Citation Nr: 1331483 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 94-00 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as a result of service-connected asthmatic bronchitis with chronic obstructive pulmonary disease (COPD) and/or nicotine dependence acquired in service. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from October 1948 to February 1972. The Veteran died in October 1986. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in July 2012, which vacated an April 2011 Board decision and remanded the issue on appeal for additional development. Significantly, it was noted the issue addressed by the Board should have included consideration of the Veteran's service-connected asthmatic bronchitis with COPD as the cause of his death. The issue as provided on the title page of this decision has been adequately developed for appellate review. The appellant waived agency of original jurisdiction review of evidence provided in support of the appeal in August 2013. The appeal arose from an August 1992 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which reopened a claim previously denied in November 1986. The Court has vacated and remanded prior Board decisions in this appeal by orders dated in December 1996, March 1999, and July 2005, and by a memorandum decision dated in August 2008. The appellant testified at personal hearings before a hearing officer at the RO in July 1993 and before a Veterans Law Judge in May 2003. Copies of the transcripts of those hearings are of record. The issue on appeal was adequately explained to her and the submission of evidence which she may have overlooked and which would be advantageous to her position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board notes that in January 2006 the appellant was notified that the Veterans Law Judge from her May 2003 hearing was unavailable to participate in a final decision in her appeal. In a subsequent January 2006 statement the appellant, in essence, declined her right to an additional Board hearing. The Board obtained independent medical expert (IME) opinions concerning this matter on four separate occasions - in November 1997, May 2000, August 2006, and November 2010. See 38 C.F.R. § 20.901(d) (2012). With respect to each opinion, the appellant and her representative were provided with a copy of the opinion and allowed the appropriate amount of time for response. See 38 C.F.R. § 20.903 (2012). FINDINGS OF FACT 1. The Veteran died in October 1986 at the age of 56. 2. The Veteran died as a result of respiratory failure due to bronchopneumonia and pulmonary embolism; colon cancer was listed as a contributory cause of death on his death certificate and diabetes mellitus, hemorrhagic gastritis, retention cysts of the left kidney, and colonic diverticulitis were listed as accessory diagnoses in an October 1986 VA autopsy report. 3. At the time of the Veteran's death, service connection was in effect for asthmatic bronchitis with COPD, rated 10 percent disabling; and for diabetes mellitus rated noncompensably disabling. 4. It is at least as likely as not that the Veteran initially became dependent on nicotine during his active service. 5. Nicotine dependence and/or smoking was not the proximate cause of the Veteran's death; did not contribute substantially and materially to cause the Veteran's death; did not make the Veteran materially less capable of resisting the overwhelming effects of his fatal conditions; and/or did not have a material influence in accelerating his death. 6. The evidence does not establish that a service-connected disability, including asthmatic bronchitis with COPD and diabetes mellitus, caused or contributed materially or substantially to the Veteran's death, nor that the cause of death is otherwise related to service. CONCLUSION OF LAW A service-connected disability did not cause, hasten, or contribute substantially or materially to the Veteran's death and the criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appellant was notified of the duties to assist and of the information and evidence necessary to substantiate her claim by correspondence dated in April 2004. When adjudicating a claim for dependency and indemnity compensation (DIC), to include service connection for the cause of the veteran's death, VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. In general, a notice for a DIC case must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Board finds that the notice provided in this case satisfied the provisions of 38 U.S.C.A. § 5103(a) and that the appellant has demonstrated actual knowledge of the conditions for which the Veteran was service connected at the time of his death. Any deficiency in the April 2004 notice was cured by the subsequent adjudication of the claim. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, IME reports, internet source information, a January 2001 buddy statement, and the appellant's statements and testimony in support of her claim. Although correspondence dated in May 1986 shows the Veteran had been awarded Social Security Administration (SSA) disability benefits, there is no indication any additional medical evidence pertinent to the issue on appeal may be associated with records maintained by SSA. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that relevant SSA records must be obtained, but that there must be a specific reason to believe the records may give rise to pertinent information to conclude that they are relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Board also finds that the development requested on prior remand orders has been substantially completed. There is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board notes that in correspondence dated in August 2013 the appellant's representative asserted that the terms of the joint motion for remand associated with the Court's July 2005 order required a grant of service connection for the cause of death if it was shown that the Veteran began smoking in service. The Board finds no merit to this claim, in essence, that the July 2005 Court order established that the Veteran's death was related to smoking and that the only issue remaining on appeal was whether he became nicotine dependent is service. As noted in the introduction section of this decision, the Court in its orders after July 2005 specifically rejected the Board's decisions which limited the issue on appeal to the nicotine dependence determination. In fact, in its August 2008 memorandum decision the Court remanded the case for consideration in the first instance of an argument as to whether the IME opinions then of record only opined as to nicotine dependence and not cigarette smoking. There was no order prohibiting the Board or VA from obtaining additional evidence deemed necessary for an adequate determination of the claim on any applicable basis. The August 2013 correspondence further asserted that an additional medical opinion was required because a November 2010 IME opinion's use of the terms "immediate" and "significant" in discussing the relationship between the service-connected conditions and the cause of death indicated the opinion was based upon an incorrect standard. The terms identified as indicating a basis on an incorrect standard are shown to have been included as part of the discussion provided, but it was also specifically stated that "cigarette smoking did not directly cause or significantly contribute to his cause of death, nor did it have a material influence in accelerating his death." An overall review of the opinion does not demonstrate the opinion is inadequate because the physician based the opinion on an incorrect standard. In fact, VA regulations provide that "[i]n 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." 38 C.F.R. § 3.312(c)(1) (2012). The standard for the Board to consider concerning whether a disability contributed to death requires that the disability contributed substantially or materially and this determination is to be made based upon all of the evidence of record. Whether there is any linguistic or VA compensation claim evidentiary purpose distinction between the terms "significantly contribute" and "contributed substantially" need not be adjudicated in this case because the opinion clearly addressed the requirement that the service-connected disability must have "contributed materially" to combine to cause death in stating that there was no "material influence in accelerating his death." The Court has held that the use of cautious language does not always express inconclusiveness in a doctor's opinion, and that the opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 336, 338 (1997). Based upon a comprehensive review of the November 2010 IME opinion and applicable VA law, the Board finds no merit to the claim that this opinion was based upon an incorrect standard. The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the appellant's claims. There is no apparent dispute as to the competence or expertise of the IME physicians who provided opinions in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion as to the issue on appeal has been met. The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Factual Background The Veteran began serving on active duty in the United States military in October 1948. While hospitalized in December 1960, and when being examined in July and August 1971, it was indicated that he smoked approximately one package of cigarettes per day. A history of asthmatic bronchitis associated with COPD was noted during service. A diagnosis of diabetes mellitus was also provided in service. The Veteran retired from the military in February 1972. In August 1985, the Veteran filed claims for service connection for asthmatic bronchitis with COPD, and for diabetes mellitus. He was examined by VA in September and October 1985 in connection with his claims. A diagnosis of COPD was provided. The examiner indicated that the condition was mild. It was noted that the Veteran had a 40 pack year history of smoking. A diagnosis of COPD was also provided while the Veteran was hospitalized at a VA medical center from December 1985 to January 1986, when it was indicated that he smoked about one package of cigarettes every four days, and again, while he was hospitalized from late January 1986 to early February 1986. During the latter hospitalization, however, it was indicated that he did not smoke. His COPD was described as mild. Treatment was primarily for Alzheimer's disease and abdominal pain and discomfort of undetermined etiology. In March 1986, service connection was established for asthmatic bronchitis with COPD which was rated 10 percent disabling, and for diabetes mellitus, which was rated noncompensable. The Veteran was hospitalized at a VA medical center on several additional occasions from April 1986 to October 1986, primarily for treatment of abdominal related pathology of undetermined etiology. A July 10, 1986, VA social service assessment noted the Veteran used to be a heavy smoker, but that he currently rarely smoked due to an inability to hold a cigarette reliably. Records show he died in October 1986 while a patient at the Pittsburgh VA medical center. The certificate of death shows that he was 56 years old when he died, and that the immediate or principal cause of death was respiratory arrest. Carcinoma (cancer) of the sigmoid colon was indicated to be a significant condition contributing to death, but not related to the immediate cause of death. An autopsy was performed the day after the Veteran died in October 1986, and the findings reported were as follows: Multiple pulmonary emboli (occlusion of lung arteries by blood clots) with pulmonary infarcts (death of lung tissue); status post (condition after) colectomy (resection of the colon) and partial cystectomy (removal of the bladder) for colon cancer; coronary (heart) arteries showed severe atherosclerosis (hardening) with multiple myocardial fibrosis (scarring of the heart muscle). Additional clinical records pertaining to the autopsy show anatomic major diagnoses of extensive bilateral bronchopneumonia with bilateral pleural effusion, multiple pulmonary emboli, invasive colonic adenocarcinoma, atherosclerosis, and recent cerebral and cerebellar infarcts. The probable cause of death was indicated to have been respiratory failure due to extensive bronchopneumonia and pulmonary embolism. Accessory diagnoses included diabetes mellitus, hemorrhagic gastritis, retention cysts of the left kidney, and colonic diverticulosis. It was indicated in the final summary of the postmortem examination that the Veteran had bilateral bronchopneumonia and multiple pulmonary emboli, as well as supravesical abscess with carcinoma and perisplenic abscess. While testifying at a hearing at the RO in July 1993, the appellant said that the Veteran was on constant medication for treatment of his service-connected lung disease, and that the disability prevented him from walking even as short a distance as two city blocks without becoming short of breath and fatigued. She further claimed that he had been experiencing shortness of breath, with even minimal exertion, for many years prior to his death, that treatment, including an inhalant, had not resolved his symptoms, and that the information on the death certificate (as to the cause of his death) was prima-facie evidence in support of service connection. In October 1997, the Board requested an opinion from an IME who specializes in pulmonary disorders and diseases. The doctor submitted a report of his impressions of the case in November 1997. He indicated that the Veteran's death was caused by acute bronchopneumonia and pulmonary emboli, which were a direct result of an acute hospitalization for surgery to treat carcinoma of the colon. The IME further indicated that the Veteran's service-connected COPD did not accelerate his death; that the condition may have made him less capable of resisting the effects of the acute bronchopneumonia and pulmonary emboli; but that his continuing to smoke cigarettes after his discharge from the military was the main causative entity in the development of the conditions that were fatal. The IME provided a detailed explanation justifying his opinions and conclusions, noting that he reviewed all of the medical and other pertinent evidence on file. The IME pointed out that a diagnosis of COPD (asthmatic bronchitis) was provided while the Veteran was in the military, that the "illness is uniformly accepted as being caused by cigarette smoking," and that the veteran's smoking persisted until his terminal hospitalization. The IME reported that he considered values for forced expiratory volume at one second (FEV1) that were taken while the Veteran was in the military and compared them to values that were taken in the course of him being examined and treated during the year prior to his death. Based on the comparison, the IME noted that there was "not a significant change" between the values in service and those after service to suggest that there had been a worsening of the Veteran's emphysema; that the "emphysema was not a major component of his respiratory illness; and that the diagnosis of asthmatic bronchitis was probably correct." It was noted that the "decreased FEV1, in and of itself, is enough to sustain the Veteran's respiratory status through the planned operation, and even through serious pneumonia and small pulmonary emboli that would not have been fatal in an otherwise healthy person." The IME said that there was "some risk of postoperative infection (such as pneumonia)" because of the Veteran's reduced expiratory flow rates, but that it was "uncommon to see much functional protective loss at that level of FEV1." The IME also said that the dyspnea that the Veteran purportedly experienced after walking only two blocks (noting the allegations that the appellant had made of this) was not consistent with the level of FEV1 measured, and that it was "more probable that continued cigarette smoking played the biggest role in any inability that he had to withstand the infections and vascular obstruction." The IME noted that all of the symptoms alluded to were consistent with asthmatic bronchitis associated with continued cigarette smoking. He said that some forms of COPD, like emphysema, do not improve with smoking cessation, but that patients with asthmatic bronchitis often dramatically improve if they discontinue smoking cigarettes. The IME indicated that "continuation of even low consumption of cigarettes" would have been sufficient to "sustain the inflammation, mucus production, symptoms and chest examination described in this veteran," and that "cessation of smoking dramatically reduces both the symptoms and the risk of any concurrent illnesses upon the function of the lung." The IME went on to note that the Veteran's death was attributable to a "shower of pulmonary emboli (PTE) rather than the pneumonia," and that "the emboli were not caused by the COPD, but almost certainly by the presence of an operation for the abdominal malignancy," i.e., the carcinoma of the sigmoid colon. The IME said that postoperative PTE are now known to be common following operations for abdominal malignancy, and that PTE is a common cause of unexpected mortality in hospitalized patients. He pointed out that it was not customary in 1986, which was the year that the Veteran died, to provide prophylaxis against PTE following abdominal operations for malignancy, but that this is now recommended protocol. In other parts of his report, the IME discussed evidence that pointed to the PTE being the condition that caused the Veteran's death. The first was indicated to be the onset of hypotension a few hours before he died, noting that hypotension was "a sentinel event in PTE, but was not in COPD or even bronchopneumonia unless sepsis supervenes," which was not indicated in the evidence on file, including the report of the autopsy. The IME said that "the suddenness of the event in a patient otherwise recovering well from an operation was also an indication that PTE" was the cause of death. "The second important autopsy finding suggesting PTE as the cause of death was that of acute passive congestion in the liver." The IME noted that such "finding was consistent with the acute right heart failure which was the mode of death in PTE." The IME said that "PTE of this magnitude could have killed a person with normal lungs, although the chances of survival were less in someone who had [chronic obstructive pulmonary disorder]," such as the Veteran. The IME reported that there were "no findings consistent with chronic right-sided failure, which would be seen if COPD were a chronic physiologic problem causing chronic right-sided failure in the veteran." Lastly, the IME indicated that, while the "asthmatic bronchitis certainly increased the Veteran's risk of undergoing surgery, it was probable that the lethal combination of pneumonia and pulmonary emboli would have killed him even with normal lungs." The IME reiterated that the "known asthmatic bronchitis, caused by continued smoking, increased the risk of postoperative pneumonia, but not pulmonary emboli," and that, had the Veteran "stopped smoking even [three] months prior to the surgery, any risks associated with surgery, and any decreased capabilities of resisting the effects of the intercurrent pneumonia and pulmonary emboli, would have been strongly diminished or even eliminated altogether." In April 2000, the Board requested another IME opinion in response to the directives of the Joint Motion filed by the parties in March 1999. Specifically, the physician was asked to review the claims folders and to answer the following questions: i) Did the Veteran become chemically addicted/dependent on nicotine (from smoking cigarettes) while he was on active duty in the military? ii) If so, is it at least as likely as not that his nicotine dependence continued after service and thereby resulted in, contributed to, or accelerated the fatal conditions that led to his death? In May 2000, JPM, MD (Dr. JPM), Assistant Professor of Medicine, Clinical Director of the Indiana University Medical Group, Department of Medicine, Division of Pulmonary, Allergy, Critical Care, and Occupational Medicine, responded that he reviewed the file in its entirety. With regard to the first question he responded: For the purpose of this response the definition of nicotine dependence will be that definition as outlined in the following publication: Department of Health and Human Services. Reducing the health consequences of smoking. 25 years of progress, a report of the Surgeon General. Rockville, Maryland: U.S. Department of Health and Human Services, Public Health Service , Centers for Disease Control, Centers for Chronic Disease Prevention and Health Promotion, Office of Smoking and Health, 1989. DHHS publication No. (CDC) 89-8411, 1989. It is noted that there is no perfect marker for when addiction occurs. The measure that is generally used to establish that someone is a smoker is the self report of smoking at least 100 cigarettes in their life time. Using this definition it is not possible to determine whether or not this veteran became chemically addicted or dependent on nicotine while he was on active duty in the military. The available medical records make reference to a history of tobacco use, however I was unable to locate when this Veteran began smoking cigarettes. Therefore, it is not possible to state he had not accomplished this landmark of 100 cigarettes prior to active duty in the military. With regard to the second question he responded: A review of the medical record would indicate that [the Veteran's] nicotine dependence continued after service. The degree to which this dependence resulted in, contributed to, or accelerated the fatal conditions that led to his death would be described as clinically insignificant. This latter opinion is a clinical opinion based on a review of the final hospitalization up until the time of his death as well as the previous hospitalization. Of note, during both of these hospitalization's [the Veteran] did not require supplemental oxygen, nor did he require scheduled or as needed bronchodilators as recorded in the Continuing Medication Record dated July and October 1986. An arterial blood gas obtained on room air (9/19/86 pH 7.47, pCO2 31. pO2 86) suggests a slight respiratory alkalosis but does not suggest the presence of hypoxemia or hypercapnia that would be expected in one with advanced lung disease. His chest X-ray (10/22/86) was noted to be without abnormality. He received oxygen as part of post operative therapy and it was in the process of being weaned until the catastrophic event. This veteran was witnessed to aspirate food and later experienced a sudden clinical change characterized by rapid increase in his respiratory rate and a fall in his blood pressure. At autopsy he was found to have bronchopneumonia and thromboemboli to account for his cardio-respiratory collapse and subsequent death. In summary it is my opinion that from a review of the current available medical record that i) it is impossible to determine when this veteran became chemically addicted to nicotine as we have no evidence to determine whether or not he had reached the milestone of 100 cigarettes prior to or following October 6, 1948, the time of his enlistment. ii) [The Veteran's] prior nicotine dependence is clinically insignificant in contributing to his fatal condition. The appellant and her attorney were provided a copy of Dr. JPM's opinion. In a statement received in October 2000, the appellant related that the Veteran told her that when he was in the service after enlisting, he was given free cigarettes, and to fit in with the others he started smoking. Every time he got the free cigarettes he smoked them. Letters of appreciation of the Veteran's efforts from commanding officers were received in November 2000. They do not discuss the Veteran's smoking history. In a November 2000 Report of Contact, it was noted that the appellant had stated that all family members were dead except for a 90-year old sister of the Veteran who did not remember. In a January 2001 statement, a fellow serviceman reported that he was stationed with the Veteran at Hickam Air Force Base, Hawaii, from May 1970 to September 1972. He recalled that the Veteran was a smoker and there was no attempt to stop him. Smoke breaks were taken by all those that smoked and he constantly saw the Veteran smoking. At a hearing before the Board in May 2003, the appellant and her representative asserted that the Veteran did not start smoking until service and that a medical expert (Dr. H) had testified, after reviewing the Veteran's death reports, that the Veteran's smoking was a contributing factor in his death. In August 2006, the Board obtained an IME Opinion from an expert in Internal Medicine, Pulmonary Medicine, and Critical Care Medicine. After reviewing the relevant medical evidence, this medical expert concluded (1) that the primary cause of the Veteran's death was acute pulmonary embolism, noting that there was no mention in the autopsy of the lung changes consistent with asthmatic bronchitis or other forms of COPD, and that the major risks leading to the Veteran's fatal thromboembolic disease were his recent colon cancer surgery, his colon cancer, and various acute infections none of which were directly or indirectly related to nicotine dependence; and that (2) the cause of the Veteran's death was unlikely to be either directly or indirectly related to any nicotine dependence, especially since any existing lung disease in the Veteran was mild and not a factor in his death. The IME concluded that the Veteran died from pulmonary embolism. He discussed the major risks leading to thromboembolic disease as including the Veteran's surgery, his adenocarcinoma, and his intra-abdominal and buttock infections, and stated that none of these were related directly or indirectly with smoking or nicotine dependence. In the Court's Memorandum Decision of August 2008, the Court relayed the appellant's representative's argument that the 2000 and 2006 IMEs phrased their opinion in terms of nicotine dependence without specifically referring to cigarette smoking itself. Accordingly, the Court remanded the matter for the Board to consider the appellant's argument in the first instance. In written argument in July 2009, the appellant's representative summed up the evidence by pointing out that there was on file an opinion that "cigarette smoking" contributed to death, and two opinions that "nicotine dependence" did not contribute to the Veteran's death. He indicated that further clarification was required to determine whether the 2000 and 2006 IMEs meant to distinguish between nicotine dependence and actual smoking or whether they "simply disagreed flatly with [the 1997 IME opinion]." In November 2010, the Board sought clarification regarding entitlement to service connection for the cause of the Veteran's death based on cigarette smoking as distinguished from nicotine dependence. After reviewing the Veteran's claims file, the IME (an Assistant Professor, Pulmonary, Allergy and Critical Care Medicine, University of Minnesota ) opined that the Veteran's cause of death was pulmonary embolus (PE) in the presence of postoperative pneumonia. He went on to state that based on the acuity of the Veteran's presentation and the autopsy finding, the acute PE leading to pulmonary arrest was the immediate cause of death and the factors contributing to the PE were the Veteran's postoperative status from abdominal surgery and presence of malignancy. He noted that while cigarette smoking may be a risk factor for venous thromboembolism, at the time of the surgery the Veteran was smoking only rarely (based on a July 1986 health assessment) and therefore this was not likely a significant factor in his development of PE. He thus opined that the Veteran's "cigarette smoking did not directly cause or significantly contribute to his cause of death, nor did it have a material influence in accelerating his death." The IME went on to comment on the earlier IME opinions of record. With respect to the 1997 IME opinion, he said that he agreed with this opinion as to the Veteran's cause of death from acute bronchopneumonia and pulmonary emboli as a direct result of hospitalization and surgery for colon cancer and that the Veteran's service-connected COPD did not accelerate his death. However, he noted that as to the opinion that the Veteran's continuing of cigarette smoking following his discharge in 1971 was the main cause of his condition in 1986, he said that while this was possibly true, it was speculative. He explained that the Veteran's reduced FEV1 and ongoing smoking increased his surgical risk, but did not appear to be a causative factor, particularly given the mode of death was an acute cardiopulmonary arrest. He relayed the 1997 IME's statement that the magnitude of the Veteran's pulmonary thromboembolism "could have killed a person with normal lungs" and said that his statement that had the Veteran had stopped smoking even three months prior to the surgery, it would have strongly diminished or eliminated the surgery risk, was also speculative. The 2010 IME added that the Veteran's diagnosis of Alzheimer's disease and his underlying atherosclerotic coronary artery disease as noted on autopsy would have put him at elevated risk for surgery under any circumstances. With respect to the 2000 and 2006 IME opinions, the 2010 IME said that he agreed with the 2000 IME opinion that the Veteran's nicotine dependence was not a significant contributor to his cause of death, and the 2006 IME opinion that the primary cause of the Veteran's death was acute pulmonary embolism and the cause of death was unlikely to be directly or indirectly related to any nicotine dependence. The 2010 IME pointed out that the 2000 and 2006 IME opinions were both based on the fact that the Veteran had only mild to moderate lung disease without evidence of chronic hypoxia or CO2 retention, and that his respiratory status had been improving prior to his acute decompensation which he said supports PE as the main cause of death as opposed to a progressive decline in the Veteran's respiratory status that would be a more typical course for a post-op pneumonia. The 2010 IME reiterated that he agreed with the 2006 IME assessment that the primary cause of the Veteran's death was acute pulmonary embolism and that the cause of death was unlikely to be directly or indirectly related to any nicotine dependence and specifically with the 2006 IME comments regarding the 1997 IME opinion. As noted above, the 2006 IME said that he disagreed with the 1997 IME's opinion supporting a relationship between the Veteran's death and his nicotine dependence. In correspondence provided in support of the claim in August 2013 the appellant's representative asserted that the terms of joint motion for remand associated with the Court's July 2005 order required a grant of service connection for the cause of death if it was shown that the Veteran began smoking in service. It was further asserted that the medical evidence demonstrated the Veteran's service-connected COPD "both put him at an increased risk for the development of pneumonia and may have made him less capable of resisting the effects of the other illnesses" and that service connection was thus warranted under the provisions of 38 C.F.R. § 3.312(c)(3). Alternatively, it was contended that an additional medical opinion should be obtained because the November 2010 IME use of the terms "immediate" and "significant" in discussing the relationship between the service-connected conditions and his cause of death indicated it was based upon "an implementation of the incorrect standard." Additionally, it was asserted that the November 2010 IME opinion as to the frequency which the Veteran smoked contradicted a November 1997 IME opinion. Duplicate copies of service treatment records and copies of internet source information noting cigarettes had been provided to soldiers with their field rations were provided in support of the appeal. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service incurrence will be presumed for certain chronic diseases, including cardiovascular disease and malignant tumor, if such disability is manifest to a compensable degree within one year after active service. 38 U.S.C.A. § 1137 (West 2002); 38 C.F.R. §§ 3.307, 30309 (2012). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen; additionally, other substantive changes were made. As the claim was filed before the other substantive changes were made, only the changes that conform to Allen apply. VA pays DIC benefits to a Veteran's surviving spouse, children, or parents for a death due to a service-connected or compensable disability occurring after December 31, 1956. The standards and criteria for determining whether or not a disability is service connected are those applicable under Chapter 11, Title 38, United States Code. 38 U.S.C.A. § 1310 (West 2002). VA regulations provide that the death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The regulations under 38 C.F.R. § 3.312(c) also provide that: (1) 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. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) 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. 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. (4) There are primary causes of death which 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. In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). In regard to tobacco-related claims, on July 22, 1998, the President signed into law a new provision, codified at 38 U.S.C.A. § 1103, essentially barring service connection for disability or death on the basis that a disease or injury is attributable to the use of tobacco products during service. See also 38 C.F.R. § 3.300 (2012). This provision, however, only applies to claims filed after June 9, 1998, and therefore, given the date of this claim, such bans do not apply to the appellant's claim. The law in effect prior to the revision in 1998 is found in precedent opinions of the VA General Counsel. In VAOPGCPREC 2-93, it was held that direct service connection for a tobacco-related disability could be established where the evidence demonstrated that an underlying disease or injury was caused by tobacco use during service. VAOPGCPREC 19-97 expanded on this opinion, stating that service connection could be awarded on a secondary basis based on tobacco use after military service if it was shown that nicotine addiction arose during service and was the proximate cause of the disability or death. See 38 C.F.R. § 3.310. The opinion set forth a two-pronged sequential analysis for determining whether secondary service connection was warranted: (1) The veteran must have acquired a chemical dependence on nicotine during service; and (2) the nicotine dependence must have been the proximate cause of the present disability. VAOPGCPREC 19-97. The General Counsel also stated that, in making determinations on proximate cause, adjudicative personnel must consider whether there is a supervening cause of the claimed disability or death that severs the causal connection to the service-acquired nicotine dependence. It was noted that such supervening causes could include sustained full remission of the service-related nicotine dependence and subsequent resumption of the use of tobacco products, creating a de novo dependence, or exposure to environmental or occupational agents. See also Davis v. West, 13 Vet. App. 178 (1999). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The level of training, education, and experience of the person conducting the examination is a factor that, if the Board affords more or less weight to the report because of that reason, must be thoroughly explained in its decision. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996)). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that 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), (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). The Board may discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). Analysis The appellant in this case essentially asserts that the Veteran began smoking during his military service, that he became addicted to tobacco and nicotine during service, that he smoked for many years thereafter, and that his death is related to his nicotine dependence and smoking. It is further asserted that the medical evidence demonstrates the Veteran's service-connected COPD "both put him at an increased risk for the development of pneumonia and may have made him less capable of resisting the effects of the other illnesses" and that service connection for the cause of death is warranted under the provisions of 38 C.F.R. § 3.312(c)(3). Based upon the evidence of record, the Board finds that the Veteran died in October 1986 at the age of 56 as a result of respiratory failure due to bronchopneumonia and pulmonary embolism and that colon cancer was a contributory cause of death. The Board finds that at the time of his death service connection was established for asthmatic bronchitis with COPD and diabetes mellitus, and that it is at least as likely as not that he initially became dependent on nicotine during active service. The Board finds, however, that the persuasive evidence of record demonstrates that his nicotine dependence and/or smoking was not the proximate cause of his death, did not contribute substantially and materially to cause his death, did not make him materially less capable of resisting the overwhelming effects of his fatal conditions, and/or did not have a material influence in accelerating his death. The evidence does not establish that a service-connected disability, including asthmatic bronchitis with COPD and diabetes mellitus, caused or contributed materially or substantially to the Veteran's death, nor that the cause of death is otherwise related to service. The pertinent evidence includes VA records showing that at the time of the Veteran's death in October 1986, he was service connected for asthmatic bronchitis with COPD, rated 10 percent disabling, and diabetes mellitus rated noncompensably disabling. The Veteran's death certificate and VA autopsy results show that he died due to bronchopneumonia and pulmonary embolism contracted while he was hospitalized for the treatment of colon cancer. Colon cancer was listed as a contributory cause of the Veteran's death, but nicotine dependence, smoking, diabetes mellitus, and/or asthmatic bronchitis with COPD were not. The Veteran's service treatment records are devoid of any reference to his fatal respiratory arrest, bronchopneumonia, pulmonary embolism, or colon cancer. Also, there is no medical evidence linking the Veteran's fatal disabilities to any incident of service, including his use of tobacco products in service. Accordingly, service connection for the cause of the Veteran's death due to inservice tobacco use, on a direct basis, is not warranted in this case. With respect to the issue on a secondary basis, that is, whether the cause of the Veteran's death is secondary to nicotine dependence acquired in service, the Board must address the factors outlined in the General Counsel Opinion above; that is, (1) the veteran must have acquired a chemical dependence on nicotine during service; and (2) the nicotine dependence must have been the proximate cause of the present disability or death. The determination of whether a veteran is or was dependent on nicotine is a medical issue. VAOPGCPREC 19-97. Regarding the first question, VA has previously found based on the evidence of record that it is at least as likely as not that the Veteran acquired a dependence upon nicotine during service. This determination is supported by the evidence of record. As to the second question, whether nicotine dependence which arose during service may be considered the proximate cause of claimed disability or death occurring after service, there is both positive and negative evidence on this point. The positive evidence consists of an IME opinion in 1997. While this opinion focuses primarily on the question of a possible relationship between the Veteran's service-connected COPD and the cause of his death, the opinion included the comment that the Veteran's "service-connected COPD may have made [him] less capable of resisting the effects of his fatal conditions, but the continuation of cigarette smoking following his discharge [from service] in 1971, rather than the illness present in 1971, is the main causative entity for this condition in 1986." The opinion also stated that had the Veteran stopped smoking even three months prior to the surgery, any risks associated with surgery, and any decreased capabilities of resisting the effects of the intercurrent pneumonia and pulmonary emboli would have strongly been diminished or eliminated. The negative evidence includes IME opinions dated in 2000 and 2006, both of which opined against a nexus between the Veteran's nicotine dependence and cause of death. In this regard, the 2000 IME physician opined that the Veteran's prior nicotine dependence was clinically insignificant in contributing to his fatal condition. He pointed out that during the Veteran's hospitalizations he did not require supplemental oxygen, nor did he require scheduled or as needed bronchodilators as recorded in the Continuing Medication record dated July and October 1986. He also noted that a chest X-ray in October 1986 was noted to be without abnormality. The 2006 IME physician, in stating that the primary cause of the Veteran's death was acute pulmonary embolism, opined that the cause of death was unlikely to be directly or indirectly related to any nicotine dependence. It was noted that the major risks leading to thromboembolic disease were the Veteran's surgery, his adenocarcinoma, and his intra-abdominal and buttock infections. He also stated that "[n]one of these are related directly or indirectly with smoking or nicotine dependence." In written argument in July 2009, the appellant's representative summed up the evidence by pointing out that there was on file an opinion that "cigarette smoking" contributed to death, and two opinions that "nicotine dependence" did not contribute to the Veteran's death. He indicated that further clarification was required to determine whether the 2000 and 2006 IME physicians meant to distinguish between nicotine dependence and actual smoking or whether they "simply disagreed flatly with [the 1997 IME opinion]." Some insight into the answer to this question can be found in the 2006 IME opinion. First of all, as noted above, the IME specifically talked about smoking when he stated that the major risks leading to the Veteran's fatal thromboembolic disease were his surgery, his adenocarcinoma, and his intra-abdominal and buttock infections. He went on to state that "[n]one of these are related directly or indirectly with smoking or nicotine dependence." Then, there are the comments that the IME made with respect to the 1997 IME's opinion on smoking. In this regard, the 2006 IME stated that he found the comments to be "confusing and perhaps contradicted within the body of the report." He explained that while he thought that the 1997 IME was suggesting that the Veteran's continued smoking after service was responsible for most of his lung disease, he said he also noted that within the body of the 1997 IME text, there was reference to spirometry upon discharge from service and close to the Veteran's death as being "insignificantly different." In an attempt to further clarify this matter, VA obtained another IME opinion in November 2010. In this opinion the IME clearly opined that the Veteran's cigarette smoking did not directly cause or significantly contribute to the cause of his death, nor did it have a material influence in accelerating his death. He opined that the acute pulmonary embolus leading to cardiopulmonary arrest was the immediate cause of death and the factors contributing to this condition were the Veteran's postoperative status from abdominal surgery and presence of malignancy. He further stated that while cigarette smoking may be a risk factor for venous thromboembolis, at the time of the surgery, the Veteran was smoking only rarely and therefore this was not likely a significant factor in his development of the pulmonary embolus. The Board notes that in correspondence dated in August 2013 the appellant's representative asserted, in essence, that this finding was inconsistent or contradictory to the finding as to smoking frequency found by the 1997 IME. The Board finds, however, that the 2010 IME finding as to this matter is well supported by the cited reference to the July 1986 VA treatment report. No specific basis for the finding of the 1997 IME was identified. The Board finds the overall evidence of record does not demonstrate that the 2010 IME finding as to smoking frequency only rarely at the time of surgery was factually inaccurate. The 2010 IME went on to state agreement with the 2000 and 2006 IME opinions negating a relationship, either directly or indirectly, between the Veteran's nicotine dependence and his cause of death. He also stated that while the 1997 IME comments regarding smoking were possibly true, the opinion was speculative. He explained that while, as the 1997 IME pointed out, the Veteran's reduced lung capacity and ongoing smoking increased his surgical risk, it did not appear to be a causative factor, particularly given the mode of death was an acute cardiopulmonary arrest. He said that the 1997 IME opinion that had the Veteran stopped smoking even three months prior to the surgery, any risks associated with surgery, and any decreased capabilities of resisting the effects of the intercurrent pneumonia and pulmonary emboli would have strongly been diminished or eliminated, was also speculative. He explained that the diagnosis of Alzheimer's disease and the Veteran's underlying atherosclerotic coronary artery disease (noted on autopsy) would have put the Veteran at elevated risk for surgery under any circumstances. The Board also notes that atherosclerotic coronary artery disease and Alzheimer's disease have not been related by competent evidence to any injury or disease in service and are not shown to be proximately due to any service-connected disability. The Board has considered the January 2011 statement of the appellant's representative in which he takes issue with the terms that the 2011 IME used in negating a causal relationship between the Veteran's smoking and cause of death. More specifically, the appellant's representative asserted that the question for determination is not whether the Veteran's smoking "directly cause[d] or significantly contribute[d]" to the cause of his death, but whether "[it] [was] a cause at all." The Board does not find that the weight of the medical evidence as outlined above establishes that the Veteran's nicotine addiction and/or smoking was the proximate cause of his death. Rather, the IME opinions in 2000, 2006 and 2010 all essentially negate a causal nexus between the Veteran's nicotine dependence and/or smoking, and the cause of his death. The Board finds these opinions to be persuasive. In addition, both the 2006 and 2010 IME physicians reviewed and commented on the 1997 IME opinion, which did relate the Veteran's smoking to the development of his fatal conditions, by stating that they either did not agree with this opinion or that it was speculative. They included clear and logical rationale for their opinions on this point. After reviewing the evidence in its entirety, the Board finds that the weight of probative evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death as a result of nicotine dependence acquired in service. As to the issue concerning whether a service-connected disability caused or contributed materially or substantially to the Veteran's death, VA regulations require that such issues will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(a). In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the Veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan, 7 Vet. App. 359. The pertinent evidence of record as to this matter includes the November 1997 IME opinion that the Veteran's service-connected COPD did not accelerate his death, but that the condition may have made him less capable of resisting the effects of the acute bronchopneumonia and pulmonary emboli. The November 1997 IME found the Veteran's death was attributable to PTE that were not caused by the COPD, but almost certainly by the presence of an operation for an abdominal malignancy. It was noted that postoperative PTE were known to be common following operations for abdominal malignancy and a common cause of unexpected mortality in hospitalized patients. The August 2006 IME Opinion concluded that the primary cause of the Veteran's death was acute pulmonary embolism. It was noted that there was no mention in the autopsy of the lung indicating changes consistent with asthmatic bronchitis or other forms of COPD; that the major risks leading to the Veteran's fatal thromboembolic disease were his recent colon cancer surgery, his colon cancer, and various acute infections, none of which were directly or indirectly related to nicotine dependence; and that the cause of the Veteran's death was unlikely to be either directly or indirectly related to any nicotine dependence. The physician also specifically noted that any existing lung disease in the Veteran was mild and not a factor in his death. The November 2010 IME noted agreement with the findings of the November 1997 IME opinion as to the Veteran's cause of death from acute bronchopneumonia and pulmonary emboli as a direct result of hospitalization and surgery for colon cancer and that the Veteran's service-connected COPD did not accelerate his death. It was specifically noted, however, that the November 1997 IME opinion that the Veteran's continuing cigarette smoking following his discharge in 1971 was the main cause of his condition in 1986, while possibly true, was speculative. As rationale for this difference of opinion it was noted that the Veteran's reduced FEV1 and ongoing smoking increased his surgical risk, but did not appear to be a causative factor in his death, particularly given the mode of death was an acute cardiopulmonary arrest. The 2010 IME pointed out that the 2000 and 2006 IME opinions were both based on the fact that the Veteran had only mild to moderate lung disease without evidence of chronic hypoxia or CO2 retention, and that his respiratory status had been improving prior to his acute decompensation which he said supported PE as the main cause of death as opposed to a progressive decline in the Veteran's respiratory status that would be a more typical course for a post-op pneumonia. Based upon the overall evidence of record, the Board finds that no debilitating effects due to a service-connected disability made the Veteran materially less capable of resisting the effects of the fatal disease and that no service-connected disability had a material influence in accelerating death, thereby contributing substantially or materially to the cause of the Veteran's death. The opinion of the November 2010 IME is persuasive. The Board finds the November 1997 IME opinion indicating the Veteran's service-connected COPD may have made him less capable of resisting the effects of the acute bronchopneumonia and pulmonary emboli warrants a lesser degree of probative weight. The November 1997 IME opinion's use of the phrase "may have made" is indicative of some degree of equivocation. The November 2010 IME opinion's finding that the November 1997 opinion as to this matter was speculative, however, is persuasive and based upon adequate rationale. The Veteran's diabetes mellitus has not been identified as playing any role in the cause of death. The Board further finds that the appellant is competent to provide evidence as to observations and some medical matters, but that her statements are, at most, conclusory assertions of a nexus between the cause of the Veteran's death and his service. She does not have the medical training to provide etiology. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, such statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). Therefore, entitlement to service connection for the cause of the Veteran's death must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to service connection for the cause of the Veteran's death, to include as a result of service-connected asthmatic bronchitis with COPD and/or nicotine dependence acquired in service, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs