Citation Nr: 1310971 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-42 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for below-the-knee amputation of the left lower extremity due to arteriosclerosis, to also include as secondary to the left great toe with osteomyelitis, for the purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Barbara Cook, Attorney at Law ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to April 1946. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from multiple rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an August 2008 rating decision, the RO denied entitlement to service connection for the cause of the Veteran's death. In a December 2009 rating decision, the RO denied entitlement to service connection for status post left below the knee amputation due to arteriosclerosis, also claimed as secondary to fracture of the left great toe with osteomyelitis, for the purposes of accrued benefits. In July and December 2011, the Board sought VHA medical expert opinions. In April 2012, the Board remanded the cause of death claim for an opinion. In the April 2012 remand, the Board indicated that the substantive appeal for the accrued benefits issue was missing from the claims file and referred the matter back to the AOJ for appropriate action. A review of the claims file reveals that a timely Substantive Appeal, dated in October 2010, has been associated with the claims file. Therefore, the Board has jurisdiction over this issue and will discuss it in more detail in the decision below. 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). The issue of entitlement to the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. When he died, the Veteran had a pending claim seeking service connection for below-the-knee amputation of the left lower extremity due to arteriosclerosis, to also include as secondary to the left great toe with osteomyelitis; a claim for accrued benefits was received within one year after his death. 2. A below-the-knee amputation of the left lower extremity due to arteriosclerosis is not shown by the most probative and credible evidence of record to be etiologically related to a disease, injury, or event in service, to include the service-connected left great toe with osteomyelitis, and arteriosclerosis was not shown to have been manifested within a year of service. CONCLUSION OF LAW For purposes of accrued benefits, the criteria for entitlement to service connection for below-the-knee amputation of the left lower extremity due to arteriosclerosis, to also include as secondary to the left great toe with osteomyelitis have not been met. See 38 U.S.C.A. § 1110, 1112, 1131, 1133, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in an April 2008 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The RO provided VCAA notice to the appellant prior to the December 2009 rating decision. Accordingly, the requirements set out in Pelegrini v. Principi, 18 Vet.App. 112 (2004) have been met. In sum, the appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, private opinions from Dr. J.P.M., and W.N.N, a consultant. Given the nature of the issue on appeal as it only pertains to records associated with the claims file at the time of the Veteran's death, another VA examination or opinion is not required. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. II. Legal Criteria and Analysis During his lifetime, the Veteran's contented that he suffered a crush injury to the left lower extremity during service which resulted in vascular problems and an eventual below-the-knee amputation. He was service-connected for residuals of a left great toe fracture with osteomyelitis resulting from an in-service accident in which his toe was smashed between two landing crafts. He maintained that in addition to his left great toe, his entire left leg from the knee down was injured in the landing craft accident. He specifically contended that crush injuries to the left leg and foot sustained during the accident led to vascular difficulties, which eventually required amputation. The Veteran died on February [redacted], 2008 during the pendency of his appeal. In March 2008, the appellant filed a claim for entitlement to accrued benefits. An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). By way of background, in a September 1998 rating decision, the RO denied service connection for left below the knee amputation as secondary to service-connected disability of residuals, fracture left great toe with chronic osteomyelitis. In February 2001, the Board remanded the matter for further development. In a June 2003 decision, the Board denied service connection for left below knee amputation, as secondary to residuals of the service connected left great toe fracture with chronic osteomyelitis. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (the Court) which, by way of a March 2006 Order, vacated the Board's decision and remanded the case for additional development pursuant to the notice provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The Secretary thereafter appealed to the United States Court of Appeals for the Federal Circuit (the Federal Circuit), but before that tribunal could issue a decision the Secretary moved to dismiss his appeal. The Federal Circuit granted the Secretary's motion in July 2007 and dismissed the appeal. The case came again before the Board pursuant to the Court's March 2006 Order in December 2007. The Court specifically noted that while the Veteran was provided with adequate notice regarding the evidence needed to show a relationship between his left leg amputation and service-connected left great toe fracture, such did not address the Veteran's primary contentions. The Court observed that the Veteran had not asserted that his amputation was caused by his service-connected toe fracture, but rather that he suffered other injuries during his in-service accident (i.e. to the entire left lower extremity from the knee down) which eventually led to his amputation. The Court found that none of the VCAA notice letters of record directly addressed the Veteran's assertions, and that none "informed the [Veteran] that he needed to submit, or could submit, other evidence to corroborate his account of the in-service injuries," namely that he suffered left lower extremity injuries during the landing craft accident beyond those involving the left great toe. The Court accordingly vacated the Board's decision and remanded the case for the purpose of providing the Veteran a VCAA notice letter which more closely addressed his contentions on appeal. The Court ordered that on remand the Veteran be provided with a VCAA notice letter which advised him that he should submit evidence showing that he sustained injuries beyond a left great toe fracture during the in-service accident, and that such injuries led to his left leg amputation. In December 2007, the Board recharacterized the claim as service connection for a below-the-knee amputation of the left lower extremity and remanded the claim to provide the Veteran with adequate notice under the VCAA of the evidence needed to substantiate his claim, pursuant to the Court's March 2006 Order. Prior to the Board issuing a final decision, the Veteran died in February 2008. In March and October 2008 correspondence, the appellant's representative referred to the Veteran's pending claim at the time of his death and indicated that the in-service injury caused the circulatory disability (including vascular insufficiency and arteriosclerosis) that led to the amputation. The representative indicated that whether or not the Veteran injured his toe or any part other than his toe, his circulatory problems began in-service with the in-service accident. As this issue was addressed as part of the pending appeal, the Board will now consider the various theories of claim for service connection for below-the-knee amputation of the left lower extremity due to arteriosclerosis, to also include as secondary to the service-connected left great toe with osteomyelitis, for the purposes of accrued benefits. The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §3.303(b)(2012). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include cardiovascular-renal disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2006). This includes disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 - 47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the claims were filed before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. As the Veteran died in February 2008, evidence which was not of record or constructively of record at that time may not be considered in the adjudication of the appellant's claim for accrued benefits. For example, September 2011 and January 2012 VHA medical expert opinions and December 2012 VA opinions were clearly not in the file or constructively of record at the time of the Veteran's death. Therefore, this evidence may not be considered in the adjudication of the appellant's claim for accrued benefits. A review of the record shows that the Veteran's service treatment records (STR's) include January 1946 treatment records that revealed that the Veteran caught the great toe of his left foot between two Landing Crafts, Vehicle and Personnel (LCVP's) while trying to tie the boats together. The toe was closed with three nylon sutures and dressed with Sulfadiazine and Methiolate and covered with Vaseline and gauze and bandages. A Physical examination revealed that all of the soft tissues of the distal half of the left great toe were badly crushed, a soft, 3/4" distal flap was almost completely severed. The wound was thoroughly cleansed, the partially severed tissue flap was sutured and the toe nail was partially removed. He was also given a Tetanus shot. The diagnoses included contusion of the tissues, great toe and contusion, great toe. Near the end of January 1946, a debridement was performed on dry gangrene of the distal dorsal portion of the flap and there was no evidence of infection. February 1946 treatment records noted complaints of pain in the left toe and that the soft tissue of the toe was healing slowly. He was prescribed penicillin and Sulfadiazine. A February 1946 X-ray of the first left toe revealed a comminuted fracture of the extreme distal tip of the terminal phalanx with the fragments in good position. The diagnosis was changed to compound fracture of the distal phalanx of the left 1st toe. He subsequently developed a fever and rash. The impression was that he had a reaction to Sulfadiazine, but Scarlet fever could not be ruled out. The medication was discontinued. The diagnosis was changed to erythema (drug sensitivity). A March 1946 ECG was normal and the record reported that there was no evidence of myocardial damage (the record noted that in February a change in amplitude of R waves suggested possible myocardial damage). He returned to the surgery ward and it was noted that the soft tissue had healed. He still had some pain in the tow on walking. Films taken of the left great toe showed a fracture at the extreme tip of the terminal phalanx to be partially healed. A subsequent orthopedic consult reported that the toe was healed. The diagnosis was changed to pes planus for which arch supports were ordered. In April 1946, the Veteran reported that his feet felt better. He was orthopedically qualified for separation from service. Subsequent STR's were negative for contusions, or other injury of the entire foot or lower leg. Additionally, the STR's were negative for any complaints of, or treatment for, a cardiovascular disorder. An April 1946 separation Report of Medical Examination noted contusion and pes planus (that existed prior to service). An examination of the cardiovascular system was normal. Post service medical records include an October 1947 VA examination, in which X-rays revealed fracture of terminal phalanx, left big toe, with chronic osteomyelitis. A December 1947 VA medical certification for treatment of four emergency home visits included a diagnosis of left foot and leg condition. On January 1948 VA examination, the examiner noted symptoms of pain in the left great toe and leg. In November 1948, X-rays revealed identical findings of the left big toe after a year interval and indicated that the old osteomyelitis was arrested. There was no evidence of activity. The Veteran's leg was not amputated below the left knee until March 1988. March 1988 treatment records from St. Augustine General Hospital revealed that he had complaints of severe pain, coldness, and numbness of his left foot that was progressive in nature. He had a past history of arteriosclerotic cardiovascular disease (ASCVD) with chronic venous insufficiency (CVI) and severe peripheral vascular disease of the bilateral lower extremities, left greater than right as well as chronic obstructive pulmonary disease (COPD). The record noted that he was discharged earlier in March 1988 after he had a left lower extremity arteriogram, Gortex patch to common femoral artery, embolectomy of Gortex femoropopliteal bypass-left with endarterectomy being performed to the common femoral artery in February 1988. Subsequently in February 1988, he had a femoropopliteal bypass with Gortex graft embolectomy of peroneal artery. In the interim period from his recent discharge, he has had intermittent discomfort and discoloration of the same foot as well as toes #1 through 3 of the same foot. The pregangrenous necrotic changes increased in spite of aggressive outpatient antiplatelet therapy, vasodilatation therapy, etc. He was admitted in March 1988, for attempted circulatory status improvement, and if this failed probably segmental amputation. Physical examination revealed very severe left lower extremity foot/musculoskeletal/cardiovascular distress. The diagnostic impression was ongoing pregangrenous ischemia/necrosis of the left lower extremity secondary to severe arteriosclerotic cardiovascular disease with severe peripheral vascular disease of the bilateral lower extremities, left greater than right; arteriosclerotic cardiovascular disease with cerebrovascular insufficiency status post ruptured cerebral aneurysm and AV formation in November 1977; status post Silverstone clamping of left carotid artery in 1977; status post pulmonary embolism one week post operatively in 1985; mild COPD; status post bilateral femoropopliteal bypass in 1980; status post re-exploration of the right femoropopliteal bypass graft with saphenous vein replacement grafting in 1985; penicillin anaphylaxis; embolectomy of previous left graft in May 1987; re-exploration of left popliteal space, embolectomy, intraoperative arteriogram, reverse saphenous vein jump graft from femoropopliteal by-pass, infrageniculate popliteal artery and ligation of AV fistula in December 1987, and most recently, status post arteriogram of left lower extremity, Gortex patch to common femoral artery, embolectomy of Gortex femoropopliteal bypass-left with endarterectomy common femoral artery in February 1988 as well as femoropopliteal bypass with Gortex graft, embolectomy of peroneal artery. The record noted that it became hopeless to delay surgical intervention. A discharge summary for St. Augustine General Hospital dated in March 1988 noted that the Veteran was admitted complaining of severe pain, coldness, and numbness of the left foot. He underwent a left below the knee amputation on March 15, 1988. His discharge diagnoses included severe arteriosclerotic cardiovascular disease with peripheral vascular disease, left lower extremity and, gangrenous changes of the distal left lower extremity requiring below knee amputation; status post below knee amputation. Here, it has not been alleged or shown that a cardiovascular disability began in service or within a year of service. The first documentation of any type of cardiovascular disability was noted in the March 1988 hospital records that included a history of arteriosclerotic cardiovascular disease with cerebrovascular insufficiency status post ruptured cerebral aneurysm and AV formation in November 1977, which is approximately 31 years since the Veteran was discharged from active duty. With regard to establishing service connection on a presumptive basis under 38 C.F.R. § 3.309(a), the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated endocarditis, myocarditis, and cardiovascular-renal disease to a compensable degree within one year of discharge from active duty. As such, service connection cannot be granted on a presumptive basis. In regards to a direct relationship to service or secondary to the service-connected left great toe with osteomyelitis, there are conflicting medical opinions as to the etiology of the Veteran's left below the knee amputation. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). The evidence in support of the Veteran's claim includes multiple statements and opinions from D.J.P., a private physician. In a January 1991 statement, Dr. J.P.M., noted that the Veteran gave a history of an injury, in 1946, to his left leg. Dr. J.P.M. stated that it was conceivable that the injury and arteriovenous changes could have been an important factor in the vascular insufficiency that led to his amputation. Another letter by Dr. J.P.M, dated in October 1997, noted the Veteran's below the knee amputation of his left leg, which he ascribed to advanced ischemia of his left lower extremity. He further noted that the Veteran's preoperative angiogram revealed severe arteriosclerosis of his lower leg and foot, which he remarked was most likely related to his injury to his left foot during service. In a letter dated in January 2001, Dr. J.P.M. referred to a severe crush injury to the Veteran's left leg and foot in 1946. He noted that the Veteran was hospitalized for a long period of time with a fracture and gangrene of his toe, and that his lower leg was also crushed but did not sustain any fractures. He opined that the Veteran probably had crush injuries which affected the blood vessels in his lower extremity. The doctor stated that he believed that the crush injury caused massive small vessel disease in his peripheral circulation, which ultimately resulted in an amputation of his lower left leg. He reiterated this opinion, stating that he strongly felt his crush injury in 1946 resulted in his amputation. While Dr. J.P.M. provided reasoning for his January 2001 opinion, his opinion was couched in speculative terms. In a statement dated in June 2005, W.N.N., a Sr. Consultant at Humatec, (biomechanics/ergonomics/human factors and accident investigation/reconstruction) reported a review was made of the STRs; examinations in 1947 and 1948; hospital records from 1988; statements from Dr. J.P.M. in 1991, 1997 and 2001; VA examinations in 1991 and 1998; the medical opinion dated in 2000; statements from the Veteran; and information regarding landing craft. W.N.N. noted that the motion of the landing craft that the Veteran was tying up when he incurred the left great toe injury as likely as not caught his left leg, foot and great toe. W.N.N. reported that although it was noted that the medical records from 1946 did not mention any foot or leg injury, the medical report from 1947 noted left leg and toe conditions. W.N.N. went on to state that it was just as likely as not that while the great toe was the major focus of the Veteran's injuries, that additional trauma occurred to the foot and leg due to the various appendages of the landing craft. W.N.N. opined that it was just as likely as not that this trauma included vascular and musculoskeletal parts of the foot and leg. He also stated that it was just as likely as not that the trauma was not noticeable at the time of the injury to the Veteran's great toe, due to the extent of the injuries to the great toe. In May 2006 correspondence, Dr. J. P.M. noted that he reviewed the STRs, the 1998 VA examination report, and the medical opinion dated in 2000. He stated that based upon that review, his treatment of the Veteran, and his medical training and background, it was his professional opinion that, as stated in his January 2001 letter, the crush injury in service caused massive small vessel disease in the Veteran's peripheral circulation. He added that the 1948 medical record, diagnosing the Veteran with chronic osteomyelitis was evidence of this, as chronic osteomyelitis resulted when bone tissue died as a result of the lost blood supply. Dr. J.P.M. stated that it was more likely than not that the chronic osteomyelitis in the Veteran's situation occurred because the vessels crushed in the 1946 injury were unable to circulate blood to the bone. Dr. J.P.M. reported that these problems were not well recognized in 1948. Untreated however, the problem with the Veteran's left extremity vascular system caused by the service accident ultimately led to the need to amputate his left lower leg. Dr. J.P.M. indicated that Doctors who provided the 1998 and 2000 VA opinions did not acknowledge the long-term impact that vascular damage could have. Dr. J.P.M. opined that even assuming that the Veteran's left leg or foot (other than his toe) were not injured in the accident, the 1948 diagnosis made it more likely than not that the vascular problems he experienced as a result of the service led to his knee amputation. Dr. J.P.M. also opined, based on the review of the records and his professional knowledge of the human anatomy, that the crush injury did affect the Veteran's left toe, foot, and leg. Dr. J.P.M. reasoned that 1947 medical record included a diagnosis of a left leg and toe condition and that the Veteran was hospitalized for more than a month after the injury. He stated that this view was supported by W.N.N., the ergonomics expert. He found that these injuries would not have appeared on the surface of the skin, and would not have necessarily been detected through routine examinations in the 1940's, however, their existence, ultimately led to the below-the-knee amputation. In assessing the probative value of the above opinions, the Board notes that the January 1991 and October 1997 opinions from Dr. J.P.M. were unaccompanied by any specific explanation or reasoning, the opinions are therefore inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In what appears to be an attempt to rectify the inadequacies in his January 1991 and October 1997 opinions, Dr. J.P.M. included a basis for his May 2006 opinion. However, his reasoning and opinions were based on an incomplete disability picture. Dr. J.P.M. opined that the problems with the Veteran's left extremity vascular system were caused by the service accident that led to his left leg amputation and referred to the Veteran's diagnosis of chronic osteomyelitis. However, even assuming that the Veteran's chronic osteomyelitis resulted when bone tissue died as a result of the lost blood supply because the vessels were crushed in the 1946 injury, as suggested by Dr. J.P.M., there is no evidence in the Veteran's STR's or post service treatment records that the osteomyelitis expanded beyond the Veteran's left great toe, to include his left foot and leg, or that it continued past 1948. November 1948 X-ray report that found that the osteomyelitis was arrested and there was no more activity. Dr. J.P.M. did not consider the November 1948 X-ray report in his opinion. Dr. J.P.M. also indicated that the in-service injury affected the Veteran's left toe, foot, leg, and left extremity vascular system. He based his reasoning on the 1947 record that included a diagnosis of left leg and toe condition, however, this record was created post service for the purposes of treatment of four emergency home visits only and was not based on a review of the record or examination of the Veteran. Contemporaneous medical records at the time of the injury, namely, STR's, are negative for any problems with the left leg, foot, and vascular system. The Board notes that Dr. J.P.M. suggested that the duration of the Veteran's hospital stay of more than a month indicated that the injury was more severe than a left great toe injury. He added that the Veteran's injury was a crush injury that affected the left toe, leg and foot, would not have appeared on the surface of the skin, and would not have necessarily been detected through routine examinations in the 1940's. However, Dr. J.P.M. provides no reasoning as to why the examinations during the Veteran's hospitalization and treatment over a three month period were routine. Dr. J.P.M. does not account for the Veteran's complaints of pain that were limited to his left great toe, multiple X-ray reports, physical examinations, and ECG findings over a three month period. He also doesn't provide any indication as to how long after the initial in-service injury that any injuries to areas beyond the Veteran's left great toe would begin to manifest. Additionally, he did not address the timeline of the initial injury of the left toe, the first documentation of a cardiovascular disability nearly 31 years later, or the amputation of the below the left knee amputation nearly 42 years later. Finally, while Dr. J.P.M. indicated that the in-service injury caused vascular problems in the left extremity, he did not address or provide any explanation as to why the Veteran then had vascular problems both legs. March 1988 treatment records from St. Augustine General Hospital document that the Veteran had ongoing pregangrenous ischemia/necrosis of the left lower extremity secondary to severe arteriosclerotic cardiovascular disease with severe peripheral vascular disease of the bilateral lower and underwent numerous revascularization procedures as well as femoropopliteal bypass grafts that were done to both legs. Overall, Dr.J.P.M.'s opinions have been based on an incomplete medical history, thus, his opinions are of limited probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). While W.N.N. did not address whether or not the Veteran's left leg below the knee amputation was related to his in-service injury, or service-connected left toe with osteomyelitis, he provided opinions regarding the extent of the Veteran's in-service injuries, which is relevant to the current claim. W.N.N.'s June 2005 opinions also relied on the medical report from 1947 that noted left leg and toe conditions, however, as previously mentioned, this record was created post service for the purposes of treatment of four emergency home visits only and was not based on a review of the record or examination of the Veteran. W.N.N. opined that it was just as likely as not that this trauma included vascular and musculoskeletal parts of the foot and leg. While W.N.N. reported that it was just as likely as not that the trauma was not noticeable at the time of the injury due to the extent of the injuries to the great toe, W.N.N. does not consider the treatment records up through three months after the initial injury in which, the Veteran limited his complaints of pain to his left great toe, multiple X-ray reports, physical examinations, and normal ECG findings. Additionally, the Veteran's April 1946 separation examination, is negative for any complaints, treatment, or diagnoses other than a toe contusion, pes planus (existed prior to service), or any vascular and musculoskeletal problems. Therefore, these opinions do not have probative value. See Nieves-Rodriquez v. Nicholson, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends on its rationale and consideration of an accurate record). Evidence against the Veteran's claim includes a March 1998 VA examination. The examiner noted that the Veteran's records indicated that he suffered a compound comminuted fracture of his left great toe in service, when it was caught between two small boats that he was trying to tie up. The Veteran reported to the examiner that his foot turned "black" in 1986. He underwent a below the knee amputation in 1988; however, it was noted that the Veteran had only been going to the treating surgeon for one year prior to the amputation. The Veteran was noted to be wearing prosthesis. Upon examination, the Veteran walked with a very smooth gait and there was no evidence of any Trendelenberg sign. He had a barely perceptible limp favoring the left lower extremity. Examination of the stump revealed an old fishmouth incision which was well healed and nonadherent and the skin covering the stump was of good quality and there was no evidence of any abrasions or pressure areas. The amputation was 60 cm distal to his tibial tubercle. He had a full range of motion about his left knee. His circulation and sensation in his stump were intact. The examiner concluded that there was no likelihood that the injury to the left great toe the Veteran suffered in service had anything to do with his below the knee amputation or his peripheral vascular disease, and stated that the Veteran probably suffered from generalized atherosclerosis as witnessed by a coronary bypass procedure he underwent in October 1996. In November 2000, a VA medical advisory opinion, as requested by the Board in correspondence dated in August 2000, was rendered by a VA surgical chief. This physician stated that he reviewed the medical records and correspondence in conjunction with the rendering of his opinion. He remarked that the Veteran's fracture of his left great toe in service, which he noted was adequately treated at the time, certainly may have contributed to his chronic osteomyelitis in that toe. He further stated that it was not in dispute that the patient had evidence of atherosclerotic vascular disease as evidenced by an arteriogram showing severe vascular disease in his left leg and his history of coronary artery bypass. He stated that, in his opinion, he was unaware of any direct relationship between osteomyelitis and accelerated arterial vascular disease or, indeed, between any gait changes leading to accelerated arthrosclerotic peripheral vascular disease. He concluded that there was no logical connection between the injuries sustained 40 years prior to an amputation for advanced arthrosclerotic disease and no reason to disagree with the conclusion that the service injury is totally unrelated to the below knee amputation for peripheral vascular disease in 1987. On October 2005 VA examination, the examiner noted that the Veteran's claims file was extensively reviewed, including the statement by W.N.N. The examiner noted that there was no medical evidence to support the Veteran's claim that the left leg amputation was secondary to the military accident over 40 years previously. The examiner opined that the left great toe fracture sustained during military service did not contribute to or cause the need for a left lower extremity below the knee amputation some 40 years later. The examiner reasoned that the amputation was required due to severe arteriosclerotic disease with peripheral vascular disease. The examiner added that the left leg below the knee amputation was not due to the in-service accident with great toe fracture at the left foot. The March 1998, November 2000, and October 2005 opinions are accompanied by a detailed rationale that was based upon a review of the Veteran's medical records and reported history and are not inconsistent with the evidence of record. Thus, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board has considered the Veteran's contentions that in addition to his left great toe, his entire left leg from the knee down was injured in the in-service landing craft accident. He specifically contended that crush injuries to the left leg and foot sustained during the accident led to vascular difficulties, which eventually required amputation. See January 1991, March 1998, and October 2005 VA examination reports and January 2001 correspondence. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current sleep disability is related to any specific symptom in service or an undiagnosed illness, as opposed to some other cause. Rather, it would require medical expertise to evaluate the left leg below the knee amputation, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, left leg below the knee amputation, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence weighs against the Veteran's claim. In this regard, there is no competent probative evidence of record showing that the Veteran's an event or injury in service caused his left leg to be amputated below the knee. Additionally, there is no competent and probative evidence that the below the left knee amputation was caused by or aggravated by the service-connected left great toe with osteomyelitis. Rather the competent and probative evidence reveals that the Veteran's below the left knee amputation was due advanced arthrosclerotic disease or severe arteriosclerotic disease with peripheral vascular disease (in the bilateral lower extremities). As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER For the purposes of accrued benefits, service connection for below-the-knee amputation of the left lower extremity due to arteriosclerosis, to also include as secondary o the left great toe with osteomyelitis, is denied. REMAND The United States Court of Appeals for Veterans Claims (Court) issued a decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), which held that with regard to Dependency and Indemnity Compensation (DIC) claims, 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 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. Again, as noted above, at the time of his death, the Veteran was service-connected for bilateral hearing loss, tinnitus, and residuals, fracture left great toe with chronic osteomyelitis. The Board recognizes that the RO sent a VCAA letter to the appellant in April 2008. However, the letter failed to list the Veteran's service-connected disabilities and notify the appellant of the evidence and information required to substantiate a DIC claim based on the Veteran's service-connected disabilities. Thus, the RO should send another VCAA notice to the appellant in compliance with Hupp. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the appellant and her representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) on claim for service connection for the cause of the Veteran's death. The letter should explain, what, if any, information and evidence (medical or lay) not previously provided to VA is necessary to substantiate the appellant's claim and should include: (1) a statement of the conditions for which the 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. 2. Readjudicate the claim for the cause of the Veteran's death. If the decision remains in any way adverse to the appellant, she and her representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs