Citation Nr: 1319446 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-01 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Casey A. Kniser, Attorney WITNESSES AT HEARING ON APPEAL Appellant and J.H. ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1941 to September 1945. He died in February 2007. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appellant was afforded a personal hearing before the undersigned Veterans Law Judge at the RO in April 2010; a transcript is associated with the claims file. In January 2011, the Board issued a decision denying the benefit sought on appeal. The appellant appealed the Board's January 2011 decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2011, her representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with the directives specified. The Court issued an order that same month, granting the JMR, and returned the case to the Board. In May 2012, the Board requested a VHA (Veterans Health Administration) medical opinion on the matter. An opinion was received in June 2012. Subsequently, the Board remanded the case for further evidentiary development in September 2012. For the reasons discussed below, the Board finds that its remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. The Veteran's death certificate reflects that he died on February [redacted], 2007, of withdrawal of cardio-respiratory support, due to aspiration pneumonia, colonic ischemia, and sick sinus syndrome; it was noted (as a contributing condition) that the Veteran was three weeks status post emergency hemicolostomy for colon ischemia. 2. The Veteran's cause of death is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in April 2007, November 2007, and March 2009 the appellant was informed of the evidence and information necessary to substantiate the claim, the information required of her to enable VA to obtain evidence in support of her claim, the assistance that VA would provide to obtain evidence and information in support of her claim, and the evidence that she should submit if she did not desire VA to obtain such evidence on her behalf. The March 2009 letter informed the appellant of the condition (bilateral hearing loss) for which the Veteran was service connected at the time of his death, as required by Hupp v. Nicholson, 21 Vet. App. 342, 352-3 (2007). In March 2009 the appellant received notice regarding the assignment of an effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the appellant in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are private and VA treatment records, including terminal hospital records. In compliance with the Board's September 2012 remand, copies of the Hennepin County Medical Center records were obtained and associated with the claims file. Additionally, the Board notes that the appellant clarified C.K. as her representative and submitted VA Form 21-22a, Appointment of Individual as Claimant's Representative, which was received by VA in October 2012. Based on the foregoing, the Board finds that there has been substantial compliance with its September 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA has also obtained multiple opinions from medical professionals to determine the medical matters presented by this appeal, in November 2008, August 2010, June 2012 and March 2013. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In November 2008, a VA physician provided an opinion that the Veteran's death was related to the decision to not electively repair a left inguinal hernia but the decision was reasonable and there was no evidence of fault or carelessness on the part of the VA or an even not reasonably favorable. As the opinion was not supported by sufficient explanation, the Board requested a new medical expert opinion in July 2010. The Board acknowledges that it mistakenly stated in the July 2010 VHA opinion request, that the November 2008 VA physician specifically stated "no records (other than a September 2005 admission physical) from the Veteran's nursing home were of record." In fact, the November 2008 VA opinion report reflects that the VA physician reviewed the entire claims file; however, he only listed the September 2005 admission physical as applicable information in his summary of "Record Review." This does not necessarily mean that other records from the Veteran's nursing home were not available for review by the November 2008 VA physician. Nevertheless, the Board finds that the November 2008 VA physician's opinion was not adequate for VA purposes because it did not provide sufficient explanation for the basis of such opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate); also see Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Concerning the August 2010 VA physician's opinion, the November 2011 JMR found that Dr. K. who provided the August 2010 VHA opinion called into question his own expertise in the matter, because he stated that "[a]lthough the case is primarily associated with a surgical situation i.e. inguinal hernia and I am a gastroenterologist I cannot give an experts opinion but can provide a review from gastrointestinal point of view." As such, in June 2012, the Board obtained another medical opinion from a board-certified general surgeon and a board-certified colorectal surgeon who indicated that that he had been performing 3 to 5 hernia surgeries per week for 25 years and was very familiar with colorectal diseases and their treatment. However, because the appellant submitted additional medical evidence subsequent to the June 2012 medical opinion, the RO obtained yet another medical opinion in March 2013, to ensure the medical opinion was based on a review of the Veteran's complete record. The Board finds that the June 2012 and March 2013 medical opinions were more than adequate as they were based on a thorough review of the Veteran's claims file and the physicians provided a detailed and well-reasoned rationale for the opinion, addressing the lay statements of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this regard, the Board notes that after reviewing the additional Hennepin County Medical Center records submitted by the appellant in February 2013, the March 2013 VA physician was in complete agreement with the June 2012 VA physician's opinion. As the additional evidence would not change the objective and dispositive findings made by the VA physician, review of this evidence by the June 2012 VA physician was not required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) focused on the elements necessary to substantiate the claim. The appellant was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to ascertain the circumstances surrounding the Veteran's death and his symptoms leading up to his death, as well as any casual connection between VA's deferred treatment and his death. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. Neither the representative nor the appellant have suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Law and Analysis The appellant is seeking entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151. The appellant's claim for DIC benefits under the provisions of 38 U.S.C.A. § 1151 was filed in April 2007. Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's death and VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable healthcare provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). The appellant essentially asserts that VA's deferred treatment of the Veteran's inguinal hernia resulted in colonic ischemia, which in turn caused the Veteran's death. She asserts that the Veteran did have discernable symptoms secondary to his hernia in the years leading up to his death. Records from the Minnesota Veterans Home dated from September 2005 to February 2007 are associated with the claims file. A physical examination conducted on September 30, 2005, at the time of the Veteran's admission to the home, noted that he had undergone hernia repair approximately 20 years prior. October 2005 and August 2006 records noted that the Veteran had a reducible left inguinal hernia with no pain or evidence of incarceration. The Veteran was to be followed conservatively, "given his age and co morbidities." Private hospital records from Hennepin County Medical Center, dated January 2007 to February 2007, reflect that the Veteran resided in a nursing home and presented to the emergency room following an acute episode of hypotension and altered mental status, along with abdominal pain on January 20, 2007. On physical examination, it was noted that the Veteran had an obvious left inguinal hernia which was not easily reducible on physical examination. Abdominal X-ray examination revealed a left inguinal hernia containing a loop of descending/sigmoid colon with inflammatory changes in the bowel, and proximal colonic obstruction. The Veteran underwent an exploratory laparotomy, reduction and repair of inguinal hernia, and right hemicolectomy and ileostomy creation with a long Hartmann's pouch. The surgical findings were incarcerated left inguinal hernia containing sigmoid colon, and ischemic "right" colon extending to the mid transverse colon. The Veteran's hernia was reduced and repaired; however, the surgeon stated that this was probably not significantly contributing to his right colonic ischemia and that in any case the Veteran had some episodes of hypotension immediately surrounding his operation. On a January 24, 2007 progress note, the surgeon in fact stated that although the Veteran presented with an incarcerated left inguinal hernia, this was found to be a red herring and that he actually had an ischemic right colon, for which he underwent a right colectomy with an ileosotomy. During the hospital stay, the Veteran experienced postoperative complications of deterioration of respiratory status, as well as hypotensive episodes, and also developed pneumonia. He was transferred to the intensive care unit and required respiratory and cardiovascular support. He was discharged on February [redacted], 2007 and the discharge diagnoses were incarcerated inguinal hernia, ischemic colitis status post exploratory laparotomy, status post terminal colostomy, status post right hemicolectomy, acute respiratory failure, dementia, hypertension, hypothyroidism, hypoatremia, hypoglycemia, sick sinus syndrome status post implantable cardioverter-defibrilator pacemaker placement, cancer of the prostate, aspiration pneumonia, hypotension, anemia, pulmonary effusions and edemas, and atrial fibrillation. A Stabilization Room report dated February [redacted], 2007 indicated that the Veteran had been discharged to the nursing home the previous day, and had arrived at the Stabilization Room after throwing up and becoming hypotensive. Initial evaluation included X-ray examination of his abdomen which revealed dilated loops of bowel, but that he had good ostomy function. The differential diagnosis was postoperative complications, ileus, small bowel obstruction, perforation, pneumonia, and hypoxia. The Veteran's death certificate reflects that he died on February [redacted], 2007 of withdrawal of cardio-respiratory support, due to aspiration pneumonia, colonic ischemia, and sick sinus syndrome; it was noted (as a contributing condition) that the Veteran was three weeks status post emergency hemicolostomy for colon ischemia. In a February 2008 statement, the appellant stated that the Veteran had entered a VA nursing home approximately one year and four months prior to his death. She asserted that if "the VA Medical Center had at least done tests and monitored [the Veteran's] hernia it would have never gotten to the point of growing around his intestines." In a May 2008 statement, the Veteran's daughter (J.H.) indicated that she believed that the Veteran's hernia had caused the Veteran's stomach and stool problems, as well as his "low blood." J.H. stated that following the Veteran's emergency room admission in January 2007 surgeons had told her that the Veteran's "hernia had grown into his intestines and immediate surgery to remove this was necessary or he would have died right there." In November 2008, a VA physician opined that the Veteran's death was related to the decision to not electively repair a left inguinal hernia. In response to a question that essentially asked whether there was any evidence of fault or carelessness on the part of VA in furnishing health care and treatment to the Veteran, the examiner stated, in pertinent part, that "[t]he decision [to not electively repair the Veteran's left inguinal hernia] was [medically] reasonable and there is no evidence of fault or carelessness on the part of the Minneapolis VAMC or an event not reasonabl[y] foreseeable." In the discussion portion of the opinion, the November 2008 VA physician had stated that "[d]ue to the above discussion, to defer an elective hernia repair in an elderly male with no discernable symptoms secondary to the hernia and with a high chance of reoccurrence even with repair, is a very reasoned medical approach for [the Veteran]." In a letter received in January 2009, J.H. indicated that she had talked to a staff surgeon at the Veteran's nursing home who essentially told her that the Veteran would have died had he not undergone the left hernia surgery. In a letter received in February 2009, the appellant and J.H. again essentially asserted that for four years VA had left the Veteran's hernia unattended. At the April 2010 Board hearing, the appellant stated (April 21, 2010 Board Hearing transcript (Tr.), at page 4) that in 2002 a VA physician told her that nothing would be done about the Veteran's hernia because he was too old. She stated (Tr., at page 5) that the Veteran would often complain of having a painful hernia. The appellant essentially indicated that VA had glossed over the Veteran's hernia when attending to his other medical conditions. The Veteran's daughter, J.H., stated (Tr., at page 11) as follows: I do believe that if my father would have been treated for the hernia, he could still possibly be here. And I hated to see him suffer the way he did. And he was a good man. He would have told them, or wanted it done, if they would have advised him correctly. He wouldn't have denied that, but I don't think he was even told what could happen. We didn't know what could happen if the hernia gets that bad. As the November 2008 VA examiner determined that the Veteran's death was related to the decision to not electively repair a left inguinal hernia, without providing a clear rationale for such opinion, in July 2010 the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In an August 2010 VHA medical opinion, N.K., M.D., a gastroenterologist, after reviewing the Veteran's pertinent medical history, stated as follows: In conclusion, based on my review of the case and keeping in view that I am not a surgeon I do not feel that the hernia had anything to do with the ischemia. Also, in view of his age and multiple co morbidities I would not have recommended earlier surgery for the hernia if it was asymptomatic. The November 2011 JMR found that Dr. K. who provided the August 2010 VHA opinion called into question his own expertise in the matter, because he stated that "[a]lthough the case is primarily associated with a surgical situation i.e. inguinal hernia and I am a gastroenterologist I cannot give an experts opinion but can provide a review from gastrointestinal point of view." Consequently, in June 2012, the Board obtained another VHA medical opinion from Dr. V.L.M., who is a board-certified general surgeon and a board-certified colorectal surgeon and stated that he had been performing 3 to 5 hernia surgeries per week for 25 years and was very familiar with colorectal diseases and their treatment. After reviewing the entire claims file, including the January 2007 operation records, Dr. M. opined that the Veteran's demise was not attributed to an incarcerated left inguinal hernia. In support of this opinion, Dr. M. noted that although the Veteran had a chronically incarcerated left inguinal hernia containing the left colon, particularly the sigmoid colon, his presenting problem in January 2007 was hypotension and abdominal pain, which was secondary to ischemic bowel involving the right colon; the surgeon just happened to address the hernia at the time of the surgery since they were already in the abdomen. Dr. M. further noted that the Veteran underwent a right hemicolectomy with ileostomy and Hartmann's procedure due to ischemia of the right colon, which was in turn caused by a low-flow state caused by low blood pressure (hypotension) which was probably related to cardiac disease. Dr. M. explained that if the incarcerated hernia was acutely strangulated, then the Veteran would have presented with left-sided bowel ischemia which would have involved the sigmoid colon and not the right colon. To that effect, the operating surgeon stated that "bowel that was reduced from the hernia was relatively viable," and that "there was no concern that it was ischemic," referring to the sigmoid colon. Dr. M. also opined that it was appropriate not to recommend hernia surgery in the Veteran if he was asymptomatic or mildly symptomatic because he had significant medical problems and there can be significant postoperative complications and death associated with surgery. Based on the foregoing, Dr. M. concluded that there was no evidence of any carelessness, negligence, lack of proper skill or error in judgment on the part of the VA in this case. Dr. M. added that the symptoms of uncontrolled bowel movements, syncope, low blood pressure, and anemia as reported by the Veteran's daughter were not typical symptoms for hernia. In March 2013, another medical opinion was obtained by Dr. J.L.C., a surgeon at the Minneapolis VA Medical Center. Dr. C. indicated that the entire claims folder, including all medical records from Hennepin County Medical Center dated from January to February 2007, was reviewed. Dr. C. stated that he completely agreed with Dr. M.'s opinion that given the Veteran's multiple comorbidities, he would pose significantly increased operative risk (increased morbidity and mortality) for elective repair of his left inguinal hernia; and that the most likely cause for the ischemic right colon was a low-flow state most likely secondary to underlying cardiac disease. Dr. C. added that the resected right colon showed histological evidence of patchy necrosis, which was consistent with a low-flow state where in the watershed areas of the right colon, collateral blood flow can become insufficient to maintain viability with small areas of the colon wall becoming ischemic and eventually necrotic if the low flow state persists. Dr. C. further stated that because the Veteran's death was a consequence of underlying comorbidities following resection of an ischemic right colon, he disagreed with the opinion expressed by the November 2008 VA examiner that the Veteran's death was related to the decision to not electively repair the left inguinal hernia. Dr. C. also agreed with Dr. M.'s statement that "symptoms of uncontrolled bowel movements, syncope and low blood pressure and anemia as mentioned by the [Veteran's] daughter are not typical symptoms for hernia." Based on the foregoing, Dr. C. concluded that The decision not to offer elective repair of [the Veteran's] inguinal hernia was medically reasonable, and there is no evidence of carelessness, negligence, lack of proper skill, error in judgment or instance of fault on the part of the VA in not furnishing surgical treatment to this veteran for his reducible left inguinal hernia, and there was no evidence of an event not reasonably foreseeable. Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim. The Board can find no health care professional's opinion concluding that the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or was a result of an event not reasonably foreseeable. While the November 2008 VA examiner stated that the Veteran's death was related to the decision to not electively repair a left inguinal hernia, that same VA physician essentially noted that the decision to not electively repair the Veteran's left inguinal hernia was medically reasonable and there was no evidence of fault or carelessness on the part of VA. Nevertheless, the Board attaches little probative value to the November 2008 VA physician's opinion because it is not supported by a clear rationale. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). Notably, the Board affords significant probative value to the medical opinions provided by the June 2012 and March 2013 VA examiners, who disagree with the November 2008 VA medical opinion that the decision to not electively repair a left inguinal hernia was related to the Veteran's death. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board must assess the credibility and probative value of the medical evidence in the record); Baldwin v. West, 13 Vet. App. 1, 8 (1999) (stating that the Board must analyze the credibility and probative value of the evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran). The Board notes that the June 2012 and March 2013 VA physicians' opinions were based on a thorough review of the record and were supported by a very detailed and well-reasoned rationale. Both the June 2012 and March 2013 VA physicians opined that the Veteran's death was not attributed to an incarcerated left inguinal hernia and that his death was a consequence of underlying comorbidities following resection of an ischemic right colon. It was noted that the most likely cause for the ischemic right colon was a low-flow state or hypotension, most likely secondary to underlying cardiac disease. Both physicians, who are experts in this subject matter, agreed that the decision not to offer elective repair of the Veteran's inguinal hernia was medically reasonable, and there is no evidence of carelessness, negligence, lack of proper skill, error in judgment or instance of fault on the part of the VA in not furnishing surgical treatment to this veteran for his reducible left inguinal hernia, and there was no evidence of an event not reasonably foreseeable. The Board does not doubt the sincerity of the appellant's and J.H.'s belief in a causal connection between the Veteran's death and VA treatment (or lack thereof), and the appellant and J.H. can attest to factual matters of which they had first-hand knowledge in observing (for example, the Veteran's complaints related to his hernia condition). However, with respect to the cause of the Veteran's death, the Board finds that a layperson, such as the appellant and J.H., is generally not capable of opining on matters requiring medical knowledge. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, here, the Board finds that a medical nexus between a veteran's service-connected condition and the cause of his death is a complex medical issue for which lay testimony alone would be inadequate to support the claim. Hence, the appellant's statements offered in support of the claim do not constitute competent evidence and are also lacking in probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In short, as the appellant and J.H. have not been shown to have had requisite medical training, they are not competent to offer a medical opinion as to whether VA medical care caused or contributed to the Veteran's death, the Board finds that their statements in this regard have no probative value, and are outweighed by the medical evidence of record. There has been no clinical indication, and no lay allegation, that the Veteran's service-connected hearing loss disability contributed to his death. In sum, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs