Citation Nr: 1302376 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-01 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to accrued benefits for service connection for residuals of cold injury. 2. Entitlement to service connection for cause of death to include under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, H.C., and M.M. ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1953 to January 1956. He died in April 2006 and the appellant claims benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was held on March 17, 2011, in Waco, Texas, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of the hearing is in the claims file. This appeal was previously before the Board and the Board remanded the claims in September 2011 for additional development. The case has been returned to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. At the time of the Veteran's death, there were no due, but unpaid, benefits to which the Veteran was entitled under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death. 3. The causes of the Veteran's death have not been etiologically or causally related to an in-service event, injury, or disease, nor was any service-connected disability a principal or contributory cause of death. 4. The Veteran's death has not been shown to have been as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment, nor does the evidence show that the Veteran's death was an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for accrued benefits for service connection for residuals of cold injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.1000 (2012). 2. The criteria for service connection for cause of death to include under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1110, 1131, 1151 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.358 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 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 Board finds that the duty to notify was satisfied by notice letters sent to the appellant in July 2006, August 2007, and September 2011. The September 2011 letter complied with the Hupp requirements and the July 2006 and September 2011 letters addressed the claim for service connection for residuals of cold injury for accrued benefits purposes. Although satisfactory notice was provided after the initial adjudication of the appellant's claims, the claims were subsequently readjudicated in an August 2012 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). With regard to the appellant's claim for entitlement to service connection for the cause of the Veteran's death, the duty to assist the appellant includes procuring service treatment records and other relevant records and providing a VA opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has fulfilled its duty to assist the appellant by obtaining identified and available evidence needed to substantiate the claim including VA treatment records and a VA medical opinion. Unfortunately, the Veteran's service treatment records have been reported to be "fire related." See January 2006 communication from the National Personnel Records Center (NPRC). The Board recognizes that there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Where service treatment records were destroyed, a Veteran is competent to report on factual matters about which he had firsthand knowledge, including in-service injury, experiencing pain during service, reporting to sick call, and undergoing treatment. Washington, 19 Vet. App. at 368. Here, the Veteran supplied credible lay evidence that he sustained frostbite during service in Korea. In addition, the appellant and her children attested to witnessing the Veteran's feet and that he complained of pain in his feet. The Board further observes that, pertinent to the claim for entitlement to service connection for cause of death, VA obtained a medical opinion in January 2012. Concerning this, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it was predicated on a review of the claims file and all pertinent evidence of record. The report of examination provided adequate medical information/opinions needed to adjudicate the affected claim. Also, the opinions included detailed consideration and discussion of the Veteran's medical history. As for VA's duty to assist with regard to the claim for entitlement to accrued benefits, the outcome of an accrued benefits claim hinges on the application of the law to evidence which was in the file at the time of the Veteran's death. As no additional evidence may be added to the file in regards to this issue, no evidentiary development is necessary for the claim decided herein. VA has also assisted the appellant throughout the course of this appeal by providing her with a November 2008 statement of the case (SOC), and February 2009 and August 2012 SSOCs, which informed her of the laws and regulations relevant to her claims. Additionally, the Board finds that the September 2011 remand directives have been completed. Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. The Board finds the appellant was provided the opportunity to meaningfully participate in the adjudication of her claims and did in fact participate. Washington. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. I. Entitlement to Accrued Benefits for Service Connection for Residuals of Cold Injury Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121(West 2002 & Supp. 2011); 38 C.F.R. § 3.1000 (2012). While an accrued benefits claim is separate from a veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). At the time of the Veteran's death, he had a claim pending for service connection for residuals of cold injury. For accrued benefits purposes, the appellant takes her spouse's remaining claims as they stand at the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). Unlike the claim for cause of death, in considering a claim for accrued benefits, generally, only evidence contained in the claims file at the time of a veteran's death is evaluated. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the Court held that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the claims file until after that date. The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA, and reports of autopsy made by VA on the date of death. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for residuals of cold injury for accrued benefits purposes is not warranted. The appellant contends that the Veteran suffered from cold injury residuals from his active military duty in Korea. Although there are no service treatment records showing that the Veteran had frostbite during service, the Veteran's service treatment records were destroyed by fire (in the 1973 fire at the St. Louis records repository). In cases such as this when service records are unavailable due to no fault of the claimant VA has a "heightened duty" to assist in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The evidence of record shows that the Veteran credibly stated prior to his death that he suffered frostbite during service. In addition, the appellant and her children, as well as a friend of the Veteran attested to witnessing the Veteran having problems with his feet and said that he complained of pain in his feet from the time he was in service until his death. The VA treatment records reveal that the Veteran reported sustaining cold weather injuries during service and he was diagnosed with peripheral vascular disease (PVD). However, considering the evidence of record at the time of the Veteran's death, there is no medical evidence of record relating the Veteran's PVD to active military service, to include any cold injuries therein. Likewise, there is no medical evidence of any current residuals of cold injury. The Board notes that while in considering a claim for accrued benefits, generally, only evidence contained in the claims file at the time of a veteran's death is evaluated, VA obtained an opinion on this issue in January 2012. After reviewing the claims file, the examiner concluded that it was less likely than not (less than 50 percent probability) that any residuals of a cold injury of the hands and feet were incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no clinical evidence in the Veteran's extensive claims file, including voluminous VA records, that the Veteran had any discernible clinical residuals of any cold injury sustained during military service. The Veteran did have a history of cold extremities with burning sensations, but this was due to severe PVD, and has nothing to do with his military time or cold exposure. Thus, even if this evidence addressing the appellant's claim for accrued benefits for service connection for residuals of a cold injury were permitted to be considered, it would not provide support for her claim. The Board recognizes the statements of the Veteran, the appellant, and members of their family that the Veteran's ongoing foot pain was caused by cold injuries sustained during service. In this case, the Veteran may be competent to report his symptoms, and his family may be competent to report that they witnessed the Veteran discussing cold injuries sustained in Korea and experiencing pain in his feet. However, the Veteran, the appellant, and their family members, as lay persons, are not competent to testify as to matters of medical causation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses and cautioning that lay testimony that veteran suffered a particular illness, bronchial asthma, was not competent because matter required medical expertise); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (noting that veteran's statements were competent to describe the observable flatness of his feet); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Court to remand to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Barr v. Nicholson, 21 Vet App 303, 308-09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). PVD is not a condition that can be causally related to an event during service without medical expertise. Likewise, residuals of cold injury are not conditions that can be diagnosed without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Veteran was not, and the appellant and her family members are not, competent to provide an opinion as to the existence or etiology of any residuals or cold injury. Furthermore, the Board finds that the medical evidence of record at the time of the Veteran's death pertaining to the Veteran's diagnosis of PVD is more persuasive than the Veteran's and the appellant's lay assertions. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of entitlement to accrued benefits for service connection for residuals of cold injury. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application in the instant case. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. Consequently, entitlement to accrued benefits for service connection for residuals of cold injury must be denied. II. Service Connection for the Cause of the Veteran's Death to Include Under the Provisions of 38 U.S.C.A. § 1151 The appellant contends that the cause of the Veteran's death in April 2006 was related to his active military duty and/or related to VA treatment received at a VA medical facility. Specifically, she alleges that, the Veteran's cause of death was related to his period of active duty including his reports of experiencing frostbite during active duty in Korea. She claims that cold-weather injuries lead to poor blood circulation, which caused him to have strokes. In addition, the appellant asserts that the cause of death is related to treatment given by a VA medical facility. She stated that the Veteran was scheduled for a stent procedure in September 2005 and was taken off all blood thinners prior to the scheduled procedure. She explained that after a few days, the Veteran suffered a stroke. The Veteran subsequently suffered a series of strokes, and the appellant contends that these strokes expedited the Veteran's death. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). Further, under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. For claims filed after October 1, 1997 a claimant is required to show fault or negligence in medical treatment. Because the appellant in this case filed her claims after that date, she must show some degree of fault, and more specifically, that the proximate cause of the Veteran's death was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1). In determining that additional disability exists, the Veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. 38 C.F.R. § 3.358(b)(1). Compensation will not be paid for the continuance or natural progression of diseases or injuries for which hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2). Several conditions govern the determination of whether any additional disability or death resulted from VA hospitalization or treatment. First, it is necessary to show that the additional disability or death is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, not merely coincidental therewith. The mere fact of aggravation alone will not suffice to make a disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, examination or medical or surgical treatment. 38 C.F.R. § 3.358(c). Second, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the expressed or implied consent of the Veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or treatment administered. 38 C.F.R. § 3.358(c). The Veteran's certificate of death reflects that he passed away on April [redacted], 2006. The death certificate lists the immediate cause of death as hypertensive and arteriosclerotic cardiovascular disease. The Veteran was not service-connected at the time of his death for any disability. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for the cause of the Veteran's death is not warranted on any basis. Turning to the evidence, VA treatment records show that the impression of a September 1986 radiologic report of the chest was that interval increase in size of the cardiac silhouette had occurred as compared to January 1988, and of old granulomatous disease. A July 1991 discharge summary reveals that the Veteran had a history of two previous episodes of paroxysmal supraventricular tachycardia (PSVT), six months prior and five months prior to that time. The Veteran sought treatment on that occasion when another PSVT was noted. The Veteran had noted heart flutter on two days prior to admission which was associated with dizziness. It was noted that the Veteran also had previous episodes in 1985 of supraventricular tachycardia (SVT) and again in August 1990 when he presented to the VA emergency room and was converted with valsalva and carotid massage. Initial electrocardiogram (EKG) showed a PSVT with a rate of approximately 150 which was converted to a normal sinus rhythm with a rate of 75 showing no hypertrophy, no infarction, and no delta waves. In September 1993, the Veteran reported experiencing palpitations and dizziness and was hospitalized. At that time, he related that he had a history of several previous episodes dating as far back as the 1960s, in which he had a sudden onset of palpitations with dizziness and had spontaneous relief with valsalva. Upon discharge later that month, the diagnosis was SVT. In July 2000, the Veteran complained of his feet hurting on and off. A May 2002 treatment note shows that the Veteran had a history of hypertension and over the prior year had developed intermittent claudication, right leg much worse than left, in addition to pain in the right foot. Lower extremity angiogram performed that month showed mild to moderate bilateral outflow disease, severe bilateral infrapopliteal run-off disease, and bilateral renal artery stenosis. The Veteran underwent an aorta long legged extremity arteriogram. An August 2005 VA treatment record shows that the Veteran reported the onset of right foot rest pain about three weeks prior to that time. A treatment record dated later that month reveals that the Veteran had known PVD and was on aspirin (ASA) and Plavix and had an episode of right sided weakness after his ASA and Plavix were held for surgery on 9/1. Also, the Veteran reported that he was without those medications for 1 week when he had a procedure earlier that month. The Veteran was getting better, and that morning, there was very little weakness left on the right side. The examining physician agreed with ASA and Plavix and having magnetic resonance imaging (MRI) and magnetic resonance angiography (MRA). The following day, the Veteran was assessed with sudden onset right hemiparesis and that he appeared to have had a stroke. The examining physician explained that it was noteworthy that the Veteran did stop his Plavix on Wednesday as he was scheduled to go for an angioplasty of his right superficial femoral artery on September 1, 2005. In October 2005, the Veteran underwent left cervical and cerebral carotid arteriograms and selective catheterization of the left common carotid artery for symptomatic left carotid occlusion. In November 2005, the Veteran was noted to have a history of PVD. He was noted to be status-post angioplasty and stent placement of the right superficial femoral artery in May 2002. The Veteran presented on that day complaining of a three-week history of pain in the right foot, worse at the toes and the heel, that is worse at night with leg elevation and gets better when he stands up and walks around. The Veteran had no tissue loss and was not complaining of similar symptoms of the left foot. The Veteran also complained of intermittent claudication bilaterally, but worse on the right. The examiner noted that other risk factors for PVD include hypertension and hyperlipidemia. The examiner found that notably, the right foot was cooler compared to the left foot. The Veteran had noticeable skin temperature increase at the mid calf on the right. Examination of the right foot demonstrated dystrophic changes, and no dependent rubor. The assessment included PVD with right foot rest pain but no tissue loss. Later that month, the Veteran reportedly had a 5 years history of foot pain. Physical examination revealed some tenderness in the right great toe but no warmth or redness. The right toot was noted to be cool. A December 2005 treatment note indicates that the Veteran's complaints of bilateral foot pain are likely secondary to his PVD. A December 2005 neurology note indicates that the Veteran had recently had a series of left-sided middle cerebral artery (MCA) strokes on the basis of an occluded left internal carotid artery. The physician noted that with regard to the Veteran's stroke, he was slowly improving with the help of therapy. The assessment was of status post several left MCA strokes. It was noted that the Veteran was being evaluated for an EC-IC bypass. In a February 2006 statements, the Veteran said that during his tour in Korea while in service, he sustained frostbite of his feet, hands, ears, and legs. He stated that he has had pain in both feet, hands, and legs since his discharge from service. He indicated that he was treated by VA for feet problems because of poor circulation of the blood caused by the in-service cold injuries. He also reported having cold feet, hands, and legs due to his cold injury. He also said that he had become the victim of strokes related to poor circulation of the blood. In a July 2008 statements, a daughter of the appellant and the Veteran provided a written statement in support of the appellant's claims. She stated that during the time that the Veteran was in the physical care of the VAMC stroke ward, she witnessed that the Veteran had numerous strokes and that the Veteran often spoke of the fact that the VA physician took him off his blood thinning medication although he had been treated as a high risk stroke patient prior to ever having strokes. Further, within days of being taken off the blood thinning medication the Veteran began suffering from strokes. The Veteran had several stroke episodes while at the VAMC before an unknown orderly in the stroke unit told the Veteran's family that the Veteran should have been moved to intensive care to receive necessary treatment for the numerous strokes. The Veteran's daughter explained that while the Veteran was moved in response to demands from the family, the damage had already been done to the Veteran. The Veteran's daughter witnessed the Veteran's health decline from the point of being physically active in August 2005 to passing away in April 2006. The Veteran's daughter contends that the decision of VA physicians to take the Veteran off blood thinning medication contributed to his strokes, and ultimately, his death. The Veteran's daughter also stated that her father told her that he had pain in his feet due to cold weather injuries sustained in Korea. She also indicated that the Veteran had been receiving VA treatment for pain and poor circulation in his feet. The appellant has also submitted a July 2008 buddy statement from a friend of the Veteran who is a Veteran of both World War II and the Korean War. The Veteran's friend indicated that he knew the Veteran prior to, during, and following the Veteran's service in Korea. He stated that he knew that the Veteran had been hospitalized for days due to frostbite injuries he had sustained on his hands and feet. This friend visited with the Veteran on an annual basis over the years, and witnessed the Veteran often speaking of his frostbite injuries and his complaints of foot pain that he believed was due to poor circulation as a result of his frostbite injuries. The Veteran's friend said that he witnessed the Veteran experiencing pain with his feet starting with his time in service and continuously throughout the remainder of his life. In written statements and testimony, the appellant, the appellant's son, and one of the Veteran's daughters have collectively indicated that the Veteran reported to them that he sustained cold weather injuries during his service in Korea, and that they witnessed him experiencing pain in his feet throughout his life. They stated that medical studies have shown that people who suffer cold weather injuries are susceptible to heart conditions and strokes later in their lives. The Veteran's feet were black and he had a sore on his foot that would not heal. They said that while awaiting a stent surgery at a VAMC in August 2005, the Veteran was taken off all stroke medication by his VA doctor for a week without being hospitalized for observation. They contend that this action caused the Veteran's first stroke, which led to a series of strokes and heart attacks within an 8 month period and was the cause of the Veteran's death. They said that after about 2 weeks in the hospital and the Veteran having several strokes, they were told by one of the orderlies in the unit that the Veteran needed to be moved so that he could receive the treatment he required. Upon the request of the family, the Veteran was moved and ultimately was placed in a residential area for several months. They also they stated that the Veteran and the appellant had been advised by a doctor that the Veteran should have never been ordered to stop taking his blood thinning medication without being placed in a hospital under observation. They contend that blood was not circulating through his body, and therefore he had five strokes and two heart attacks. They believe that VA medical personnel were negligent in taking the Veteran off his blood thinning medication prior to surgery without observing him. Pursuant to the Board's September 2011 remand, VA obtained a medical opinion addressing the Veteran's cause of death in January 2012. After reviewing the claims file, the examiner opined that it is less likely as not that the Veteran's cause of death is related to treatment he received at the Dallas VAMC. Specifically, although it is true that the Veteran stopped his ASA and Plavix several days before his stroke in August 2005, the stroke could have been due to any number of embolic phenomena from various blood vessels or his heart, and this stroke was not the ultimate cause of death. The examiner said that the cause of death was due to hypertensive and arteriosclerotic heart disease (ASHD). The examiner said that it is also less likely as not that the Veteran's cause of death was related to his active military service. His history of frostbite has no bearing on his cause of death; that condition is a distal extremity condition that is very localized, and has no systemic effects whatsoever. The examiner noted that in forming the rationale, the claims file and extensive VA outpatient treatment records were reviewed. The examiner explained that while it is true that stopping anticoagulants several days before the Veteran's stroke could have led to a hypercoagulable state in his body, the truth is that the Veteran suffered from diffuse peripheral and central vascular disease, and his initial stroke could have come from a number of sources, including embolic as well as plaque phenomena. Also, after this stroke, the Veteran was placed back on his anticoagulants, and he suffered several more strokes. He was found to have significant carotid and cerebrovascular disease over the last 6 to 8 months of his life, and was offered neurological options to stabilize them, but he declined the somewhat risky procedures. Ultimately, he then developed chronic heart failure (CHF), with cardiomegaly and a low ejection fraction of 30 percent. Therefore, the true cause of death was heart failure. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for the cause of the Veteran's death is not warranted on any basis. First, the Board finds that the evidence does not indicate that the Veteran's causes of death are etiologically or causally related to an in-service injury, event, or disease. The first evidence of hypertensive and arteriosclerotic cardiovascular disease is not located in the medical records until many years after separation from active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). While the Veteran had related that he had a history of cardiac episodes dating as far back as the 1960's, other medical evidence showed that the Veteran's history of PSVT began in the mid-1980s. The appellant contends that cold-weather injuries sustained by the Veteran during his service in Korea led to poor blood circulation, which caused the Veteran to have strokes, and ultimately, to die. The Board finds that the record contains credible lay evidence, including written statements and hearing testimony, that the Veteran experienced frostbite of the feet, hands, ears, and legs while serving in Korea, and had foot pain that began during service and continued until his death. However, the competent medical evidence of record does not relate the cause of the Veteran's death to such injuries. The January 2012 VA medical opinion indicates that it is less likely than not that the Veteran's cause of death was related to his active military service. His history of frostbite has no bearing on his cause of death, as that condition is a distal extremity condition that is very localized, and has no systemic effects whatsoever. The Board finds that the provider's opinion is persuasive as the provider reviewed the claims file, including extensive VA outpatient treatment records, and provided a nexus opinion with well supported rationale. Thus, the Board finds that the Veteran's hypertensive and arteriosclerotic cardiovascular disease were not related to his period of active service, including any cold weather injuries sustained therein. Additionally, the Board concludes that the appellant is not entitled to service connection for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 for medical treatment furnished at a VA Medical Center (VAMC). The preponderance of the competent medical evidence of record shows that the Veteran's cause of death was not related to treatment he received at a VA facility, to include being taken off his blood thinners for a stent procedure. Further, the medical evidence of record shows that the Veteran's death was not due to or accelerated by carelessness, negligence, lack of proper skill, error in judgment, or some instance of fault on the part of VA in furnishing medical care or that the outcome of the treatment was an event not reasonably foreseeable. Last, there is no medical evidence reflecting that there was any negligence or carelessness or lack of proper skill or error in judgment on the part of the VAMC in furnishing hospital care, medical or surgical treatment. While an examining physician noted in August 2005 that it was noteworthy that the Veteran did stop his Plavix on Wednesday as he was scheduled to go for an angioplasty that week, the January 2012 VA examiner reviewed the entire claims file and opined that it is less likely as not that the Veteran's cause of death is related to treatment he received at the Dallas VAMC. The Board finds that the provider's opinion on this matter is persuasive as the provider reviewed the claims file, including extensive VA outpatient treatment records, and provided a nexus opinion with well supported rationale. The Board notes the lay contentions of the Veteran and members of her family linking the Veteran's cause of death to an in-service injury, event, or disease, or to negligence, carelessness, lack of proper skill or error in judgment on the part of the VAMC. As noted above, the appellant alleges that cold weather injuries sustained in service caused poor circulation in the Veteran, which ultimately led to his death, and that the decision by VA medical personnel to take the Veteran off his blood thinning medication prior to a stent procedure without proper observation also contributed to his death. Lay evidence can be competent and sufficient 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, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Regarding the statements of the appellant and members of her family, the Board acknowledges that they are competent to testify about what they experienced, i.e. they are competent to testify that they observed the Veteran discussing cold injuries sustained in Korea and experiencing pain in his feet, as well as the fact that the Veteran was taken off blood thinning medication without observation and subsequently had several strokes. However, the appellant and her family members, as lay persons, are not competent to testify as to matters of medical causation of the complexity of the medical matters presented in this particular case, i.e., whether cold injury in service resulted in residual disability or whether his cause of death from hypertensive and arteriosclerotic cardiovascular disease was the result of VA treatment. These matters require a determination that is "medical in nature," and they are not capable of lay observation or subject to lay opinion. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Thus, the statements of the appellant and members of her family regarding the etiology of the cause of the Veteran's death do not constitute competent medical evidence on which the Board can make a determination as to whether the Veteran's cause of death was due to service or caused or accelerated by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VAMC. Thus, the Board finds that the preponderance of the evidence indicates that the Veteran's death was not etiologically or causally related to an in-service injury, event, or disease, or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care for the Veteran or that was the result of an event not reasonably foreseeable. For these reasons, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death, to include pursuant to the provisions of 38 U.S.C.A. § 1151. Because the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is not for application in the instant case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for the cause of the Veteran's death is not warranted. ORDER Entitlement to accrued benefits for service connection for residuals of cold injury is denied. Entitlement to service connection for cause of death to include under the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs