Citation Nr: 1639752 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 11-14 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to disability and indemnity compensation (DIC) for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant; the appellant's son ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1966. He died in February 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded this case in January 2014. The appellant and her son testified at a hearing before the undersigned in August 2012. A transcript is of record. FINDINGS OF FACT 1. Service connection was not established for any disability during the Veteran's lifetime. 2. No disability incurred in or aggravated by active service caused or contributed substantially or materially to the cause of the Veteran's death. 3. The Veteran's death was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, nor was it proximately caused by an event not reasonably foreseeable as a result of such care, treatment, or examination. 4. The Veteran was not in receipt of VA compensation or pension benefits at the time of his death. 5. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran's death. 6. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 7. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, while transferred or admitted to a non-VA facility with which the Secretary of VA had contracted to provide care or treatment pursuant to 38 U.S.C. § 1703, or while traveling to or from a specific place with prior authorization and at VA expense for the purpose of examination, treatment, or care. CONCLUSIONS OF LAW 1. The criteria for DIC benefits for the cause of the Veteran's death are not satisfied. 38 U.S.C.A. §§ 1110, 1113, 1116, 1131, 1137, 1151, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312, 3.361 (2016). 2. The criteria for payment of burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303, 2307 (West 2014); 38 C.F.R. §§ 3.1700, 3.1704, 3.1705, 3.1706, 3.1707, 3.1708, 3.1709 (2016); 38 C.F.R. § 3.1600 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). Under the VCAA, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, as well as the claimant's and VA's respective responsibilities for obtaining evidence in support of the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also make reasonable efforts to assist in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting the claimant in obtaining relevant Federal and non-Federal records, including but not limited to service treatment records (STRs) and VA treatment records, and providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim and certain criteria are satisfied. See id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Prior to the initial rating decision in this matter, a January 2010 letter satisfied all notice requirements under the VCAA, including those applicable to claims for disability and indemnity compensation (DIC) benefits for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). Although the letter did not contain notice of what is required to substantiate a claim under 38 U.S.C. § 1151, the April 2011 statement of the case (SOC) contained such notice, and the appellant has also demonstrated actual knowledge of what is needed to substantiate the claim in various written statements. Accordingly, any deficiency in the notice provided was harmless error. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless); see also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (lack of prejudicial harm with regard to notice errors may be shown, in relevant part, that any defect was cured by actual knowledge on the part of the claimant, or that a reasonable person could be expected to understand from the notice what was needed). With regard to the duty to assist, all identified records, including service treatment records, service personnel records, VA treatment records, and private treatment records, have been associated with the claims file. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The appellant has not identified any other records or evidence she wished to submit or have VA obtain on her behalf. Moreover, the development guidelines under the Veterans Benefits Administration (VBA) Manual or "Live Manual" for determining whether a veteran was exposed to an herbicide agent have been completed to the extent reasonably required to substantiate the claim. See VBA Manual, M21-1, IV, ii.1.H.7.a. Specifically, when a veteran provides the approximate dates of the asserted exposure, as well as the location and nature of such exposure, this information is to be furnished to the Compensation Service with a request that it review an inventory compiled by the Department of Defense (DOD) of herbicide operations to determine whether herbicides were used as stated by the claimant. Id. If the Compensation Service does not confirm that herbicides were so used, then the information is to be submitted to the Joint Services Records Research Center (JSRRC), unless it is determined that the claimant did not provide sufficient information to permit a search by the JSRRC, in which case the JSRRC coordinator is to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Id. The claim is then to be decided on the merits. The above development guidelines set forth in the VBA Manual are not law and are not binding on the Board. See 38 C.F.R. § 19.5 (2016) (providing, in relevant part, that the Board is not bound by Department manuals, circulars, or similar administrative issues); see also Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008) (Noting that "Manual M21-1 'is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.'" (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007))). In this case, the appellant has made general statements that Agent Orange was used, stored, or tested at MacDill Air Force Base (AFB) in Tampa, Florida and Davis-Monthan AFB in Tucson, Arizona, where the Veteran was stationed during active service, and that he was exposed to herbicides from working on planes at these locations that had returned from Vietnam. When asked at the August 2012 Board hearing whether there was any other way the Veteran might have been exposed, the appellant replied, "I don't know where he was at." She further stated that the Veteran had served in the Army prior to the Air Force, but there is no record or other evidence that the Veteran served an additional period of service in the Army, and the appellant's bare statement is not sufficient to establish such service. Based on the information obtained, VA sent an inquiry by e-mail to the Compensation Service in February 2016 providing the dates of the Veteran's service at the MacDill and Davis-Monthan AFB's, and his military occupational specialties. The Compensation Service sent a March 2016 e-mail in response stating that DOD had not identified either of these bases as locations where Agent Orange was used, tested or stored, and that there was no evidence from DOD that C-123 aircraft used to spray Agent Orange in Vietnam was ever sent to these bases for repairs or maintenance during the period from 1963 to 1965, which is the period of time when the Veteran was stationed at these installations. The Compensation Service also stated in this e-mail that DOD's list of locations outside Vietnam and the Korean Demilitarized Zone where Agent Orange was used, tested, or stored did not contain the names of individuals involved with Agent Orange. The Compensation Service additionally noted that there were no references to routine base maintenance activities such as range management, brush clearing, and weed killing, which were accomplished with commercial herbicides on all military bases worldwide. The Board finds that the above development satisfied VA's duty to assist, and that further efforts to assist the appellant with regard to verifying her assertions that the Veteran was exposed to an herbicide agent are not warranted. At the outset, the Board recognizes the fact that the last step of the sequential development guidelines set forth in the VBA Manual, namely either a request to the JSRRC to research the issue, or a formal finding by the JSRRC coordinator that there is insufficient information for the JSRRC to conduct such a search, was not accomplished. See VBA Manual, M21-1, IV, ii.1.H.7.a. Nevertheless, the Board finds that this was harmless error. As already noted, these guidelines are not law, and are not binding on the Board. See 38 C.F.R. § 19.5; Haas, 525 F.3d at 1196. It is evident from the face of the record that there was insufficient evidence for the JSRRC to verify that the Veteran was exposed to an herbicide agent, since the appellant made only general statements that she believed the Veteran was somehow exposed to Agent Orange through working on planes that had returned from Vietnam, or merely by being stationed at the MacDill and Davis-Monthan AFB's. The Compensation Service made clear in its response that the DOD had not identified these bases as installations where Agent Orange was used, tested, or stored, and that the C-123 Air Craft used to spray Agent Orange in Vietnam was not sent to either base during the period when the Veteran was stationed at them. Thus, there is no reasonable possibility that the JSRRC would verify Agent Orange exposure when the basic premise for such exposure as stated by the claimant, namely that the Veteran worked on aircraft that had sprayed Agent Orange in Vietnam, or was somehow exposed merely by being stationed at these locations, has already been invalidated by the DOD and Compensation Service. The appellant has not provided any other information or evidence in support of her belief that the Veteran was exposed to an herbicide agent while stationed at MacDill AFB or Monthan-Davis AFB, other than her assertion at the Board hearing that herbicides were found in the Veteran's body, which is inherently implausible and not otherwise supported by the medical records. The Board also notes that the claims file does not contain a statement from the Veteran that he had been exposed to an herbicide agent. In short, it is not evident to the Board how the JSRRC could conduct research sufficient to determine whether the Veteran was exposed to an herbicide agent while stated at the above AFB's without further information or evidence as to how such exposure might have occurred, and when the appellant's only theory on the issue has already been refuted by the findings of the Compensation Service based on information furnished by DOD. Thus, to submit a research request to the JSRRC to attempt to determine whether the Veteran was exposed to an herbicide agent would amount to the kind of freewheeling, open-ended inquiry that the U.S. Court of Appeals has held to be outside the ambit of VA's duty to assist. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). With regard to the use of commercial herbicides, the Compensation Service already noted that commercial herbicides were used on U.S. military bases worldwide. Even assuming for the sake of argument that commercial herbicides were used at Davis-Monthan AFB or MacDill AFB that contained chemical components satisfying the definition of an "herbicide agent" under 38 C.F.R. § 3.307(a)(6)-and there is no evidence of record suggesting that this was the case- there is still no reasonable possibility that the JSRRC or any other source could verify that the Veteran was in sufficient proximity to the use or storage of commercial herbicides to amount to actual exposure to an herbicide agent as defined under 38 C.F.R. § 3.307(a)(6). His military occupational specialty (MOS) was as an aircraft repairman, and does not entail working with or being near herbicides. The presumption of exposure to an herbicide agent does not apply to U.S. military bases. See 38 C.F.R. § 3.307. Neither the appellant nor the Veteran during his lifetime produced evidence that might support exposure to an herbicide agent by virtue of the use of commercial herbicides at the U.S. bases where he was stationed. The Board further finds that to remand this case at this stage solely for the JSRRC coordinator to determine whether there is sufficient information to submit a search request to the JSRRC, or to issue a formal finding that there is insufficient evidence to submit such a request, is not warranted. As already noted, it is apparent from the face of the record that there is insufficient information to submit such a request, and that the agency of original jurisdiction (AOJ) also came to this conclusion by proceeding with adjudication of the appeal. To remand solely to complete these remaining steps would serve no purpose that would be helpful to the appellant, but instead would merely delay resolution of the appeal, keeping her in suspense for perhaps another year or longer without any reasonable possibility of a benefit flowing to the appellant from the delay. Under these circumstances, to remand the case again merely to satisfy such a technical formality, one that is not even binding law, would be unconscionable. Cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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 veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). With regard to the appellant's belief that the Veteran may have been deployed to Vietnam, Thailand, or other undisclosed locations where herbicides might have been used, there is no evidence of record that such was the case, and the service personnel records weigh against this possibility. As will be explained below, the notation "SOG-7" on the DD 214 does not denote assignment to a special operations unit that may have been secretly deployed to Vietnam, Thailand or elsewhere, as asserted by the appellant, but rather is a citation to an authority for the award of the Air Force Good Conduct Medal (AFGCM). Thus, the development procedures for determining exposure to an herbicide agent in Thailand are not applicable. There is also no need to develop further the issue of whether the Veteran was in Vietnam, as there is no credible basis for such a possibility, and the service personnel records constitute highly probative evidence that he had no foreign service. In written statements, the appellant has made general, off-hand references to asserted exposures of the Veteran to jet fuel and loud engine noise, and to various injuries and illnesses incurred during service, without further information or explanation as to how they might relate to the cause of death or to any conditions that contributed substantially or materially to the Veteran's death. The Board finds that these statements do not trigger the duty to assist. While VA's duty to assist is broad, it is not unlimited, but rather must be channeled into "reasonable efforts" to provide such assistance. See 38 U.S.C.A. § 5103A (a). Such assistance must be informed and delimited by considerations of what would be reasonable under the circumstances of a particular case. Under the statute, VA is not required to provide assistance if there is no reasonable possibility that such assistance would aid in substantiating the claim. See id. The Board finds that the above off-hand references, which are embedded in longer disjointed statements that appear to express different theories of service connection, are not sufficient to trigger the duty to assist without more information or evidence, as such would amount to no more than a "fishing expedition." See Gobber, 2 Vet. App. at 472; 38 U.S.C.A. § 5103A (a). With regard to whether service connection for the cause of death is warranted under 38 U.S.C. § 1151, a medical opinion was obtained in April 2011 which is adequate to make a fully informed decision on the claim. A VA opinion is not warranted to determine whether the Veteran's death resulted from service-connected disability. In this regard, VA's duty to provide an examination or opinion under 38 U.S.C.A. § 5103A(d) is limited to claims for "disability compensation" and does not apply to DIC or cause-of-death claims. Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1321-22 (Fed. Cir. 2008). Nevertheless, VA must still "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit," and such efforts may include obtaining a VA medical opinion in a cause-of-death case to help substantiate the appellant's claim. 38 U.S.C.A § 5103A(a)(1); Wood, 520 F.3d at 1348; DeLaRosa, 515 F.3d at 1322. VA is not required to provide such assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A § 5103A(a)(2). In this case, the evidence does not show that the Veteran was exposed to an herbicide agent during active service, and there is no indication that any immediate or contributory cause of death may otherwise be related to an in-service disease, injury, or event, including injections with "serums" (as stated by the appellant at the Board hearing), jet fuel exposure, noise exposure, allergic reactions, or other injuries or conditions asserted by the appellant to have been incurred in or manifested during service. There is also no indication that the Veteran's diabetes or cardiovascular conditions manifested within one year of separation from service, or that any condition contributing to the Veteran's death may be related to a disease that manifested in accordance with presumptive service connection regulations. Accordingly, a VA opinion does not raise a reasonable possibility of aiding in substantiating the claim, and thus is not warranted under the duty to assist. See 38 U.S.C.A. § 5103A(a)(1); Wood, 520 F.3d at 1348; DeLaRosa, 515 F.3d at 1322. In light of the above, the appellant has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011). With regard to the issue of entitlement to burial benefits, because the law, and not the evidence, determines the outcome of this claim, VA's duties to notify and assist are moot. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); 38 C.F.R. § 3.159(d). The Board remanded this case in January 2014 for further development. The remand instructed the AOJ to complete the development procedures for determining herbicide exposure set forth in the VBA Manual. See M21-1, IV, ii.1.H.7.a. As noted above, the AOJ did not complete the last step of these procedures, namely submitting a search request to the JSRRC or issuing a formal finding that there was insufficient information to submit such a request. See id. The Board finds that there was still substantial compliance with its remand directive by completing the other steps, as this yielded the pertinent information provided by the Compensation Service in its March 2016 e-mail which is sufficient for making an informed decision. Thus, not completing the last step was harmless error since there is no reasonable possibility that it would aid in substantiating the claim, for the reasons discussed above regarding VA's duty to assist. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the rule of prejudicial error applies to the issue of compliance with the Board's remand directives); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (substantial rather than strict compliance with the Board's remand directives is required). The Board had included the last step in its instructions merely because it is listed as one of the procedures for determining herbicide exposure in the VBA Manual, and not because the Board independently found that this step was required or warranted under the circumstances of this case. Accordingly, a remand for strict compliance with this technicality would only delay resolution of the appeal, with no benefit flowing to the appellant; this is not a sufficient basis for remanding the case at this juncture. See Soyini, 1 Vet. App. at 546; Sabonis, 6 Vet. App. at 430. Therefore, the Board will proceed with appellate review. II. Merits of the Appeal A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A. Service Connection for the Cause of Death The appellant seeks DIC benefits for the cause of the Veteran's death. As reflected in her August 2012 hearing testimony, she states that the Veteran's diabetes contributed substantially or materially to the cause of death, as indicated by the Death Certificate, and that the Veteran was exposed to an herbicide agent such as that used in Agent Orange during active service from being deployed to Vietnam or Thailand, or from working on aircraft and being stationed at MacDill AFB or Davis-Monthan AFB, where she states herbicides were used, stored, or tested. Thus, she states that presumptive service connection for diabetes is warranted based on such exposure, and hence service connection for the cause of death, since diabetes was a contributing factor. She also states that other conditions causing or contributing to death, including a lung condition, resulted from herbicide exposure. For the following reasons, the Board finds that service connection for the cause of death is not established. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for disability and indemnity compensation (DIC) benefits for the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause. 38 C.F.R. § 3.312(a). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially to the cause of death. Id. Entitlement to DIC benefits for the cause of a veteran's death may be established by showing that a disability for which service connection has already been granted was the principal or a contributory cause of death. Hupp, 21 Vet. App. at 352. Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. (observing that "where service connection has not been previously established, the DIC claimant must first establish service connection for the cause of the veteran's death"). Service connection was not established for any disability during the Veteran's lifetime. Thus, the issue is whether service connection may be established for a condition shown to have caused or contributed substantially or materially to the Veteran's death. In this regard, the Death Certificate shows that a probable pulmonary embolism and congestive heart failure were the immediate causes of death, and that hypertension and diabetes, as well as a history of Fournier's gangrene and a cardiovascular accident (CVA), were significant conditions contributing to death but not related to the underlying cause. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). There is also a presumption of service connection for certain diseases, including diabetes mellitus, type II, and ischemic heart disease (the Death Certificate shows that congestive heart failure was a cause of death) found to be associated with exposure to an herbicide agent such as that used in Agent Orange. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e); cf. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20, 308, 20,312 (April 11, 2014). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). The appellant's assertion that the Veteran served with a special operations unit that was secretly deployed to Vietnam or Thailand is inherently speculative and is not sufficient by itself to establish service in these locations under the benefit-of-the-doubt evidentiary standard. See 38 C.F.R. § 3.102 (providing that there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility"). The basis for the appellant's belief that the Veteran was assigned to a special operations unit is the notation SOG-7 on his DD 214. In this regard, there was a special operations group or "Studies and Observations Group" (SOG) that conducted covert operations in Vietnam around the period of the Vietnam War, which was known as the MAC-V (Military Assistance Command -Vietnam) SOG. However, the Veteran's DD 214 and service personnel records show that "SOG-7" was part of a citation to the authority for the award of the Air Force Good Conduct Medal (AFGCM) and did not denote the above special operations unit. The Veteran's DD 214, STRs, and service personnel records do not otherwise indicate that he was deployed to Vietnam or Thailand, or even served abroad. The service personnel records do not reflect citations or awards indicating Vietnam service, and they show that he had no foreign service. Indeed, they list the dates and locations of his duty assignments chronologically and consecutively, and show that throughout his period of service he was stationed in the U.S. These records have more probative weight than the appellant's unsupported and speculative statements. Accordingly, the preponderance of the evidence shows that the Veteran did not serve in Vietnam or Thailand, and thus cannot be found to have been exposed to an herbicide agent by virtue of such service. The preponderance of the evidence also weighs against herbicide exposure while stationed at MacDill Air Force Base (AFB) in Tampa, Florida and Davis-Monthan AFB in Tucson, Arizona. In a March 2016 e-mail, the Compensation Service stated that DOD provided a list of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored, and had not identified either of these bases as such locations. The Compensation Service further stated that there was no evidence from DOD that C-123 aircraft used to spray Agent Orange in Vietnam was ever sent to these bases for repairs or maintenance during the period from 1963 to 1965, which is the period of time when the Veteran was stationed at these installations. Finally, the e-mail notes that routine base maintenance activities such as range management, brush clearing, and weed killing were accomplished with commercial herbicides on all military bases worldwide. The above findings by the Compensation Service based on the information provided by DOD weigh against the Veteran's exposure to an herbicide agent while stationed at MacDill AFB or Davis-Monthan AFB. They show that the aircraft used to spray Agent Orange in Vietnam were not sent to these bases during the period of time the Veteran was stationed at them, and thus he cannot have been exposed to Agent Orange from working on airplanes. They also show that Agent Orange was not used, tested, or stored at these bases, and thus the Veteran cannot be found to have been exposed in this manner either. With regard to the use of commercial herbicides for routine base maintenance activities, even assuming for the sake of argument that they contained some of the same chemical ingredients qualifying as herbicide agents as defined in § 3.307(a)(6), there is no indication that the Veteran, who served as an Aircraft Electronic Naval Equipment Repairman, was in sufficient proximity to their storage or use so as to have been exposed to an herbicide agent, either based on his MOS or otherwise. Mere speculation or general assertions of such exposure without more evidence or information are not sufficient to raise a reasonable doubt on the issue. See 38 C.F.R. § 3.102. Accordingly, the preponderance of the evidence weighs against herbicide exposure at MacDill AFB or Davis-Monthan AFB. The appellant also stated in her August 2012 hearing testimony that herbicides were found in the Veteran's body on testing. The Board finds this assertion is inherently implausible and not supported by any other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its facial plausibility). It therefore lacks probative value and is not sufficient to raise a reasonable doubt or place the evidence in equipoise on this issue. See 38 C.F.R. § 3.102. Accordingly, because in-service exposure to an herbicide agent is not shown, service connection for the cause of death based on such exposure cannot be established. See 38 C.F.R. §§ 3.303(a), 3.307(a), 3.309(e). The appellant has not stated, and the STRs and other evidence of record do not otherwise show, that any condition causing or contributing substantially or materially to the Veteran's death manifested in service, including pulmonary embolism, congestive heart failure, hypertension, cerebral vascular accident (CVA), diabetes, or history of Fournier's gangrene, all of which are listed in the Death Certificate. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. Further, in the case of diabetes, congestive heart failure, a CVA, and hypertension, the appellant has not stated and the evidence does not otherwise show that diabetes or a cardiovascular-renal condition were noted in service or manifested to a compensable degree within one year of service separation. Thus, service connection for diabetes or a cardiovascular condition on a direct basis or on a presumptive basis as a chronic disease is not established. See 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). Finally, with regard to the appellant's references to in-service exposure to jet fuel, injections with serums, ankle injuries, headaches, allergic reactions, fungus, and exposure to loud engine noise, there is no indication that any of these is related to any condition listed in the Death Certificate as causing or contributing to the Veteran's death. Accordingly, the preponderance of the evidence shows that no condition causing or contributing substantially or materially to the cause of the Veteran's death results from a service-connected disability or a disease or injury incurred in or aggravated by active service. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. Therefore, the benefit-of-the-doubt rule does not apply, and service connection for the cause of the Veteran's death is denied. See id.; see also 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. B. DIC Under 38 U.S.C. 1151 The appellant also claims DIC benefits pursuant to 38 U.S.C. § 1151 on the basis that the proximate cause of the Veteran's death was VA fault in discharging him prematurely from the hospital in February 2008 after treating him as an inpatient for a perianal abscess. In this regard, the Veteran died a few days after being discharged from the hospital, and the Death Certificate shows that Fournier's gangrene, apparently related to or synonymous with the abscess, was a significant condition contributing to death. For the following reasons, the Board finds that entitlement to DIC benefits under § 1151 is not established. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA medical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the veteran or, in appropriate cases, the informed consent of his or her representative. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2016), which are discussed below. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Id. The VA treatment records show that the Veteran was hospitalized in February 2008 for several days for a perianal abscess. Incision and drainage of the scrotum was performed on the day of admission. On the day of his hospital discharge, it was noted that the pain and tenderness on palpation continued to improve and that drainage had subsided greatly since the Veteran was first seen. There was significantly decreased scrotal erythema and edema on examination. He was prescribed oral antibiotics. He was to return a few days later for follow-up and possible surgery. Unfortunately, three days after he was discharged by VA, the Veteran was taken to the emergency room of a private hospital with severe abdominal and chest pain as well as shortness of breath, after he had collapsed at home. The intake record notes that the Veteran had Fournier's gangrene or gangrene of the testicles. He died during treatment, with a clinical impression of acute respiratory failure and cardiac arrest. The records of this emergency treatment do not indicate that the Veteran's gangrene or perianal abscess contributed to his death. In the April 2011 medical opinion, a VA medical doctor concluded that there was no evidence of fault on the part of VA in furnishing care for the Veteran's perianal abscess in February 2008, including due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The examiner noted that the Veteran had multiple medical problems that required a higher level of care than needed for a healthier individual. However, the examiner found that the Veteran received appropriate and responsive care for his condition, and that this treatment met the standard of care. With regard to the issue of informed consent, the examiner stated that the records did not reflect that consent was obtained prior to performance of the incision and drainage procedure. The examiner concluded that the Veteran's death was not caused by or a result of the care he received at VA. The examiner observed in this regard that the exact cause was unknown (which the Board notes is also reflected in the private treatment records pertaining to the Veteran's treatment and death at the private facility), and that it was listed as probable pulmonary embolism. The appellant has not explained how or why VA was at fault in the care provided to the Veteran for the perianal abscess of Fournier's gangrene, or how this caused or contributed to the Veteran's death other than the relative proximity of the treatment to the Veteran's death and her belief that he was discharged from the hospital too soon. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning, and is not entitled to any weight if it contains only data and conclusions). There is no indication that VA was negligent or at fault in discharging the Veteran when it did, after finding that his condition had significantly improved, or that his death was a proximate result of such discharge. The VA examiner's opinion carries more probative weight than the appellant's unsupported contention. In this regard, the examiner is a medical doctor and thus has much greater medical expertise than the appellant, and provided an explanation in support of the conclusion reached, while the appellant has not provided a rationale for her opinion or any supporting evidence. Moreover, the VA examiner was in a neutral role and thus objective in the matter, while the appellant is naturally biased in support of the claim. Cf. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias[.]"). There is also no evidence that VA failed to timely diagnose and properly treat the perianal abscess or Fournier's gangrene or that such proximately caused the Veteran's death. See 38 C.F.R. § 3.361(c)(2). Moreover, and in the alternative, there is no evidence that the perianal abscess or Fournier's gangrene directly caused the Veteran's death, as opposed to merely being a remote contributing cause, as suggested by the Death Certificate and as noted by the VA examiner, who found no relationship whatsoever. See 38 C.F.R. § 3.361(d). Because neither the Fournier's gangrene, nor the Veteran's death or the conditions causing or contributing to death are shown to be events caused by the February 2008 VA treatment, including the decision to discharge the Veteran from the hospital once his condition improved, the issue of foreseeability is moot. Finally, with regard to informed consent, there is no indication that the incision and drainage procedure or antibiotic treatment were in any way related to cause of the Veteran's death. Moreover, and in the alternative, failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment in view of the consequences of foregoing it. See McNair v. Shinseki, 25 Vet. App. 98 (2011). The Veteran was found to have a significant infection warranting hospitalization, and thus the Board finds that a reasonable person would have undergone the incision and drainage procedure and antibiotic treatment rather than risk the consequences of the infection progressing by not undergoing such treatment. In any event, the appellant has not stated, and the evidence does not otherwise suggest, that the actual treatment provided in any way proximately caused the Veteran's death. Rather, the appellant's main contention appears to be that the Veteran should have been kept in the hospital longer. However, the VA examiner's conclusion weighs against a finding that the Veteran was prematurely discharged or that VA was otherwise negligent or at fault in the care provided. Further, and in the alternative, the evidence does not otherwise show that the Veteran's infection progressed as a result of the discharge, or, again in the alternative, that such progression proximately caused the Veteran's death. The Death Certificate and findings in the February 2008 private treatment records weigh against the latter possibility, as they show the Veteran's death was due to other causes. There is no indication that the Veteran's being discharged from the VA hospital after several days of inpatient treatment with a prescription for antibiotics and a follow-up appointment, and after his condition was found to have significantly improved, was otherwise reflective of negligence or carelessness on the part of VA, or bore any relationship to his death or to the conditions causing it. Accordingly, the preponderance of the evidence shows that the criteria for compensation for the cause of death under 38 U.S.C. § 1151 are not satisfied. See 38 C.F.R. § 3.361. Consequently, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). C. Burial Benefits The appellant seeks entitlement to burial benefits. For the reasons that follow, the Board finds that entitlement to burial benefits is not established. Preliminarily, the Board notes that effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. See 79 Fed. Reg. 32,653-62 (June 6, 2014). Specifically, VA removed the regulations from 38 C.F.R. §§ 3.1600 through 3.1612 and replaced them with 38 C.F.R. §§ 3.1700 through 3.1713. Id. This final rule is applicable to claims for burial benefits pending on or after July 7, 2014, and thus applies to this claim. The Board may consider the amended regulations in the first instance without remand to the AOJ. See 38 C.F.R. § 19.9(d)(2) (2016) (providing that a remand or referral to the AOJ is not necessary for the purpose of considering law not already considered by the AOJ, including, but not limited to, statutes, regulations, and court decisions). Moreover, the amended provisions applicable to the merits of the appeal are the same in substance as the prior provisions. A burial allowance is payable under certain circumstances to cover expenses of the burial or cremation, funeral, and transportation of the deceased veteran's body to the place of burial. See 38 U.S.C.A. §§ 2302, 2303, 2307 (West 2014); 38 C.F.R. § 3.1700; see also 38 C.F.R. § 3.1600. The burial allowance specified in 38 U.S.C. § 2307, as well as additional allowances under certain circumstances, will be paid for the burial and funeral expenses of a veteran who died of a service-connected disability or disabilities. 38 C.F.R. § 3.1704(a) and (b). Because the Veteran's death has not been service-connected, the criteria for this burial allowance are not satisfied. See id.; see also 38 C.F.R. § 3.1600. If a veteran's death is not service-connected, the burial allowance specified in 38 U.S.C. § 2302, as well as additional allowances under certain circumstances, will be paid if one of the following conditions is met: (1) the veteran was in receipt of VA pension or disability compensation, or but for the receipt of military retired pay would have been in receipt of compensation at the time of death; or (2) the veteran had an original claim, or a claim to reopen a previously denied claim, for disability compensation or pension pending at the time of death, and the evidence in the claims file on the date of death (plus any evidence received under § 3.1705(d) to confirm that the deceased would have been entitled to the benefit prior to death) is sufficient to grant pension or compensation effective before the date of death; or (3) a claim for which a person would be eligible to substitute for the deceased veteran under 38 U.S.C. § 5121A results in the grant of pension or disability compensation effective before the date of death. 38 C.F.R. § 3.1705; see 38 C.F.R. § 3.1600. Here, the Veteran was not in receipt of VA pension or disability compensation at the time of death, or military retired pay, and there were no claims for disability compensation or pension pending at the time of his death, or a claim for which a person would be eligible to substitute. Accordingly, the criteria for a burial allowance under 38 C.F.R. § 3.1705 are not satisfied. VA will pay the burial allowance specified in 38 U.S.C. § 2303(a) for the burial and funeral expenses of a veteran, as well as additional allowances under certain circumstances, if a veteran's death was not service-connected and the veteran died while hospitalized by VA. A veteran was hospitalized by VA for purposes of this allowance if, in relevant part, the veteran: (1) was properly admitted to a VA facility for hospital, nursing home, or domiciliary care; (2) was transferred or admitted to a non-VA facility for hospital care under the authority of 38 U.S.C. § 1703; (3) or was traveling under proper prior authorization, and at VA expense, to or from a specified place for the purpose of examination, treatment, or care. Id.; see also 38 U.S.C.A. §§ 1701, 1703; 38 C.F.R. § 3.1600. With regard to the second criterion, under 38 U.S.C.A. § 1703(a), and as relevant to this appeal, the Secretary may contract with non-Department facilities in order to furnish hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility (i.e. VA facility) until such time as the veteran can be safely transferred to a Department facility. Here, the evidence shows that the Veteran died at a private facility, to which he was taken as the nearest hospital after he had collapsed at his home. Although the Veteran had been receiving medical services at VA, there is no evidence that the private facility where he died was under contract with VA pursuant to § 1703(a). There is also no evidence that the Veteran was traveling to the private facility with proper prior authorization and at VA expense. Accordingly, the criteria for a burial allowance for a veteran who died while hospitalized by VA are not satisfied. See 38 C.F.R. § 3.1706; see also 38 C.F.R. § 3.1600. The criteria for a plot or interment allowance for burial in a State veterans cemetery or other cemetery are not satisfied. See 38 C.F.R. § 3.1707. This allowance is only payable to a State, or an agency or political subdivision of a state, under certain circumstances and if certain criteria are satisfied, or to a claimant if the veteran is eligible for a burial allowance under sections 3.1705 or 3.1706 of the regulations, or if the veteran was discharged from active service for a disability incurred or aggravated in line of duty, or if at the time of discharge from active service the veteran had a disability shown by official service records which in medical judgment would have justified a discharge for disability. 38 C.F.R. § 3.1707. In this case, as discussed above, the criteria for a burial allowance under section 3.1705 or 3.1706 have not been satisfied. Moreover, the Veteran was not discharged from active service for a disability incurred or aggravated in line of duty, and there is no assertion or indication that at the time of discharge from active service he had a disability shown by official service records which in medical judgment would have justified a discharge for disability. Accordingly, the criteria for a burial allowance under § 3.1707 are not satisfied. Cf. 38 C.F.R. § 3.1600. Because the Veteran was not buried in a national cemetery, reimbursement for transportation expenses is not available. See 38 C.F.R. § 3.1709 (2016) Cf. 38 C.F.R. § 3.1600. In conclusion, the basic eligibility requirements for burial and plot and interment benefits have not been met. Therefore the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board sincerely empathizes with the hardships related by the appellant, and regrets that it cannot render a favorable decision in this matter. ORDER Disability and indemnity compensation for the cause of the Veteran's death is denied. Burial benefits are denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs