Citation Nr: 0740012 Decision Date: 12/19/07 Archive Date: 01/29/08 Citation Nr: 0740012 Decision Date: 12/19/07 Archive Date: 12/26/07 DOCKET NO. 94-41 527A ) DATE DEC 19 2007 ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Lewis C. Fichera, Attorney WITNESSES AT HEARING ON APPEAL Appellant and her son VACATUR The veteran served on active duty from March 1943 to January 1946, and from January 1948 to June 1966. He died in April 1993. The appellant is the veteran's widow. On May 11, 2007, the Board denied entitlement to service connection for the cause of the veteran's death. In June 2007, the Board received a Motion for Reconsideration of that decision arguing inter alia that the Board did not include in its review a medical opinion received by the Board in April 2007; and that the appellant's time to submit additional evidence had not expired. In light of these and other arguments made in the June 2007 motion, the Board vacates its May 11, 2007 decision in its entirety. A separate determination will be entered addressing the appealed issue. ORDER The Board's May 11, 2007, decision is vacated. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 0714112 Decision Date: 05/11/07 Archive Date: 05/25/07 DOCKET NO. 94-41 527A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Lewis C. Fichera, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to January 1946, and from January 1948 to June 1966. He died in April 1993. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In a July 2000 decision, the Board denied the claim. In October 2000, the Board vacated its July 2000 decision. In a May 2001 decision, the Board again denied the claim. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2001, the Court vacated the Board's May 2001 decision and remanded the case to the Board. A June 2002 Board decision again denied the claim. The appellant again appealed to the Court. A February 2003 Court order granted a joint motion requesting that the June 2002 Board decision be vacated and once again remanded the case to the Board. In October 2003, the Board remanded the case for further evidentiary development. The Board remanded the veteran's appeal once again in October 2005. FINDINGS OF FACT 1. During his lifetime, the veteran had no established service-connected conditions. 2. The veteran died many years after service from complications of resection for colon cancer; the colon cancer (the underlying cause of death) began many years after service and was not caused by any incident of service. 3. Cirrhosis of the liver was a contributory cause of death; liver cirrhosis began many years after service and was not caused by any injury or disease in service including malaria. 4. The preponderance of the evidence is against finding that any inservice weight gain caused or contributed substantially or materially to cause the veteran's death; is against finding that diabetes mellitus was incurred during military service, to include due to any in-service weight gain; nor was diabetes mellitus compensably disabling within the first year following the veteran's separation from active duty CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute to the veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5102 (West 2002 and Supp. 2007), VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a) (West 2002 and Supp. 2007), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The appellant must also be notified to submit all evidence in her possession, what specific evidence she is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and, in some cases, securing expert opinions. 38 U.S.C.A. § 5103A (West 2002). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided, inter alia, in December 2003 and February 2006 correspondence, fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice of the type of evidence necessary to establish an effective date for the benefit sought on appeal. The claim was thereafter readjudicated in the November 2006 supplemental statement of the case (SSOC). The failure to provide notice of the type of evidence necessary to establish an effective date for the benefit sought on appeal is harmless because the preponderance of the evidence is against the appellant's claim for service connection, and any questions as to the appropriate effective date to be assigned are moot. The Board acknowledges that, under 38 U.S.C.A. § 5103(a), notice must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In this case, the provisions of 38 U.S.C.A. § 5103(a) were enacted after the rating decision at issue, thus making perfect compliance with the timing requirements of 38 U.S.C.A. § 5103 impossible. The content of the notices, however, provided to the appellant since have fully complied with the requirements of that statute. The appellant has been afforded a meaningful opportunity to participate in the adjudication of her claim, to include the opportunity to present pertinent evidence. Thus, any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Moreover, the Court has held that VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. Mayfield v. Nicholson, 20 Vet. App. 537, 541. For the aforementioned reasons, therefore, no additional VA development is required to satisfy the statutory duty to assist the appellant and provide him appropriate notice. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (adhering strictly 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 appellant); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Finally, VA has secured all available pertinent evidence and conducted all appropriate development. Service and post- service medical records are available, and there is no known and available pertinent evidence which is not currently part of the claims file. On the most recent, October 2005, remand, a three-physician panel was directed to comment on the February and March 2004 opinion letters, respectively, of Drs. Irfan-Ul Huq and Craig N. Bash. There is a presumption of regularity that the Board's remand instructions were followed. Even though the October 2006 consensus opinion report authored by one of the physicians states that he read the letters of Drs. Ul Huq and Bash, there is no evidence the other physicians did not review those letters as well. Hence, VA has fulfilled its duty to assist the appellant in the prosecution of her claim. Factual Background The veteran served on active duty from March 1943 to January 1946, and from January 1948 to June 1966. During his lifetime, he had no established service-connected conditions. At a March 1943 physical examination for induction, the veteran was 18 years old (born September 1924), was reported to be 67" tall, weighed 217 lbs., and was noted to have a heavy frame; listed as a defect was that he was 77 lbs. over standard weight for his height. Service medical records shows he complained of chills in February 1948, and a smear for parasites was negative. A blood smear for possible malaria was taken in July 1949. In September 1949, he underwent medical observation for possible recurrent malaria. He gave a history of malaria in 1945 with three attacks since that time. Current physical findings were normal, and a blood smear for malaria was negative. On periodic examination in January 1951, he was listed as 69 1/2 inches tall and weighed 245 lbs.; no pertinent abnormalities were noted. Another January 1951 medical record notes that he weighed 262 lbs. and that on routine physical examination he was noted to have glycosuria; a repeat test for sugar was negative, and a weight reduction diet was recommended. In July 1952, he reported chills and was medically observed for possible recurrent malaria. A malaria blood smear was negative. A September 1952 medical consultation request shows that he gave a history of malaria during his tour of duty in New Guinea. He related that since that time he had episodes of chills followed by mild rigors and loss of consciousness. Just prior to his current visit, he reportedly had sudden onset of dizziness, followed by chills and syncope, but when seen at the clinic there were no abnormal pathological findings, including no evidence of hepatomegaly or splenomegaly. Thus, a medical consultation was requested. A September 1952 neuropsychiatry consultation report reveals that the veteran handled stress poorly and manifested a hyperventilation syndrome causing syncope. The diagnosis was passive aggressive reaction manifested by syncope due to hyperventilation syndrome. On a number of periodic examinations, no malaria, jaundice, or gastrointestinal problems were reported. The veteran's weight fluctuated, he was often noted to be overweight, and at times he was put on a weight reduction program. For example, he weighed 250 lbs. in November 1956, and he was placed on weight reduction plans in October 1957 and May 1959 (on the latter occasion he weighed 271 lbs.). He weighed 272 lbs. in November 1959, 274 lbs. in April 1962 (it was noted he was obese, was 73 lbs. over maximum weight, and diet for weight reduction was recommended), 266 lbs. in October 1962, and 274 lbs. in October 1962. He weighed 205 lbs. in May 1964. Various heights were recorded, but generally the veteran was said to be 5' 9 1/2 " or 5' 10" tall. On his April 1966 retirement examination, the veteran was reported to be 5' 10" tall and weighed 224 lbs.; clinical evaluation of the gastrointestinal system was normal. The service medical records do not show colon cancer or chronic liver disease. The veteran retired from active service in June 1966. Private hospital records show the veteran was hospitalized from January to February 1980 in Hamilton Hospital for complaints of intermittent chest pain with a pressure feeling in the throat. Laboratory data showed mild elevation of SGOT; however, repeat studies were unremarkable. On examination, the sclerae were non-icteric. The diagnoses were acute coronary insufficiency with unstable angina, arteriosclerotic heart disease, and exogenous obesity. In January 1981, he underwent coronary artery bypass surgery in the University of Pennsylvania Hospital. He was noted to tolerate the operation well, despite his obesity (he weighed 294 pounds). In March 1993, the veteran was hospitalized in Hamilton Hospital for evaluation of anemia. It was noted that he had complaints of gradual weakness and tiredness. On examination, the liver was noted to be 16 cm., firm and nontender. The impressions were severe anemia, possible gastrointestinal bleeding, and possible cirrhosis of the liver. He underwent colonoscopy and biopsy and was found to have colon cancer. The final diagnoses were anemia due to blood loss, adenocarcinoma of the descending colon, esophagitis, acute and chronic gastritis, diverticulosis, possible left inguinal hernia, arteriosclerotic heart disease, and status post coronary bypass surgery. Later that month, he was admitted to University of Pennsylvania Hospital in order to undergo resection of a biopsy-proven adenocarcinoma involving his mid-sigmoid colon. According to the operative report, the surgeon was Dr. Buzby. After the incision, palpation of the liver revealed it to be extremely small and shrunken, rock hard and nodular, consistent with a cirrhotic pattern. However, in order to perform a biopsy, the incision would need to be extended several inches upward, and the surgeon did not think this was warranted in this situation. A sigmoid colon resection was performed and the postoperative diagnoses were sigmoid carcinoma and cirrhosis of the liver. Although he initially progressed without complications, on the 11th postoperative day, a fullness in his left neck, diagnosed as parotitis, was discovered. The following day, he suffered a slow upper gastrointestinal bleed, and a huge ulcer was seen. He was resuscitated with blood and fresh frozen plasma. He developed signs of progressive abdominal sepsis, and was taken to the operating room on an urgent basis for exploration. The surgeon again was Dr. Buzby. The abdomen was entered though the old incision. A large amount of green bilious material was present. The entire abdomen was carefully explored. Careful exploration in the upper abdomen revealed no abnormalities to account for the perforation. The gallbladder was hugely enlarged. In the lower abdomen, it was determined that the bowel was the cause of the leakage. Findings were an anastomotic leak which was oversewn, a distended gallbladder which was drained, and a diverting colostomy was performed. In the following days, he appeared to have stabilized. He continued to be coagulopathic, which was felt to be consistent with his liver disease. The principal diagnosis was colon cancer. The secondary diagnoses were hypertension, gout, coronary artery disease, parotitis, and obesity. Complications were sepsis and multi-system organ failure. He died in the hospital in April 1993. The veteran's death certificate reveals that he died in April 1993. The immediate cause of death was listed as multi- system organ failure (of about 3 days duration), due to or as a consequence of sepsis (of about two weeks duration), due to or as a consequence of an anastomotic leak (of about 2 weeks duration), due to or as a consequence of resection for colon cancer (of months duration). The last listed condition (resection for colon cancer) was noted to be the underlying cause of death. According to an April 1993 autopsy report, the veteran had undergone sigmoid resection for colon cancer. He had an emergent laparotomy performed subsequently for sepsis and hemodynamic instability. His bilirubin increased and his course deteriorated until he required intubation for thick bloody secretions and decreased oxygenation. The anatomical diagnoses were moderately differentiated adenocarcinoma of the colon, micronodular cirrhosis with hepatomegaly, left lung broncho-pneumonia, and cardiomegaly. The findings regarding the cirrhosis were noted to be hepatomegaly, marked jaundice, serosanguineous ascites, and splenomegaly. In a May 1993 statement, Gordon P. Buzby, M.D., indicated that the veteran died following surgery performed in March 1993. Dr. Buzby stated that the veteran had two major abdominal procedures and died primarily of liver failure. The doctor opined that the veteran's liver failure was related to post-necrotic cirrhosis, which was probably related to a previous episode of hepatitis. He related that the veteran had an in-service jaundice episode that resolved but which the doctor believed caused sufficient liver injury and eventually long-standing cirrhosis. Dr. Buzby noted that at the time of his abdominal operations, the veteran had an extremely hard and shrunken liver. He indicated that in the postoperative period, the veteran's liver function deteriorated dramatically and that "this attributed very substantially to his eventual death." In November 1994, the appellant submitted copies from several medical texts that described the signs, symptoms, and treatment of malaria. In January 1995, the appellant submitted copies of letters written to her by the veteran during his service in 1952. In the letters, the veteran related he was hospitalized and treated for attacks of malaria. At a January 1995 RO hearing, the appellant testified that the veteran had several attacks of malaria during active service. She related that the veteran told her that he had hepatitis during service but she was unable to find such evidence in his service medical records. She stated that following active duty, he had fevers and was periodically jaundiced but never sought medical treatment. The appellant maintained that after surgery to remove a tumor in his colon, the veteran developed an infection. She claimed that he was unable to fight the infection because of the damage to his liver. In June 1995, the appellant submitted copies of a medical text which refer to diseases of the liver. The medical text describes the causes of and treatments for various types of malaria. Another medical text reported statistical findings related to malarial jaundice. At an October 1996 RO hearing, the appellant again testified that the veteran told her that he had many malaria attacks during service. She said that after discharge he continued to have intermittent recurrences of malaria attacks. She indicated that the veteran was hospitalized for removal of a small polyp in his intestine in 1993. She stated that he subsequently developed an infection and died from multi-organ failure. She related that Dr. Buzby said that the veteran's liver was in terrible shape and that malaria, hepatitis, or jaundice may have damaged his liver. In an August 1997 medical opinion, a VA doctor noted historical records, and opined that the cause of the veteran's death did not appear to be related to malarial illness in service. The doctor indicated that the veteran's death was multifactorial and related to overwhelming sepsis and its hemodynamic, hematologic, and metabolic consequences. During a May 2000 Travel Board hearing, the appellant reiterated her prior statements regarding the veteran having malaria during service and subsequent recurrences. She indicated that multi-organ failure which was listed as the cause of death, included the veteran's liver dysfunction since the liver was a major organ. The veteran's son testified that he witnessed the veteran have an episode of chills, sweats, and fever. A June 2000 statement by Dr. Buzby is essentially the same as his May 1993 statement. In the June 2000 statement, the doctor said that the veteran died following the March 1993 surgery and that he had had two major abdominal procedures and died primarily of liver failure. The doctor opined that the veteran's liver failure was related to post-necrotic cirrhosis, which was probably related to a previous episode of hepatitis. Dr. Buzby related that the veteran had a history of an in-service jaundice episode that resolved but which, Dr. Buzby believed, caused sufficient liver injury and eventually long-standing cirrhosis. The doctor again said that in the postoperative period (following abdominal surgery) the veteran's liver function deteriorated dramatically and "this attributed substantially to his eventual death." In February 2001, the Board requested a medical opinion from the Veterans Health Administration (VHA). The letter to the VHA asked the following three questions: 1. Does the record indicate that the veteran had an episode of jaundice in service? 2. Did the veteran's history of possible malaria in service lead to cirrhosis of the liver first diagnosed in 1993? 3. Did the veteran's cirrhosis of the liver contribute substantially or materially to his death? In response to the above questions, in March 2001 the acting Chief of Staff from the VA Nebraska/Western Iowa Health Care System submitted medical opinions from a VA staff gastroenterologist and a VA staff liver transplant physician. In his March 2001 opinion, the VA staff gastroenterologist responded to the three questions thus: 1. There is no documented evidence that the veteran had an episode of jaundice in the service, but the history of malaria, or dengue fever for that matter, is a moot point in this discussion. (see discussion below) Indeed, at the physical examinations performed in January 1951, November 1952, October 1962, and January 1964 a negative response was reported to be given to the question, "Have you ever had an episode of jaundice"? In the record of these physical examinations there is no mention of a past history of malaria or any other infectious illness. An episode of jaundice or scleral icterus (yellow eyes) related to malaria is typically secondary to hemolysis (breakdown of red blood cells) and not liver disease. 2. Malaria is not associated with chronic hepatitis and the development of cirrhosis of the liver. Therefore, the history of possible malaria in this veteran would not result in the diagnosis of cirrhotic liver disease in 1993. 3. The statements of the veteran's surgeon, Gordon P. Buzby, the results of the autopsy, and the discharge summary all point to complications of cirrhosis and a substantial contribution to the patient's death. However, without a complete medical record of that hospitalization, the actual involvement of liver failure in complicating the post-operative course is difficult to discern. Thus, my review of the medical record leads me to believe that the role of cirrhosis in his death was significant. The VA staff gastroenterologist offered additional comments as to the relationship of the veteran's service and his death. He stated: I am concerned that the Review Board and the patient's family have become inappropriately focused on the possible relationship of malaria to cirrhosis. It is my opinion that Dr. Buzby was correct to assume that the patient's cirrhosis was the result of long-standing liver injury, but it was incorrect to suggest to the patient's wife that malaria could be the responsible cause. The suggestion that his liver disease probably existed during some portion of his 20 plus years of service, however, is correct. First of all, the lack of a documented episode of jaundice in service would be typical of veteran patients who develop chronic liver disease while in the service, regardless of the cause. For example, patients that develop chronic hepatitis B or chronic hepatitis C rarely have a documented medical history of an initial episode of jaundice. Most patients who develop cirrhosis as a result of a remote infection will be asymptomatic or mildly symptomatic until cirrhosis and its complications develop. Relying on a history of jaundice to establish a link from a past illness to the present presence of cirrhosis is not appropriate. Secondly, it is probable that although the patient's malaria did not result in his cirrhosis, . . . another cause of liver injury, suffered in the service, was indirectly or directly responsible for the development of his cirrhosis of the liver. It is very possible for a patient to develop liver disease without having an infectious hepatitis. There is no evidence that this patient [had] hepatitis C, an affliction affecting 8-10% of the entire veteran population. Although, I can find no evidence of blood transfusions for his coronary artery bypass graft in 1981, [it] would be unlikely that hepatitis C from transfusions would have caused complications of cirrhosis within 12 years. A review of the record to check for laboratory testing for hepatitis C may be appropriate. Patients that develop cirrhosis will usually have a slowly progressive liver injury with progression to cirrhosis occurring over twenty to forty years. During this patient's physical examination in 1943, he was nineteen years of age and listed as being 67" tall and weighing 217 lbs. The patient's weight documented in the physical examinations over a twenty-year period show that his weight increased from 245 lbs. at age 27 to 305 lbs. at age 40. In fact, the presence of morbid obesity was almost certainly responsible for the finding of glucose in his urine (diabetes) in 1951. His hyperglycemia and massive girth would have been associated with a significant risk for the development of fatty liver or non- alcoholic steatohepatitis (NASH). Fatty accumulation in the liver is common and occurs in apparently normal individuals as well as in those who are obese or diabetic. The recognition of NASH is difficult. The presentation of obesity, diabetes, hepatomegaly and mild abnormality of liver enzymes maybe subtle and missed by medical examiners. Indeed, medical recognition of the potential serious complications of NASH has occurred only since the 1980s. The understanding of the potential natural history of NASH to include cirrhosis in a small but significant percentage of individuals has been more recent. Therapy of obesity with diet and correction of hyperglycemia is important, but there is no guarantee that weight loss and therapy of diabetes will prevent cirrhosis. Without a history of chronic hepatitis C, a lack of history of alcohol use or abuse, a lack of history of intravenous drug use, and no family history of liver disease, I think that most likely the patient's obesity and resulting NASH are responsible for the development of cryptogenic cirrhosis of the liver. Thus, the obesity that accompanied his entire service and was documented at every examination is the most probable cause of his cirrhotic liver disease. In conclusion, if the Board feels (and I believe it must) that cirrhosis contributed to the patient's death, then with my opinion that the chronic liver injury (from NASH) existed during service, a benefit claim may be justified. Later in March 2001, the VA staff liver transplant physician responded thus to the questions presented by the Board: 1. It was indicated that the claimant had an episode of jaundice in the service which was attributed to malaria and had recurrent bouts by history of chills thought to be malaria after returning from overseas. No records were available to me to confirm that he was jaundiced in the service. 2. There is no evidence that malaria contracted during the service would lead to cirrhosis of the liver. The cirrhosis was first diagnosed in 1993. It is clear that malaria can lead to jaundice, particularly when there is a substantial hemolytic component. However this does not lead to structural damage resembling cirrhosis. 3. From reviewing the records available to me that relate to his hospitalization at the University of Pennsylvania, I would agree that his cirrhosis of the liver did contribute to his death following surgery for carcinoma of the colon. 4. I do not believe the cause of death was related to the malarial illness that he had in the service. The VHA opinion was provided to the veteran's representative, who responded with additional written argument in April 2001. While the appeal was in remand status after the October 2003 remand, VA received new medical opinion evidence to the effect that an inservice weight gain caused or contributed substantially or materially to cause the veteran's death. See February 2004 letter from Irfan-UI Huq, M.D. Similarly, VA received medical opinion evidence to the effect that the veteran showed the early signs and symptoms of diabetes mellitus while in military service, that service connection for diabetes mellitus should have been granted during his lifetime, and that diabetes mellitus caused or contributed substantially or materially to cause his death. See March 2004 letter from Craig N. Bash, M.D. In light of this new evidence and the fact that it had yet to be considered by a VA examiner, the Board in October 2005 remanded the veteran's appeal to obtain a VA medical opinion based on the consideration of these opinions. In February 2006, Rufino Montenegro, M.D., recalled treating the veteran from the early 1980's to the early 1990's. He recalled specifically that the veteran weighed about 300 pounds. He noted that the veteran claimed to have been overweight inservice. Dr. Montenegro stated that the veteran had coronary artery bypass surgery, but even with dietary restriction he remained overweight. The veteran in the 1990's was noted to have been diagnosed with colon cancer, and undergone surgery. The surgery was opined to have been difficult because of the veteran's obesity. Dr. Montenegro opined that the veteran was obese, and that he developed coronary artery disease, hypertension and diabetes mellitus. On remand, in May and again in October 2006, the claims files were reviewed to obtain a VA medical opinion based on consideration of the aforementioned letters by Drs. Ul Huq and Bash. The reviews were conducted by a panel of three VA physicians. The panel provided a consensus opinion on each occasion. The panel concluded that it was unlikely any inservice weight gain had caused or contributed substantially [or materially] to cause the veteran's death. The panel reported that it could not state that his inservice weight gain of seven pounds (from an initial 1943 physical examination weight of 217 pounds to a 1966 discharge physical examination weight of 224 pounds) contributed to his demise. It based this conclusion on the fact that there was no evidence of early liver disease in the claims file. The panel underscored the fact that in its view the veteran did not have massive obesity at the time of discharge. The panel additionally concluded that diabetes mellitus was likely not incurred during military service, to include due to any in-service weight gain, and was likely not compensably disabling within the first year following the veteran's June 1966 separation from active duty. The panel underscored this conclusion by pointing to the fact that even at the time of the veteran's bypass surgery in 1980, almost 25 years after separation from service, his sugar was not elevated to any significance, and a diagnosis of diabetes mellitus was not made at that time. The panel moreover concluded that diabetes mellitus likely did not cause or contribute substantially or materially to cause the veteran's death. In providing answers to the above questions, the physicians commented on both the February 2004 opinion provided by Dr. Ul Huq and the March 2004 opinion provided by Dr. Bash. As to Dr. Ul Huq's opinion regarding inservice weight gain, the panel concluded that the records specifically demonstrated that the veteran did not gain any significant weight in service. To have the veteran's death attributed to a seven-pound weight gain while in service and broaden that to cover the remainder of his lifespan to cover complications of obesity was, the panel wrote, simply beyond the scope of its report. A seven-pound weight gain in service, the panel concluded, is totally non-predictive of developing the complications of obesity, which include in this veteran's instance steatohepatitis leading to cirrhosis. Furthermore, the panel reiterated, there was no evidence of diabetes mellitus in service. Inservice glucosuria, the panel wrote, does not make a diagnosis of diabetes mellitus. Likewise, the presence of urobilinogen in the urine does not necessarily indicate hepatic damage. Analysis The appellant claims service connection for the cause of the veteran's death. Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection will be rebuttably presumed for certain chronic diseases, including cirrhosis of the liver and malignant tumors, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service- connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The veteran served on active duty from 1943 to 1946, and from 1948 to 1966. During his lifetime, he had no established service-connected conditions. He died in 1993. The veteran's 1993 death certificate and terminal records show that the underlying cause of death was colon cancer and complications of resection for the cancer. The cancer was first detected in 1993, and an anastomotic leak from surgery led to sepsis and multi-system organ failure. Colon cancer was not shown in service or for years later, and there is no medical evidence linking it to any incident of service. The primary cause of death, colon cancer, was non-service- connected. The appellant contends that the veteran had cirrhosis of the liver, which was a contributory cause of death, and that the liver disease began in service as the result of malaria, hepatitis, and/or jaundice in service. Cirrhosis was not shown as a cause or contributing cause of death on the death certificate. Nevertheless, Dr. Buzby opined that the veteran died primarily of liver failure that was related to post- necrotic cirrhosis. He stated that in the postoperative period following surgery for colon cancer in 1993, the veteran's liver function deteriorated dramatically and such contributed substantially to his death. Following review of the file, VHA medical opinions in 2001, by a gastroenterologist and by a liver transplant specialist, agree that cirrhosis contributed to the veteran's death. The medical evidence shows that cirrhosis was a contributory cause of death. The evidence, however, does not show that cirrhosis was of service onset. The appellant's own statements are not cognizable evidence, since she is a layman and lacks competence to give a medical opinion on such matters. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, copies of medical texts submitted during the course of this claim, which describe diseases of the liver and malaria, are not persuasive as they are speculative and general in nature and do not specifically relate the veteran's in-service malaria to his death. See Sacks v. West, 11 Vet. App. 314 (1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996); Libertine v. Brown, 9 Vet. App. 521 (1996); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The appellant argues that the medical texts submitted confirm that the cirrhosis was caused by malaria, which the veteran suffered in service, and that this evidence is sufficient to establish a nexus between in-service malaria and cirrhosis as a contributory cause of death, citing to Hensley v. West, 212 F.3d 1255, 1264-65 (Fed. Cir. 2000). However, the discussion in Hensley concerned whether the treatise evidence was sufficient to provide a nexus to well-ground the claim. As noted in the Hensley decision, the threshold required for a well-grounded claim was very low, demanding only plausibility. (The concept of a well-grounded claim, which previously triggered the duty to assist, has been eliminated by the VCAA.) Although treatise evidence is competent, it must be considered in conjunction with the other evidence of record. None of the medical evidence of record, which pertains specifically to the veteran, including hospital reports, Dr. Buzby's letters, or the VA medical opinions, concludes that malaria itself caused the cirrhosis of the liver present at death. Indeed, the VA medical opinions all included conclusions that the cirrhosis was not related to malaria. This evidence is substantially more probative than medical texts which are of a general nature. Dr. Buzby, in his 1993 and 2000 statements, opined that the veteran died primarily of liver failure that was related to post-necrotic cirrhosis. He opined that such was related to an in-service episode of jaundice which resolved but caused liver injury and eventually cirrhosis. Dr. Buzby stated that in the postoperative period following surgery for colon cancer in 1993, the veteran's liver function deteriorated dramatically and such contributed substantially to his death. The veteran's service medical records, however, fail to show jaundice, and his letters do not refer to jaundice. The retirement examination in 1966 did not show a history or current findings of jaundice or chronic liver disease including cirrhosis. The earliest contemporaneous indication of any liver abnormality whatsoever was in a transiently elevated serum glutamic oxaloacetic transaminase (SGOT) shown during a hospitalization in 1980, many years after service. Cirrhosis of the liver was first shown shortly before the veteran's death in 1993. Dr. Buzby was the surgeon during the veteran's terminal hospitalization, and not his attending or treating physician, and the evidence does not indicate that he reviewed the veteran's historical records during and since service. The Board is not bound to accept medical opinions based on inaccurate history. Swann v. Brown, 5 Vet. App. 231, 233 (1993). In this case, the only evidence that the veteran had jaundice in service is the appellant's recollection, many years after service, which is outweighed by the absence of any contemporaneous account of jaundice prior to the veteran's death. Another theory was proffered by the VA gastroenterologist who supplied a medical opinion in 2001 that malaria was not associated with chronic hepatitis or cirrhosis. This doctor opined, however, that the veteran's liver disease was probably present during some portion of his 20 plus years of service. He pointed out that many people who have liver disease do not have jaundice. He felt that the hyperglycemia shown in 1951 and the veteran's obesity shown throughout service indicated he had nonalcoholic steatohepatitis (NASH). NASH, in turn, is associated in a "small but significant" percentage of individuals who develop cirrhosis. He pointed to the absence of any history of other causative factors, which he noted to be chronic hepatis C, alcohol or drug use, or family history; the veteran's obesity; and the slowly progressive nature of cirrhosis. He therefore felt that the obesity that was present throughout service was the most probable cause of his cirrhotic liver disease, and that the liver injury (NASH) which caused the cirrhosis was present in service. The veteran, however, was never diagnosed with NASH; and, although overweight in service, the hyperglycemia shown in 1951 was not shown to have been a chronic condition. The doctor stated that NASH is associated with a "small but significant" percentage of individuals who develop cirrhosis, which has only been recognized in recent years. He did not state how this association has been shown-whether it is simply statistical, or whether there is some other medically sound basis for such a connection. Because the veteran has not been shown to have had NASH, it is not necessary to further clarify this assertion. The presence of a risk factor-obesity-is not sufficient, by itself, to create a reasonable doubt as to the presence of a fatty liver condition. Moreover, the veteran's death did not occur until 27 years after his discharge from service; even if NASH was present, there is not a sufficient basis to conclude that it began in service, as opposed to after service, when the veteran was also obese. Therefore, the doctor's opinion is insufficient to place the evidence in equipoise, as to the existence of NASH, whether it was incurred in service, or whether it was causally related to the cirrhosis present at death. In this regard, although, as this doctor stated, many people with liver disease do not show observable signs such as jaundice, even more people without liver disease do not exhibit jaundice. It is also argued that the veteran's period of active duty aggravated his pre-existing obesity, with weights of 271 pounds and 274 pounds noted during service, and that this unhealthy condition was allowed to persist without any attempts or plans to reduce his weight. The veteran's exogenous obesity may not be service connected, in part because it is not a chronic disability due to a disease or injury in service. Even if obesity might otherwise be considered for service connection, it would not be service connected in the present case as it pre-existed service and was not aggravated by service. In this regard, he weighed 217 pounds at entrance, and, although his weight was as high as 274 pounds in 1962, he weighed 205 pounds in May 1964, and at his retirement examination, he weighed 224 pounds, only seven pounds more than when he entered service 23 years earlier. He was put on weight control programs several times during service. As the veteran's obesity may not be service- connected, liver disease many years after service may not be considered under a theory that it is secondary to obesity (see 38 C.F.R. § 3.310 (2006)). The Board turns now to Dr. Ul Huq's medical opinion to the effect that an inservice weight gain caused or contributed substantially or materially to cause the veteran's death, and to Dr. Bash's medical opinion to the effect that he showed the early signs and symptoms of diabetes mellitus while in military service, that service connection for diabetes mellitus should have been granted during his lifetime, and that diabetes mellitus caused or contributed substantially or materially to cause his death. The Board finds that the evidence provided by VA's three- physician panel in May and October 2006 is of greater probative value and weight than that supplied by Drs. Ul Huq and Bash. The panel of three VA physicians came to its conclusions after reviewing the claims file. The Board acknowledges that Drs. Ul Huq and Bash likewise reviewed the claims file. Because their opinions were based on not just selected evidence, however, the Board finds the consensus opinion of the three-physician panel more persuasive than the opinions rendered by Drs. Ul Huq and Bash, which fail to consider certain evidence, noted by the panel, that does not support their theories. Dr. Ul Huq failed to address how a net seven-pound weight gain was predictive of developing the complications of obesity, including steatohepatitis leading to cirrhosis. Furthermore, Dr. Bash failed to explain why inservice glucosuria makes for the diagnosis of diabetes mellitus, or why the presence of urobilinogen in the urine indicates hepatic damage. Dr. Bash's apparent reliance on a statement in an academic article, Hepatic steatosis in obese patients and prognostic significance, by D. Festi, A. Colecchia, T. Sacco, M. Bondi, E. Roda, and G. Marchesini (Obes. Rev., February 2004, 5(1): 27-42), likewise cannot confirm hepatic damage in service. Dr. Bash quotes from a quote that seems to be within the aforementioned text: "Increased urine urobilinogen may (emphasis added) occur due to increased breakdown of RBC's (malaria) or due to severe liver cell damage (hepatitis)" (D. Festi et al., quoting Ravel at 312). The key word here is "may," which is merely suggestive and insufficient to establish nexus. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak at 611 ("may or may not" language by physician is too speculative). The Court has held that greater weight may be placed on one physician's opinion over another's, depending on factors such as reasoning employed by the physicians, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board can only conclude that the evidence is not so evenly balanced that there is doubt as to any material issue on that question. As such, the opinions of Drs. Ul Huq and Bash are insufficient to establish service connection for the cause of the veteran's death. Finally, the Board notes that the current record is devoid of any medical evidence showing complaints, diagnoses, or treatment for obesity for the first 14 years following the veteran's June 1966 separation from military service (see January 1980 treatment records from Hampton Hospital), or a diagnosis of diabetes mellitus until diagnosed eleven years after his death by Dr. Bash in March 2004. Although the appellant was specifically invited to obtain and associate with the record any pertinent evidence, critical to establishing her claim, none was indicated to exist. In sum, the weight of the credible evidence demonstrates that the primary cause of death (colon cancer) began many years after service and was not caused by any incident of service. The reported contributory cause of death (cirrhosis) was first shown many years after service and was not caused by any incident of service including malaria. The primary and contributory causes of death are non-service-connected, and the requirements of service connection for the cause of the veteran's death have not been met. The preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 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 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs