Citation Nr: 0729159 Decision Date: 09/17/07 Archive Date: 10/01/07 DOCKET NO. 99-24 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for the cause of the veteran's death, for the period prior to May 12, 2005. (The issue of eligibility for payment of attorney fees from past-due benefits resulting from a grant of service connection for the cause of the veteran's death, will be addressed in a separate document.) REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from May 1942 to October 1945. He was a prisoner of war (POW) of the German government from November 1944 to April 1945 and he died in April 1994. The appellant, who is the veteran's widow, initially appealed a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In August 2001, the Board of Veterans' Affairs (Board) remanded the appellant's claim to the RO for further development. In an August 2002 decision, the Board denied the appellant's claim. The appellant appealed the Board's August 2002 decision to the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court"). In that litigation, a brief was filed by the appellant averring that remand was required due to the VA's failure to provide her with sufficient notice pursuant to the notice provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (now codified at 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006) and 38 C.F.R. § 3.159(b) (2006)). In an Order of October 2004, the Court vacated the Board's decision and remanded the matter. As set forth in detail below, the VCAA substantially amended existing law regarding the requirement of a well-grounded claim and the notice and assistance to be afforded claimants for veteran's benefits. A copy of the Court's Order in this matter has been placed in the claims file. Thereafter, on May 11, 2005, the Board again denied the appellant's claim. She appealed the Board's May 2005 decision to the Court. In that litigation, a Joint Motion for Remand was filed by the VA General Counsel and the appellant averring that remand was required to enable the Board to address the potential applicability of 38 C.F.R. § 3.309(c) (effective October 7, 2004) to the appellant's claim for service connection for the cause of the veteran's death. This regulatory change added atherosclerotic heart disease to the list of presumptive disabilities for former POWs for which service connection is warranted. See 61 Fed. Reg 60,083 (Oct. 7, 2004) (now codified at 38 C.F.R. § 3.309(c) (2006). In an Order of April 2007, the Court vacated the Board's decision and remanded the matter, pursuant to the Joint Motion. A copy of the Court's Order in this matter has been placed in the claims file. However, during the pendency of the appellant's appeal, in a November 2006 rating decision, the RO granted her claim for service connection for the cause of the veteran's death, effective from May 12, 2005. This is the day after the now vacated Board decision. As such, the Board has recharacterized the matter on appeal to more accurately reflect the current status of the appellant's claim. FINDINGS OF FACT 1. The veteran was a POW for more than 30 days. 2. The veteran died in April 1994; his death certificate lists the causes of death as cardiac arrest, coronary heart disease, and renal failure. 3. At the time of the veteran's death, service connection was in effect for bilateral pes planus, evaluated as 10 percent disabling, and mixed psychoneurosis, bronchitis, and pharyngitis, all evaluated as noncompensable. 4. Regulations effective October 7, 2004 provide that service connection may be presumptively granted under 38 C.F.R. § 3.309(c), for atherosclerotic disease or hypertensive vascular disease, including hypertensive heart disease, and their complications (including myocardial infarction). 5. For the period from October 7, 2004, disability that can be presumed to have been incurred in service either caused or contributed substantially or materially to the cause of the veteran's death. 6. For the period prior to October 7, 2004, the objective and probative medical evidence of record preponderates against a finding that the veteran experienced localized edema during captivity, that his cardiovascular disease manifested to a compensable degree within a year of the date of termination from service, or that his cardiovascular disease was related to his period of active military service. CONCLUSIONS OF LAW 1. For the period from October 7, 2004, but no earlier, the veteran's death was due to disability that may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2006); 61 Fed. Reg. 60,083 (Oct. 7, 2004) (now codified at 38 C.F.R. § 3.309(c) (2006). 2. For the period prior to October 7, 2004, the cause of the veteran's death was not related to an injury or disease incurred in or aggravated by active military service. Coronary heart disease was not incurred in service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103-5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that the cause of the veteran's death was related to his active military service. In essence, she has alleged that the veteran died from coronary heart disease and renal failure that she maintains was incurred during active service, including his POW experience. Based on a change in regulation, there is now a basis to allow the claim to the extent explained below. I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to VCAA enactment. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. However, as the appellant's claim for service connection for the cause of the veteran's death is being granted from October 4, 2004, and denied prior to that time, there can be no possibility of prejudice to her. As set forth herein, no additional notice or development is indicated in the appellant's claim. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Clearly, substantial compliance with the VCAA has been achieved in the present case. There can be no question as to the appellant's awareness of the provisions of the legislation, since the appellant's brief was filed with the Court after the bill became law, and the basis for the October 2004 remand was compliance with the duty to assist and notice provisions of the new law. In addition, the Court provided her a copy of the Order remanding her case. The Board afforded the appellant and her attorney ample time in which to proffer evidence and/or argument after the case was returned from the Court. In a January 2005 letter to the appellant's attorney, the Board solicited any additional argument or evidence that the appellant wished to submit. The appellant's attorney did not respond to the Board's letter. Furthermore, following the April 2007 Court remand, in an August 2007 letter to the appellant's attorney, the Board again solicited any additional argument or evidence that the appellant wished to submit. In an August 2007 signed statement, the appellant's attorney said she had nothing else to submit. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that she has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her attorney has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. Thus, the Board may proceed without prejudice to the appellant It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background The evidence of record reveals that the veteran was born in December 1916 and died in April 1994, at the age of 77. According to the certificate of death dated that month, the causes of the veteran's natural death were cardiac arrest (of 40 minutes duration), and coronary heart disease and renal failure (that he had for years). No other underlying cause of death was noted, and an autopsy was not performed. At the time of his death, service connection was in effect for bilateral pes planus, evaluated at 10 percent disabling; and mixed psychoneurosis, bronchitis and pharyngitis, evaluated as noncompensable. The veteran's service medical records show that, when examined for induction into service in May 1942, the veteran was 5 feet 6 inches tall and weighed 170 pounds. Clinical records reflect treatment for a contused knee and dental treatment only. As noted above, the veteran's service records document that he was a POW of the German government from November 1944 to April 1945. His record of captivity by the German government is totally blank for any references to illnesses or medical treatment and simply reflects his movements during that time. A repatriation examination is not of record. When examined for separation from service in October 1945, the veteran's cardiovascular and genito-urinary systems were normal, edema was not noted, the psychological and neurological diagnoses were normal, and his chest x-ray was negative. All other findings were normal and he weighed 183 pounds. Post service, a May 1947 VA examination report indicates that the veteran reported chest pain, gagging and choking, foot problems, eye irritation, and back pain. On examination, his cardiovascular system was normal. The veteran said that while a POW he had urinary frequency, frequent coughing, and his feet hurt. The diagnoses included bilateral pes planus, chronic bronchitis, and mild mixed psychoneurosis. Results of a chest-x-ray taken by VA in May 1947 showed an increase in the hilar and lung markings with no evidence of pulmonary infiltration. The heart shadow was normal in size and configuration. On VA examinations in February 1948 and January 1958, the veteran complained of coughing and chest pain and said that his legs were tired. The diagnoses were weak feet and pes planus. In February 1948, the VA examiner specifically noted that no chest pathology was elicited. Results of a chest x- ray performed in February 1948 revealed no lung pathology. Service connection for a "chest condition" was initially granted for treatment purposes. This was subsequently classified as minimal bronchitis for compensation purposes, with a noncompensable rating assigned. Results of a chest-x-ray performed by VA in March 1985 showed clear pulmonary parenchyma and a normal cardiac silhouette. The conclusion was a normal chest. During an April 1985 VA POW protocol examination, the POW coordinator noted that, with regard to his present health, veteran said he felt pretty good. In August 1984, the veteran had a spot on his lung removed that was diagnosed as benign. He tried to stop smoking, but was unsuccessful. He thought he was too nervous to give up cigarettes and that the risks were worth taking when he looked at the alternative. In his July 1984 medical history prepared in conjunction with the POW assessment, the veteran said he experienced chest pain, numbness or weakness in the arms and legs, and aches or pains in the muscles and/or joints during captivity. He reportedly had a vitamin deficiency. No swelling in the joint, legs, feet, or muscles was reported. The veteran said that he smoked about one pack of cigarettes a day. He also recounted that, during captivity, he experienced weight loss, urinated all the time, and had weakness. He said that he cut his hand and had blood poisoning that was treated by a Russian doctor. He had boils over various parts of his body. Other than that, at repatriation, his health was fairly good. He enjoyed his time on rest and recreation in Atlantic City after repatriation. The examiner felt that the veteran appeared to have adjusted quite well, overall, following his POW experience. On physical examination, no heart-related problems were reported, and the veteran's heart was clinically evaluated as normal. The diagnoses were hypertension, asymptomatic, left carotid bruit, chronic anxiety, and pulmonary drainage problem with recurrent bronchitis. The veteran failed to appear for a follow up VA examination. Private medical records, dated from November 1993 to April 1994, indicate that the veteran was diagnosed with a massive anterolateral myocardial infarction, and arteriosclerotic heart disease. His past medical history included a history of acute myocardial infarction in 1990, a history of renal insufficiency, arteriosclerotic heart disease with congestive heart failure, and a history of smoking. A November 1993 record indicates that the veteran related that he was hospitalized about three years earlier with similar, less severe, chest pain, and told that he suffered a slight heart attack. An April 1994 private hospital medical record indicates that the veteran suddenly collapsed at home. Emergency medical technicians arrived and delivered one shock via defibrillator. It was noted that the veteran was a cardiac patient who was previously admitted one month earlier for congestive heart failure, myocardial infarction, chronic obstructive pulmonary disease, and renal insufficiency. The veteran arrived at the hospital pulse less, cyanotic, and asystolic and, after attempts at resuscitation, was pronounced dead. In an August 1999 letter, C.W.M., M.D., said that he was not sure that he had all of his records regarding the veteran but noted that he treated the veteran for at least three years in the 1980s. Dr. M. stated that the veteran had "some distinct personality traits, which I think clearly were contributed to by his military experiences." Specifically, the doctor said that the veteran "was a very structured, particular, and demanding individual and I think this may have been related to his experiences as a prisoner of war." Dr. M added that many individuals in the veteran's situation tended to minimize their physical complaints, and the veteran tended to minimize his discomfort and cardiac symptoms. He also noted: "Many of these individuals have a stress related syndrome and cardiac disease is certainly much more frequent. Management, as one would expect, can be significantly more difficult as well, given the tendency to minimize symptoms and thus minimize diagnostic treatment." Dr. M. concluded, "I am not sure how accurately one can state that his cardiac disease was caused by military service and his time as a prisoner of war. Certainly, however, this kind of stress and physical and emotional experience has been found to make these problems more frequent and make their management more difficult." A September 1999 written statement from the veteran's son is to the effect that the veteran reported that, during his time as POW, his hair changed color from vitamin deficiency and his legs swelled up and hurt. He did not complain to his family, but they could see that he had problems with his legs and his heart. In an October 1999 written statement, D.W.T., M.D., who treated the veteran in 1993 and 1994, wrote that the veteran's "cardiac problems were related to atherosclerotic cardiovascular disease and resultant poor heart function because of prior heart damage. I believe there is a good possibility that during the time he spent as a POW malnutrition could have adversely affected his cardiac status and that certainly the extreme stress of being a POW put him at higher risk of developing a heart disease. His other risk factors included his age, as well as a life-long history of tobacco use. In conclusion, I feel that it is likely that [the veteran's] time spent as a POW contributed to the development of cardiac disease." An October 1999 written statement from the veteran's daughter is to the effect that the veteran's sister reported to her niece that, when the veteran separated from service, he stayed with his sister, his hair color changed, his limbs were swollen and he was unable to lift even one arm. It was noted that he looked like a walking skeleton. In an August 2001 letter, the veteran's now 95-year old sister stated that she did not recognize her brother when he returned from service, as he looked like a skeleton and his hair had changed color. In addition, she reported, that the veteran was weak, could hardly walk, ached all over, and his arms were swollen and discolored. The veteran told her that his hair changed color from the malnutrition. The veteran's sister wrote that she was sure that all of these things affected the length of his life. During an October 2000 personal hearing at the RO, the appellant testified that she met the veteran in approximately 1951. When she met him, he never talked about the war and wanted others to believe that he was healthy. She did not know if he was getting medical treatment for any problems. He told her that, when he was a POW, his hair changed color due to lack of vitamins; other than that, he did not talk about the war. He was very private and did not tell her many things. He had his heart problems for a while before he died. In December 2000, a VA physician reviewed the veteran's "chart," by which it was evidently meant the veteran's claims file with his medical records, expressly including the above- described private physician statements, and rendered an opinion as to the cause of the veteran's death. The VA physician said that, "Upon careful review of all of the available records, there is no clear indication that the veteran's confinement as a POW contributed to the development of his heart condition." The VA physician based this conclusion on several facts. The VA examiner noted that there was no evidence that the veteran, in fact, had beriberi heart disease or heart disease due to thiamine deficiency. In contrast, the evidence indicated that the veteran was, in fact, a life long tobacco user. The VA physician concluded that, "In the presence of the highly significant known risk factor of tobacco use, it is highly likely that tobacco was a major culprit in the genesis and progression of the veteran's coronary artery disease." This VA doctor also noted that the veteran was non-diabetic and it was not clear whether hyperlipidemia may have been contributory to the development and progression of his coronary artery disease. As to the other theories under which the appellant claimed service connection for the cause of the veteran's death, the VA physician further stated that "it is less than likely that the veteran's heart condition was the result of stress due to being a POW or due to his service-connected psychoneurotic condition." This VA doctor noted that the role of stress in the etiology or genesis and progression of coronary artery disease remains controversial. The VA physician also opined that "it is less than likely that the veteran's heart condition was the result of malnutrition/vitamin deficiency during his time as a POW." In support of this conclusion, he cited the veteran's statements in the April 1985 POW assessment that he felt pretty good. The VA physician noted that if "nutritional stress factors," apparently meaning nutritional or stress factors, had played any significant role in the development of his heart disease, those effects would have been clearly manifest by 1985, and the veteran would not have stated that he felt "pretty good" at that time. In a September 2005 medical evaluation, C.N.B., M.D., a neuro-radiologist with reported expertise in the area of spine disease, said that he reviewed the veteran's medical records and opined that the veteran's heart diease was as likely as not caused by his service time. Dr. B. further opined that it was at least as likely as not that the veteran's post-traumatic stress disorder (PTSD) associated- symtoms and sympathoadrenal axis hormone increase likely substantially increased his risk for myocardial infarction. According to Dr. B. "the patient's past medical history is significant for the fact to the use of a presumed for in Germany during World War II in 1944 and 1945." Dr. B. then said, somewhat confusingly, that the veteran "was a dilated for a chest condition in November 1944 as he had pains in his chest upon release from his [POW] camp." Dr. B. said the veteran was exposed to extreme stress in service and after in the form of PTSD and that the "exact cause of [the veteran's] chest pain following his release from prison camp is not known", noting the "abnormal" 1947 chest x-ray that, Dr. B. opined, demonstrated findings "consistent with early cardiac disease that in context with his history would be interpreted to mean dilated vessels and interstitial edema" that was "consistent with cardiac diease." According to Dr. B., without seeing the actual films or a more thorough description of the veteran's x-ray, cardiac disease was more likely than not the cause of his x-ray chest abnormalities, given the veteran's history of chest pain and his history of myocardial diease in the 1980s and demise in the 1990s due to myocardial infarction. Further, Dr. B. referenced an attached medical journal article that he said documented an odds ratio of 4.44 associated with cardiac infarctions secondary to PTSD that he said was "strong evidence" that "stress is associated PTSD are likely causes of myocardial infarctions and in this patient had both myocardial infarctions and PTSD". Dr. B. opined that it was at least as likely as not that the veteran's "PTSD associated symtoms and sympathoadrenal axis hormone increase likely substantially increased his risk for myocardial infarction based on the literature by way of hypertension and associated cardiovascular damage." Finally, Dr. B. expressed disagreement with the 2000 VA examiner's opinion for its failure to discuss the veteran's 1944 chest condition or chest pains and the abnormal 1947 chest x-ray, failure to provide supportive medical literature, and failure to discuss Drs. M.'s and T.'s favorable opinions, that Dr. B. said indicated that the VA examiner may not have the entire record to review. Appended to Dr. B.'s report is a copy of a journal article entitled "Electrocardiogram Abnormalities Among Men With Stress-Related Psychiatric Disorders: Implications for Coronary Heart Disease and Clinical Research", Boscarino, J.A., and Chang, J. (Ann Behav Med, 1999, 21 (3): 227-234). The authors concluded that their findings "suggest an association" between long term exposure to severe psychological distress and electrocardiogram (ECG) findings that are physiological markers for coronary heart disease. Id. at 230. III. Legal Analysis Pursuant to 38 U.S.C.A. § 1110 a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. In addition, the law provides that, where a veteran served ninety days or more of active military service, and any of certain specified disorders, e.g., cardiovascular-renal disease, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.307, 3.309 (2006). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service- connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). The appellant claims that she is entitled to service connection for the cause of the veteran's death because disabilities related to his POW captivity from November 1944 to April 1945 were the cause of his death from coronary heart disease and renal failure with cardiac arrest in April 1994. Because the veteran was a POW for more than 30 days, certain diseases would be presumptively service-connected if they manifested in him to a compensable degree at any time after separation from service. 38 C.F.R. §§ 3.307(d), 3.309(c). After the appellant filed her claim, the regulations regarding presumptive service connection for former POWs were revised. The old regulatory provisions, effective prior to October 2004, provided for service connection on a presumptive basis for former POWs who developed avitaminosis, beriberi (including beriberi heart disease, which includes ischemic heart disease in a former POW who experienced localized edema during captivity), malnutrition, any other nutritional deficiency, psychosis, any anxiety state, and dysthymic disorder or depressive neurosis) which became manifest to a compensable degree at any time after service. These provisions applied only to POWs detained not less than 30 days. 38 C.F.R. § 3.309(c), effective prior to October 7, 2004. Specifically, the appellant claims that a service-related vitamin deficiency or malnutrition contributed to the veteran's heart disease; that he had edema and swelling of the legs, warranting a finding of beriberi heart disease; and that the veteran's service-connected mixed psychoneurosis and stress contributed to his heart disease. The current regulatory provisions provide for service connection on a presumptive basis for former POWs who develop atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia). No minimum period of internment is required under the revised regulations, and localized edema in captivity need not be shown. The requirement that the condition become manifest to a compensable degree at any time after discharge has remained. See 38 C.F.R. § 3.309(c) (effective October 7, 2004); see also 69 Fed. Reg. 60,083, 60,083-60,090 (Oct. 7, 2004). Where a law or regulation changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). Here, the appellant and her attorney were not provided with a copy of the new regulation, however, as noted above, the RO granted the appellant's claim based upon the recent change in the law and the basis of the April 2007 Joint Motion was the change in law. Thus, it cannot be said the appellant and her attorney were not well aware of the new regulation and its impact. The Board is of the opinion that all due process requirements were met in this regard. However, new regulations may only be applied from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. 38 U.S.C.A. § 5110(g) (West 2002); VAOGCPREC 7- 2003; VAOGCPREC 3-2000. These provisions are applicable to original and reopened claims. 38 C.F.R. § 3.114 (2006). In the instant case, the evidence conclusively shows that the veteran was a former POW. The Board finds that the veteran was held as a prisoner of war of the German government for more than 30 days. At the time of the veteran's death in April 1994, service connection was in effect for bilateral pes planus, rated as 10 percent disabling, and mixed psychoneurosis, chronic bronchitis, and pharyngitis, all evaluated as noncompensable. The veteran's death certificate lists the causes of death as cardiac arrest, coronary heart disease, and renal failure. The veteran's heart problems are not noted on his separation examination reports dated in October 1945 and, in fact, are not shown until many years after service, most notably in the 1990s. The focus of this appeal to date has been based on the appellant's assertion that the veteran's service-connected mixed psychoneurosis contributed to his fatal heart disease. In support of this assertion, the appellant submitted statements from Drs. M. and T. that suggest a link between stress and cardiovascular disease. Additional evidence related to this theory of entitlement includes Dr. B.'s opinion, dated in September 2005, and the December 2000 VA examiner's report that negates a relationship between the veteran's service-connected psychoneurosis and a fatal heart condition. However, there is no question that the veteran's death certificate clearly shows that he died from cardiac arrest, coronary heart disease, and renal failure. Moreover, the psychiatric disorder was not shown to be causing any particular impairment in the years after service. It had long been rated noncompensably disabling. Given the medical link between the veteran's cardiac arrest and coronary heart diease, along with the current regulations pertaining to presumptive heart diseases for former POWs (which make no reference to the period of time a prisoner must be interned or detained as it relates to the various heart diseases listed), service connection for the cause of the veteran's death is warranted on a presumptive basis. 38 C.F.R. §§ 3.309(c), 3.312. That is, the veteran's heart disease and complications of his fatal cardiac arrest due to coronary heart disease are presumed service-connected and were manifested to a degree of disability of 10 percent or more after the veteran's discharge from service. Id. Accordingly, the appellant's claim for entitlement to service connection for the cause of the veteran's death is granted for the period from October 7, 2004. However, for the period prior to October 7, 2004, the Board concludes that service connection for the cause of the veteran's death is not warranted. The appellant contends that service connection for the cause of the veteran's death is warranted because he had heart disease that was incurred in service and, alternatively, contends that his service-connected psychiatric disability caused stress that led to the heart disease that caused his death. The Board disagrees, as set forth in detail below. In support of her claim, the appellant would point to the August and October 1999 written statements from Drs. M. and T., respectively, and Dr. B.'s September 2005 report, that associated the veteran's heart disease with his military service, including his POW experience. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the VA examiner who provided the December 2000 medical opinion. This medical specialist had the opportunity to completely review the veteran's entire medical history and all the medical records. This examiner explained the veteran's initial symptoms, presented a complete clinical report, and found no evidence of a diagnosed cardiac disorder due to the veteran's military service. The December 2000 VA examiner indicated that he had reviewed all available records and he specifically referred to these records, including the POW assessment, in rendering his conclusions. Moreover, this doctor explained the underlying reasons and bases for his conclusion as to all three of the appellant's theories underlying her claim for service connection for the cause of the veteran's death. Specifically, the VA examiner explained that there was no evidence of beriberi heart disease or heart disease due to thiamine deficiency and, that, had malnutrition or stress played a role in the veteran's heart disease, they would have manifested much earlier, and he would not have stated as late as 1985 that he felt "pretty good." The VA physician's opinion is supported by the evidence of record. There is no competent medical evidence that the veteran experienced localized edema while a POW, nor did he report any swelling during the 1985 VA POW evaluation. The October 1945 separation examination, that occurred approximately 5 months after the veteran's May 1945 conclusion of his POW captivity, showed no clinical abnormalities. In addition, his reported weight increased from 170 at induction to 183 pounds at the time of his separation from service, a 13-pound weight gain, notwithstanding his POW captivity. Moreover, the first evidence of the disabilities that caused the veteran's death did not manifest until many years after service, and there is nothing in the record to suggest a connection between these disabilities and the veteran's service, or any showing of continuity of symptomatology since service. Thus, the Board is persuaded that the December 2000 VA medical opinion is most convincing in that the examiner expressly stated that he reviewed the medical evidence in the file. See e.g., Wray v. Brown, 7 Vet. App. 488 (1995). When a medical expert has fairly considered all the evidence, his opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Id. The Board does, in fact, adopt the December 2000 medical opinion on which it bases its determination that service connection for the cause of the veteran's death prior to October 7, 2004 is not warranted in this case. As to the opinion of the Drs. M., T., and B. who said the veteran's cardiac disease may have been caused by military service, that it is as likely as not that the veteran's time as a POW contributed to the development of cardiac diease, and it was as likely as not that the veteran's heart disease was caused by service including his PTSD associated symtoms, respectively, the Board finds that these examiners did not clearly attribute the veteran's cardiac disorder to service. Rather, the primary problem with Dr. M.'s August 1999 opinion is its general, ambiguous nature. His conclusion is that "many of these individuals," apparently referring to former POWs, "have a stress related syndrome and cardiac disease is certainly more frequent," but, "I am not sure how accurately one can state that his cardiac disease was caused by military service and his time as a prisoner of war. Certainly, however, this kind of stress and physical and emotional experience has been found to make these problems more frequent and make their management more difficult." Dr. M. also stated that the veteran's personality traits "may have" been related to his POW experiences, and also "I think clearly were contributed to" by his POW experiences. Thus, the only time Dr. M. expressed a degree of certainty was as to the general relationship between POW's stress and cardiac disease, but this does not address the issue of the cause of this veteran's death. In contrast, when addressing the cause of this veteran's death, Dr. M. admitted his uncertainty, and his opinion is, at most, that the veteran's death may or may not have been due to in-service causes, a level of certainty that is insufficient to establish service connection. Moreover, as noted above, the psychiatric disorder is not shown to have been disabling to any specific degree in the years after service. However, service connection may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Perman v. Brown, 5 Vet. App. 237, 241 (1993) (an examining physician's opinion to the effect that he cannot give a "yes" or "no" answer to the question of whether there is a causal relationship between one disorder and another is "non- evidence"); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by in- service events is insufficient to establish service connection). Moreover, Dr. M. did not indicate that he reviewed the claims file, and was not even sure he had all of his own records regarding the veteran. Further, while Dr. T. concluded that the veteran's POW experience contributed to his cardiac disease with more certainty than Dr. M., this physician, too, did not indicate that he had reviewed the claims folder or refer to any specific treatment records other than his own. Thus, Dr. T.'s post-service reference to the veteran's POW experience, without a review of his service medical records or even his post-service POW assessment, is not competent medical evidence. See Grover v. West, 12 Vet. App. 109, 112 (1999). As well, in October 1999, Dr. T. only said that there was a "good possibility" that while a POW, malnutrition "could" have adversely affected the veteran's cardiac status and that the extreme stress of being a POW put him at a higher risk of developing heart disease but then said that it was as likely as not that the veteran's POW experience contributed to the development of cardiac disease. Such speculation cannot be the basis for a grant of service connection for the cause of the veteran's death. See Perman, Obert, supra. Dr. T. also did not specifically review the veteran's medical records and past medical history and, again, is without the examiner's specific correlation of the veteran's reported symptoms with his service-connected cardiac disability. In fact, neither examiner clearly attributed the veteran's cardiac disorder to service or a service-connected disabiity. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Dr. B.'s opinion, while no less sincerely rendered, appears to be factually inaccurate and reliant on evidence not in the claims file. First, Dr. B. repeatedly references a November 1944 record when he states that the veteran was dilated or treated for a chest condition or chest pain after his release from POW captivity. However, as set forth above, the veteran's German POW record is totally blank for any reference to illness, let alone chest pain, and he was released from captivity in April 1945. There is no medical record in the claims file that describes chest dilation or chest pain in November 1944. Second, while Dr. B. argues that the veteran had an abnormal chest x-ray in 1947 with findings consistent with early cardiac disease, the objective clinical evidence of record does not support his finding. Rather, that 1947 x-ray merely showed an increase in the hilar and lung markings, with no evidence of pulmonary infiltration with a normal heart shadow in size and configuration and, in February 1948, a VA examiner specifically reported no chest pathology. As noted service connection has been granted for pulmonary pathology that was apparently causing chest pain complaints during and after service. As well, results of the March 1985 chest x-ray showed a normal cardiac silhouette and the conclusion was a normal chest. In April 1985, the veteran reported to a VA examiner that he felt well and a cardiovascular disorder was not report on examination. The first mention in any record of cardiac disease is from the 1990, more than 40 years after the veteran's discharge from service. It is noted that there was some evidence of hypertension from the mid-1980's. Third, Dr. B. states that the veteran had stress following service in the form of PTSD. However, the veteran was only service-connected for mild mixed psychoneurosis, evaluated as noncompensable for well nearly 50 years, and the entire record is devoid of any competent clinical evidence of a diagnosis of PTSD, or "PTSD associated symtoms". Nor does the medical literature supplied by Dr. B. support the proposition that the veteran's heart disease and death were as likely as not caused by his military service. In fact, the article does no more than merely "suggest" an association between long term-exposure to severe psychological stress and ECG findings that are physiological markers for coronary heart disease. However, the Board finds that this document lacks probative weight because it does not specifically address this veteran, to include his medical history documented in the claims file. In a long line of cases, the Court has consistently held that medical treatise evidence that is generic and inconclusive as to the specific facts in a case was insufficient to establish causal link. See, e.g., Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); and Beausoleil v. Brown, 8 Vet. App. 459 (1996). Furthermore, the December 2000 VA examiner explained that the role of stress in the etiology of cardiovascular disease remained controversial. Therefore, the Board finds that the evidence submitted by the appellant is not probative of the medical nexus question. On the other hand, the December 2000 VA physician stated that he had reviewed the medical evidence of record. The examination report reflects review of the relevant medical and other evidence in the veteran's claims file and provided a rationale for his medical opinion. This examiner explained how the evidence in the veteran's claim file pertained to the examination findings and diagnoses. Thus, the opinions of Drs. M., T., and B. are accorded less weight than that of the December 2000 VA physician. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death for the period prior to October 7, 2004. The Board does not disregard the diagnosis made by Dr. B. in September 2005, who correlated the veteran's reported symptoms with his military experience and service-connected psychiatric disorder. With due consideration to Dr. B., the Board is constrained to accord more weight to conclusions proffered in the December 2000 VA examiner's report that is consistent with the evidence of record. Thus, the Dr. B.'s September 2005 report is accorded less weight than that of the December 2000 VA examination report. As well, and contrary to Dr. B.'s assertions, the December 2000 VA medical opinion reflects that he emphasized his careful review of the veteran's claim file at that time. Although Dr. B. asserts that the VA examiner's failure to address Drs. M.'s and T.'s medical statements suggests that the examiner did not have the entire record to review, the 2000 VA examiner specifically noted his review of those statements that were incorporated into the medical opinion. This VA examiner opined that there was no clear indication that the veteran's confinement as a POW contributed to the development of his heart disease and that it was highly likely that tobacco was major culprit in the genesis and progression of the veteran's coronary artery disease. Moreover, to the extent that heart disease was present, it was not shown within one year following separation from service. Furthermore, the record clearly reflects that cardiovascular abnormality was not found on examination for separation from service and the first post service evidence of record of cardiovascular disorder is from 1990, more than 40 years after the veteran's separation from service. While the veteran's daughter reported in October 1999 that veteran's sister told her, and veteran's sister reported herself in August 2001, that the veteran had swelling of his extremities at the time of his separation from service, the veteran did not report this, nor was it found at the service separation examination, on VA examination two years after separation from service, or in the POW assessment, which are more contemporaneous statements. We recognize the appellant's and her family's sincere belief that the veteran's death was related in some way to his military experience, including his POW captivity. That is recognized by the recent change in regulation, but there is no legal basis to make the award prior to the change in regulation discussed above. Nevertheless, while the veteran's wife, sister, and son are competent to testify as to the post-service symptoms the veteran displayed, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995) and Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), they, as lay persons have not been shown to be capable of making medical conclusions, thus, their statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the appellant, her son, and the veteran's sister are competent to report post-service symptoms the veteran displayed, they do not have medical expertise. Therefore, they cannot provide a competent opinion regarding diagnosis and causation regarding a possible connection between his service, including his POW captivity, and any post-service disorders or their relationship to his death, as these latter issues involve question of etiology requiring medical expertise. See e.g., Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge", aff'd sub nom. Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998), cert denied, 119 S.Ct. 404 (1998). Therefore, although we are sympathetic with the veteran's experiences in service and with the appellant's loss of her husband, we find a lack of competent medical evidence to warrant a favorable decision for the period prior to October 7, 2004. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). See Winsett v. West, 11 Vet. App. 420, 424 (1998) (physician's opinion in cause-of-death case that list of conditions submitted by appellant might be related to exposure to Agent Orange found speculative when physician also indicated that "it is just as likely that they could have another cause"), aff'd, 217 F.3d 854 (Fed. Cir. 1999), cert. denied, 528 U.S. 1193 (2000). Here, the appellant has failed to submit or identify competent medical evidence to provide a nexus between any in-service injury or disease and the conditions that caused and contributed to cause the veteran's death. As the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death, the benefit- of-the doubt rule does not apply, and the claim for service connection for the cause of the veteran's death must be denied for the period prior to October 7, 2004. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the veteran's death for the period from October 7, 2004, but no earlier, is granted. Service connection for the cause of the veteran's death for the period prior to October 7, 2004 is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs