Citation Nr: 1318635	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  07-27 512	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from October 1945 to March 1946, during World War II.  The Veteran is a combat Veteran.  The Veteran died in March 2005, and the appellant is the widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In June 2010, the appellant testified before the undersigned at a Travel Board hearing.  In August 2010, December 2010, and Jun2 2011, the Board remanded this case. 


FINDINGS OF FACT

1.  At the time of the Veteran's death, service connection was in effect for 
Residuals of a cold injury to the right foot, rated as 30 percent disabling; residuals of a cold injury of the left foot, rated as 30 percent disabling; and he was receiving a total disability rating based on individual unemployability (TDIU).  

2.  The Certificate of Death reflects that he died at the age of 81 in March 2005.  The immediate cause of death was asystole of one minute's duration; due to or as a likely consequence of respiratory failure of 20 minutes' duration; due to or as a likely consequence of progressive Alzheimer's disease of 30 days' duration; due to or as a likely consequence of Alzheimer's dementia of 3 months' duration; with age related atherosclerotic heart disease as a significant conditions contributing to death.

3.  The causes of the Veteran's death were not initially manifested during his service or within one year of his separation and were not related or attributable to his service.

4.  The Veteran's service-connected cold injuries of the feet were not the immediate or underlying causes of his death, were not etiologically related to the causes of his death, did not contribute substantially or materially to his death, and were not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered him materially less capable of resisting the effects of other disease causing death.


CONCLUSION OF LAW

A disability due to disease or injury incurred in or aggravated by service, or that may be presumed to have been incurred in service, did not cause or contribute substantially or materially to the Veteran's death.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303. 3.304, 3.307, 3.309, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

VA has met all statutory and regulatory notice and duty to assist obligations.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims ("the Court")  issued certain directives pertinent to cases where the issue is entitlement to service connection for the cause of a Veteran's death.  The Court held that there is no preliminary obligation on the part of VA to perform, what in essence would be, a predecisional adjudication of a claim prior to providing section 5103(a) notice.  Although section 5103(a) does not require a "predecisional adjudication" of the evidence in each case, the notice must be responsive to the particular application submitted.  See Kent v. Nicholson, 20 Vet. App. 1, 9 (2006) ("The legislative interest underlying the VCAA notice requirement is the intent of Congress to provide [claimants] a meaningful opportunity to participate in the adjudication of claims").  This means there is a middle ground between a predecisional adjudication and boilerplate notice with regard to the amount of detail and degree of specificity VA must provide for section 5103(a)-compliant notice.  The Court later stated that a more detailed notice potentially discourages a claimant from submitting additional or corroborative notice and is contrary to the VCAA's purpose.

However, according to Hupp, in Dependency and Indemnity Compensation (DIC) cases where a Veteran was service-connected during his or her lifetime, the Court found that section 5103(a) notice must include:  (1) a statement of the conditions, if any, for which the Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected.

Where on the other hand a Veteran was not service connected during his or her lifetime, the same did not apply.  The Court held that, in these other cases, an original claim for DIC imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted.  Further, section 5103(a) preadjudication notice, the Secretary or VA is not required to inform a DIC claimant of the reasons for any previous denial of a Veteran's 
service-connection claim.  

In this case, the Veteran was service connected for two disabilities during his lifetime, cold injury of the right foot, rated as 30 percent disabling, and cold injury of the left foot, rated as 30 percent disabling, with a TDIU also assigned.  The appellant was sent preliminary VCAA notice in June 2005 that did not address Hupp considerations.  However, she was subsequently sent a letter which did comply in November 2009.  After being provided this notice, the appellant had opportunity to submit additional evidence and/or argument in response, so she has had a meaningful opportunity to participate effectively in the development and adjudication of her cause-of-death claim and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Those VCAA letters, especially in combination, indicated the type of evidence and information needed to substantiate her claim and apprised her of her and VA's respective responsibilities in obtaining this supporting evidence.  The letters also notified her that an effective date for the award of benefits will be assigned if service connection is granted, in compliance with Dingess.  

The Veteran also was provided a hearing before the undersigned acting Veterans Law Judge (VLJ), during which the Veteran presented oral argument in support of the claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with this regulation.  These two duties consist of:  (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Here, during the hearing, the presiding VLJ noted the bases of the prior determinations and, in so doing, discussed the elements of the claims that were lacking to substantiate them when previously considered.  To this end, the three essential requirements of service connection for the cause of the Veteran's death were explained to the appellant.  In addition, the presiding VLJ sought to identify any pertinent evidence not then of record that might have been overlooked or was outstanding that might substantiate the claims.  Moreover, the Board remanded this case for the development necessary and also obtained a medical expert opinion.  Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of that Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate the claims for benefits as she fully explained the relevant contentions and medical history and why it is the appellant's belief the Veteran's death is linked to military service.  

Regarding the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In addition, the Board obtained a medical expert opinion and addendum in this case.  Thus, there is no indication that any additional evidence, relevant to the claim being decided in this decision, is available but not part of the claims file.  

In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence she should submit to substantiate her claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not result in any significant benefit to the appellant).


Service Connection for the Cause of the Veteran's Death

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306.

In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by his service either caused or contributed substantially or materially to his 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.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.

In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death.  38 C.F.R. § 3.312(b).

A contributory cause of death is inherently one not related to the principal cause.  In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death.  It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c)(1).  Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  38 C.F.R. § 3.312(c)(3).

Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100-percent disabling, debilitation may be assumed.  Id.

There are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).

Organic disease of the central nervous system and heart disease will be presumed to have been incurred in service if manifested to a compensable degree, meaning to at least 10-percent disabling, within one year of a Veteran's separation from service.  This presumption is rebuttable by affirmative evidence to the contrary, however.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability..  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)..

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994). 
See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran or claimant, and the Veteran or claimant's demeanor when testifying at a hearing when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).

Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any issue material to the determination is resolved in the claimant's favor.  38 C.F.R. § 3.102.

The appellant contends that the Veteran's service-connected residuals of frost bite (i.e., poor circulation) caused and/or aggravated his death.  See June 2010 Hearing Transcript.

During his lifetime, the Veteran was service-connected for residuals of a cold injury to the right and left foot (assigned 30 percent ratings each),and was assigned a 60 combined percent rating with entitlement to a TDIU rating.  

The service treatment records (STRs) noted numerous complaints of painful feet.  A February 1944 service treatment record reflects that the Veteran complained of pain from his low back radiating to his legs after a piece of wall fell on the Veteran's back while in a fox hole.  A March 1946 service record diagnosed the Veteran with severe bilateral trench foot incurred in combat.  It was noted that the disability  incapacitated him to perform duties as a soldier because his feet burned and swelled after walking or standing.  The disability was considered permanent and that maximum improvement had been obtained.  It was the opinion of the medical board that the soldier could render no useful service to the government.  

A November 1956 VA examination reflects that the Veteran had difficulty standing on his feet.  Upon physical examination, he was diagnosed with mild symptomatic residuals of frozen feet.

A November 2001 VA treatment record diagnosed the Veteran with cold injury to both feet with secondary neuropathy.  His peripheral nerves were intact.

February 2005 private medical records noted that the Veteran had distal pulses intact in his feet as well as no cyanosis, clubbing, or edema.  There was no skin abnormality.  He was admitted for hospitalization due to Alzheimer 's disease.  

A March 2005 treatment record noted that the Veteran was falling "a lot" and fractured his rib.

The Veteran's March 2005 Certificate of Death reflects that he died at the age of 81 in March 2005.  The immediate cause of death was asystole of one minute duration; due to or as a likely consequence of respiratory failure of 20 minutes' duration; due to or as a likely consequence of progressive Alzheimer's disease of 30 days' duration; due to or as a likely consequence of Alzheimer's dementia of 3 months' duration; with age related atherosclerotic heart disease as a significant condition contributing to death.

An April 2005 written statement from W. B. stated that he had known the Veteran for over 50 years and stated that throughout the years, the Veteran's feet and hands had changed to blue and black due to poor circulation.  He also essentially stated that as a coroner he had specialized knowledge of discoloration of limbs due to poor circulation.  He did not opine as to whether the feet disability specifically played a role in his death, but rather attested to the Veteran's severe feet disability and the resulting poor circulation.

Information was received which reflects VA's Cold Injury Protocol and cardiovascular regulations as well as treatise information concerning asystole and respiratory failure.  There is no information contained therein which shows that cold injuries play an etiological role in the development of atherosclerotic heart disease and/or Alzheimer's Disease.  

A November 2009 VA medical opinion from a family practitioner stated that it was less likely as not that the Veteran's death was related to or was aggravated by his service-connected bilateral feet injury.  His rationale was premised on the fact that he was not aware of any evidence based on studies that showed that trench foot caused or aggravated asystole, respiratory failure, Alzheimer's disease, or age-related atherosclerotic disease.  Thus, this opinion is unfavorable.

A written statement from the Veteran's former caretaker stated that the Veteran had poor circulation in both legs, legs were dark purple, reddish, cold to touch, and toes were crooked.  Again, this confirmed that the Veteran appeared to have poor circulation prior to his death.  

In an addendum, the November 2009 VA examiner  stated that he was unable to fabricate or concoct a medical explanation of how trench foot in 1943 could have caused or aggravated the Veteran's death in 2005, 62 years later from progressive Alzheimer's disease, respiratory arrest, asystole, or atherosclerosis.  Thus, this statement reiterated the prior negative opinion.  

In a January 2011 VA written medical opinion, Dr. G. L. stated, in a conclusory manner, that he reviewed the records; and found that "there [was] no plausible way pathophysiological connection between the patient developing trench foot in WW II and his later medical conditions" and death.  This opinion was confirmed in September 2011.  The opinions are also considered unfavorable; however, the medical opinions of record did not specifically address whether the Veteran's vascular problems in his lower extremities were directly related back to the problems he had with frost bite while in service and this contributed to his death.  As such, the Board obtained a VA medical expert opinion on this question.  

The following inquiry was made:

Please review the record and furnish an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that the Veteran's service-connected cold injury residuals contributed substantially or materially to his death or were of such a nature as to aggravate the primary cause of his death.  The claims folder and a copy of this remand must be made available to the physician for review of the case. The complete rationale for all opinions expressed, should be set forth in the examination report. The physician should also comment on the prior VA medical opinions.

NOTE:  For purposes of answering the above questions, please accept as truthful the Veteran's and appellant's descriptions of the history and symptoms regarding his feet disabilities.  Please explain the rationale for all opinions provided and reconcile any conflicting medical opinions or statements.

The VA expert reviewed the record and concluded via an April 2012 opinion, that there was not at least a 50 percent probability or greater that the Veteran's service-connected cold injury residuals contributed substantially or materially to his death or were of such a nature to aggravate the primary cause of his death.  In addition, he noted that there was no prior physician's opinion which establishes a relationship between the Veteran's causes of death and the original cold injury to his feet.  He concluded that he was unable to find a causal relationship between the cold feet (trench foot) injury and the 81 year old Veteran's stated cause of death or progressive Alzheimer 's disease and Alzheimer's dementia.

The Board then requested an addendum to this opinion in order to obtain a more complete rationale.  

In response, in October 2012, the medical expert stated that the Veteran sustained a "trench foot-erythmyalgia' injury while on active duty during World War II.  He stated that the medical records of April 1946 and September 1946 described the lesion as a "trench foot."  Also, he indicated that another evaluation in November 1958 concluded that the Veteran had residuals of "frozen fee" which were symptomatic and mild.  A later 2001 assessment indicated that the Veteran had "cold injury of both feet with secondary neuropathy."  The medical expert went on to state that the Veteran died in March 2005 and then listed the causes of death and significant contributory cause.  The medical expert opinion that it was not feasible that a regional trench foot or cold injury could lead to the causes of death listed in the death certificate.  He explained that first, a cold injury of the feet would have no relationship to the development of Alzheimer 's disease or indeed age related atherosclerotic disease.  Further, he could not find a relationship between these two conditions in the medical literature that was cited, nor was there any scientific explanation as to how a cold injury of the feet from the 1940's would aggravate a central degenerative brain disease.  In summary, he stated that the history and clinical findings of trench foot in 1946 could not be logically related to the Veteran's death from Alzheimer's disease some 60 years later.  Further, the atherosclerotic disease identified on the post-mortem examination was not specified as occurring in the area of the cold injury and was thought to be age related which the expert examiner opined was appropriate for the age of the Veteran.  

In viewing the statements of the appellant and the VA medical expert opinion, the Board finds that the VA medical expert opinion is more probative.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In this case, the VA medical expert examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis, which was detailed in the addendum.  The Board therefore attaches significant probative value to this opinion, and assigns it great probative value in this case, as it is well reasoned, detailed, and consistent with other evidence of record.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  Further, the Federal Circuit Court has recognized that, in some cases, lay testimony falls short in proving an issue that requires medical knowledge.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010).  The question of an etiological relationship between the causes of death and contributory cause and service is an etiological one requiring medical expertise that the appellant simply has not been shown to possess.  Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  

In sum, the STRs do not reveal Alzheimer's disease or heart disease.  Post-service, there is no suggestion that Alzheimer's disease or heart disease initially manifested during the first post-service year.  Rather, these diagnoses were made decades later.  The only evidence of a nexus or etiological link between the Veteran's service and the terminal causes of death and contributory cause are the unsubstantiated lay statements of the appellant.  As noted, the VA medical expert concluded that there was no etiological connection between the Veteran's service and the terminal causes of death and contributory cause.  His opinion is the most probative of record on that point.  Nothing in the record demonstrates that the appellant has received any special training or acquired any medical expertise in evaluating and determining causal connections regarding the cause of the Veteran's death.  Therefore, the medical expert opinion is more probative regarding the causation question in this case.  King v. Shinseki, 700 Fed. Cir. 1339, 1345 (Fed. Cir. 2012).

Alternatively, it may be shown that his service-connected disabilities, cold injuries of the feet, caused or contributed substantially or materially to his death because these disabilities were of such severity that they resulted in debilitating effects and caused a general impairment of health to an extent that rendered him materially less capable of resisting the effects of other disease causing death.  However, there has been no suggestion or indication that this is the case.  The Board recognizes that the Veteran apparently had poor circulation prior to his death, but the medical expert clearly explained that the service-connected cold injuries did not play any role in the Veteran's death.  Thus, the Board concludes that the service-connected disabilities were not the immediate or underlying cause of death and were not etiologically related to the cause of death.  Furthermore, the fatal disease processes were not manifest during service or within one year of separation.  The Veteran's service-connected disabilities did not contribute substantially or materially to cause his death and were not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered him materially less capable of resisting the effects of other disease causing death.

The Board therefore concludes that the preponderance of the evidence is against this claim for cause of death, so there is no reasonable doubt to be resolved in the claimant's favor.  38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990).


ORDER

Service connection for the cause of the Veteran's death is denied.  



____________________________________________
ROBERT E. O'BRIEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs