Citation Nr: 0812805 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-28 690A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to an increased disability rating in excess of 30 percent for service-connected residuals of a left lower lobectomy, for purposes of accrued benefits. 3. Entitlement to service connection for residuals of cold injury (frostbite), for purposes of accrued benefits. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from July 1946 to November 1947 and from November 1948 to September 1952. The veteran died in June 2001. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated in November and December 2001 issued in December 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In May 2005, the appellant testified at a hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing). A transcript of the hearing has been associated with the record. In September 2005, the Board remanded these issues for additional notice and development. That notice and development were completed, and the case was returned to the Board for further appellate consideration. FINDINGS OF FACT 1. During service, the veteran was exposed to extreme cold while in Korea. 2. In September 1997, the veteran filed a claim for increased rating in excess of 30 percent for service- connected residuals of left lower lobectomy; in August 2000, he filed a claim for service connection for residuals of cold injury (frostbite) to the feet during service in Korea. 3. The Certificate of Death reflects that the veteran died on June [redacted], 2001. The immediate cause of death was cardiomyopathy, with no underlying causes of death indicated. 4. The appellant was married to the veteran at the time of his death in June 2001. 5. The veteran's claims for increased rating in excess of 30 percent for service-connected residuals of left lower lobectomy and service connection for residuals of cold injury (frostbite) to the feet were pending at the time of his death. 6. At the time of his death, the veteran was service connected for degenerative joint disease of the lumbar and thoracic spine due to shrapnel wound, rated as 40 percent disabling; residuals of left lower lobectomy, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; degenerative joint disease of the right shoulder, rated as 10 percent disabling; post-traumatic stress disorder (PTSD), rated as 10 percent disabling; bilateral hearing loss, rated as 0 percent disabling; residuals of shell fragment wound to the scalp, rated as 0 percent disabling; residuals of shell fragment wound to the proximal interphalangeal joint of the right third finger, rated as 0 percent disabling; and residuals of shell fragment wound to the left knee, rated as 0 percent disabling; and was granted a total disability rating based on individual unemployability due to service- connected disabilities (TDIU). 7. The weight of the competent evidence demonstrates that the veteran's service-connected disabilities did not contribute substantially and materially to cause his death. 8. The weight of the competent evidence in the file at the date of the veteran's death demonstrates Forced Expiratory Volume in one second (FEV-1) of 66-percent predicted, and Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 74 percent; and does not demonstrate FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio respiratory limit). 9. The weight of the competent evidence in the file at the date of the veteran's death demonstrates no residuals of cold injury (frostbite). CONCLUSIONS OF LAW 1. The veteran's death was not caused by, or substantially or materially contributed to, by an injury or disease incurred in or aggravated by active military service, to include on a presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5103, 513A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.312 (2007). 2. The criteria for a disability rating in excess of 30 percent for service-connected residuals of a left lower lobectomy, for purposes of accrued benefits, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107, 5121 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.1000, 4.1-4.14, 4.97, Diagnostic Code 6844 (2007). 3. The criteria for service connection for residuals of cold injury (frostbite) to the feet, for the purposes of accrued benefits, are not met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5102, 5103, 5103A, 5107, 5121 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.1000 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000, the United States Department of Veterans Affairs (VA) has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of letters sent to the appellant in September 2001, December 18, 2001, December 20, 2001, December 2003, June 2004, and January 2006 that fully addressed all four notice elements. The letters informed the appellant of what evidence was required to substantiate the claims, and of the appellant's and VA's respective duties for obtaining evidence, asked the appellant to notify VA of any evidence that she thought would support her claims, and asked the appellant to send to VA all evidence in her possession that pertained to the claims. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, because the claim for service connection for accrued benefits is being denied in this Board decision, no effective date will be assigned. Thus, the Board finds that there can be no possibility of any prejudice to the claimant under the holding in Dingess. The appellant has not alleged any prejudice with respect to the timing of the notification, nor has any been shown. VA has a duty to assist the claimant in the development of the claim. This duty includes assisting an appellant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that in this case all necessary development has been accomplished. The evidence of record includes the veteran's testimony in 2000 during his lifetime, the death certificate, private medical records, records of hospitalization, the veteran's VA treatment records, VA examination reports, VA and private medical opinions, service medical records, medical articles, the appellant's statements, and the appellant's personal hearing testimony. After all reasonable attempts to obtain service personnel records have failed, service personnel records are not available. It is indicated that such records were likely destroyed; therefore, there is no further duty to attempt to obtain such records. Additionally, on the relevant question of in-service occurrence of cold exposure or frostbite injury to the feet to which the service personnel records would pertain, the Board has found as a fact that during service in Korea in the Chosin Reservoir the veteran was exposed to extremely cold temperatures. Because the veteran's in- service cold exposure has been established as a fact, the service personnel records are not necessary to decide this claim. At the personal hearing in May 2005, the appellant and her representative were provided an opportunity to set forth her contentions and testimony. The appellant and her representative have also had the opportunity to present written and oral arguments in support of the appellant's claims. The record does not otherwise indicate that any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For these reasons, the Board finds that VA has fulfilled the duty to notify and assist, so that it can consider the merits of this appeal without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for the Cause of Death Service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). A service- connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other conditions, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b); see Ashley v. Brown, 6 Vet. App. 52, 57 (1993). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992). 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). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. 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; see Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service incurrence will be presumed for cardiovascular disease, if manifest to a compensable degree within one year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection was manifest to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). In this case, the competent evidence also does not show cardiovascular disease within one year of service separation; therefore, this presumption does not apply. 38 C.F.R. §§ 3.307, 3.309. In this case, a Certificate of Death reflects that the veteran died on June [redacted], 2001 of the immediate cause of cardiomyopathy, with no underlying causes of death indicated. The appellant was married to the veteran at the time of his death in June 2001. The appellant contends that the veteran's service-connected lung disability (left lower lobectomy) caused his heart disorder, including cardiomyopathy, and that the veteran's cold-weather injuries caused his amputation of the left lower leg and thrombosis, and most likely these conditions led to the veteran's cardiomyopathy and his death. She contends that, because the left side of the heart receives oxygenated blood from the lungs and pumps it to the body, as pumping action is lost in the left side of the heart, blood may back up into the lungs, causing heart failure. She contends that, because the lower lobe of the veteran's left lung was removed and is the smaller lung, less oxygenated blood was received by the heart, most likely contributing greatly to the veteran's heart disorder. At the May 2005 Travel Board hearing, the appellant testified that the veteran had been diagnosed with congestive heart failure and had to have his leg amputated due to an embolism. She maintained that his vascular difficulties were due to his service-connected left lower lobectomy. The appellant stated that the veteran received 90 percent of his treatment through the VA. She added that the doctors at the Deborah Heart and Lung Center had told her that frostbite had weakened the veteran's heart to the point that all of the above happened. At the May 2005 personal hearing, the representative read a July 2001 statement from Michael Sharf, M.D., who indicated that he had reviewed the veteran's hospital records. He stated that the veteran had undergone a left thoracotomy and resection of a portion of a left lung following a shrapnel injury during the Korean War, and this may have compromised the veteran's cardiopulmonary reserve thereafter. The appellant and her representative contended that either the veteran's shrapnel wounds or the aftereffects of his frostbite contributed to the veteran's development of a vascular disorder and led to his death from cardiomyopathy. Service medical records show that, on November 23, 1951, the veteran sustained multiple shrapnel wounds that included the left back at the level of the third dorsal vertebra that passed into the chest and lodged in the left lower lobe. The veteran was hospitalized immediately and later transferred from the 121st Evacuation Hospital to the Osaka Army Hospital, arriving there on November 28, 1951. On December 6, 1951, he had a segmental resection of the left lower lobe, decortication and removal of the foreign body from the hilus of the left lung. He was discharged from the Osaka Army Hospital after a fairly uneventful post-operative course on January 26, 1952. He was returned to the ZI and was reassigned to limited duty under a profile of P3 on March 1, 1952. During the interval between his discharge from the hospital in Japan and his admission at Walter Reed Army Hospital, on June 9, 1952, the veteran had had no particularly prominent complaints. The veteran had claimed that his breathing capacity was adequate and other than a slight pinching sensation in the left chest he had had no difficulty in doing fairly hard labor. On physical examination, there was a well-healed left thoracotomy scar along the course of the 5th left rib. Depressed breath sounds were also heard over the area of the scar and slight impairment in motion of the left diaphragm was noted. The lung fields were otherwise clear, and the scars were well healed. A chest x-ray showed the bony structure of the thoracic cage to be normal except for the absence of the fifth left rib. Obliteration of the left costophrenic sinus was noted as was slight elevation of the left leaf of the diaphragm. July 1952 thoracic surgery consult supports an impression that the respiratory function was full. The veteran's May 1952 separation examination report showed a scar on the left thorax posterior, absence of the left fifth rib, obliteration of the left costophrenic thymus, and slight elevation of the left leaf of the diaphragm. At the time of his death, the veteran was service-connected for degenerative joint disease of the lumbar and thoracic spine due to shrapnel wound, rated as 40 percent disabling; residuals of left lower lobectomy, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; degenerative joint disease of the right shoulder, rated as 10 percent disabling; post-traumatic stress disorder (PTSD), rated as 10 percent disabling; bilateral hearing loss, rated as 0 percent disabling; residuals of shell fragment wound to the scalp, rated as 0 percent disabling; residuals of shell fragment wound to the proximal interphalangeal joint of the right third finger, rated as 0 percent disabling; and residuals of shell fragment wound to the left knee, rated as 0 percent disabling; and was granted a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The competent medical evidence weighing in favor of the appellant's claim includes a July 2001 opinion from Michael Scharf, M.D., that the veteran's left thoracotomy and resection of a portion of the left lung following shrapnel wound injury in service "may have compromised his cardiopulmonary reserve thereafter." The competent medical evidence weighing against the appellant's claim includes a July 2003 VA heart examination review of the claims file and opinion that the veteran's service-connected status post shrapnel to the chest, status post left lower lobectomy, did not cause or contribute to the veteran's death. The reviewing VA physician opined that the veteran died of cardiomyopathy, which was caused by nonservice-connected atherosclerotic heart disease, diabetes mellitus, and coronary artery disease. Additionally competent medical evidence weighing against the appellant's claim includes a March 2007 VA heart examination report that includes the examiner's opinion that the veteran's heart disease, vascular disease, pulmonary embolic disease, and metabolic disease (diabetes mellitus) were not in any way related to his exposure to cold and/or his shrapnel wounds. The evidence weighing against the appellant's claim includes a March 2007 VA neurologist's opinion that the cause of the veteran's death was not due to any neurological problem. The evidence weighing against the appellant's claim also includes a March 2007 VA pulmonary tuberculosis and mycobacterial diseases examination report that includes the reviewing VA pulmonary physician's opinion that there was no relationship between the cardiomyopathy and the pulmonary embolism and partial lobe resection that had occurred 50 years prior to the veteran's death. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death. The July 2001 opinion from Michael Scharf, M.D., that the veteran's left thoracotomy and resection of a portion of the left lung following shrapnel wound injury in service "may have compromised his cardiopulmonary reserve," is not indicated to have been based on a review of the evidence of record, is a summary opinion without a stated basis, is expressed in tentative language that diminishes its probative value, and is a general opinion pertaining to overall cardiopulmonary health but does not specifically relate the veteran's terminal cardiomyopathy to service or service-connected disability, including service-connected left lower lobectomy. In contrast, the March 2007 VA opinions are indicated to have been based on a review of the evidence of record, including relevant facts and clinical findings expressed in the reports; the unfavorable opinions are stated in more affirmative terms; are specific of unfavorable opinions that specifically relate to the etiology of the veteran's terminal cardiomyopathy; and include medical specialists in cardiology and neurology. For these reasons, the Board finds that the March 2007 opinions that weight against the appellant's claim are of more probative value, and that the weight of the competent evidence demonstrates that the veteran's service or service-connected disabilities did not contribute substantially and materially to cause his death. On the medical question of relationship of the veteran's cardiomyopathy to service or a service-connected disability, including service-connected left lower lobectomy, the appellant is competent to testify as to any symptoms she observed the veteran experience at any time, or that the veteran described to her; however, as a lay person, the appellant is not shown to possess the medical training and expertise necessary to render a medical opinion. For this reason, any assertions by the appellant that the veteran's cardiomyopathy or death were related to his active military service (including cold exposure) or service-connected left lower lobectomy, or that service-connected left lower lobectomy contributed substantially or materially to cause the veteran's death, do not constitute medical evidence of a nexus between the cause of the veteran's death and any injury or disease during of active duty service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For these reasons, the Board finds that a preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Increased Rating for Left Lower Lobectomy for Accrued Benefits Purposes In this case, the veteran's service-connected residuals of left lower lobectomy had been rated 30 percent disabling since 1952. The veteran was admitted to the Deborah Heart and Lung Center in March 1997 for severe dyspnea and underwent many surgical procedures with a reverse saphenous vein graft. In September 1997, the veteran filed a claim for increased rating in excess of 30 percent for service-connected residuals of left lower lobectomy. The veteran died on June [redacted], 2001, and the claim for a disability rating in excess of 30 percent for service-connected residuals of left lower lobectomy was pending at his death. In July 2001, the appellant filed an accrued benefits claim for increased rating in excess of 30 percent for service- connected residuals of left lower lobectomy. She indicates that during his life the veteran complained of daily cough and shortness of breath. When a veteran has a claim(s) pending at the time of his death, his surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Although the appellant's claim for accrued benefits is separate from the claims that the veteran filed prior to his death, the accrued benefits claim is "derivative of" the veteran's claims and the appellant takes the veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). Effective November 27, 2002, 38 C.F.R. § 3.1000 was amended to clarify the terms "evidence in the file at the date of death" and "evidence necessary to complete the application." See 67 Fed. Reg. 65,707-08 (Oct. 28, 2002). The term "evidence of the file at the date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims file on or before the date of death and, as such, is relevant to the disposition of this appeal. The Board also notes that 38 U.S.C.A. § 5121(a) was amended effective December 16, 2003, to remove the two-year limit on the receipt of accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This change applies only to deaths occurring on or after the date of enactment, December 16, 2003. Because the veteran died before the date of enactment, this change does not apply in this case and is noted only for information purposes. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003) (codified at 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2007). In Sharp v. Nicholson, 403 F.3d 1324, 1327 (Fed. Cir. 2005), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that 38 U.S.C.A. § 5121(a) does not limit a survivor's recovery of accrued benefits to those benefits accrued in the two-year period immediately prior to a veteran's death. See also Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004). The veteran's service-connected residuals of left lower lobectomy had been rated 30 percent disabling since 1952, under Diagnostic Code 6844. Diagnostic Codes 6840 through 6845 are rated either under the General Rating Formula for Restrictive Lung Disease, or the primary disorder is rated. The restrictive lung diseases include Diagnostic Code 6844 (post-surgical residual, e.g., lobectomy, pneumonectomy). The General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) provides that FEV-1 of 71- to 80-percent predicted value, or; the ratio of FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) is 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Note (1) provides that a 100-percent rating shall be assigned for pleurisy with emphysema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20-percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97. The July 1999 VA respiratory examination report reflects findings of FEV-1 of 66-percent predicted, which is consistent with a 30 percent disability rating under Diagnostic Code 6844. The July 1999 clinical findings also included FEV-1/FVC of 74 percent, which is consistent with only a 10 percent disability rating under Diagnostic Code 6844. The July 1999 VA respiratory examination report also reflects the veteran's complaints of shortness of breath with talking, coughs occasionally, and diagnosis of moderate restrictive lung disease secondary to thoracotomy/lobectomy. The examiner indicated that the FVC of 3.0L 64 percent most reflected the veteran's status. Chest X-rays showed mild pulmonary vascular congestion. At a personal hearing before the Board in July 2000, the veteran testified that he was using an inhalator daily, as well as occasionally using oxygen and a nebulizer; breathing became labored when he walked or when he exerted himself; and his breathing disorder had worsened since service. In November 2000, the Board remanded the veteran's appeal with regard to a rating in excess of 30 percent for residuals of a left lower lobe lobectomy to the RO for an examination and readjudication, because the July 1999 VA respiratory examination report provided no information with regard to DLCO (SB), maximum exercise capacity, maximum oxygen consumption, or the presence or absence of any cardiac or respiratory limitation, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension episodes, acute respiratory failure, or whether or not the veteran required oxygen therapy. Unfortunately, the veteran died in June 2001 before another examination with these additional measures could be made. After a review of the evidence, the Board finds that the weight of the competent evidence in the file at the date of the veteran's death demonstrates FEV-1 of 66-percent predicted, and FEV-1/FVC of 74 percent, which is consistent with a 30 percent disability rating. The evidence does not demonstrate FEV-1 of 40- to 55-percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), as required for a higher disability rating of 60 percent disability rating under Diagnostic Code 6844. 38 C.F.R. § 4.97. While the Board has considered the veteran's and appellant's statements and testimony regarding the breathing difficulties the veteran suffered, including difficulty breathing with exertion, talking, or walking, such general descriptions of symptomatology do not more nearly approximate any of the rating criteria so as to provide a basis for a disability rating in excess of 30 percent. For these reasons, the Board finds that criteria for a disability rating in excess of 30 percent for service- connected residuals of a left lower lobe lobectomy, for purposes of accrued benefits, have not been met. The Board finds that a preponderance of the evidence is against the appellant's claim, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Cold Injury Residuals for Accrued Benefits In this case, in August 2000, the veteran filed a claim for service connection for residuals of frostbite to the feet. The veteran died on June [redacted], 2001, and the claim for service connection for residuals of frostbite was pending at his death. After the veteran's death, in July 2001, the appellant filed a claim for accrued benefits. The appellant contends that the veteran was exposed to extreme cold and had frostbite in service, and that such exposure caused the vascular problems and neurological problems of the feet, so that service connection for these as residuals should be established, for accrued benefits purposes. The appellant also contends that, even though the RO had denied service connection for pes planus on two separate occasions in November 1990 and January 1994, the veteran's service medical records showed diagnosis of, and treatment for, pes planus, 1st, 2nd and 3rd degree, and continuing pain in his feet, for which the veteran was given arch supports. She added that pes planus is a cold- weather injury and that, two days before his demise, the veteran had requested service connection for cold-weather injuries as he was at the Chosin Reservoir in Korea and had suffered from circulation problems ever since his discharge from service. The appellant also contends that, even though the RO had denied service connection for amputation of the left leg below the knee, this is also evidence of frostbite residuals of circulatory or vascular problems. Although the veteran's pending claim for service connection for residuals of frostbite to the feet terminated with his death, the regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased veteran's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121; see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits is separate from the claim for service connection filed by the veteran prior to his death, the accrued benefits claims is derivative of the veteran's claim, and the appellant takes the veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones v. West, 146 F.3d 1296 (Fed. Cir. 1998). In the instant case, the veteran died in June 2001, and the appellant's claim for accrued benefits was received in July 2001. The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which the veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121(a) (West 1991); 38 C.F.R. § 3.1000 (1999). Here, the appellant, the veteran's surviving spouse, has advanced essentially the same claim for service connection for residuals of frostbite of the feet, for accrued benefit purposes, which the veteran had pending at the time of his death. In December 2003, Congress amended 38 U.S.C.A. § 5121 to repeal the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits; however, these changes apply only to deaths occurring on or after the date of enactment, December 16, 2003. Because the veteran died before the date of enactment, this change does not apply in this case and is noted only for information purposes. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (2003) (codified at 38 U.S.C. § 5121(a) (West 2002 & Supp. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, including certain cancers, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The law provides that, in the case of any veteran who engaged in combat with the enemy, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if the evidence is consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The veteran's service medical records do not reflect any complaints or symptomatology associated with a cold injury. Service medical records show treatment for pes planus in October 1946 (2nd degree), March and May 1947 (3rd degree), July 1947, March and May 1949 (2nd degree), and February and April 1950 (3rd degree). The veteran's November 1947 examination report showed pes planus, 2nd degree; while his November 1948 entrance examination report noted pes planus, 3rd degree. The Board notes that the effects of cold injury may not become apparent for many years and that VA has taken a number of steps to assist claimants and to enhance the adjudication of claims for residuals of cold injury. They include: revision and expansion of the criteria for rating residuals of cold injury; the addition of a section on cold injury in the adjudication procedures manual; and development of a cold injury examination protocol. See VA Adjudication Procedure Manual M21-1, Part VI, par. 11.20. For example, when the fact or participation in the Chosin Reservoir campaign is established, exposure to extreme cold can be conceded, despite the lack of any specific record of a cold injury, and may allow VA to establish service connection for residuals of cold injury that are diagnosed long after service. Other evidence shows that the veteran was admitted to the Deborah Heart and Lung Center in March 1997 and underwent many surgical procedures with a reverse saphenous vein graft. In April 1997, he had a left leg amputation due to ischemic and gangrenous left foot. The veteran had been diagnosed with Charcot's neuropathy involving the feet. In a June 2001 VA Form 21-4138 (JF), the veteran indicated that he landed in North Korea on November 17, 1950, and proceeded to the Chosin Reservoir, where temperatures dropped to -40°; and that they were evacuated on December 24th, 1950, but the veteran's feet were numb and he was fitted with arches for 2nd degree pes planus (flat feet); and that he had experienced circulatory problems ever since. At the May 2005 personal hearing before the undersigned Veterans Law Judge, the appellant testified that the veteran was exposed to extremely cold temperatures while in the Chosin Reservoir during service in Korea; he developed foot problems after service that made it difficult for him to walk on hard surfaces; VA treated the veteran with special shoes; and after service the veteran's feet were wide, with gangrene on the toes and black spots. At the May 2005 Travel Board hearing, the appellant's representative noted that the veteran was an infantryman who served in Korea with the 7th Infantry Division, referred to as the Hourglass Division at the Chosin Reservoir, and that he had a service-connection claim for frostbite pending at the time of his death. After a review of the evidence of record at the time of the veteran's death, the Board finds that, as contended, the veteran was exposed to extreme cold while in the Chosin Reservoir during service in Korea. The Board finds the veteran and appellant credible regarding the testimony of the veteran's service in the Chosin Reservoir during service in Korea, as well as the extreme cold to which the veteran was exposed. The remaining question is whether there were any residuals of frostbite. The Board finds that the weight of the competent evidence in the file at the date of the veteran's death in June 2001 demonstrates no residuals of cold injury (frostbite), including to the feet. For these reasons, the Board finds that a preponderance of the evidence is against the appellant's claim, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the veteran's death is denied. An increased disability rating in excess of 30 percent for service-connected residuals of a left lower lobectomy, for purposes of accrued benefits, is denied. Service connection for residuals of cold injury (frostbite), for purposes of accrued benefits, is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs