Citation Nr: 1301047 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-19 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1966. He died in October 1999. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for the cause of the Veteran's death. The appellant perfected an appeal of that decision to the Board. In an April 2010 decision, the Board denied service connection for the cause of the Veteran's death. The appellant appealed this Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In a December 2010 Joint Motion, both the appellant and the VA Secretary (hereinafter referred to as "the parties") requested that the Board decision be vacated and remanded. Later in December 2010 the CAVC issued an order granting the Joint Motion. Subsequently, in decisions dated in March 2011 and September 2011, the Board remanded this issue for further development. In May 2012, the Board referred the case for an expert opinion from the Veteran's Health Administration (VHA). The VHA opinion report, dated in June 2012, has since been submitted to the Board, along with a requested addendum dated in November 2012, and appellate review may ensue. FINDINGS OF FACT 1. The Veteran died in October 1999 at the age of 58 as a result of cardiac arrest. Coronary artery disease, hypertension, and noninsulin-dependent diabetes mellitus were also listed on the death certificate as underlying causes of death. 2. At the time of death, the Veteran was not in receipt of service connection for any disability. 3. The evidence of record establishes that the Veteran served in South Korea during the Vietnam Era from March 1965 to April 1966 and did not serve in the demilitarized zone in Korea at any time during the period from April 1968 to July 1969, thus herbicide exposure (Agent Orange) in service may not be presumed; and there is no objective evidence showing that the Veteran was exposed to Agent Orange while serving on active duty. 4. The evidence of record does not show that cardiac arrest, coronary artery disease, hypertension, or diabetes mellitus are etiologically related to service; therefore, the evidence of record does not demonstrate that a disability of service origin contributed to the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183, (2002). These 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 v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for dependency and indemnity compensation (DIC) benefits, § 5103(a) notice must 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, 352-53 (2007). The appellant has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied in this case. The appellant was notified via letters dated in July 2007, January 2009, and April 2011 of the criteria for establishing service connection for the cause of death, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates in the January 2009 correspondence. As indicated above, most of these VCAA notices were provided after the initial unfavorable AOJ decision in August 2007. However, the Federal Circuit Court and Veterans Claims Court have since further clarified that VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (where the Federal Circuit Court held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the notice letters were provided to the appellant, the claim was readjudicated in a February 2012 SSOC. As for the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Service treatment records have been obtained. There is no indication of any other relevant evidence in VA's possession, but not in the claims file. The parties in the Joint Motion in December 2010 agreed that in the April 2010 decision, the Board should have made a determination of whether a medical opinion was necessary to substantiate the claim. Pursuant to a Board remand issued in September 2011, the Board requested a VA medical opinion. After the Board reviewed a VA medical opinion provided in February 2012, it determined that opinion was inadequate for purposes of adjudication and requested an expert medical opinion from the Veterans Health Administration. As noted in the Introduction, a VHA medical opinion was received in June 2012. After the Board reviewed the VHA medical opinion it requested further clarification from the physician who produced the report which the Board received in November 2012. The Board is satisfied that the appellant has been provided an adequate medical opinion with which to adjudicate her claim. In its March 2011 remand, the Board also instructed the RO to contact the appellant and her attorney and request that she provide contact information for the Tulsa, Oklahoma, hospital where the Veteran died, and the approximate dates of the Veteran's treatment there, specifically relating to any inpatient treatment received around the time of his death. The appellant and her attorney were also requested to specify all private and VA medical care providers who treated the Veteran for his coronary artery disease, hypertension, and diabetes mellitus. In July 2011, two authorization forms were received identifying evidence pertinent to the claim, one of which appeared to identify the private hospital where the Veteran received his terminal treatment. In accordance with the duty to assist, these newly identified records were sought on remand in September 2011. According to information in the claims file, private medical records from St. Francis Hospital in Tulsa that might have been pertinent to the appellant's claim have been destroyed. In addition, an office manager where a retired physician named by the appellant used to practice told VA in a telephone call that there were no treatment records related to the Veteran in their computer system or at that facility. The appellant has not identified any additional, outstanding records that have not been requested or obtained. The Board notes that records near the time of death from the hospital where the Veteran died are not found in the claims file. However, the death certificate clearly shows the four conditions associated with his death and there is no dispute or allegation as to what was a principal or contributory cause of death. The Board concludes that all available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. Cause of Death - Laws and Regulations Service connection may be established for the cause of a veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Accordingly, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The record reflects that at the time of his death, the Veteran was not service-connected for any disability. Accordingly, the Veteran's death could not be caused by an already service-connected disability. Nevertheless, the appellant may establish service connection for the cause of the Veteran's death, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). When any veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310 (West 2002). In a claim where service connection was not established for the fatal disability prior to the death of the veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. The Board must determine whether the fatal disorder should have been service-connected. 38 C.F.R. § 3.312. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish direct service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, diabetes and heart disease, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). When a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including a myocardial infarction and coronary artery disease), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Even if presumptive service connection should fail, the United States Court of Appeals for the Federal Circuit, however, has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee, 34 F.3d at 1042. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2011). Factual Background As indicated above, the appellant in this case is the Veteran's widow. The appellant seeks service connection for the cause of the Veteran's death. The appellant is seeking Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1310. She essentially contends that service treatment records reveal evidence of a heart condition or a hypertension condition. She contends that her husband suffered from several conditions prior to his death for which he should be service-connected and that his service in the Korean demilitarized zone (DMZ) caused diabetes mellitus (by exposure to herbicides such as Agent Orange) which contributed to the heart disease which caused his death. According to the record, at the time of his death, the Veteran was not service connected for any disability. Service personnel records show that the Veteran served in the United States Army from September 1963 to September 1966, including service in Korea from March 1965 to April 1966. Service treatment records show that the Veteran had a blood pressure reading of 135/80 at the time of his enlistment examination in September 1963. The examination report indicated that a chest x-ray was negative. No disabilities were found on the September 1963 enlistment examination. An annual physical examination conducted in July 1964 included a normal clinical examination of the heart and vascular system. The Veteran's blood pressure was recorded as 128/84 sitting, 134/86 recumbent, and 130/84 standing. A routine chest x-ray conducted in July 1964 revealed a "cardiac shadow somewhat larger than 50 % of thoracic diameter with apparent accentuation of right border. Rest of x-ray normal." During EKG testing in July 1964, blood pressure was 128/84. EKG findings revealed "considerable counter clockwise rotation. Complexes with equal RS are seen in the right precordial leads over to V4R. No other abnormalities are seen." The remarks section indicated "probably within normal limits." An August 1964 record noted a routine chest X-ray showed a questionable enlargement of the right side of the heart and also noted questionable combined atrial hypertrophy. The physician noted no history of rheumatic fever or childhood illness of long duration and no symptoms. The diagnosis was no organic heart disease. During the Veteran's discharge examination in June 1966, a clinical examination of the heart and vascular system was normal. Sitting blood pressure was 136/88. The physician's summary, in pertinent part, stated "hypertension - slight - noted at time of induction. No significant evaluation made. No treatment prescribed." Other than the death certificate, there are no post-service treatment records available. The Veteran died in October 1999 at the age of 58. The death certificate shows that the immediate cause of death was cardiac arrest. Coronary artery disease, hypertension, and noninsulin-dependent diabetes mellitus were also listed as underlying causes. An autopsy was not performed. The appellant first filed her DIC claim in September 2003, which was denied in rating letters dated in November 2003 and January 2004. The appellant again filed for service connection for the cause of the Veteran's death in June 2007. (The Board explained in its April 2010 decision that because the Veteran's service treatment records were not associated with the claims file until after the January 2004 rating decision, the appellant did not have to submit new and material evidence to reopen her claim. See 38 C.F.R. § 3.156(c) (2012)). The Board obtained a VA medical opinion in February 2012 as a result of the CAVC's Order based on the parties' Joint Motion. The VA medical reviewer found that the Veteran's hypertension clearly and unmistakably existed prior to service because hypertension was noted in service physical examinations. The VA reviewer observed, however, that hypertension clearly and unmistakably was not aggravated in service beyond its natural progression by an in-service injury, event, or illness because neither in-service chest X-rays nor in-service EKGs showed any aggravation of hypertension. The February 2012 VA reviewer concluded, after a review of the claims file, that the Veteran's death from cardiac arrest, coronary artery disease, hypertension, and diabetes was less likely as not a result of any event or condition that occurred in-service or within one year of discharge and was at least as likely as not a result of post service conditions or events and was not caused by or worsened by an already service-connected disability. The February 2012 VA reviewer concluded that there was no evidence that any condition of service origin or etiology caused or contributed substantially or materially to cause the Veteran's death from cardiac arrest, coronary artery disease, hypertension, or diabetes. The Board found this opinion was inadequate as its conclusions were not supported by an adequate rationale and in May 2012 requested a VHA medical opinion. In June 2012, a VHA medical expert reviewed the claims file at the Board's request and submitted an opinion. The VHA medical expert noted that the in-service blood pressure readings were not sufficient to render a diagnosis of hypertension. The VHA medical expert noted that service blood pressure readings varied between systolic pressures in the 120s to the 130s, but that no blood pressure greater than or equal to 140 was noted. Therefore, the Veteran did not have a diagnosis of hypertension during service. The VHA medical expert further noted that the current definition of hypertension is consistent readings with systolic pressure in excess of 140 mmHg. He stated that the goal for treatment of hypertension in patients without other comorbidities is a systolic blood pressure less than or equal to 140 mmHg. The June 2012 VHA report also noted that while a June 1964 in-service chest X-ray indicated that a cardiac silhouette was slightly greater than 50 percent of the cardiothoracic diameter a later X-ray in August 1964 was interpreted as normal. The VHA medical expert also noted that the actual chest X-rays from 1964 were not found within the claims file and further that the quality of X-ray technique can affect an interpretation. He cited as an example a poor respiratory effort which can spuriously suggest an increased heart size. Based on the two in-service chest X-rays, the VHA medical expert found that chest X-ray in service was normal. The VHA medical expert also opined that the Veteran's service treatment records showed no evidence of diabetes mellitus, although they did not contain blood work for fasting glucose. He noted that the only reference to diabetes in the claims file was the death certificate and that the record lacked any medical evidence supporting findings consistent with an end-organ injury secondary to diabetes. While it was likely that diabetes did contribute to the Veteran's death, the VHA medical expert stated that there was no indication that this disease had its onset during the Veteran's active military service. In conclusion, the VHA medical expert stated that, based on a review of the medical records in the file and despite the fact that the Veteran experienced a considerable weight gain during service, there was no evidence that cardiac arrest, coronary artery disease, hypertension, and diabetes manifested during military service or developed as a result of military service. In a November 2012 addendum, the VHA medical expert explained that he had reviewed the in-service EKG with a noninvasive electrophysiologist and that the EKG did not reveal evidence of a heart condition in service. The VA electrophysiologist noted that there were frequently technical issues with performing single lead EKGs, such as the Veteran's in-service EKG, and that there was considerable variation due to lead placement and issues with the suction cups used at that time. She told the VHA reviewer that there was nothing to indicate cardiac pathology from the EKG and that a diagnosis of right ventricular hypertrophy was not supported due to the lack of S wave deflection in the lateral precordial leads. Further, the EKG amplitude was not unusual for a 23-year-old male. The VHA medical expert also noted that there were two chest X-ray studies reviewed from the Veteran's service treatment records. While the first in June 1964 indicated a cardiac silhouette slightly greater than 50 percent of the cardiothoracic diameter, the actual X-rays were not found in the file and relatively small differences in technique can change one's interpretation. In any event, of most importance was that the second and later chest X-ray in August 1964 was interpreted as normal and a normal chest X-ray does not support any diagnosis of cardiac disease in service. The VHA medical expert also clarified that weight gain in a young person does not indicate heart disease. If weight gain were associated with significant fluid retention resulting in fluid accumulating in the lungs, peritoneal cavity, and lower extremities, such could indicate a cardiac condition. However, the VHA medical expert noted that such a finding would be associated with significant symptoms of shortness of breath, difficulty lying flat because of breathing difficulties, and shortness of breath with minimal activity. Thus, the VHA report concluded that the Veteran's weight gain in service was an incidental finding and not evidence of congestive heart failure. The VHA medical expert also indicated that he had reviewed the claims file carefully and consulted with colleagues and found no basis to change his original opinion in June 2012 that there was no evidence that cardiac arrest, coronary artery disease, hypertension, and diabetes manifested during the Veteran's military service or developed as a result of his military service. Analysis Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the claim for service connection for the cause of the Veteran's death and, regrettably, the appeal is denied. Following review of the complete record, the Board finds that the weight of the competent evidence of record does not show that service connection is warranted on the theory that the Veteran's death was a result of an in-service disease or occurrence. In reaching this decision, the Board acknowledges the appellant's assertion that the Veteran's diabetes was due to in-service exposure to herbicides. Diabetes Mellitus As noted above, the appellant has specifically alleged that the Veteran's diabetes mellitus was related to service. The Veteran's service treatment records fail to reflect any treatment or complaints related to diabetes mellitus. However, the appellant has contended that the Veteran's service in Korea exposed him to herbicides which caused his diabetes mellitus. The Veteran's Form DD 214 fails to reflect any service in Vietnam. However, his service personnel records indicate he served in Korea. In this regard, the Department of Defense (DoD) has confirmed that the herbicide Agent Orange was used from April 1968 through July 1969 along the Korean DMZ. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Although the Veteran served in Korea, service personnel records indicate the Veteran's tour of duty there was from March 1965 until April 1966. This is not the period during which herbicides were used along the DMZ. Furthermore, the RO specifically requested any documents showing exposure to herbicides; however the response indicated there were no records of exposure to herbicides. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee, 34 F.3d at 1043-1044. As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection for diabetes mellitus. In this regard, the Veteran apparently had a current diagnosis of diabetes before his death. However, as noted above, there is no evidence of treatment or diagnosis for diabetes during service and no proof of exposure to herbicides. Most significantly, there is no competent evidence linking any diabetes mellitus possibly diagnosed in the last years of the Veteran's life to any event or incident of service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The only post service record noting the diagnosis of diabetes mellitus is the death certificate and this fails to provide an opinion as to the etiology of the disability. The VHA medical expert noted that the record contained no evidence of diabetes in service. In this case, the only evidence linking the diabetes mellitus to service is the appellant's statement. The appellant has not been shown to have the education or training to render her competent to provide an opinion as to the etiology of a medical condition which is not easily observed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, while the appellant may believe the Veteran was exposed to herbicides and that the exposure led to his diagnosis of diabetes, the record does not corroborate this assertion. As explained above, there is no indication the Veteran served during the time when herbicides were used in Korea. As such, the appellant's assertion is not credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The appellant has also provided no post-service medical records and it is impossible for the Board to determine if the diabetes mellitus manifested to a compensable degree within one year of the Veteran's separation from service. To find the Veteran's diabetes mellitus was related to his active service would require speculation. The law has recognized in this regard that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board finds that the record lacks any persuasive medical or lay evidence that links the Veteran's diabetes mellitus to any alleged in-service herbicide exposure. The preponderance of the evidence is against the appellant's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cardiac Arrest and Coronary Artery Disease The death certificate indicated the primary cause of death was cardiac arrest with a secondary cause of coronary artery disease. Thus, the remaining question is whether there is evidence of inservice heart disease and medical evidence of a nexus or relationship between any heart disability at the time of the Veteran's death and an inservice disease. Initially, the Board notes that the Veteran was apparently diagnosed post-service with coronary artery disease, a type of ischemic heart disease. As described above, however, there is simply no evidence the Veteran was ever exposed to herbicidal agents during military service. As such, the Veteran would not be entitled to presumptive service connection for ischemic heart disease based on exposure to herbicides in service. See 38 C.F.R. § 38 C.F.R. § 3.309(e). However, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee, 34 F.3d at 1043-1044. As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection for coronary artery disease. As noted above, service treatment records include a July 1964 chest X-ray which showed a cardiac shadow somewhat larger than 50 percent of thoracic diameter with apparent accentuation of right border. The rest of the x-ray was negative. An August 1964 record noted a routine chest X-ray showed a questionable enlargement of the right side of the heart and also noted questionable combined atrial hypertrophy. The physician noted no history of rheumatic fever or childhood illness of long duration and no symptoms. The diagnosis was no organic heart disease. The Veteran indicated on the July 1966 report of medical history at discharge that he had a history of high or low blood pressure but denied other symptoms related to the heart, such as pain or pressure in the chest or palpitations. Significantly, the June 1966 discharge examination described the heart as normal and noted no defects or diagnoses. What is missing from the record to establish service connection is competent evidence linking the cardiac arrest and coronary artery disease noted on the death certificate to the questionable enlarged heart noted during service. In this case, there is no persuasive competent medical opinion linking the etiology of either cardiac arrest or coronary artery disease to the Veteran's period of active service. The VHA medical expert persuasively found that the chest X-rays and EKG found in service treatment records did not provide evidence of any cardiac pathology for the reasons outlined in his reports. Further, the Veteran's considerable weight gain in service was not evidence in this case of heart disease because there was no evidence of fluid retention and shortness of breath. Accordingly, without evidence of a nexus or evidence of continuity of symptomatology since service, service connection for cardiac arrest and coronary artery disease is denied in the appellant's case. Nor is there any competent medical evidence showing that the Veteran was diagnosed as having a cardiovascular disease within one year of the Veteran's discharge from service in September 1966, so presumptive service connection for a heart disorder is also not warranted. Hypertension As an initial matter, the medical evidence of record raised a question of whether the Veteran had a pre-existing hypertension disability. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this case, the Veteran denied a history of high or low blood pressure in the September 1963 induction report of medical history. Additionally, the September 1963 induction examination described the heart and vascular systems as normal and described no prior defect or injury other than flat feet. While the blood pressure was noted to be 135/80, no diagnosis of hypertension was noted. As no hypertension disability was noted on the Veteran's induction examination, the Veteran must be presumed sound at induction into service. Because the presumption of soundness has attached, VA has the burden of proving by clear and unmistakable evidence that both (1) the Veteran's disease or injury pre-existed service and (2) that such disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; 38 U.S.C.A. § 1153. In the present case, there is no competent medical evidence dated prior to the September 1963 induction examination which reflects a diagnosis of hypertension. Thus, the only medical record which refers to the possible existence of hypertension prior to service is the June 1966 discharge examination comments of a physician, which indicates at induction the Veteran had "hypertension - slight - noted at time of induction. No significant evaluation made. No treatment prescribed." This comment appears based entirely upon the Veteran's own history, as the enlistment examination did not record a diagnosis of hypertension. (The Board notes that the February 2012 VA reviewer who found that the Veteran's hypertension pre-existed military service based this finding on the Veteran's examinations found in the service treatment records.) The Court has held that the transcription of medical history does not transform such information into competent medical evidence merely because the transcriber happens to be a medical professional. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995). Similarly, the law has provided that history provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In sum, there is no competent medical evidence of record to show the nature of an injury, residuals, course of treatment, or any other factors that might enable the Board to gauge any relevant information as to the pre-existence of hypertension. As such, the Board finds that the Veteran's history alone, without any corroborating medical evidence, is insufficient to rebut the presumption of soundness in this case. The Board also notes that earlier it also found that the February 2012 VA examination was itself inadequate for purposes of adjudicating this claim because the medical reviewer had not provided an adequate rationale for his medical conclusions. Because the presumption of soundness has not been rebutted for the hypertension aspect of this claim, it becomes one for direct service connection, without consideration of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As to direct service connection, the Veteran's service treatment records noted above included the July 1966 report of medical history at the time of discharge that noted that the Veteran described a history of high or low blood pressure. The examiner explained that the Veteran had slight hypertension which was noted at the time of induction and no significant evaluation was made and no treatment was prescribed. Significantly, the June 1966 discharge examination noted no heart abnormalities or defects or diagnoses. As the Veteran was noted to have hypertension at the time of his death, the remaining question is whether there is evidence of a nexus or relationship between the hypertension disability noted at the time of death and any inservice disease or injury. In the present case, however, the only post service record reflecting the diagnosis of hypertension, the death certificate, failed to provide an opinion as to the etiology of the hypertension. The VHA medical expert found that the blood pressure readings recorded during service were insufficient to establish a diagnosis of hypertension during service because they failed to show systolic pressure greater than or equal to 140 mmHg. The Board notes that VA has defined isolated systolic hypertension as systolic blood pressure predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012) (rating hypertension). As such, there is no persuasive medical evidence of record that establishes a nexus or relationship between the hypertension noted on the Veteran's death certificate and his blood pressure readings in service. Therefore, direct service connection for hypertension is not warranted in the Veteran's case. The Board also has considered whether service connection for hypertension could be granted under presumptive service connection provisions. The Board observes that there is no way of determining whether or not hypertension had manifested to a compensable level by September 1967, 12 months after the Veteran's discharge from active duty, because the record lacks any post-service private or VA medical records. Accordingly, to find that the Veteran's hypertension manifested to a compensable degree by 1967 would require speculation. The law has recognized in this regard that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman, 3 Vet. App. at 230; Obert, 5 Vet. App. at 33. Conclusion The preponderance of the medical evidence in this case does not show that the Veteran's death was due to an in-service disease or occurrence. The Veteran's death certificate lists his cause of death as cardiac arrest with coronary artery disease, hypertension, and diabetes listed as underlying causes. As discussed above, the Veteran's service treatment records do not show a diagnosis of, or clear symptomatology of, these disorders during active duty. The probative medical evidence does not show a diagnosis of any heart disease or diabetes or hypertension until 1999, or 33 years following the Veteran's separation from service in September 1966. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, service connection for any of these disorders is not warranted based on a theory of in-service disease or occurrence or as a chronic disorder manifested within a year of discharge. As described in detail above, the Veteran's claims file was reviewed by a VHA medical expert, for the purposes of determining whether the Veteran's death was due to military service, including his exposure to in-service herbicidal agents. The VHA expert essentially opined that there was no persuasive medical evidence in the record that cardiac arrest, coronary artery disease, hypertension, and diabetes either manifested during the Veteran's military service or developed as a result of his military service. The VHA medical expert's opinions are considered highly probative in this case as they are definitive, prepared by an expert in cardiology, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationales. Accordingly, his opinions are found to carry significant probative weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Under these circumstances, the Board concludes that the VHA expert's findings constitute the most probative (persuasive) evidence on the question of whether the Veteran's death was due to in-service exposure to herbicides and whether the causes of his death were related to service. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA 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 the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board finds that the appellant is not competent to provide an opinion that the Veteran's death was etiologically related to his military service or to in-service exposure to herbicides. While the appellant is competent to report the Veteran's symptoms that she observed as they came to her through her senses, heart disease, hypertension, and diabetes are not the type of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis. As discussed above, the Board has determined that the VHA medical expert's opinions are more probative given the rationale, which was based on medical training and a review of the claims folder. Thus, the Board attaches greater probative weight to the clinical findings of the VHA medical expert than to the lay statements submitted by the appellant. The Board notes that the appellant's attorney essentially argues in his December 2012 letter to the Board that the VHA medical expert did not provide a thorough discussion of the service medical evidence in this case. He suggests that the service medical evidence should be somehow combined because the combination of elevated blood pressure, abnormal EKG readings, and chest X-rays in service might demonstrate an enlarged heart, tachycardia and significant weight gain at least as likely as not perhaps indicating that the Veteran had evidence of heart disease while on active duty. The attorney contends that a remand for a new medical opinion is in order if the appellant is not awarded service connection for the cause of the Veteran's death. However, the Veteran's attorney has not provided any additional medical evidence with which to support his view that linking all service medical evidence of symptomatology might somehow show some type of heart disease developing during service. The Board finds that the assertions of the Veteran's attorney here are conjectural and hypothetical. They fail to deal with the VHA medical expert's findings that the available evidence culled from service treatment records show no evidence of diabetes or hypertension, that evidence of chest X-rays and EKG tests do not reveal evidence of a heart condition in service, and that the Veteran's notable weight gain while in service is not evidence of a heart condition because there was no evidence of significant fluid retention or shortness of breath. In point of fact, the VHA medical expert in this case has reviewed the evidence in service related to the medical disorders listed on the Veteran's death certificate and was specifically asked to consider the likelihood whether any disability that caused or substantially contributed to the Veteran's death had its onset during active military service. His training and review of the claims file led to the conclusion that there was no persuasive or competent evidence associated with the claims file indicating that cardiac arrest, coronary artery disease, hypertension, or diabetes manifested during military service or developed as a result of the Veteran's military service. A remand for another medical opinion, as suggested by the Veteran's attorney, thus would prove a futile exercise in this case. As explained above, direct or presumptive service connection is not warranted in this case for coronary artery disease, hypertension, or diabetes mellitus. Therefore, there is no disability of service origin that can be considered as either the principal or contributory cause of death. Therefore, service connection for the cause of the Veteran's death is not warranted in this case. See 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. Although the Board is sympathetic to the appellant's assertions, fully understands her position, and by no means wishes to minimize the service the Veteran provided, the claim for service connection for the Veteran's cause of death must be denied for the foregoing reasons. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. As such, service connection for the cause of the Veteran's death is denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs