Citation Nr: 1303669 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-29 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD), for purposes of accrued benefits. 2. Entitlement to service connection for residuals of cold injuries, for purposes of accrued benefits. 3. Entitlement to service connection for arthritis, for purposes of accrued benefits. 4. Entitlement to service connection for vascular heart disease, for purposes of accrued benefits. 5. Entitlement to service connection for bilateral hearing loss, for purposes of accrued benefits. 6. Entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and R. E. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to May 1954. He received the Combat Infantry Badge, among other awards, for his service in Korea. He died in November 2008. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a November 2009 rating decision, the RO denied the appellant's claims for service connection, for accrued benefits purposes, for PTSD, cold injuries, bilateral hearing loss, vascular heart disability, and arthritis. In a December 2009 decision, the RO denied service connection for the cause of the Veteran's death. In May 2011, the appellant had a Board videoconference hearing before a Veterans Law Judge (VLJ). In August 2011, the Board remanded the case to the RO via the VA Appeals Management Center (AMC), for the development of additional evidence. The VLJ who presided over the May 2011 hearing retired before the Board adjudicated the issues on appeal. In March 2012, the appellant had a Travel Board hearing before the undersigned Veterans Law Judge. In May 2012, the Board again remanded the case to the RO via the AMC, for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the physical claims file, but also the file for the case on the Virtual VA electronic file system, to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no competent evidence that the Veteran had PTSD. 2. The Veteran did not have post-service face or ear disorders that were residual to cold exposure or cold injuries during service. 3. Arthritis in the Veteran's feet was not diagnosed until many years after service, and was not residual to cold exposure or cold injuries during service. 4. Vascular problems affecting the Veteran's feet were not diagnosed until many years after service, and were not residual to cold exposure or cold injuries during service. 5. Arthritis of the Veteran's hands was not diagnosed until many years after service, and was not residual to cold exposure or cold injuries during service. 6. The Veteran did not have arthritis of either elbow, either hip, or the right knee. 7. Arthritis of the Veteran's left knee was not diagnosed until many years after service, and was not residual to cold exposure or cold injuries during service. 8. The Veteran's cardiovascular and peripheral vascular disorders were not diagnosed until many years after service, and were not residual to cold exposure or cold injuries during service. 9. The Veteran's hearing was never measured at levels that constitute disabling impairment. 10. The Veteran died in November 2008 from pneumonia, chronic renal failure, congestive heart failure, and fluid and electrolyte imbalance, none of which was incurred or aggravated in service nor otherwise attributable to events in service. CONCLUSIONS OF LAW 1. As no PTSD was incurred or aggravated in service nor as a result of events during service, claimed PTSD does not create entitlement to accrued benefits. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002 & Supp. 2012) 38 C.F.R. §§ 3.303, 3.1000 (2012). 2. As none of the Veteran's medical disorders were incurred or aggravated in service as a result of cold exposure or cold injuries, there is no entitlement to accrued benefits. 38 U.S.C.A. §§ 1110, 1112, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2012). 3. As arthritis was not incurred or aggravated in service, was not incurred or aggravated as a result of cold exposure or cold injuries in service, and is not presumed to have been incurred in service, there is no entitlement to accrued benefits. 38 U.S.C.A. §§ 1110, 1112, 5107, 5121; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000. 4. As the Veteran's cardiovascular and peripheral vascular disorders were not incurred or aggravated in service, were not incurred or aggravated as a result of cold exposure or cold injuries in service, and are not presumed to have been incurred in service, such vascular disorders do not create entitlement to accrued benefits. 38 U.S.C.A. §§ 1110, 1112, 5107, 5121; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000. 5. As no hearing impairment disability was incurred or aggravated in service, nor can be presumed to have been incurred in service, claimed bilateral hearing loss does not create entitlement to accrued benefits. 38 U.S.C.A. §§ 1110, 1112, 5107, 5121; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000. 6. No service-connected disability caused or contributed to causing the Veteran's death. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for dependency and indemnity compensation (DIC) (compensation for survivors of veterans with a service-connected cause of death), the Court has explained that notice under 38 U.S.C.A. § 5103(a) must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In June 2008, the Veteran filed a claim for service connection for several disabilities. The RO provided the Veteran VCAA notice in a June 2008 letter. That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. When the Veteran died in November 2008, the RO had not yet adjudicated the Veteran's claim. The appellant filed in January 2009 her claim for service connection for the Veteran's claimed disabilities for accrued benefits purposes, and for DIC based on service connection of the cause of the Veteran's death. In a July 2009 letter, the RO provided the appellant VCAA notice with respect to claims for accrued benefits, DIC, and death pension. The letter addressed what the evidence must show to establish entitlement to each of those types of death benefits. The letter addressed what evidence VA would get or help to get and what evidence the appellant should supply. The Veteran's service medical records were sought, but were not found, and were reported presumed to have been destroyed in a fire that occurred in July 1973 at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The United States Court of Appeals for Veterans Claims (Court) has indicated that when a veteran's records are presumed destroyed, the Board has a heightened obligation to explain its findings and conclusions, and to consider carefully the requirement that the benefit of the doubt be resolved in favor of the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Gregory v. Brown, 8 Vet. App. 563, 570 (1996). The Board will comply with this heightened obligation in considering the appellant's claims. The claims file contains some post-service private and VA medical records, statements from the Veteran and the appellant, and the transcripts of the 2011 and 2012 hearings. The Federal Circuit has held that 38 U.S.C.A. § 5103A(a) applies to DIC claims. Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under such statutory authority, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A(a)(1). The Veteran did not have any VA medical examinations, as he died before any VA medical examinations could be performed. The claims file contains a VA medical opinion, based on review of the file, addressing issues regarding claimed residuals of cold exposure and cold injuries. VA has not sought a file review and opinion on the question of whether the Veteran had PTSD, because the assembled evidence did not contain competent evidence that the Veteran had PTSD. The Veteran never had mental health evaluation or treatment, and the Veteran's and appellant's reports that the Veteran had nightmares and irritability were not sufficient to indicate that he might have had PTSD or other mental disorder. While their statements are certainly competent as to observable symptoms, their lay statements are not competent to diagnose PTSD, which is a psychiatric disorder which must meet certain criteria for such a diagnosis to be made - a question well outside their expertise. In the August 2011 remand, the Board instructed that the appellant be informed how she could appoint a representative, that records of VA treatment of the Veteran from 1995 to 2008 be sought, and that a statement of the case (SOC) regarding the DIC claim be issued. The appellant was sent a letter informing her how she could appoint a representative. VA treatment records were sought, and records from 1995 to 2008 were obtained. An SOC regarding the DIC claim was issued. In the May 2012 remand, the Board instructed that records of VA treatment of the Veteran from 1954 to 1995 be sought, and that a VA clinician review the file and provide an opinion as to the likelihood of a relationship between any cold injury sustained by the Veteran during service and the Veteran's post-service conditions, including peripheral vascular disease and joint arthritis. Records of VA treatment of the Veteran from 1954 to 1995 were sought. The VAMC responded that no records were found for that date range. A VA clinician reviewed the claims file, and provided an opinion as to the likelihood of a relationship between any cold injury sustained by the Veteran during service and the Veteran's post-service conditions, including peripheral vascular disease and joint arthritis. The Board finds that there has been substantial compliance with the remand directives. The Board therefore concludes that no additional remand is required, and that the appellant will not be prejudiced by the Board reviewing the case at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which she might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The appellant has actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process, and she has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the appellant's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). PTSD In June 2008, the Veteran submitted a claim for service connection for PTSD, cold injuries, impaired hearing, a vascular disorder, and arthritis. The RO acknowledged the Veteran's claim and issued a VCAA notice letter. When the Veteran died in November 2008, the RO had not yet made a rating decision with regard to his claims. The appellant filed in January 2009 a claim for service connection for the Veteran's claimed disabilities for accrued benefits purposes. Upon the death of an individual receiving VA benefit payments, certain persons, including the Veteran's spouse, shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due and unpaid. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). A claim for accrued benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(a), (c). Evidence in the file at the date of death means evidence in VA's possession on or before the date of the Veterans death, even if such evidence was not physically located in the VA claim folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the appellant submitted an authorization for VA to obtain records of medical treatment of the Veteran, and informed VA that the Veteran had received VA treatment. Because the VA treatment records are considered in VA's possession at the time of the Veteran's death, all VA treatment records that have been obtained will be considered in connection with the appellant's claims for accrued benefits. With his 2008 claim, the Veteran essentially contended that he had PTSD as a result of his experiences during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a 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). Certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. PTSD is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on the circumstances of the veteran's service and of the claimed stressor. If the veteran engaged in combat with the enemy, the claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, then, in the absence of clear and convincing evidence to the contrary, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). A service record associated with the claims file indicates that the Veteran served in Korea from February 1953 to July 1953. The Veteran stated that he and his infantry unit were engaged in combat, and that he received the Combat Infantry Badge. The Board accepts the Veteran's statements as credible, and accepts that he engaged in combat with the enemy. The Veteran reported that his stressors in service were combat engagements in which men in his unit were wounded and killed. The combat injuries and deaths the Veteran reported are consistent with the circumstances of his service. The Board accepts the Veteran's statements as establishing the occurrence of the service stressors that he reported. As occurrence of stressors during service is established, the remaining issues with respect to the PTSD service connection claim are whether the Veteran had PTSD and, if so, whether his PTSD was linked to a stressor during service. The appellant reports that when the Veteran returned home from his service in Korea, his behavior had changed compared to how it was before that service. She has stated that he had become irritable, and subject to sudden outbursts of unwarranted anger which he expressed verbally and sometimes through physical violence. She also indicates that immediately after service and thereafter the Veteran experienced nightmares. She essentially contends that the nightmares and the irritable, angry, and erratic behavior that he had after service were signs that he had PTSD. The claims file contains some records of private and VA treatment of the Veteran. The records are from the late 1980s forward, and almost all of the records are from about 2000 forward. Attempts to obtain earlier post-service medical records were unsuccessful. The assembled medical records addressed physical disorders. When clinicians treating physical disorders mentioned the Veteran's mental status, they did not record any mental, behavioral, or emotional symptoms or problems. In October 2003, the Veteran reported that over the years he had worked in maintenance in packing plants and food processing businesses, and that presently he worked part time as a handyman for a school district. He stated that he was married with two grown children. He indicated that he rarely drank, and that he had smoked tobacco earlier in life and quit in the early 1980s. As late as 2007, treatment notes indicated that the Veteran was working part time. In May 2004, when the Veteran began primary care treatment at a VA facility, a clinician administered screening questions. A one question depression screen was negative. On a screen for PTSD in May 2004, the Veteran was asked whether he had had any experience so upsetting that in the past month he had had nightmares or intrusive thoughts about it, avoided thinking about it, was on guard or easily startled, or felt numb or detached. The Veteran answered no to each question. The clinician indicated that the PTSD screening was negative. Another PTSD screening done in August 2005 was similarly negative. A one question depression screen was negative in April 2006. On a depression screen in April 2007, the Veteran indicated that he was not feeling down, depressed, or hopeless. In a July 2008 statement, the Veteran wrote that during combat in Korea he saw the dead bodies of enemy and friendly soldiers, and that he experienced psychological trauma that continued to affect him after service and through the present. He stated that the psychological trauma he experienced caused him to have nightmares, anxiety, feelings of guilt, and violent verbal outbursts. In the May 2011 Board hearing, the appellant reported that she knew the Veteran beginning when he and she were both in school, before he entered service. She stated that she was aware that the Veteran suffered from nightmares from the first night of their marriage through the rest of his life. She stated that he also had verbal outbursts and at times had violent behavior. She indicated that the Veteran had an appointment for a VA evaluation for PTSD, but that he died on the day the evaluation was scheduled. In the March 2012 Board hearing, the appellant reported that she met the Veteran in eighth grade and married him after he returned home from Korea. She stated that after he returned from Korea he seemed different. She stated that he became angry and out of control easily and unexpectedly. She related that he had bad dreams, and continued to have them for the rest of his life. She stated that the Veteran received private medical treatment and some VA medical treatment. She indicated that VA treatment included treatment for heart problems and diabetes. She stated that she did not remember him receiving any counseling or other mental health treatment. She reported that after service the Veteran worked as a groundskeeper for a school district. She stated that he learned to live with being around other people and being by himself. She indicated that he went for coffee with one friend, but otherwise did not socialize much, and that sometimes he was irritated when he came some from being out. Mr. R. E., the other witness at the hearing, reported that he knew the Veteran for about ten years. He stated that he knew the Veteran through a veterans organization with which they were both involved. He related that the Veteran had nightmares, trouble sleeping, and irritability. He stated that the Veteran would behave normally and then just suddenly flare up. He indicated that he and several other people told the Veteran that he should see a counselor, and that the Veteran told him that he went for an assessment. Mr. E. stated that the Veteran told him that the clinician who assessed him said that he had symptoms of PTSD. Mr. E. expressed the impression that the Veteran had been diagnosed with PTSD at a VA facility. The Veteran was not diagnosed with PTSD. The only mental health screening he had was negative for PTSD and for depression on more than one occasion between 2004 and 2007. He did not seek mental health treatment, nor raise any related complaints about symptoms or his military experiences. The Veteran and the appellant reported that the Veteran had nightmares, guilty feelings, anxiety, and violent verbal outbursts. Those reports of symptoms are not sufficient to form a basis for a clinician to opine retroactively as to whether the Veteran had PTSD. While it is unfortunate that the Veteran died before he could have a VA examination for PTSD, the Board finds that the issue is most appropriately decided on the available evidence. As that evidence does not tend to show that the Veteran had PTSD, the preponderance of the evidence is against service connection for PTSD. The appellant therefore is not entitled to accrued benefits based on claimed PTSD in the Veteran. Cold Injury Residuals, Arthritis, and Vascular Heart Disease In the Veteran's and the appellant's claims and contentions, and in the available medical records, there is significantly overlapping information relevant to the claims for service connection for residuals of cold injuries, arthritis, and vascular heart disease. The Board will review the evidence and arguments regarding each of those issues in this section of this decision. Arthritis and cardiovascular-renal disease are among the chronic disabilities that are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A service record indicates that the Veteran served in Korea from February 1953 to July 1953. The Veteran's June 2008 claim included a claim for service connection for cold injuries, including arthritis, sustained as a result of exposure to extreme cold temperatures in Korea during his service there. He also claimed service connection for a vascular disorder. In a July 2008 statement, the Veteran reported that he arrived in Korea in February 1953 during one of the coldest winters of the Korean War. He stated that at times the temperatures were below zero degrees. He reported that the extreme temperatures caused severe cold injuries to his face, ears, feet, and hands, and caused arthritis in his hips, knees, elbows, and hands. The Veteran submitted photographs taken during his service in Korea. Some of the photographs show snow on the ground. In a statement VA received in September 2008, the Veteran identified the service field hospital where he received treatment in February 1953 for cold injuries. The RO did not issue a decision on the Veteran's claims for service connection for cold injuries, arthritis, and a vascular disorder. The Veteran died in November 2008. The appellant's January 2009 claim for service connection for disabilities for accrued benefits purposes includes claims regarding cold injuries, arthritis, and a vascular heart condition. The RO denied the appellant's accrued benefits claims regarding service connection for the Veteran's cold injuries, arthritis, and vascular heart condition. The appellant appealed that denial. The Veteran's service medical records are not available and are presumed destroyed. Recent attempts to obtain medical records from soon after the Veteran's service were unsuccessful. The Veteran's medical records that are in the claims file are private and VA medical records, and include records from 1988 and records from 2001 to 2008. The medical records that are in the claims file reflect that the Veteran had circulatory problems, including circulatory problems affecting the extremities. The medical records regarding circulatory problems are silent as to any history of cold injury. Some of the assembled medical records indicate that the Veteran had arthritis in some areas, and some show that he had heart disease. In March 1988, x-rays of both feet showed left foot grade I hallux valgus deformity and resulting hallux rigidus deformity. The reviewing radiologist indicated that the findings could be consistent with arthritic deformity of old trauma. The radiologist stated that gout was possible, but that there were no juxta-articular erosions. Whole body bone imaging performed at a private facility in February 2001 showed evidence of arthritis affecting both wrists, the left knee, and joints in both feet. Treatment notes from 2003 reflect a history of vascular dysfunction, described as peripheral vascular disease, and a history of previous myocardial infarction. In October 2003 the Veteran reported a history of arthroscopies on his knees. He stated that at present he was able to walk several miles briskly and to climb stairs. He related that it felt as though he was getting some arthritis in his fingers and toes. Later in October 2003, the Veteran was hospitalized with a cold right foot. He was found to have a very large popliteal aneurysm on both sides, right and left, as well as aneurysms of the common iliac and iliac arteries on both sides, and an aneurysm of the abdominal aorta. He underwent femoral-popliteal bypass graft surgery on the right leg in November 2003. After the right leg blood vessel surgery, the right foot became warm, but vascular problems persisted. Also in November 2003, myocardial imaging showed a small defect consistent with prior infarction. The Veteran underwent abdominal aortic aneurysm repair surgery in February 2004. In VA treatment in May 2004, the Veteran reported that he walked one mile a day for exercise. In November 2004, it was noted that he had been diagnosed with type II diabetes mellitus. In VA treatment in April 2005, the Veteran underwent a lower extremity arterial evaluation. Imaging showed mild right leg ischemia, multiple aneurysms in the arteries of both legs, and artery stenosis. From 2005 forward, a treating clinician attributed extremity swelling to vascular disease and to gout. In June 2005, CT angiography showed findings compatible with aneurysmosis. In August 2005, diabetic sensory foot examination showed numbness in the right great toe and decreased sensation in both feet. In VA treatment in April 2006, the Veteran reported poor right leg circulation, with a history of a blood clot. In private treatment in July 2006, the Veteran requested a prescription for diabetic shoes. He indicated that he could not walk very far because his legs hurt. In private treatment in January 2007, the Veteran was noted to have coronary artery disease and peripheral vascular disease. In March 2007, a list of diagnoses for the Veteran included peripheral vascular disease with multiple aneurysms, chronic renal insufficiency, hypertension, and diabetes. The Veteran received hospital treatment in March 2007 for acute swelling of his right lower extremity. Ultrasound showed no thrombosis. The diagnosis was hematoma. In treatment in May 2007, the Veteran reported ongoing pain in his right thigh. In September 2007, the Veteran was hospitalized for the acute onset of left calf pain and coldness and blueness in his left foot. Imaging showed diffuse aneurysmal changes. An occluded popliteal aneurysm was found, and the Veteran underwent femoral-peroneal bypass graft surgery. After the surgery a staph infection developed in the wound. The wound was debrided. Follow-up treatment for the wound and infection continued in October 2007 through February 2008. In private treatment in June 2008, it was noted that the Veteran's left and right feet stayed swollen most of the time. Private hospital records reflect that in August 2008 the Veteran was admitted with dyspnea. Chest x-rays revealed mild to moderate cardiomegaly with mild pulmonary vascular congestion. The chest x-rays also showed mild multilevel degenerative changes of the thoracic spine. VA treatment notes from August 2008 reflect that the Veteran left a message indicating that he had been seen at an emergency room for congestive heart failure. In private treatment in October 2008, the Veteran reported that he was in the hospital earlier that month for anemia. He stated that he was told that his kidneys were working at only 30 percent. He reported having a pressure sore on his right little toe, and having edema and weight gain due to edema. He stated that he was prescribed oxygen. Later in October 2008, the Veteran was seen at a private hospital emergency room, reporting left foot pain. The treating clinician's impressions were a left femoral popliteal bypass graft thrombus, anemia, and chronic thrombocytopenia. The Veteran was transferred to another private hospital. He was found to have left lower extremity gangrene, and he underwent a left below the knee amputation. He had postoperative complications of methicillin-resistant staphylococcus aureus, and he had a middle cerebral artery cerebrovascular accident. He was transferred to another hospital, where he was treated in the intensive care unit. His respiratory status declined, his metabolic acidosis continued, and his coagulopathy was difficult to control. In November 2008, while he was still hospitalized, the Veteran died. The death certificate for the Veteran listed the immediate cause of the Veteran's death as pneumonia, and underlying causes as chronic renal failure, congestive heart failure, and fluid and electrolyte imbalance. In the May 2011 Board hearing, the appellant confirmed that the accrued benefits service connection claims included service connection for cold injuries, arthritis, and vascular heart disease. The appellant stated that the Veteran was scheduled for a VA heart examination, but that he died on the day when the examination was scheduled. She indicated that she could not remember when the Veteran first had symptoms of arthritis or of heart disease, but that he had cold injury residuals, arthritis, and heart disease for a long time before he died. Mr. E., the other witness at the hearing, reported that he knew the Veteran for ten years, and that he knew persons who had known the Veteran for his whole life. Mr. E. asserted that the Veteran had cold injuries and cardiovascular problems since his return from Korea. Mr. E. noted that the Veteran's service in Korea began in February 1953, and that it would have been cold during part of his service there. In the March 2012 Board hearing, the appellant recalled that the Veteran spoke about how cold it was when he was in Korea, and that he told her that they slept in bunkers. Mr. E. stated that the Veteran often talked about how cold it was in Korea when he served there. Mr. E. stated that the Veteran said that when he served in Korea at first they had summer clothing rather than winter clothing, despite the cold weather. Mr. E. asserted that the leg amputation the Veteran underwent shortly before his death was due to his cold injuries. Mr. E. expressed the opinion that cold injuries during service caused serious circulation problems in the Veteran's legs. The appellant reported that the Veteran had arthritis in his knees, hands, and other areas. Mr. E. stated that over the ten years he knew the Veteran he was aware that the Veteran had severe arthritis and very severe chronic knee problems. Mr. E. reported that the Veteran believed that his arthritis was associated with his exposure to cold in Korea. The appellant stated that the Veteran received VA and private treatment for heart problems and diabetes. She indicated that she did not know when he started to have heart problems, but that he had them for a long time. Mr. E. expressed the opinion that cold injuries in Korea caused the Veteran's heart condition. In the May 2012 remand, the Board instructed that a VA clinician review the claims file and provide an opinion as to whether it is at least as likely as not that the Veteran's peripheral vascular disease, joint arthritis, or any other diagnosed condition was due to his exposure to cold weather and any cold injury during his infantry service in Korea. In August 2012, a VA clinician reported having reviewed the claims file. The clinician provided the opinion that it is less likely than not that any of the claimed conditions were incurred in service or caused by injury, illness, or other events during service. The clinician explained that opinion as follows: Extensive research on cold exposure did not show any relationship to cold exposure, that did not result in any immediate damage, to show any significant residuals and pathology 44+ years later. There was no correlation of cold exposure to diabetes type 2. There was no correlation to aneurysmal peripheral vascular disease and cold exposure. There were no records or documentation that showed any continuity of care for any of the above conditions from time of service to the earliest medical records [from] 1988 which were podiatry only. I cannot find for any relationship to in service cold exposure without resorting to speculation with the documented evidence that is in the c file and electronic medical records for this veteran. In 2008, the Veteran reported that he was exposed to extremely cold temperatures in Korea. His account of exposure to cold is Korea is credible. It is consistent with recorded history about conditions in Korea during the Korean War, and it is supported by the photographs the Veteran submitted. The Board accepts that the Veteran was exposed to cold temperatures during at least part of his service in Korea. The Veteran contended in 2008 that exposure to cold in Korea caused severe cold injuries to his face, ears, feet, and hands, and arthritis in his hips, knees, elbows, and hands. He reported that he received field hospital treatment in 1953 for cold injuries. His service medical records, including records of that treatment, cannot be obtained. With respect to his face and ears, the Veteran indicated that in 2008 his face and ears had residual problems attributable to cold exposure and cold injuries in Korea. The assembled post-service medical records, including records from 2001 to 2008, are silent as to any abnormality of the skin or other parts of the face or ears. The record does not contain any indication as to what conditions affecting the Veteran's face and ears he attributed to cold exposure and cold injuries in Korea. Without such information, it is not practical to ask a qualified clinician to opine as to the likelihood that face and ear conditions the Veteran referred to 2008 were residuals of the 1950s cold exposure and cold injuries. Without information about the post-service condition of the Veteran's face and ears that would allow a clinical consideration of a possible relationship to past cold exposure and cold injuries, the preponderance of the evidence is against a finding that the Veteran had any post-service disorders of his face or ears that were residual to cold exposure and cold injuries in service. Service connection therefore was not warranted for such claimed conditions, and must be denied. The Veteran's claim for service connection for residuals of cold injuries of the face and ears therefore does not entitle the appellant to accrued benefits. Post-service medical records contain references to the Veteran's feet and hands. In 1988, the Veteran's left foot had arthritic deformity described as possibly consistent with old trauma. In 2001, imaging showed evidence of arthritis in both wrists and both feet. In 2003, the Veteran related symptoms in his fingers and toes that he thought could be due to arthritis. From 2003 forward, the Veteran received treatment for problems with the circulation in his legs and feet. In 2008, gangrene necessitated amputation of his left lower leg and foot. The Veteran was exposed to cold temperatures during service in Korea, and he reports service treatment for cold injuries. The appellant and Mr. E. have recalled their conversations with the Veteran, but neither has recounted any description by the Veteran of the symptoms or treatment of his feet and hands during service. There is no evidence that the Veteran had a diagnosis of arthritis in his feet or hands during the year following separation from service, so there is not a basis to presume service connection for arthritis in the Veteran's feet and hands. The Veteran's hands and feet were addressed in medical treatment in 1988 and later. The records of that treatment do not contain any reference to any history of cold injury. The medical records show that the Veteran had arthritis in his hands and feet and circulatory disorders affecting his feet. The VA clinician who reviewed the Veteran's claims file in 2012 concluded that it is less likely than not that cold exposure during service led to the vascular and other disorders that the Veteran had later in life. The 2012 opinion was based on review of the record, and the clinician provided satisfactory explanation of the reasoning leading to the opinion. Through his claim and statements the Veteran indicated his belief that cold injury during service might have caused the problems in his feet and hands that he had in 2008. The Veteran was a lay person, and his opinions are not medical evidence. Regarding the likely development and course of arthritis and vascular problems, the VA clinician's opinions are more persuasive than the Veteran's opinions. The preponderance of the evidence, by persuasive weight, is against a relationship between cold exposure and injury in service and post-service arthritis and vascular problems in the feet and arthritis in the hands. Service connection for those disorders of the Veteran's feet and hands therefore must be denied. The Veteran's claim for service connection for residuals of cold injuries of the feet and hands therefore does not entitle the appellant to accrued benefits. The Veteran claimed that he had arthritis in his elbows, hips, and knees, and that arthritis in those areas resulted from cold exposure during his service. There is no record or other indication that arthritis was diagnosed in any of those areas during service or the year following service, so there is not a basis to presume service connection for arthritis in any of the elbows, hips, or knees. Whole body bone imaging of the Veteran in 2001 and a chest x-ray in 2008 showed arthritis in some of the Veteran's joints, but not in either elbow, either hip, or the right knee. Whatever symptoms the Veteran experienced in those areas, imaging did not show arthritis there. The preponderance of the evidence is against a finding that the Veteran had arthritis in his elbows, hips, or right knee, and thus is against service connection for such arthritis. The Veteran's claim for service connection for hip, elbow, or right knee arthritis therefore does not entitle the appellant to accrued benefits. Imaging in 2001 showed left knee arthritis. The Veteran essentially contended that cold exposure in service led to the left knee arthritis. The VA clinician who reviewed the file in 2012 concluded that it was less likely than not that cold exposure during service led to any disorder that was not shown until many years after service. On a question of medical etiology, the clinician's opinion has greater persuasive weight than that of the Veteran. The preponderance of the evidence thus is against service connection for the Veteran's left knee arthritis, and the appellant is not entitled to accrued benefits based on the Veteran's left knee arthritis. The Veteran sought service connection for vascular issues, essentially contending that cold exposure and cold injuries during service interfered with circulation or vascular structures and led to vascular problems that were eventually diagnosed and treated. Medical records indicate that the Veteran's vascular and cardiac conditions included peripheral vascular disease with aneurysms affecting his lower extremities, a myocardial infarction, an aneurysm of the abdominal aorta, coronary artery disease, and congestive heart failure. There are no medical records available from the year following the Veteran's separation from service, so there is no evidentiary basis to presume service connection for any cardiovascular disorder. The Veteran reported cold injury treatment during service, but he did not identify symptoms he experienced during service that he attributed to vascular problems. There are no medical records available from service nor from many years after service. The records from 2003 forward that address vascular issues do not help to indicate when the Veteran began to experience signs of those issues. The appellant is not able to recall that history. The VA clinician who reviewed the file in 2012 provided satisfactory explanation of her opinion that it is less likely than not that the Veteran's cold exposure and cold injuries in service caused any of the vascular or cardiovascular disorders for which he received treatment many years later. The preponderance of the evidence is against service connection for any of the Veteran's cardiovascular or peripheral vascular disorders. Therefore the appellant is not entitled to accrued benefits based on any of those disorders. Bilateral Hearing Loss The Veteran contended that he had hearing loss that began during service or developed as a result of events during service. He reported that during his service in Korea he was in combat. VA considers impaired hearing to be a disability for which service connection may be established when there are certain levels of impairment, measured as elevated auditory thresholds on audiometric testing and diminished speech recognition on speech recognition testing. See 38 C.F.R. § 3.385. Even if there is no evidence of hearing impairment disability at separation from service, it is possible to establish service connection of hearing disability through evidence that a post-service hearing disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Organic diseases of the nervous system such as sensorineural hearing loss are among the chronic disabilities that are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is acceptable evidence that the Veteran served in an infantry unit involved in combat. That service constitutes plausible evidence that he was exposed to weapons noise during service. In the absence of service medical records and medical records from the year following the Veteran's service, there is no medical evidence regarding the condition of the Veteran's hearing during service or the year after service. The Veteran died less than a year after he filed a claim for service connection for hearing loss, and he did not have a VA examination of his hearing. The VA and private medical records that are associated with the claims file contain no reference to the condition of the Veteran's hearing. In the May 2011 Board hearing, the appellant confirmed that the Veteran claimed service connection for hearing loss. Mr. E. asserted that the Veteran experienced hearing loss from the time he returned from service in Korea. In the March 2012 Board hearing, the appellant stated that the Veteran did not wear hearing aids but that in her opinion he needed them. She explained that he always told her that she mumbled. She indicated that many years earlier the Veteran and she each had hearing tests, and that at that time neither of them needed hearing aids. It is unfortunate that the Veteran died before having VA hearing testing in response to his claim. Nonetheless, there is no objective evidence that the Veteran ever had hearing impairment that would be considered a disability for VA benefits purposes. 38 C.F.R. § 3.385. Therefore it is not possible to grant service connection for hearing loss. As a result the appellant is not entitled to accrued benefits based on the Veteran's claim for service connection for hearing loss. Cause of Death The appellant essentially contends that service-connected disabilities caused or contributed to causing the Veteran's death. To establish service connection for the cause of a veteran's death, evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, there must have been a causal connection. 38 C.F.R. § 3.312. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. As noted above, medical records reflect that the Veteran had a myocardial infarction before 2003. When he was in his sixties and seventies, he had type II diabetes mellitus, coronary artery disease, and chronic renal failure. He had serious vascular problems, including multiple aneurysms, some of which required surgery. In 2008, the conditions for which he was treated included congestive heart failure, anemia, gangrene, and cerebrovascular accident, and treatment included supplemental oxygen, the amputation of a lower leg, and intensive care. In hospital care in November 2008 he had metabolic acidosis, uncontrolled coagulopathy, and declining respiratory status. On the Veteran's death certificate the certifying physician listed the immediate cause of death as pneumonia, and underlying causes as chronic renal failure, congestive heart failure, and fluid and electrolyte imbalance. The Veteran did not claim, and the appellant has not claimed, service connection for the Veteran's pneumonia, chronic renal failure, congestive heart failure, or fluid and electrolyte imbalance, nor is there evidence that any of those conditions was incurred or aggravated in the Veteran's service. The Veteran claimed service connection for PTSD, residuals of cold injuries, arthritis, vascular heart disease, and bilateral hearing loss. The appellant claimed service connection for the same conditions for accrued benefits. The Veteran and the appellant's claims included a claim that cold exposure and cold injuries in service caused or contributed to causing the Veteran's cardiovascular and peripheral vascular disorders. The RO denied the appellant's claims with respect to each of the claimed conditions. In the present decision, the Board has denied those claims on appeal. Service connection is not established or warranted, then, for any of the conditions the Veteran claimed, nor any of the conditions that caused or contributed to causing his death. As no condition for which service connection was established earlier, and no condition that has been shown on appeal to warrant service connection, either caused or contributed to causing the Veteran's death, the Board denies service connection for the cause of the Veteran's death. [Continued on Next Page] ORDER Entitlement to service connection for PTSD, claimed for accrued benefits purposes, is denied. Entitlement to service connection for residuals to cold exposure and cold injuries, claimed for accrued benefits purposes, is denied. Entitlement to service connection for arthritis, claimed for accrued benefits purposes, is denied. Entitlement to service connection for cardiovascular or peripheral vascular disorders, claimed for accrued benefits purposes, is denied. Entitlement to service connection for bilateral hearing loss, claimed for accrued benefits purposes, is denied. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs