Citation Nr: 0843373 Decision Date: 12/16/08 Archive Date: 12/23/08 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 WITNESSES AT HEARINGS ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD D. J. Drucker, 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 and the appellant is his widow. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In a July 2000 decision, the Board denied the appellant's claim. In October 2000, the Board vacated its July 2000 decision. In March 2001, the Board obtained two Veterans Health Administration (VHA) medical opinions regarding the appellant's claim for service connection for the cause of the veteran's death. In a May 2001 decision, the Board again denied the appellant's 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. In a June 2002 decision, the Board again denied the appellant's claim. The appellant appealed the Board's June 2002 decision to the Court. A February 2003 Court Order granted a joint motion requesting that the June 2002 Board decision be vacated and, again, remanded the appellant's case to the Board. In October 2003 and October 2005, the Board remanded the case for further evidentiary development. In June 2007, the Board denied the appellant's claim but, in light of a May 2007 motion, that decision was vacated. In December 2007, the Board remanded the appellant's claim for further evidentiary development. FINDINGS OF FACT 1. During his lifetime, the veteran had no established service-connected conditions. 2. The veteran died in April 1993 from complications of resection for colon cancer; the colon cancer (the underlying cause of his 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 the veteran's 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 objective medical evidence of record is against finding that any in-service weight gain caused or contributed substantially or materially to cause the veteran's death; is also 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. §§ 1101, 1110, 1112, 1113, 1131, 1310 (West 2002 and Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in December 2003 and February 2006 of the information and evidence needed to substantive and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The RO provided notice how an effective date is determined in November 2006 and March 2007. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. 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. In 2001, the Board requested and received VHA opinions. In the 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. On the December 2007 remand, that panel was directed to comment on additional evidence submitted in 2007 by Dr. Bash and Harrison Butler, M.D. There is a presumption of regularity that the Board's remand instructions were followed. Even though the October 2006, and July and September 2008 consensus opinion reports authored by one of the physicians states that he read the letters of Drs. Ul Huq, Bash, and Butler, there is no evidence that 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. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. II. Factual Background The appellant is seeking entitlement to service connection for the cause of the veteran's death. In a written statement received in June 2000, she said that the veteran experienced high fevers during their married life and there were many documents indicating he had malaria and jaundice in service that caused his liver deterioration and subsequent death. In a January 2004 written statement, she argued that the malaria the veteran suffered during service destroyed his liver over time that, evidently, led to the conditions that caused his death. Alternatively, she appears to argue that the veteran's in-service weight gain led to diabetes mellitus in service that caused or contributed to his liver deterioration and ultimate demise. The record reflects that the veteran died in April 1993 at the age of 68. The certificate of death lists the immediate cause of his death as multi- system organ failure (of about three 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 two 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. An autopsy was performed. At the time of his death, the veteran had no service-connected disabilities. Service medical records reflect that, when examined for induction into service, in March 1943, the veteran who was 18 years old (born September 1924), was reported to be 67 inches tall and weighed 217 pounds. He was noted to have a heavy frame that was listed as a defect and was 77 pounds over standard weight for his height. Service medical records show that the veteran complained of chills in February 1948, and a smear for parasites was negative. A blood smear for possible malaria was taken in July 1949 and, in September 1949, he underwent medical observation for possible recurrent malaria. The veteran gave a history of malaria in 1945 with three attacks since that time. Physical findings were normal, and a blood smear for malaria was negative. On periodic examination in January 1951, the veteran was 69 1/2 inches tall and weighed 245 pounds. No pertinent abnormalities were noted. According to another January 1951 medical record, the veteran weighed 262 pounds and 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, the veteran reported chills and was medically observed for possible recurrent malaria. A malaria blood smear was negative. A September 1952 medical consultation request shows that the veteran 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 in 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. Subsequent periodic service examination findings are not referable to malaria, jaundice, or gastrointestinal problems. The veteran's weight fluctuated, he was often noted to be overweight and, at times, he was placed on a weight reduction program. For example, he weighed 250 pounds in November 1956, and was placed on weight reduction plans in October 1957 and May 1959 (on the latter occasion he weighed 271 pounds.). He weighed 272 pounds in November 1959, 274 pounds in April 1962 (it was noted he was obese, was 73 pounds over maximum weight, and diet for weight reduction was recommended), 266 pounds in October 1962, and 274 pounds in October 1962. He weighed 205 pounds in May 1964. Various heights were recorded but, generally, the veteran was reported to be 5 feet 9 1/2 inches or 5 feet 10 inches tall. On his April 1966 retirement examination, the veteran was reported to be 5 feet 10 inches tall and weighed 224 pounds. Clinical evaluation of his gastrointestinal system was normal. The service medical records are not referable to complaints or diagnosis of, or treatment for, colon cancer or chronic liver disease. The veteran retired from active service in June 1966. Post service private hospital records show that, from January to February 1980, the veteran was hospitalized in Hamilton Hospital for complaints of intermittent chest pain with a pressure feeling in the throat. Laboratory data showed mild elevation of serum glutamic oxaloacetic transaminase (SGOT); however, repeat studies were unremarkable. On examination, the veteran's sclerae were non-icteric. The diagnoses were acute coronary insufficiency with unstable angina, arteriosclerotic heart disease, and exogenous obesity. In January 1981, the veteran underwent coronary artery bypass surgery at 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, his liver was noted to be 16 centimeters (cm.), firm, and nontender. The clinical impression (of Dr. Ul Huq) was severe anemia, possible gastrointestinal bleeding, and possible cirrhosis of the liver. The veteran 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, the veteran was admitted to the University of Pennsylvania Hospital and underwent 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. A sigmoid colon resection was performed and the postoperative diagnoses were sigmoid carcinoma and cirrhosis of the liver. Although the veteran initially progressed without complications, on the eleventh postoperative day, 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. Thereafter, the veteran developed signs of progressive abdominal sepsis, and was taken to the operating room on an urgent basis for exploration performed by 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 veteran's gallbladder was hugely enlarged. In his lower abdomen, it was determined that the bowel was the cause of the leakage. Findings were an anastomotic leak that was oversewn, and a distended gallbladder which was drained. A diverting colostomy was performed. In the following days, the veteran appeared to have stabilized. He continued to be coagulopathic that was felt to be consistent with his liver disease. The principal diagnosis was colon cancer. Secondary diagnoses included hypertension, gout, coronary artery disease, parotitis, and obesity. Complications were sepsis and multi-system organ failure. The veteran died in the hospital in April 1993. As noted above, the immediate cause of the veteran's death was multi- system organ failure, due to or as a consequence of sepsis, due to or as a consequence of an anastomotic leak, due to or as a consequence of resection for colon cancer. The underlying cause of the veteran's death was noted to be resection for colon cancer. According to the April 1993 autopsy report, the veteran underwent 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 signed 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 that was probably related to a previous episode of hepatitis. He related that the veteran had an in-service jaundice episode that resolved but that 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. According to this physician, in the postoperative period, the veteran's liver function deteriorated dramatically and "this attributed very substantially to his eventual death." In November 1994, the appellant submitted material copied 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 that he was hospitalized and treated for attacks of malaria. During her January 1995 personal hearing at the RO, the appellant testified that the veteran had several attacks of malaria during active service. She related that he 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 that referred to diseases of the liver. The medical literature describes the causes of, and treatments for, various types of malaria. Other medical literature reported statistical findings related to malarial jaundice. During an October 1996 personal hearing at the RO, 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. The appellant stated that the veteran 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 reported his review of the historical record, 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 her May 2000 Board hearing, the appellant reiterated her prior statements regarding the veteran having malaria during service and subsequent recurrences. She indicated that multi-organ failure that was listed as the cause of his 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 written statement from Dr. Buzby is essentially reflective of his May 1993 statement. He wrote that the veteran died following the March 1993 surgery, that he had two major abdominal procedures, and that he died primarily of liver failure. The doctor opined that the veteran's liver failure was related to post-necrotic cirrhosis that was probably related to a previous episode of hepatitis. Dr. Buzby noted 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 VHA. The Board's letter to the VHA addressed three questions: (1) did 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; and (3) did the veteran's cirrhosis of the liver contribute substantially or materially to his death? In a March 2001 response to the Board's questions, the acting Chief of Staff of the VA Nebraska/Western Iowa Health Care System submitted medical opinions from a VA staff gastroenterologist and liver transplant physician. In his March 2001 opinion, the VA staff gastroenterologist said that there was 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, was a moot point in this discussion. (see discussion below). At physical examinations performed in January 1951, November 1952, October 1962, and January 1964 the veteran answered the question, "Have you ever had an episode of jaundice" in the negative. In the record of these physical examinations, there was no mention of a past history of malaria or any other infectious illness. Further, an episode of jaundice or scleral icterus (yellow eyes) related to malaria was typically secondary to hemolysis (breakdown of red blood cells) and not liver disease. This medical specialist also said that malaria was 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. The VA gastroenterologist said that 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, the VA staff gastroenterologist said that his review of the medical record led him to believe that the role of cirrhosis in the veteran's 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 1980's. 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 other VA staff physician responded to the Board's questions. He said that 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 for the doctor to confirm that he was jaundiced in the service. This medical specialist also said that there was no evidence that malaria contracted during the service would lead to cirrhosis of the liver. The veteran's cirrhosis was first diagnosed in 1993. It was clear that malaria can lead to jaundice, particularly when there was a substantial hemolytic component. However, that did not lead to structural damage resembling cirrhosis. According to the VA physician, from reviewing the records available, that relate to the veteran's hospitalization at the University of Pennsylvania, the doctor would agree that the veteran's cirrhosis of the liver did contribute to his death following surgery for carcinoma of the colon. This medical specialist did not believe the cause of veteran's 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. After the October 2003 remand, VA received new medical opinion evidence to the effect that an in-service weight gain caused or contributed substantially or materially to cause the veteran's death. See February 2004 letter from Irfan-UI Huq, M.D., an internist and gastroenterologist. 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., a neuro-radiologist. In light of this new evidence and the fact that it had yet to be considered by a VA examiner, in October 2005, the Board remanded the appellant's case to obtain a VA medical opinion based on the consideration of these opinions. In a February 2006 signed statement, Rufino Montenegro, M.D., an internist and cardiovascular specialist, 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, remained overweight. The veteran in the 1990s was noted to have been diagnosed with colon cancer, and underwent surgery. The surgery was described as difficult because of the veteran's obesity. Dr. Montenegro opined that the veteran had been obese, and that he developed coronary artery disease, hypertension and diabetes mellitus. In May and October 2006, the veteran's claims files were reviewed by a panel of three VA physicians, to obtain a VA medical opinion that considered the aforementioned letters by Drs. Ul Huq and Bash. The panel provided a consensus opinion on each occasion. The panel concluded that it was unlikely any inservice weight gain caused or contributed substantially [or materially] to cause the veteran's death. The panel reported that it could not state that the veteran's 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. Additionally, this panel 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. Moreover, the panel 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 three VA 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 VA 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 VA physician- 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. In a March 2007 letter Dr. Bash said that, based on the finding of glycosuria during service, it was his opinion that the veteran most likely (greater than 50 percent chance) had diabetes during military service. In support of his opinion, Dr. Bash pointed to medical texts, quoting from, but not citing to, Cecil's Textbook of Medicine, 2004. Dr. Bash further opined that the finding of increased urobilinogen was indicative of liver disease during the veteran's military service, and that both conditions contributed significantly to the veteran's demise by way of liver damage/glucose intolerance and sepsis. In his April 2007 written statement, Dr. Butler opined that, based on the evidence, the diseases of diabetes and NASH were, as likely as not, acquired by the veteran in the Army. Dr. Butler said that the veteran died as a result of liver failure secondary to NASH that led to an anostomotic leak, sepsis, and multi-organ failure, and that diabetes contributed to the sepsis by immunosupression. In a later- dated April 2007 written statement, Dr. Bash said he concurred with Dr. Butler's opinion. Pursuant to the Board's December 2007 remand, in July 2008, the same three-physician VA panel again reviewed the record including the veteran's death certificate and the March and April 2007 opinions from Drs. Bash and Butler. In its July 2008 opinion, the VA panel concluded that it was not at least as likely as not that any inservice weight gain caused or contributed substantially or materially to the cause of the veteran's death. The panel noted that the veteran died after an operation for colon cancer with an anastomotic leak associated with bronchopneumonia and other complications. The panel opined that "[t]he weight gain had nothing to do with the [v]eteran's cancer or complications of surgery." The panel reiterated that there was absolutely no diagnosis of diabetes mellitus made in service. The VA panel noted that the veteran did have glucosuria but concluded that such a finding did not make a diagnosis of diabetes mellitus and there were no lab data to substantiate the diagnosis of diabetes. The panel found that "after going through records following bypass surgery and other complications, diabetes mellitus as a disease that the [v]eteran suffered from was never mentioned." It was further opined that the veteran could not "be considered to have had diabetes mellitus in service in the absence of clear cut lab data to demonstrate same." The VA physician panel also concluded that diabetes mellitus was not found to be compensably disabling within the first year after the veteran's June 1966 separation from active service, upon review of the medical record. The panel said there was no clear cut diagnosis of diabetes mellitus made in any portion of the chart, let alone during his last hospitalization when he succumbed to complications of surgery. The VA physician panel considered whether it was at least as likely as not that nonalcoholic steatohepatitis was incurred during military service, to include as due to any inservice weight gain. The panel reviewed Drs. Ul Huq's and Bash's opinions and considered "them to be speculative at best". The panel said that no serologic markers were noted in the chart for hepatitis B or C as unlikely as that may be to cause the veteran's hepatitis. The panel noted that while the veteran had many opportunities to be seen by physicians for evaluation of liver disease, none was noted until, apparently, his demise when a rock hard cirrhotic liver was noted at the time of surgery. In a September 2008 opinion the VA panel concluded that Dr. Butler's opinion was also speculative. The panel again stated that glucosuria did not make a diagnosis of diabetes mellitus and that many people had lower thresholds of spilling glucose in the urine. The VA panel noted that serum testing was obviously the more accurate measure of diabetes mellitus but there was no evidence of this in the chart. According to the VA panel, Dr. Butler "hangs liver disease on the basis of urobilinogen" but "[t]his is a common finding not necessarily indicative of any liver disease". The panel noted that the veteran had "decades to be observed by physicians". With his state of liver disease, "it is more than likely that his liver functions would at some point be elevated and investigated by physicians", although, "apparently this was not done". Thus, the VA panel found "highly speculative at best, Dr. Butler's opinions [that] are not grounded in the reality of the patient's situation" and the opinions from July 2008 were unchanged. III. Legal 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 (West 2002 & Supp. 2008); 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 died in April 1993, almost 27 years post service. At the time of his death he was not service connected for any disorder. The appellant contends that the veteran suffered from malaria in service that caused liver damage that caused the conditions from which he died. Alternatively, she argues that the veteran experienced a weight gain in service that caused or contributed to the development of diabetes mellitus in service that caused the conditions from which he died. The veteran's 1993 death certificate and terminal records show that the underlying cause of his 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, that 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. In March 2001, VHA medical opinions from a gastroenterologist and a liver transplant specialist are to the effect that cirrhosis contributed to the veteran's death. The medical evidence shows that cirrhosis was a contributory cause of death. Nevertheless, the objective and probative medical evidence of record 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, the medical literature she submitted during the course of this claim, that describes diseases of the liver and malaria, are not persuasive as they are too general in nature and contain no specific findings relating the veteran's in-service malaria to his death. As a lay person, relying on a generic medical treatise, the appellant is not qualified to render a medical opinion as to the etiology of the cause of the veteran's death. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). The appellant argues that the medical literature she submitted confirms that the veteran's cirrhosis was caused by in-service malaria, 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 was eliminated by the Veterans Claims Assistance Act of 2000.) Although treatise evidence is competent, it must be considered in conjunction with the other evidence of record. None of the medical evidence of record, that pertains specifically to the veteran, including hospital reports, Dr. Buzby's letters, or the VA medical opinions, concludes that malaria caused the cirrhosis of the liver present at the veteran's 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 that are of a general nature. In further support of her claim, the appellant points to opinions of Drs. Buzby, Bash, and Butler. 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) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). 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). The Board is mindful that it cannot make its own independent medical determinations, and that it 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 opinions provided by the VA three-physician panel who also reviewed the veteran's medical records. These medical specialists had the opportunity to completely review the veteran's entire medical history and all the medical records. These examiners explained the veteran's initial symptoms, presented a complete medical opinion, and concluded that his weight gain in service was not related to his post service development of colon cancer. The panel further found that the veteran cannot be considered to have had diabetes in service in the absence of clear cut lab data; and glucosuria does not make a diagnosis of diabetes mellitus. Dr. Buzby, in his 1993 and 2000 written 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 that resolved but caused liver injury and eventually cirrhosis. Dr. Buzby said 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 complaints or diagnosis of, or treatment for, jaundice, and his letters do not refer to jaundice. His service retirement examination in 1966 did not show a history or findings of jaundice or chronic liver disease including cirrhosis. In fact, the earliest contemporaneous indication of any liver abnormality whatsoever was in a transiently elevated SGOT shown during a hospitalization in 1980, nearly 14 years after his discharge, and many years after service. Further, cirrhosis of the liver was not shown until shortly before the veteran's death in 1993, nearly 27 years after his retirement from service. Dr. Buzby was the surgeon during the veteran's terminal hospitalization, and not his attending or treating physician and, more significantly, the objective medical 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 that 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 March 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. The physician noted 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 NASH. NASH, in turn, is associated in a "small but significant" percentage of individuals who develop cirrhosis. The medical specialist pointed to the absence of any history of other causative factors, which he noted to be chronic hepatitis C, alcohol or drug use, or family history; the veteran's obesity; and the slowly progressive nature of cirrhosis. He therefore felt that the veteran's 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. Although he was overweight in service, the hyperglycemia shown in 1951 was not shown to have been a chronic condition. The doctor stated that NASH was associated with a "small but significant" percentage of individuals who develop cirrhosis, which has only been recognized in recent years. The doctor 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 has also been argued that the veteran's period of active duty aggravated his pre-existing obesity, with weights of 271 pounds and 274 pounds noted during his active service, and that this unhealthy condition was allowed to persist without any attempts or plans to reduce his weight. However, 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, the service records show that the veteran weighed 217 pounds at induction 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. Moreover, the veteran was placed 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 (2008)). The appellant also relies on the opinions of Dr. Ul Huq, to the effect that an inservice weight gain caused or contributed substantially or materially to cause the veteran's death; of Dr. Bash, 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; and Dr. Butler, to the effect that the diseases of NASH and diabetes were as likely as not present during the veteran's active service, that he died of liver failure due to NASH, that NASH led to an anastomotic leak, sepsis and multi-organ failure, and that diabetes contributed to the sepsis by immunosuppression. The Board finds that the evidence provided by VA's three- physician panel in May and October 2006, and in July and September 2008, is of greater probative value and weight than that supplied by Drs. Ul Huq, Bash, and Butler. The panel of three VA physicians came to its conclusions after reviewing all the veteran's medical records. The Board acknowledges that Drs. Ul Huq, Bash, and Butler, likewise, reviewed the claims file. But because the panel's opinions were based on the entire record and not just selected evidence, the consensus opinion of the three-physician panel is more persuasive than the opinions rendered by Drs. Ul Huq , Butler, and Bash. In this latter respect, Drs. Ul Huq , Butler, and Bash failed 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 in-service glucosuria makes for the diagnosis of diabetes mellitus, or why the presence of urobilinogen in the urine indicates hepatic damage. Finally, Dr. Butler failed to explain the absence of laboratory data or clinical findings reflective of liver disease in the years after the veteran's retirement from active service. 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 (red blood cells) (malaria) or due to severe liver cell damage (hepatitis)" (D. Festi, et al., quoting Ravel at 312). The key word here is "may." The word is merely suggestive, and it is 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). His later reliance on a quote from Cecil's Textbook of Medicine does not render his opinion any more probative in the absence of any laboratory data to support his opinion. Moreover, Dr. Butler appears to argue that the increased urobilinogen found in service was indicative of the veteran's liver disease but fails to explain the absence of any clinical findings of elevated liver function at any time in the decades after service. In September 2008 the VA physician panel found Dr. Butler's opinion to be simply "not grounded in the reality of the patient's situation". Thus, the opinions of Drs. Bash, Butler, and Ul Huq are accorded less weight than those of the 2006 and 2008 VA three-physician panel. 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. The Board does not disregard the opinions rendered by Drs. Bash, a neuro-radiologist, Ul Huq, a gastroenterologist, and Butler, a cardiovascular specialist. With due consideration to Drs. Bash, Ul Huq, and Butler, the Board is constrained to accord more weight to the conclusions proffered in 2006 and 2008 by the VA three-physician panel who reviewed the veteran's complete medical and opined that his in-service weight gain was unrelated to his cancer or surgical complications; that the veteran cannot be considered to have had diabetes mellitus in service absent clear cut laboratory data to demonstrate the disorder nor was it shown within one year after his discharge from service; and glucosuria does not make a diagnosis of diabetes mellitus. Thus, Drs. Bash, Ul Huq, and Butler's 2007 opinions are accorded less weight than that of the 2008VA physician panel. 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, Bash, and Butler, 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 fourteen 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 eleven years after his death by Dr. Bash in March 2004. In sum, the Board is of the opinion that the weight of the credible evidence demonstrates that the primary cause of the veteran's death, from colon cancer, began many years after service and was not caused by any incident of service. The reported contributory cause of death, from 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 for service connection for the cause of the veteran's death have not been met. We recognize the appellant's sincere belief that the veteran's death was related in some way to his military service. Nevertheless, in this case the appellant has not been shown to have the professional expertise necessary to provide meaningful evidence regarding a causal relationship between the veteran's death and his active military service. 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). See also Espiritu v. Derwinski. Therefore, the preponderance of the most probative competent medical evidence is against a favorable decision. 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." See Smith v. Brown, 8 Vet. App. 546, 553 (1996). 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 Entitlement to 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