100 mrem or less per year) during his service, that exposure did not cause or contribute substantially or materially to his ultimately fatal metastatic lung cancer. Environmental Contaminants and Asbestos The appellant's next contention is that the Veteran's terminal lung cancer was caused by exposure to environmental contaminants and asbestos while he was stationed at Griffiss Air Force Base (AFB). Regarding the latter, there is no specific statutory guidance regarding asbestos-related claims, nor has the VA Secretary promulgated any regulations concerning such claims. However, the Veterans Court (CAVC) and VA General Counsel have provided guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The following is a non-exclusive list of asbestos-related diseases or abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. The following non-exclusive list of occupations have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. The Court (CAVC) has held that VA must analyze a claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols of these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). To this end, a review of the Veteran's service personnel records (SPRs) confirms that he served at Griffiss AFB in 1969. His DD Form 214 shows that his MOS was material facilities specialist, which is the equivalent of a civilian shipping clerk. He also worked as a security guard. In January 2012, the appellant submitted an Environmental Protection Agency (EPA) document showing there were potential environmental contaminants at Griffiss AFB. However, this document also shows that a cleanup agreement for the site was not signed until 1990 over two decades after the Veteran's time there. Thus, he was not involved in the clean-up efforts at Griffiss AFB. In September 2012, the appellant submitted a printout from mesothelioma.com stating that veterans stationed at numerous AFBs, including Griffiss AFB, may have been exposed to asbestos. The Board notes, though, that this article provides "a list of Air Force Bases by state"; it does not provide anything other than a list of existing AFBs. The appellant also submitted an article from asbestos.com that states veterans could have been exposed to asbestos during service. This article does not indicate that this Veteran was exposed to asbestos or that veterans were exposed to asbestos at Griffiss AFB. The appellant also submitted a printout from the EPA stating that Griffiss AFB had been designated as a superfund site in 1984 because hazardous chemicals were found in soil and groundwater. Finally, the appellant submitted what appears to be an advertisement from a private law firm soliciting clients for an environmental toxic tort case based on sickness resulting from exposures at superfund sites, including at Griffiss AFB. In October 2014, VA obtained a medical opinion in response the appellant's various contentions. Concerning potential military environmental exposure at Griffiss AFB, the examiner opined that the Veteran's lung cancer was not due to environmental contaminants (contaminated soil, groundwater, or other toxins) or asbestos exposure. The examiner explained that evidence of exposure to asbestos would include a diagnosis of mesothelioma, asbestosis, fibrosis, or pleural plaques. But, here, there is no such evidence. Further, the examiner surmised that the Veteran's duties during service would not have caused exposure to environmental contaminants or asbestos as there was no evidence that he handled toxic substances or even came into contact with toxic substances. Finally, the October 2014 VA examiner highlighted information provided by the International Agency for Research on Cancer and pointed out explicitly that asbestos fibers (distinct from undisturbed asbestos) is known to occur in shipyards, mines, textile, and cement plants, and in construction and insulation occupations. This research also states that "[w]orkers with asbestosis, not just asbestos exposure, have an increased risk for lung cancer." The Board again highlights that at no point was the Veteran diagnosed with asbestosis. More recently, in February 2021, a VA oncologist provided an additional opinion concerning this claim on remand. This examiner concluded the Veteran's lung cancer was not at least as likely as not caused by any environmental exposure, via clean-up, to toxic chemicals or other hazardous materials or asbestos while stationed at Griffiss AFB. This examiner stressed that the Veteran's lung cancer was not caused by exposure to any environmental contaminants or asbestos. The Board finds that the multiple VA opinions of record are more probative than the internet articles submitted by the appellant, in the abstract, particularly since the VA opinions are based on review of the claims file, the most recent coming from an oncologist with subject matter expertise, rather than general internet articles that do not pertain to this Veteran specifically or address the unique circumstances of his service or are soliciting business. When medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus. See Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or an injury solely by generic information in a medical journal or treatise "is too general and inclusive." See Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred disability and a present condition did not satisfy the nexus element). In the August 2021 private opinion, Dr. V.C. opined that the Veteran's "death from adenocarcinoma of the lung was at least as likely as not caused by his exposure to asbestos while serving his country honorably at Griffiss Air Force Base." In support of this opinion, Dr. V.C. first stated that the Veteran's respiratory issues during service, while not themselves indicative of lung cancer, "could have" represented upper airway irritation from dusts and fumes to which he was exposed while performing his MOS duties. The Board points out, however, that Dr. V.C. was not present at Griffiss AFB during the Veteran's service and cannot conclusively state that he was versus was not exposed to toxins or asbestos during his service and to an extent that might later have resulted in his lung cancer. Indeed, saying something "could have" happened or occurred is just as well saying it also conversely "could have not" happened, so, because of this equivocality, insufficient basis in support of a claim. See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Obert v. Brown, 5 Vet. App. 30 (1993); Winsett v. West, 11 Vet. App. 420 (1998); Bloom v. West, 12 Vet. App. 185, 187 (1999). That said, the Veterans Court (CAVC) also has made clear that "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; instead, this posited correlation between a Veteran's claimed disability and service need only be an "as likely as not" proposition. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Aside from that, an etiological opinion must be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Here, Dr. V.C. goes on to explain that "smoking and asbestos exposure are well known causes of lung cancer" and that fibers from asbestos exposure work synergistically with tobacco smoke to induce lung cancer. Concerning the October 2014 VA examination and opinion, Dr. V.C. stated that the examiner did not take into consideration the Veteran's additional duties as a security guard and that that duty would have required him to patrol buildings, including unoccupied buildings, and that the examiner did not "recognize the fact that the buildings in which [the Veteran] worked were laden with asbestos." However, acting in the capacity of a security guard would not likely have exposed the Veteran to asbestos fibers (which, again, are distinct from undisturbed asbestos), regardless of whether asbestos was present in the buildings he had occasion to patrol. Further, Dr. V.C. did not address the research showing that people with asbestosis, not just asbestos exposure, have a higher rate of lung cancer. Concerning the March 2021 VA examination, Dr. V.C. noted that it was authored by an oncologist but that his opinion relied on a lack of documentation of any exposure to environmental contaminants or asbestos. Dr. V.C. explained that "there would be no reference to any type of exposure to base contaminants in the medical record since there was no investigation of any possible contaminants until after Base Closure and Realignment Act of 1988 and the Defense Base Closure and Realignment Act of 1990." She also stated that the March 2021 examiner "erroneously states that [the Veteran's] adenocarcinoma of the lung was not caused by asbestos because he didn't have asbestosis, mesothelioma, or pleural plaques" then noting that "[o]ne does not need to have acute symptoms from asbestos in order to develop asbestosis or lung cancer." This does not however address the International Agency for Research on Cancer's finding that asbestosis, not just asbestos exposure, causes an increased risk for lung cancer, which is significant since the Veteran had no diagnosis of asbestosis throughout his lifetime. Next, Dr. V.C. discusses VA Compensation and Pension Manual M21-1MR, Part IV, Subpart ii, Chapter 2, section C: Service Connection for Disabilities Resulting from Exposure to Environmental Hazards or Service in the Republic of Vietnam (RVN). She specifically points out that the M21 states that "[i]nhalation of asbestos fibers can produce...cancer(s) of...the lung..." and that exposure can be brief and indirect, and is characterized by lung cancers that originate in the lung parenchyma rather than the bronchi. The Board emphasizes that this discusses exposure to asbestos fibers, not undisturbed asbestos. Dr. V.C. then points to a 2012 report from the Air Force Real Property Agency indicating many of the buildings at Griffiss AFB were unusable as residential properties due to the presence of asbestos in the buildings. She stated that the Veteran would have been working and residing in buildings on that base during his time there, so he would have been in buildings with asbestos. However, she then confirms that "intact asbestos is not hazardous, it becomes hazardous if it is torn, ripped, or becomes friable, or during removal and replacement." In support of her opinion that the Veteran would have "definitely been exposed to asbestos," she points out that generally "military building was [sic] poorly maintained" and the buildings on Griffiss AFB were around 20 years old during the Veteran's time there. She next posited that he "would have been inspecting/patrolling other buildings daily, even when maintenance work was being conducted." Dr. V.C. is not competent to report on the condition of the buildings on Griffiss AFB between October 1966 and October 1970, as she was not present to actually observe the condition of the buildings, and as such her statement that the buildings were in poor condition leading to asbestos exposure during the Veteran's time there is mere speculation. Further, to surmise that the Veteran conducted security patrols in buildings while undergoing intrusive maintenance leading to friable asbestos is mere speculation. Next, Dr. V.C. addresses the fact that asbestosis is not a required antecedent to developing asbestos related lung cancer. She cites the 1984 edition of Hunter's Diseases of Occupations stating that "heavy exposures" to mixtures of asbestos fibers caused an increase in lung cancer and that the "risk becomes apparent at a level of exposure that produces minimal asbestosis" She also cites a 2011 review stating that "[a]sbestos exposed individuals who have radiologic evidence of pleural plaques are at an increased risk of lung cancer and malignant mesothelioma compared to the general population." Again, though, the Board points out that the evidence does not tend to support the notion that the Veteran had "heavy exposure," or any exposure to asbestos fibers, and further, as discussed by the VA examiners, including an oncologist, the Veteran had no pleural plaques. Finally, concerning the Veteran's smoking history, Dr. V.C. reports that the Veteran smoked one half of a pack of cigarettes per day for seven years, quitting at age 25, and that this remote smoking history is "insignificant as a risk factor for adenocarcinoma of the lung." She explained that smoking leads to a much greater risk for squamous cell carcinoma than for adenocarcinoma, and that after quitting smoking the relative risks decrease over time. She pointed out that the Veteran had a diagnosis of cystic or centrilobular emphysema, which can be caused by smoking, or can be caused by "mineral dusts such as asbestos." Concerning the Veteran's daily marijuana smoking, Dr. V.C. stated that medical studies do not show a link between marijuana smoking and lung cancer. Ultimately, the Board gives the August 2021 private opinion from Dr. V.C. less probative weight than the contrary opinions partly because, while thorough, concerning the assertion that the Veteran was exposed to asbestos during his service and that caused his lung cancer, Dr. V.C.'s contentions that the Veteran was "definitely exposed to asbestos" during his service are based on speculation. As the Board has discussed, Dr. V.C. is not competent to report as to the conditions of the buildings on Griffiss AFB during the Veteran's active service, as she was not there. As conceded by Dr. V.C. in her lengthy opinion, undisturbed asbestos is not hazardous, and there is no indication the Veteran would have been exposed to any disturbed asbestos or asbestos fibers in performing his MOS duties as a materials facility specialist or security guard. Merely walking through buildings on patrol does not assure exposure to disturbed asbestos. Further, it is again mere speculation on the part of Dr. V.C. that the Veteran would have been patrolling any buildings while maintenance was occurring, and that if maintenance was occurring, it included such intrusive work as disturbing asbestos while the Veteran walked through on patrol. An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Here, the Board finds that the VA opinions of record are more probative than either the private August 2021 opinion from Dr. V.C. or the internet articles submitted by the appellant. The evidence of record simply does not support that the Veteran would have been exposed to disturbed asbestos during his active-duty service, even contemplating for additional duties as a security guard or living in a building that may have had asbestos in it. Regarding these competing medical opinions, as with all types of evidence, it is the Board's responsibility to assess their probative value in relation to each other. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Veteran's terminal metastatic lung cancer was not caused by exposure to environmental contaminants or asbestos while stationed at Griffiss AFB. Respiratory Issues During Service This last contention is that the Veteran's bronchitis or other respiratory issues during his service caused or were related to his eventually terminal lung cancer. The Veteran's service treatment records (STRs) show he was treated for coughing up blood in September 1967. He had a chest x-ray, but with normal results. He did not have any recurrence of this complaint during his remaining three years of active service. In May 1968, he complained of a two-day history of anterior chest pain with coughing resulting in heavy sputum production. It was noted that he smoked half a package of cigarettes per day. On physical examination, his lungs were clear to auscultation, and the impression was that he had bronchitis secondary to his smoking. Doctors performed a chest x-ray and noted a density in the fifth anterior interspace on the left. However, a repeat x-ray just one week later showed the Veteran's lungs were clear. He was seen again in September 1968 complaining of a cough. The diagnosis was bronchitis, and a chest x-ray continued to show that his lungs were normal. During his September 1970 military separation examination, the Veteran marked "asthma" but denied any prior history of shortness of breath, pain, or pressure in his chest, or chronic cough. The examiner recorded the history of coughing up blood, one time, but also checked the Veteran's chest and lungs and found them to be normal. The October 2014 VA examiner stated that it was clear the Veteran had been treated for bronchitis during his service, but the STRs also show he was smoking half a package of cigarettes per day. While he had one abnormal chest x-ray in May 1968, one week later his chest x-ray was clear, and even later chest x-rays were also clear, supporting that the May 1968 x-ray showed a transitory infiltrate that fully resolved with no evidence of residuals. The examiner explained that there is no evidence suggesting the Veteran's transitory lung condition had any lasting impact on him, specifically no evidence that the brief infiltrate in any way contributed to the eventual development of lung cancer 40 years later in 2008. Finally, added the examiner, "[t]he 40-year timeline is utterly inconsistent with the natural history in the development of lung cancer." The February 2021 VA examiner that more recently provided additional medical comment on remand agreed that it was less likely than not the Veteran's terminal metastatic lung cancer was caused by respiratory issues during his service because lung cancer is not caused by mutually exclusive non-malignant diagnoses, like his May 1968 transient pulmonary infiltrate likely due to bronchitis. Further, while the appellant has contended the Veteran had a history of asthma, asthma does not cause lung cancer. In her August 2021 opinion, Dr. V.C. also stated, "I also agree that [the Veteran's] respiratory complaints [during service] did not progress to lung cancer...". When considering the VA medical opinions, especially collectively, along with Dr. V.C.'s opinion at least seemingly in agreement, this theory of entitlement also fails. Ultimately, the February 2021 VA examiner opined that the Veteran's terminal lung cancer instead was more likely due to his smoking history, race, and that, even after he stopped smoking in 2009, he continued to smoke marijuana daily and had a history of chronic obstructive pulmonary disease (COPD) all of which are risk factors for lung cancer. For claims, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease (or, here, death) attributable to chronic smoking. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Precedent Opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of certain disorders, including COPD (emphysema). See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). As such, the Board finds that service connection for lung cancer is not warranted on any of the alleged theories of entitlement. 3. Entitlement to service connection for brain cancer, loss of hair, loss of balance in the lower extremities, blood clots in the legs, loss of hand coordination, and loss of ability to focus The Veteran contended, and the appellant-widow now contends, that the Veteran's brain cancer, loss of hair, loss of balance in lower extremities, blood clots in legs, loss of bilateral hand coordination, and loss of ability to focus were caused by his metastatic lung cancer including chemotherapy to treat it. Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A January 2008 private treatment record shows the Veteran was diagnosed with "metastatic adenocarcinoma of the lung with a large right frontal brain metastasis stats post resection." This is a diagnosis of lung cancer that had spread to his brain, meaning his brain cancer was caused by his lung cancer. This treatment record also shows that the course of treatment included whole brain radiation therapy and chemotherapy. In his July 2008 claim for benefits, the Veteran stated "[t]he chemo has changed the way I live, and my limbs are swollen." In the August 2021 private opinion by Dr. V.C., she conceded "[the Veteran's] altered mental status, seizures, recurrent infections, decubitus ulcers, dysphagia and dysphonia were caused by his primary diagnosis of adenocarcinoma of the lung." This is an opinion supporting secondary service connection for each of the specified conditions but, resultantly, relies on the underlying condition, lung cancer, first being etiologically linked to the Veteran's service (i.e., determined to be a service-connected disability). Unfortunately, however, as the Board already has concluded that service connection is not warranted for the Veteran's lung cancer, there necessarily can be no secondary service connection for his brain cancer, loss of hair, loss of balance in lower extremities, blood clots in legs, loss of bilateral hand coordination, and loss of ability to focus because the lung cancer (and chemotherapy treatment), itself, has not been determined to be service connected. By logical deduction, any additionally claimed disability, so including his brain cancer, loss of hair, loss of balance in lower extremities, blood clots in legs, loss of bilateral hand coordination, and loss of ability to focus, all either metastasis of his lung cancer or the result of his treatment for lung cancer, cannot be secondarily related to his service. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The Veteran and appellant have not argued, and the evidence of record does not otherwise suggest, that brain cancer, loss of hair, loss of balance in the lower extremities, blood clots in the legs, loss of hand coordination, and loss of ability to focus are the direct or even presumptive result of his military service, the latter meaning initially manifested to a compensable degree within one year of his discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Thus, the persuasive evidence of record is against finding that brain cancer, loss of hair, loss of balance in the lower extremities, blood clots in the legs, loss of hand coordination, and loss of ability to focus are directly, presumptively, or secondarily related to the Veteran's service (the latter by way of a service-connected disability). 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). DIC Benefits 4. Entitlement to DIC benefits, including service connection for the Veteran's cause of death, lung cancer The appellant-widow contends that she is entitled to DIC benefits, including especially to service connection for the Veteran's cause of death. When a Veteran dies from a service-connected disability or a disability that is entitled to service connection, the Veteran's surviving spouse is eligible for DIC benefits. See 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). But, as already discussed, the Board finds that entitlement to service connection for the cause of the Veteran's death has not been established inasmuch as a service-connected disability did not cause or contribute substantially or materially to his death from metastatic lung cancer. Service connection is not in effect for the terminal metastatic lung cancer or shown to be deserving of service connection. The Veteran's death certificate listed the immediate cause of his death as metastatic lung cancer with no underlying causes, and there in turn is not the required attribution of his fatal lung cancer to anything that occurred during his military service. Because the Veteran's lung cancer, as a result of this decision, is not service connected, the appellant-widow is not entitled to derivative DIC benefits based on service connection for the cause of his death. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.