Citation Nr: 1133321 Decision Date: 09/08/11 Archive Date: 09/15/11 DOCKET NO. 99-24 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for the cause of the Veteran's death for the period prior to October 7, 2004. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from May 1942 to October 1945. He was a prisoner of war (POW) of the German government from November 1944 to April 1945 and he died in April 1994. The appellant, who is the Veteran's widow, initially appealed a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In October 2000, the appellant testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. In August 2001, the Board of Veterans' Affairs (Board) remanded the appellant's claim to the RO for further development. In an August 2002 decision, the Board denied the appellant's claim. The appellant appealed the Board's August 2002 decision to the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court"). In that litigation, a brief was filed by the appellant averring that remand was required due to the VA's failure to provide her with sufficient notice pursuant to the notice provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (now codified at 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2010)). In an Order of October 2004, the Court vacated the Board's decision and remanded the matter. As set forth in detail below, the VCAA substantially amended existing law regarding the requirement of a well-grounded claim and the notice and assistance to be afforded claimants for Veteran's benefits. A copy of the Court's Order in this matter has been placed in the claims file. Thereafter, on May 11, 2005, the Board again denied the appellant's claim. She appealed the Board's May 2005 decision to the Court. In that litigation, a Joint Motion for Remand was filed by the VA General Counsel and the appellant averring that remand was required to enable the Board to address the potential applicability of 38 C.F.R. § 3.309(c) (effective October 7, 2004) to the appellant's claim for service connection for the cause of the Veteran's death. This regulatory change added atherosclerotic heart disease to the list of presumptive disabilities for former POWs for which service connection is warranted. See 61 Fed. Reg 60,083 (Oct. 7, 2004) (now codified at 38 C.F.R. § 3.309(c) (2008). In an Order of April 2007, the Court vacated the Board's decision and remanded the matter, pursuant to the Joint Motion. A copy of the Court's Order in this matter has been placed in the claims file. In a November 2006 rating decision, the RO granted the claim for service connection for the cause of the Veteran's death, effective from May 12, 2005. Then, in a September 2007 decision, the Board granted service connection for the cause of the Veteran's death for the period from October 7, 2004, but no earlier pursuant to the regulatory change that added atherosclerotic heart disease to the list of presumptive disabilities for former POWs for which service connection is warranted. See 61 Fed. Reg 60,083 (Oct. 7, 2004) (now codified at 38 C.F.R. § 3.309(c) (2010). The appellant appealed the Board's September 2007 decision to the Court. In that litigation, a Joint Motion for Remand was filed by the VA General Counsel and the appellant, averring that the matter of entitlement to service connection for the cause of the Veteran's death for the period prior to October 2004 should be remanded to the Board for further development and adjudication. In a December 2008 Order, the Court granted the Motion and remanded this matter to the Board for compliance with the instructions in the Joint Motion. In August 2009, the Board remanded this matter to the RO for additional notice and development, to include a medical opinion from two VA physicians. After completing the requested actions, the RO continued the denial of the claim (as reflected in a June 2011 SSOC) and returned the matter to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran was a POW for more than 30 days. 2. The Veteran died in April 1994; his death certificate lists the causes of death as cardiac arrest, coronary heart disease, and renal failure. 3. At the time of the Veteran's death, service connection was in effect for bilateral pes planus, evaluated as 10 percent disabling, and mixed psychoneurosis, bronchitis, and pharyngitis, all evaluated as noncompensable. 4. For the period prior to October 7, 2004, the probative medical evidence of record preponderates against a finding that the Veteran suffered from Beri-Beri disease, malnutrition, or edema during captivity, that his cardiovascular disease manifested to a compensable degree within a year of the date of termination from service, or that his cardiovascular disease was related to his period of active military service, or that the Veteran's service-connected psychoneurosis was casually related to his death. 5. For the period prior to October 7, 2004, neither active service nor a disability of service origin caused or contributed substantially or materially to cause the Veteran's death. CONCLUSION OF LAW For the period prior to October 7, 2004, the criteria for a grant of service connection for the cause of the Veteran's death have not been met. Coronary heart disease and Beri-Beri heart disease were not incurred in service, nor may either be presumed to have been incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(c) (effective prior to October 7, 2004), 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (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). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to a claim for DIC benefits, VA's notice requirements include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, an August 2010 post-rating letter provided notice to the appellant regarding what information and evidence was needed to substantiate the claim of service connection for the cause of the Veteran's death, as well as what information and evidence must be submitted by her, what information and evidence would be obtained by VA, and the need for her to advise VA of and to submit any further evidence in her possession that is relevant to the claim. The letter provided information consistent with Hupp. In addition, the August 2010 letter provided the appellant with information regarding effective dates consistent with Dingess/Hartman. After issuance of the above letter, and proving the appellant and her attorney additional opportunity to respond, the RO readjudicated the issue on appeal in a June 2011 SSOC. Hence, the appellant is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, VA medical records, private physicians' opinion letters, and VA physicians' opinion letters and reports. Also of record and considered in connection with the appeal are various written statements provided by the appellant, and her attorney on her behalf. The Board also finds that VA substantially complied with the instructions set forth in the Board's August 2009 remand of this matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, aff'd sub nom Dyment v. Principi, 287 F.3d 1377, 147 (2002) (remand not required under Stegall where Board's remand instructions were substantially complied with). In this regard, the Board notes that the RO/AMC provided the appellant with notice consistent with Hupp. While the VA opinions obtained were not provided in a single report, their findings and opinions are consistent, and provide the Board with comprehensive medical discussion to make a decision on this matter. Thus, the Board finds these actions to be in substantial compliance with its instructions as set forth in its August 2009 Remand as required by Dyment. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim(s). Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual background When the appellant submitted her petition to reopen the claim for service connection for cause of the Veteran's death in June 1999, heart disease, other than beriberi heart disease, was not listed as a disease for which entitlement to service connection is presumed for former POWs. See 38 C.F.R. § 3.309 (1999). Effective prior to October 7, 2004, if a Veteran was a former prisoner of war (POW) and was interned or detained for not less than 30 days, certain diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after service discharge or release from active military service, even though there is no record of such disease during service, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. These listed diseases are avitaminosis; beriberi (including beriberi heart disease); chronic dysentery; helminthiasis; malnutrition (including optic atrophy associated with malnutrition); pellagra; any other nutritional deficiency; psychosis; any of the anxiety states; dysthymic disorder (or depressive neurosis); organic residuals of frostbite (if it is determined that the Veteran was interned in climatic conditions consistent with the occurrence of frostbite); post-traumatic osteoarthritis; irritable bowel syndrome; peptic ulcer disease; peripheral neuropathy except where directly related to infectious causes, and cirrhosis of the liver. At the time of the Veteran's death, service connection was in effect for bilateral pes planus, evaluated as 10 percent disabling, and mixed psychoneurosis, bronchitis, and pharyngitis, all evaluated as noncompensable. The Veteran died in April 1994; his death certificate lists the causes of death as cardiac arrest, coronary heart disease, and renal failure. The appellant contends that the cause of the Veteran's death was related to his active military service, and thus service connection for the period prior to October 7, 2004 is warranted. She has alleged that the Veteran died from coronary heart disease and renal failure that she maintains was incurred during active service, including his POW experience from November 1944 to April 1945. Specifically, the appellant claims that a service-related vitamin deficiency or malnutrition contributed to the Veteran's heart disease; that he had edema and swelling of the legs, warranting a finding of beriberi heart disease; and that the Veteran's service-connected mixed psychoneurosis and stress contributed to his heart disease. The Veteran's service medical records show that, when examined for induction into service in May 1942, the Veteran was 5 feet 6 inches tall and weighed 170 pounds. Clinical records reflect treatment for a contused knee and dental treatment only. As noted above, the Veteran's service records document that he was a POW of the German government from November 1944 to April 1945. His record of captivity by the German government is totally blank for any references to illnesses or medical treatment and simply reflects his movements during that time. A repatriation examination is not of record. When examined for separation from service in October 1945, the Veteran's cardiovascular and genito-urinary systems were normal, edema was not noted, the psychological and neurological diagnoses were normal, and his chest x-ray was negative. All other findings were normal and he weighed 183 pounds. Post service, a May 1947 VA examination report indicates that the Veteran reported chest pain, gagging and choking, foot problems, eye irritation, and back pain. On examination, his cardiovascular system was normal. The Veteran said that while a POW he had urinary frequency, frequent coughing, and his feet hurt. The diagnoses included bilateral pes planus, chronic bronchitis, and mild mixed psychoneurosis. Results of a chest-x-ray taken by VA in May 1947 showed an increase in the hilar and lung markings with no evidence of pulmonary infiltration. The heart shadow was normal in size and configuration. On VA examinations in February 1948 and January 1958, the Veteran complained of coughing and chest pain and said that his legs were tired. The diagnoses were weak feet and pes planus. In February 1948, the VA examiner specifically noted that no chest pathology was elicited. Results of a chest x- ray performed in February 1948 revealed no lung pathology. Service connection for a "chest condition" was initially granted for treatment purposes. This was subsequently classified as minimal bronchitis for compensation purposes, with a noncompensable rating assigned. Results of a chest-x-ray performed by VA in March 1985 showed clear pulmonary parenchyma and a normal cardiac silhouette. The conclusion was a normal chest. During an April 1985 VA POW protocol examination, the POW coordinator noted that, with regard to his present health, Veteran said he felt pretty good. In August 1984, the Veteran had a spot on his lung removed that was diagnosed as benign. He tried to stop smoking, but was unsuccessful. He thought he was too nervous to give up cigarettes and that the risks were worth taking when he looked at the alternative. In his July 1984 medical history prepared in conjunction with the POW assessment, the Veteran said he experienced chest pain, numbness or weakness in the arms and legs, and aches or pains in the muscles and/or joints during captivity. He reportedly had a vitamin deficiency. No swelling in the joint, legs, feet, or muscles was reported. The Veteran said that he smoked about one pack of cigarettes a day. He also recounted that, during captivity, he experienced weight loss, urinated all the time, and had weakness. He said that he cut his hand and had blood poisoning that was treated by a Russian doctor. He had boils over various parts of his body. Other than that, at repatriation, his health was fairly good. He enjoyed his time on rest and recreation in Atlantic City after repatriation. The examiner felt that the Veteran appeared to have adjusted quite well, overall, following his POW experience. On physical examination, no heart-related problems were reported, and the Veteran's heart was clinically evaluated as normal. The diagnoses were hypertension, asymptomatic, left carotid bruit, chronic anxiety, and pulmonary drainage problem with recurrent bronchitis. The Veteran failed to appear for a follow up VA examination. Private medical records, dated from November 1993 to April 1994, indicate that the Veteran was diagnosed with a massive anterolateral myocardial infarction, and arteriosclerotic heart disease. His past medical history included a history of acute myocardial infarction in 1990, a history of renal insufficiency, arteriosclerotic heart disease with congestive heart failure, and a history of smoking. A November 1993 record indicates that the Veteran related that he was hospitalized about three years earlier with similar, less severe, chest pain, and told that he suffered a slight heart attack. An April 1994 private hospital medical record indicates that the Veteran suddenly collapsed at home. Emergency medical technicians arrived and delivered one shock via defibrillator. It was noted that the Veteran was a cardiac patient who was previously admitted one month earlier for congestive heart failure, myocardial infarction, chronic obstructive pulmonary disease, and renal insufficiency. The Veteran arrived at the hospital pulse less, cyanotic, and asystolic and, after attempts at resuscitation, was pronounced dead. In an August 1999 letter, C.W.M., M.D., said that he was not sure that he had all of his records regarding the Veteran but noted that he treated the Veteran for at least three years in the 1980s. Dr. M. stated that the Veteran had "some distinct personality traits, which I think clearly were contributed to by his military experiences." Specifically, the doctor said that the Veteran "was a very structured, particular, and demanding individual and I think this may have been related to his experiences as a prisoner of war." Dr. M added that many individuals in the Veteran's situation tended to minimize their physical complaints, and the Veteran tended to minimize his discomfort and cardiac symptoms. He also noted: "Many of these individuals have a stress related syndrome and cardiac disease is certainly much more frequent. Management, as one would expect, can be significantly more difficult as well, given the tendency to minimize symptoms and thus minimize diagnostic treatment. Dr. M concluded that "I am not sure how accurately one can state that his cardiac disease was caused by military service and his time as a prisoner of war. Certainly, however, this kind of stress and physical and emotional experience has been found to make these problems more frequent and make their management more difficult." A September 1999 written statement from the Veteran's son is to the effect that the Veteran reported that, during his time as POW, his hair changed color from vitamin deficiency and his legs swelled up and hurt. He did not complain to his family, but they could see that he had problems with his legs and his heart. In an October 1999 written statement, D.W.T., M.D., who treated the Veteran in 1993 and 1994, wrote that the Veteran's "cardiac problems were related to atherosclerotic cardiovascular disease and resultant poor heart function because of prior heart damage. I believe there is a good possibility that during the time he spent as a POW malnutrition could have adversely affected his cardiac status and that certainly the extreme stress of being a POW put him at higher risk of developing a heart disease. His other risk factors included his age, as well as a life-long history of tobacco use. In conclusion, I feel that it is likely that [the Veteran's] time spent as a POW contributed to the development of cardiac disease." An October 1999 written statement from the Veteran's daughter is to the effect that the Veteran's sister reported to her niece that, when the Veteran separated from service, he stayed with his sister, his hair color changed, his limbs were swollen and he was unable to lift even one arm. It was noted that he looked like a walking skeleton. In an August 2001 letter, the Veteran's now 95-year old sister stated that she did not recognize her brother when he returned from service, as he looked like a skeleton and his hair had changed color. In addition, she reported, that the Veteran was weak, could hardly walk, ached all over, and his arms were swollen and discolored. The Veteran told her that his hair changed color from the malnutrition. The Veteran's sister wrote that she was sure that all of these things affected the length of his life. During an October 2000 personal hearing at the RO, the appellant testified that she met the Veteran in approximately 1951. When she met him, he never talked about the war and wanted others to believe that he was healthy. She did not know if he was getting medical treatment for any problems. He told her that, when he was a POW, his hair changed color due to lack of vitamins; other than that, he did not talk about the war. He was very private and did not tell her many things. He had his heart problems for a while before he died. In December 2000, a VA physician stated that, "Upon careful review of all of the available records, there is no clear indication that the Veteran's confinement as a POW contributed to the development of his heart condition." The VA physician based this conclusion on several facts. The VA examiner noted that there was no evidence that the Veteran, in fact, had beriberi heart disease or heart disease due to thiamine deficiency. In contrast, the evidence indicated that the Veteran was, in fact, a life long tobacco user. The VA physician concluded that, "In the presence of the highly significant known risk factor of tobacco use, it is highly likely that tobacco was a major culprit in the genesis and progression of the Veteran's coronary artery disease." This VA doctor also noted that the Veteran was non-diabetic and it was not clear whether hyperlipidemia may have been contributory to the development and progression of his coronary artery disease. As to the other theories under which the appellant claimed service connection for the cause of the Veteran's death, the VA physician further stated that "it is less than likely that the Veteran's heart condition was the result of stress due to being a POW or due to his service-connected psychoneurotic condition." This VA doctor noted that the role of stress in the etiology or genesis and progression of coronary artery disease remains controversial. The VA physician also opined that "it is less than likely that the Veteran's heart condition was the result of malnutrition/vitamin deficiency during his time as a POW." In support of this conclusion, he cited the Veteran's statements in the April 1985 POW assessment that he felt pretty good. The VA physician noted that if "nutritional stress factors," apparently meaning nutritional or stress factors, had played any significant role in the development of his heart disease, those effects would have been clearly manifest by 1985, and the Veteran would not have stated that he felt "pretty good" at that time. In a September 2005 medical evaluation, C.N.B., M.D., a neuro-radiologist with reported expertise in the area of spine disease, said that he reviewed the Veteran's medical records and opined that the Veteran's heart disease was as likely as not caused by his service time. Dr. B. further opined that it was at least as likely as not that the Veteran's post-traumatic stress disorder (PTSD) associated- symptoms and sympathoadrenal axis hormone increase likely substantially increased his risk for myocardial infarction. According to Dr. B. "the patient's past medical history is significant for the fact to the use of a presumed for in Germany during World War II in 1944 and 1945." Dr. B. then said, somewhat confusingly, that the Veteran "was a dilated for a chest condition in November 1944 as he had pains in his chest upon release from his [POW] camp." Dr. B. said the Veteran was exposed to extreme stress in service and after in the form of PTSD and that the "exact cause of [the Veteran's] chest pain following his release from prison camp is not known", noting the "abnormal" 1947 chest x-ray that, Dr. B. opined, demonstrated findings "consistent with early cardiac disease that in context with his history would be interpreted to mean dilated vessels and interstitial edema" that was "consistent with cardiac diease." According to Dr. B., without seeing the actual films or a more thorough description of the Veteran's x-ray, cardiac disease was more likely than not the cause of his x-ray chest abnormalities, given the Veteran's history of chest pain and his history of myocardial disease in the 1980s and demise in the 1990s due to myocardial infarction. Further, Dr. B. referenced an attached medical journal article that he said documented an odds ratio of 4.44 associated with cardiac infarctions secondary to PTSD that he said was "strong evidence" that "stress is associated PTSD are likely causes of myocardial infarctions and in this patient had both myocardial infarctions and PTSD". Dr. B. opined that it was at least as likely as not that the Veteran's "PTSD associated symptoms and sympathoadrenal axis hormone increase likely substantially increased his risk for myocardial infarction based on the literature by way of hypertension and associated cardiovascular damage." Finally, Dr. B. expressed disagreement with the 2000 VA examiner's opinion for its failure to discuss the Veteran's 1944 chest condition or chest pains and the abnormal 1947 chest x-ray, failure to provide supportive medical literature, and failure to discuss Drs. M.'s and T.'s favorable opinions, that Dr. B. said indicated that the VA examiner may not have the entire record to review. Appended to Dr. B.'s report is a copy of a journal article entitled "Electrocardiogram Abnormalities Among Men With Stress- Related Psychiatric Disorders: Implications for Coronary Heart Disease and Clinical Research", Boscarino, J.A., and Chang, J. (Ann Behav Med, 1999, 21 (3): 227-234). An April 2011 VA medical opinion from B. A. G., M.D., reflects that she reviewed the claims file and the remand instructions thoroughly. She discussed pertinent evidence of record. She opined that (a) it was less likely as not (50/50 probability) that a service related vitamin deficiency or mild nutrition contributed to the Veteran's heart disease since no metabolic deficiency was found as evidence on file; (b) it was less likely as not (50/50 probability) that the Veteran did not have edema and swelling of the legs to warrant a finding of beriberi heart disease; (c) it was less likely as not (50/50 probability) that a principal or contributory cause of death was linked to the incident in service; (d) it was less likely as not (50/50 probability) that the Veteran's service-connected mixed psychoneurosis and stress caused or aggravated (worsened beyond its natural progression) the Veteran's heart disease; and (e) it was as least as likely not (50/50 probability) that the Veteran's heart disease, which caused his death, was more likely caused by other factors. The VA examiner's rationale was that in regards to opinions a, b, and c, on review of the Veteran's medical records, service treatment records, and claims file, there was no supporting evidence to substantiate the purported claims. There was no vitamin deficiency or malnutrition appreciated in the records to substantiate the claim that he succumbed due to Beriberi Heart disease. There was no edema and swelling of the legs that warranted the finding of Beriberi heart disease. However in view of the statements from Dr. C.W.M, and Dr. D.W.T., she concurred and agreed that any prisoner of war has endured insurmountable and extreme stress to the extent that residual conditions of heart disease, malnutrition, psychosis, etc., can develop over time. So to the extent of his POW experience contributing in later years to his heart disease remains unbeknownst to us at this time. She went on to indicate that POWs have been documented to have been weakened by mistreatment, inadequate nutrition, and found to have been forced to do prolonged marches sometimes in bitter weather resulting in the development of POW presumptive conditions. These long marches especially for those who were already weakened and often emaciated men would end up being their death marches with stragglers being shot to death as per (Nichol & Rennell). Good source: Nichol, John & Tony Rendell. The Last Escape: The Untold Story of Allied Prisoners of War in Europe, 1944-1945 (Viking, 2003) In regard to the 2000 statement by a VA physician, she concurred and agreed with the part of the statement that there was no clear indication in the Veteran's STRs which indicated that there was a vitamin deficiency/thiamine/beriberi deficits which remains silent at this time. However, she disagreed with the part of the statement that stress did not play any role in contributing to his heart disease since POW experiences have been linked to heart disease as well as many other conditions later on after separation from their traumatic events and/or recurrent intrusive experiences. The VA examiner then went on to document the presumptive conditions that some POWs may develop over time. It is known that the tar in cigarettes have been linked to the development of arteriosclerotic heart disease through decreasing the amount of oxygen needed in the blood to maintain adequate heart muscle functioning and contributing to the formation of artherosclerosis (hard plagues forming on the vessels) that would make the vasculature narrower in an attempt to deliver adequate blood that carries the vital oxygen to the heart muscle which would eventually result in one having a heart attack such as this Veteran sustained in his later years. It is documented in his records that he was a chronic cigarette smoker and had issues with his lungs that required him to undergo removal of a spot off of his lungs that was noted to be benign for any malignancy back then. However, other risk factors for his development of coronary artery disease remains silent on review of his STRs. His sister's statement of his appearance gives one a possible suggestion that maybe her brother did have some malnutrition since his hair color had changed from black to red with a skeleton like appearance per her observations. Yet, once again, there is no clear indication in his records that he suffered from malnutrition as a POW and again there is no such vitamin deficiency or malnutrition to be found based on evidence in his files. Usually advanced cases of wet Beri-Beri that is due to Vitamin B1(thiamine deficiency) will result in one having edema, heart failure with poor circulation, and eventually death. This condition is endemic in eastern and southern Asia. In western countries, it is due to Alcoholism and this Veteran did not have any documentation in record that he suffered from this latter condition. Wet Beri-Beri results in CNS damage Wernicke-Korsakoff's syndrome, where one sees degeneration of the peripheral nerves starting in the hands and feet and ascending to the arms and legs with loss of sensation and deep muscle pain along with enlargement of the heart that leads to edema (wet Beri-Bari) and death which results from heart failure. So, one will see neurological, cardiovascular, and edema symptomatology versus dry Beri-Beri which involves a gradual long nerve degeneration with muscle atrophy and loss of reflexes. Good sources and references from the Mayo Clinic and New England Journal of Medicine were cited. On review of the Veteran's records, there is outstanding and overwhelming evidence that this Veteran suffered several heart attacks in the early 1990s that was complicated with heart failure and renal insufficiency which ultimately caused his death as was documented on his death certificate and his life long use of cigarettes played a major contributing risk factor in his death. In a second April 2011 VA medical opinion from W. R. S., M.D., he noted that the Veteran's private medical records and STRs were reviewed. He opined that malnutrition and or Beri Beri as a POW did not cause his heart failure or death, and is not caused by or a result of psychoneurosis. The rationale for the opinion was that Beri Beri was never diagnosed. The Veteran died of coronary artery disease and chronic renal failure in 1994 as per the records. His left ventricular ejection fraction (LVEF) was very low. Beri Beri related heart disease causes high output failure not consistent with his low LVEF, which likely caused his leg edema as well. If he had developed Beri-Beri in 1944 to 1945, he would have had symptoms surely within eight years after. Coronary artery disease is not caused by Beri Beri. No laboratory tests were ever done supporting the diagnosis of Beri Beri. He did not see a direct cause and effect between the Veteran's psychoneurosis and coronary artery disease with systolic dysfunction. III. Analysis Pursuant to 38 U.S.C.A. § 1110 a Veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. In addition, the law provides that, where a Veteran served ninety days or more of active military service, and any of certain specified disorders, e.g., cardiovascular-renal disease, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principle or contributory cause of death. The issue involved will be determined by the exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a) (2010). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b) and (c) (2010). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). The appellant claims that she is entitled to service connection for the cause of the Veteran's death prior to October 2004, because disabilities related to his POW captivity from November 1944 to April 1945 were the cause of his death from coronary heart disease and renal failure with cardiac arrest in April 1994. Because the Veteran was a POW for more than 30 days, certain diseases would be presumptively service-connected if they manifested in him to a compensable degree at any time after separation from service. 38 C.F.R. §§ 3.307(d), 3.309(c). For the period prior to October 7, 2004, the regulations provided for service connection on a presumptive basis for former POWs who developed avitaminosis, beriberi (including beriberi heart disease, which includes ischemic heart disease in a former POW who experienced localized edema during captivity), malnutrition, any other nutritional deficiency, psychosis, any anxiety state, and dysthymic disorder or depressive neurosis) which became manifest to a compensable degree at any time after service. These provisions applied only to POWs detained not less than 30 days. 38 C.F.R. § 3.309(c), effective prior to October 7, 2004. Specifically, the appellant claims that a service-related vitamin deficiency or malnutrition contributed to the Veteran's heart disease; that he had edema and swelling of the legs, warranting a finding of beriberi heart disease; and that the Veteran's service-connected mixed psychoneurosis and stress contributed to his heart disease. Considering the evidence of record in light of the above, the Board finds that service connection for the cause of the Veteran's death for the period prior to October 7, 2004, is not warranted. In the instant case, the evidence conclusively shows that the Veteran was a former POW. The Board finds that the Veteran was held as a prisoner of war of the German government for more than 30 days. As noted above, at the time of the Veteran's death in April 1994, service connection was in effect for bilateral pes planus, rated as 10 percent disabling, and mixed psychoneurosis, chronic bronchitis, and pharyngitis, all evaluated as noncompensable. The Veteran's death certificate lists the causes of death as cardiac arrest, coronary heart disease, and renal failure. The Veteran's heart problems are not noted on his separation examination reports dated in October 1945 and, in fact, are not shown until many years after service, most notably in the 1990s. In support of her claim, the appellant would point to the August and October 1999 written statements from Drs. M. and T., respectively, and Dr. B.'s September 2005 report, that associated the Veteran's heart disease with his military service, including his POW experience. However, in this case where conflicting medical opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on a physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Greater weight may be placed on one clinician's opinion than another's based on the reasoning in the opinions, and whether and to what extent the clinicians reviewed the Veteran's prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Court more recently indicated in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), that review of the claims file is not dispositive of the probative value of a medical opinion. Rather, it is the information gathered from that review (or lack thereof) that is more determinative. Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Because each of the aforementioned private physicians and VA examiners are qualified to offer medical diagnoses, statements, or opinions, their medical findings constitute competent medical evidence. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In regards to the favorable medical opinion provided by Dr. M., the Board finds that it lacks probative value. In this regard, Dr. M.'s August 1999 opinion is general and ambiguous in nature. His conclusion is that "many of these individuals," apparently referring to former POWs, "have a stress related syndrome and cardiac disease is certainly more frequent," but, "I am not sure how accurately one can state that his cardiac disease was caused by military service and his time as a prisoner of war. Certainly, however, this kind of stress and physical and emotional experience has been found to make these problems more frequent and make their management more difficult." Dr. M. also stated that the Veteran's personality traits "may have" been related to his POW experiences, and also "I think clearly were contributed to" by his POW experiences. Thus, the only time Dr. M. expressed a degree of certainty was as to the general relationship between a POW's stress and cardiac disease, but this does not address the issue of the cause of this particular Veteran's death. In contrast, when addressing the cause of this Veteran's death, Dr. M. admitted his uncertainty, and his opinion is, at most, that the Veteran's death may or may not have been due to in-service causes, a level of certainty that is insufficient to establish service connection. Moreover, as noted above, the psychiatric disorder is not shown to have been disabling to any specific degree in the years after service. However, service connection may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Perman v. Brown, 5 Vet. App. 237, 241 (1993) (an examining physician's opinion to the effect that he cannot give a "yes" or "no" answer to the question of whether there is a causal relationship between one disorder and another is "non- evidence"); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the Veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by in- service events is insufficient to establish service connection). Moreover, Dr. M. was not even sure he had all of his own records regarding the Veteran. Furthermore, Dr. M. never indicates that he considered that the Veteran had specific risk factors including his age and life long history of tobacco use. With regard to the favorable medical opinion provided by Dr. T, while Dr. T. concluded that the Veteran's POW experience contributed to his cardiac disease with more certainty than Dr. M., this physician, too, did not indicate that he had reviewed the claims folder or refer to any specific treatment records other than his own. Dr. T. only said that there was a "good possibility" that while a POW, malnutrition "could" have adversely affected the Veteran's cardiac status and that the extreme stress of being a POW put him at a higher risk of developing heart disease. First, the Board points out that Dr. T. fails to identify where in the Veteran's service treatment records or post-service medical records even suggest that the Veteran suffered malnutrition as a POW, or in fact, any prior assertions by the Veteran that he suffered with malnutrition as a POW. Moreover, when the Veteran was discharged from service, he had actually gained weight. Such speculation cannot be the basis for a grant of service connection for the cause of the Veteran's death. Furthermore, while Dr. T. notes that the Veteran has other risk factors, to include his age and life long history of tobacco use, he does not address why he has excluded these as the primary causes when providing his favorable medical opinion that the Veteran's time spent as a POW contributed to the development of cardiac disease. The Board points out that neither Dr. M., nor Dr. T. clearly attributed the Veteran's cardiac disorder to service or a service-connected disability, or provided a basis for such conclusion. The Board finds that these opinions are mere conclusions, and that even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Dr. B.'s opinion, while no less sincerely rendered, appears to be factually inaccurate and reliant on evidence not in the claims file. See Reonal v. Brown, 5 Vet. App. 458 (1993) (in which the Court stipulated that a medical opinion based on an inaccurate factual premise is not probative). First, Dr. B. repeatedly references a November 1944 record when he states that the Veteran was dilated or treated for a chest condition or chest pain after his release from POW captivity. However, as set forth above, the Veteran's German POW record is totally blank for any reference to illness, let alone chest pain, and he was released from captivity in April 1945. There is no medical record in the claims file that describes chest dilation or chest pain in November 1944. Second, while Dr. B. argues that the Veteran had an abnormal chest x-ray in 1947 with findings consistent with early cardiac disease, the objective clinical evidence of record does not support his finding. Rather, that 1947 x-ray merely showed an increase in the hilar and lung markings, with no evidence of pulmonary infiltration with a normal heart shadow in size and configuration and, in February 1948, a VA examiner specifically reported no chest pathology. As noted service connection has been granted for pulmonary pathology that was apparently causing chest pain complaints during and after service. As well, results of the March 1985 chest x-ray showed a normal cardiac silhouette and the conclusion was a normal chest. In April 1985, the Veteran reported to a VA examiner that he felt well and a cardiovascular disorder was not report on examination. The first mention in any record of cardiac disease is from the 1990, more than 40 years after the Veteran's discharge from service. It is noted that there was some evidence of hypertension from the mid-1980's. Third, Dr. B. states that the Veteran had stress following service in the form of PTSD. However, the Veteran was only service-connected for mild mixed psychoneurosis, evaluated as noncompensable for well nearly 50 years, and the entire record is devoid of any competent clinical evidence of a diagnosis of PTSD, or "PTSD associated symptoms". Nor does the medical literature supplied by Dr. B. support the proposition that the Veteran's heart disease and death were as likely as not caused by his military service. In fact, the article does no more than merely "suggest" an association between long term-exposure to severe psychological stress and ECG findings that are physiological markers for coronary heart disease. However, the Board finds that this document lacks probative weight because it does not specifically address this Veteran, to include his medical history documented in the claims file. In a long line of cases, the Court has consistently held that medical treatise evidence that is generic and inconclusive as to the specific facts in a case was insufficient to establish causal link. See, e.g., Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); and Beausoleil v. Brown, 8 Vet. App. 459 (1996). Furthermore, the December 2000 VA examiner explained that the role of stress in the etiology of cardiovascular disease remained controversial and the August 2011 VA examiner discussed that the extent of the Veteran's POW experience contributing in later years to his heart disease remains unbeknownst to us at this time. By contrast, the Board accords great probative value to the December 2000 and April 2011 VA examiners' comments and opinion, based as they were on a thorough review of the Veteran's claims file, to include a review of the Veteran's service treatment records and pertinent aspects of his documented medical history, as well as the appellant's assertions and favorable medical opinions, and considers them to be of primary importance in the disposition of this appeal. The December 2000 and April 2011 examination report reflects review of the relevant medical and other evidence in the Veteran's claims file and each VA examiner provided a rationale for their medical opinions. Each examiner noted that there was no evidence in the claims file that the Veteran actually had beriberi heart disease or heart disease sue to thiamine deficiency. The April 2011 VA examiners explained in detail the signs and symptoms that would have suggested that the Veteran had beriberi heart disease, none of which were indicated in a review of the Veteran's records. Further, the examiners concluded that there was no evidence, medical or anecdotal from the Veteran himself, in the claims file to show that the Veteran suffered from malnutrition while a POW. The December 2000 and April 2001 examiners all concluded that the Veteran's life long use of cigarettes played a major contributing risk factor in his death. All the examiner's indicated that they had considered the stress that the Veteran might have been under as a POW; however, based on the specific facts and evidence reviewed in the claims file, each determined that the Veteran's death was not related to his service or service-connected disability. The April 2011 VA examiner also supported her opinion with citation to various medical articles specific to the basis for her conclusions. She also addressed the favorable evidence of record. The examiners explained how the evidence in the Veteran's claim file pertained to the examination findings and diagnoses. Moreover, these doctors explained the underlying reasons and bases for his conclusion as to all three of the appellant's theories underlying her claim for service connection for the cause of the Veteran's death. In contrast to the above discussed opinions from Drs. M., T., and B, the VA examiners opinions were definite, as opposed to speculative, based on documented facts within the records, and supported by well reasoned medical discussion as well as citation to medical literature. As each VA physician explained in detail the reasons for their conclusions, which were based on consideration of the evidence record (for which each provided an accurate recitation of the medical evidence in the claims file), and each provided a very thorough medical discussion specific to the Veteran's circumstances, the Board finds that the December 2000 and April 2011 VA opinions constitutes competent and probative evidence on the matter upon which the claim turns. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board furthers that contrary to Dr. B.'s assertions, the December 2000 VA medical opinion reflects that he emphasized his careful review of the Veteran's claim file at that time. Although Dr. B. asserts that the VA examiner's failure to address Drs. M.'s and T.'s medical statements suggests that the examiner did not have the entire record to review, the 2000 VA examiner specifically noted his review of those statements that were incorporated into the medical opinion. This VA examiner opined that there was no clear indication that the Veteran's confinement as a POW contributed to the development of his heart disease and that it was highly likely that tobacco was major culprit in the genesis and progression of the Veteran's coronary artery disease. Moreover, to the extent that heart disease was present, it was not shown within one year following separation from service. The December 2000 and April 2011 VA physicians' opinions are supported by the evidence of record. There is no competent medical evidence that the Veteran experienced localized edema while a POW, nor did he report any swelling during the 1985 VA POW evaluation. The October 1945 separation examination, that occurred approximately 5 months after the Veteran's May 1945 conclusion of his POW captivity, showed no clinical abnormalities. In addition, his reported weight increased from 170 at induction to 183 pounds at the time of his separation from service, a 13-pound weight gain, notwithstanding his POW captivity. Moreover, the first evidence of the disabilities that caused the Veteran's death did not manifest until many years after service, and there is nothing in the record to suggest a connection between these disabilities and the Veteran's service, or any showing of continuity of symptomatology since service. In addition to the medical evidence, in adjudicating this claim, the Board has considered the written assertions and testimony advanced by the appellant, her attorney and family members on her behalf; however, none of this evidence provides a basis for allowance of the claim. As indicated above, this claim turns on the matter of whether disability resulting in the Veteran's death is medically related to service-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). The Board acknowledges that case law enables the claimant to speak as to questions of diagnosis and even etiology in some cases involving lay observable factors, such as a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the matter at issue is very obviously medically complex and as such, the appellant, as a lay person, is not here competent to either diagnose beri-beri disease in the Veteran or conclude that his terminal heart disabilities were related to service or a service-connected disability. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death for the period prior to October 7, 2004, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs