Citation Nr: 1333329 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 04-26 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from November 1942 to January 1946 and September 1947 to October 1964. The Appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Appellant now resides in Florida, so the matter is now handled by the RO in St. Petersburg, Florida. In October 2007, the Board remanded this claim for additional development. In May 2009, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA). See 38 C.F.R. § 20.901. The Board denied the appeal of entitlement to service connection for the Veterans' cause of death and entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318 in a decision of October 2009. The Appellant subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2011, the Secretary of Veterans Affairs (Secretary) and the Appellant, through her attorney, filed a joint motion for remand (JMR) to vacate the part of the Board's decision that denied entitlement to service connection for the Veteran's cause of death. The appeal for entitlement to DIC under 38 U.S.C.A. § 1318 was dismissed. In September 2011, the Board requested another expert medical opinion from the VHA. However, this opinion was determined to be inadequate and a request for further clarification was made. An additional VHA opinion was received in September 2011. An addendum to the opinion was received in October 2011. This opinion was also determined to be inadequate and a request for further clarification was made. A final VHA opinion was received in February 2012. By decision dated April 2012, the Board denied the claim of entitlement to service connection for the cause of the Veteran's death. The Appellant appealed this decision to the Court. The Secretary and the Appellant, through her attorney, filed a JMR to vacate the Board's decision and ordered an independent expert medical opinion (IME). In July 2013, the Board requested an IME opinion. The opinion obtained, dated July 2013, was provided to the appellant and her representative Paralyzed Veterans of America (PVA) in September 2013. The appellant and her representative were offered a 60-day period to present additional argument or evidence in this case. Later that month, PVA offered additional argument in support of the claim. A review of the Virtual VA electronic records storage system and the Veterans Benefits Management System (VBMS) does not reveal any additional, relevant documents pertinent to this claim. Finally, the Board notes that the claims folder for review on appeal is in chronological disarray. Additionally, there are portions of documents (such as the April 2012 Board decision) which, while complete, are scattered in different areas in the claims folders. It appears to the Board that these issues have been created with a scanning of documents for Court review. The Board has not attempted to rearrange the claims folder to original condition, and has left the contents intact as received since re-certification to the Board. FINDINGS OF FACT 1. The Veteran died in April 2001 at the age of 79 with his immediate cause of death identified as aspiration pneumonia due to or as a consequence of dementia with chronic obstructive pulmonary disease (COPD) being another significant condition contributing to death 2. At the time of death, the Veteran was service-connected for trichophytosis, residuals of left leg cellulitis, rated as noncompensably disabling. 3. The Veteran's peripheral venous disease manifested by stasis, recurrent thrombophlebitis and susceptibility to fungal infections result from frostbite residuals incurred in service. 4. The preponderance of the evidence establishes that the Veteran manifested vascular dementia at the time of his death which was unrelated to his head injury in service. 5. The Veteran's disabilities of aspiration pneumonia, vascular dementia, COPD and diabetes mellitus first manifested many years after active military service, and are not shown to be related to an event during active service. 6. The Veteran's death was not proximately due to or the result of a service-connected disability, and a service-connected disability did not materially accelerate death. CONCLUSION OF LAW 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, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court expanded the VCAA notice requirements for DIC claims. In Hupp, the Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(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 DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The Appellant filed her DIC claim in July 2002, which was prior to the Hupp decision. A pre-adjudicatory RO notice in August 2002 advised the Appellant of the evidence and/or information deemed necessary to substantiate a DIC claim as well as the relative duties on the part of VA and herself in developing the claim. She was not given notice which complied with the requirements of Hupp (notice of service-connected conditions) or Dingess (criteria for establishing a disability rating and effective date of award). However, the August 2003 RO rating decision advised the Appellant that the Veteran had been service-connected for cellulitis of the left leg. In May 2004, the Appellant was provided a complete copy of the Veteran's claims folder. Thus, the Appellant has been provided actual notice of the Veteran's service-connected disability. The claim was subsequently adjudicated in two Board decisions which have been vacated after full appellate briefing with attorney representation. Thus, the Appellant's actual knowledge of the Veteran's service-connected disability precludes any potential prejudicial Hupp notice defects. See Mayfield, 19 Vet. App. at 121-22. The Appellant has not received adequate notice of the criteria for establishing a disability rating and effective date of award. However, as the DIC claim is denied, these downstream issues are not implicated and no prejudicial effect can accrue. Overall, the Board finds that the Appellant has been provided content compliant VCAA notice as it pertains to the dispositive issues on appeal, and that any timing deficiencies have been non-prejudicial in nature. Notably, in two separate JMRs, the parties before the Court did not argue that the Appellant has been provided inadequate notice. Additionally, VA has a duty to assist the Appellant in claim development. This includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all available STRs. Notably, in June 1992, the Veteran reported having no STRs in his possession. The RO has also obtained all relevant VA outpatient records and private treatment records. The Board is unaware of any additional relevant VA documents. There are no outstanding requests to obtain any private treatment records which the Appellant has identified as relevant to this appeal, and has authorized VA to obtain on her behalf. Additionally, the Board is unaware of any relevant records in the possession of the Social Security Administration. The claim on appeal has undergone extensive litigation concerning the adequacy of medical opinion obtained in this case. Here, the Board concedes the Veteran's potential for head and frostbite injuries in service. Pursuant to the last JMR, the Board has obtained an IME opinion which concedes the Veteran as having potential residuals of frostbite and head injury. The IME opinion is based upon a factual history deemed accurate by the Board, considers multiple potential theories of DIC eligibility, and provides an extremely well-reasoned analysis with consideration of the Appellant's theories of service connection, available medical literature and the facts of this specific case. In the opinion of the Board, this IME opinion fully satisfies duty to obtain opinion in this case. See generally 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319 Fed. Cir. 2008). The Board also has an obligation to ensure compliance with prior remand or JMR directives. See Stegall v. West, 11 Vet. App. 268 (1998). Here, the RO has complied with the Board's October 2007 remand directives by obtaining all available VA treatment records and providing a VCAA letter in October 2007. Additionally, the Board responded to the most recent JMR by obtaining an adequate IME opinion. Thus, the Board finds compliance with prior remand and JMR directives. In sum, neither the Appellant nor her representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. Thus, VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Appellant is required to fulfill this duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Applicable criteria The Appellant contends that the Veteran suffered from frostbite on both legs while serving in Korea and that the residuals of frostbite led to massive circulatory/vascular problems, including thrombophlebitis, peripheral vascular disease (PVD), chronic venous stasis and multiple strokes. She asserts that these factors led to his eventual death. Alternatively, she contends that an in-service head injury caused him to develop vascular problems, which ultimately caused his death. DIC may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service. 38 U.S.C.A. §§ 1110, 1131. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). These chronic diseases include arteriosclerosis, arthritis, brain hemorrhage, brain thrombosis, cardiovascular-renal disease (including hypertension), diabetes mellitus, organic diseases of the nervous system and hemorrhagic purpura idiopathic. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") On his July 1964 separation examination, the Veteran reported a history of working with a radio-active substance. Service connection based upon exposure to ionizing radiation can be awarded on three different legal bases. Service connection may be established under the provisions of 38 C.F.R. § 3.309(d), 38 C.F.R. § 3.311, or on the basis of direct, or in certain cases presumptive, service connection. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Here, none of the potential conditions identified, or alleged, to have resulted in the Veteran's death are subject to presumptive service-connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), or among the list of diseases subject to special development under 38 C.F.R. § 3.311. Additionally, there is no allegation or evidence suggesting that any factor contributing to the Veteran's death was due to ionizing radiation exposure. See Combee v. Brown, 34 F 3d. 1039 (Fed. Cir. 1994). Thus, the Board finds no legal basis to consider ionizing radiation as a potential cause or contributing factor to the cause of the Veteran's death. Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(1). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R. § 3.159(a)(2). In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa. See 38 U.S.C.A. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits). Regardless of the source, an examination report must minimally meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim. See 38 U.S.C.A. § 5125; 38 C.F.R. § 4.2. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). A medical examiner's review of the claims folder may heighten the probative value of an opinion, as the claims folder generally contains all documents associated with a veteran's disability claim, including not only medical examination reports and service treatment records, but also correspondence, raw medical data, financial information, RO rating decisions, Notices of Disagreement, materials pertaining to claims for conditions not currently at issue and Board decisions disposing of earlier claims. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, an examiner's review of the claims folder is not required in each case. See Snuffer v. Gobber, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination); see also D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). A significant factor to be considered for any opinion is whether it is based on an accurate factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Although formal rules of evidence do not apply in the VA benefits system, the Court has indicated that recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the adjudicator's decision. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Within the VA benefits system, VA medical examiners and private physicians offering medical opinions in veterans' benefits cases are essentially considered expert witnesses. Nieves-Rodriguez, 22 Vet. App. 295 (2008). In Nieves-Rodriguez, the Court indicated that the Federal Rules of Evidence for evaluating expert medical opinion before U.S. district courts, Fed.R.Evid. 702, are important, guiding factors to be used by VA adjudicators in evaluating the probative value of a medical opinion. The factors identified in Fed.R.Evid 702 are as follows: (1) The testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. III. Analysis The Veteran died in April 2001. His death certificate, dated April 2001, lists the immediate cause of death as aspiration pneumonia with dementia as an underlying cause leading to death. COPD was identified as another significant condition contributing to death, but not the resulting underlying cause. No autopsy was performed. The Veteran served on active duty from November 1942 to January 1946, and from September 1947 through October 1964. STRs indicate the Veteran sustained abrasions on his left leg while on active duty. In July 1943, he was treated for and diagnosed with cellulitis of the left leg. A medical opinion was obtained in July 1947; the physician noted that the Veteran's left shin was still discolored from the previous "war injury," and that such discoloration had spread to other parts of the left leg and right foot. The Veteran reported aching of the legs in cold weather. The diagnosis was mechanical purpura of the left leg and both feet, probably secondary to impaired circulation resulting from the war injury (i.e., left leg lacerations/abrasions). In 1951, STRs show that the Veteran fell from a cliff while serving on active duty in Korea; he sustained an injury to the right side of his head. The fall resulted in severe headaches and dizziness, which continued after service. The Veteran was discharged from active service in October 1964. His July 1964 retirement examination reflected his report, inter alia, of frequent headaches, frequent dizziness, use of a back brace and working with a radio-active substance in 1960. His examination reflected normal clinical evaluations of all bodily systems except for partial deafness of the left ear. Urinalysis was negative for sugar. A chest x-ray and an electrocardiogram were interpreted as negative. Beginning in the late 1960s and early 1970s, post-service records indicate consistent complaints of bilateral leg pain and swelling. The Veteran was treated for thrombophlebitis during this time, as well as chronic bilateral venous insufficiency in the lower extremities. However, there was no lay or medical evidence of diabetes mellitus, peripheral vascular disease or dementia within one year of service discharge. A VA medical opinion in April 1982 confirmed diagnoses of trichophytosis (inactive at the time) and bilateral varicose veins, chronic stasis dermatitis and probable chronic thrombophlebitis of the right leg. In September 1991, the Veteran suffered from his first of several strokes. The Veteran was admitted into a nursing home, where he remained until his death in April 2001. A May 1998 VA Compensation and Pension (C&P) Cold Injury Protocol examination resulted in an impression of that the Veteran's condition was consistent with PVD and diabetic neuropathy. The skin was noted as severely xerotic; such changes were consistent with PVD and diabetes. However, the examiner stated that the residuals of the frostbite were difficult to elicit due to the Veteran's mental status (i.e., the Veteran was unable to answer subjective questions regarding the circumstances of the alleged frostbite). For that reason, the examiner generally concluded that his changes were consistent with PVD and xerotic-in-nature skin consistent with PVD and diabetes. In May 2009, the Board requested an expert medical opinion from the VHA. An opinion was received in June 2009. The physician opined that it was "definitely not" at least as likely as not that the Veteran's service-connected residuals of left leg cellulitis, diagnosed as trichophytosis, contributed to the cause of the Veteran's death. The physician then opined that it was "definitely not" at least as likely as not that the mechanical purpura diagnosed by a private physician in July 1947 was a contributory or principal cause of the Veteran's death. The physician stated that idiopathic hemorrhagic purpura (which could be subject to presumptive service connection as a chronic disease if manifest to a compensable degree within one year of service discharge) is a disorder of a kind of blood component called platelets and is a much more serious condition, while mechanical purpura is a much more benign condition, and as the name suggests, is secondary to some mechanical force such as rubbing, pressure, pinching, etc. Concerning frostbite, the physician opined that the Veteran's post-service symptomatology was not related to frostbite or its residuals and did not contribute to his death. Additionally, the physician opined that the Veteran's post-service symptomatology or residuals were not related to his fall and did not contribute to his death. The physician stated that the Veteran died of medical conditions that became apparent long after his discharge from service, namely, cerebrovascular accidents with aphasia and percutaneous endoscopic gastrostomy (PEG) tube for feedings, COPD, PVD, and diabetes mellitus. The physician stated these illnesses made the Veteran susceptible to aspiration pneumonia and he succumbed to that illness. In a January 2011 JMR, it was determined that the June 2009 VA examiner's opinion was inadequate, as it was not clear that the examiner adequately accounted for possible long-term residuals or complications as a result of the Veteran's cold exposure while serving in Korea. The JMR noted that the Veteran suffered from possible residuals, including PVD, diabetes and diabetic neuropathy, among other diseases and disorders prior to his death, and that these symptoms were similar to complications described in a VA Chief Public Health Officer's report as long-term related sequelae experienced by Veterans who had cold injuries. For clarification purposes, the VA Office of Academic Affiliation's Pocket Card Summary states as follows: The Korean War was fought from 1950 until 1953 and pitted the United States, South Korea and their UN allies against North Korea and the Chinese Communists. Cold injuries including frostbite and immersion (trench) foot constituted a major medical problem for U.S. service personnel during the Korean War. Veterans of the Battle of the Chosin Reservoir are recognized as having suffered especially high rates of severe cold injuries. Cold accounted for 16% of Army nonbattle injuries requiring admission and over 5000 U.S. casualties of cold injury required evacuation from Korea during the winter of 1950-1951. In many instances U.S. Service members did not seek or were unable to obtain medical care after cold injuries because of battlefield conditions. Documentation of such injuries may never have been made in their service medical records or may no longer be available. It is important for VA staff examining and caring for veterans who have experienced cold injuries to be familiar with the recognized long-term and delayed sequelae. These include peripheral neuropathy, skin cancer in frostbite scars (including in such locations as the heels and earlobes), arthritis in involved areas, chronic tinea pedis, fallen arches and stiff toes, nocturnal pain, and cold sensitization. These cold-related problems may worsen as veterans grow older and develop complicating conditions such as diabetes and peripheral vascular disease, which place them at higher risk for late amputations. (emphasis original). In August 2011, the Board requested clarification of the June 2009 VHA opinion. The physician submitted an inadequate opinion in August 2011. In September 2011, an additional clarification was requested. The physician submitted an opinion in October 2011 stating that the Pocket Card issued by the VA, as relating to Veterans who suffered frostbite during service in the Korean War, was reviewed. The physician submitted an opinion stating that it is likely, with 50 percent or more degree of probability, that the Veteran's post-service symptomatology was related to the frostbite he suffered during his service in Korea. The Board found this opinion to also be inadequate, as the physician did not offer an opinion regarding the Veteran's cause of death. A final clarification was requested in February 2012. The physician submitted an opinion in February 2012 indicating that the Veteran's causes of death as listed on his death certificate were aspiration pneumonia and dementia. The physician stated the Veteran had extensive medical problems, which ultimately led to his death. The physician then indicated that those potentially service-connected problems of diabetes mellitus and PVD likely were not (less than 50/50 probability) the primary cause(s) of his death, but would be considered minor contributory disease processes. The physician then opined that it is likely (greater than 50/50 probability) that his nonservice-connected COPD and multiple strokes led to the primary causes of his death, aspiration pneumonia, and dementia. In another JMR approved by the Court in April 2013, it was determined that the February 2012 VHA opinion was inadequate as it was not supported by sufficient rationale and explanation. The parties to the JMR also determined that, given the medical complexity of the case and the multiple inadequate opinions by the VHA physician, an IME opinion was warranted. The Board requested an IME opinion in July 2013 from a specialist of internal medicine. An opinion was received later that month by Board-Certified Specialist in Internal Medicine. In pertinent part, the opinion states as follows: [The Veteran] served in the US military during the Korean War. During his service, he was reported to have suffered frostbite as well as an instance of cellulitis of his left leg. He also sustained an instance of head trauma. The [V]eteran ultimately passed away at the age of 79 on 4/1/01. A review of the medical records shows that he died of respiratory failure and hyponatremia in the setting of longstanding insulin-requiring diabetes, chronic obstructive pulmonary disease, and dementia with associated aphagia requiring a gastric feeding tube. This file has been referred for review to a licensed board certified specialist in internal medicine who attests to no conflict of interest in this review and who has been asked the following: A. Whether it is at least as likely as not (50% or higher degree of probability) that any of the [V]eteran's post-service symptomatology, including PVD and diabetes mellitus, is related to military service and/or frostbite exposure while serving in Korea; and, if so, ANSWER: There is no plausible relation between the [V]eteran's military service and the development of diabetes. Any relationship to peripheral vascular disease is a little less straightforward. Peripheral vascular disease is generally divided into two types; the first is peripheral artery disease and the second is peripheral venous disease. With regard to peripheral artery disease, frostbite can cause long-term complications of vasospasm of the small arteries of the feet. However, frostbite does not cause long-term complications of the main arteries of the legs or anywhere else in the body. As far as peripheral venous disease, the development of frostbite and/or secondary cellulitis can compromise venous outflow of the legs and cause chronic and recurrent thrombophlebitis, which was reported in the materials I was asked to review. So, for that reason it is at least 50% likely that [the Veteran's] post service symptomatology of peripheral venous disease, namely stasis and recurrent thrombophlebitis was related to his military service and/or the frostbite exposure in Korea. B. Whether it is at least as likely as not that any such residuals were either a primary or contributory cause ( meaning that the service connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent ito [sic] the production of death) of the Veteran's death? ANSWER: [The Veteran died of a combination of his advanced age, COPD, respiratory failure, and hyponatremia, all occurring in the setting of insulin-requiring diabetes. In review of the provided medical progress notes, there was no mention of active treatment of any infection of the legs. It would only be recurrent leg infections that could be tied to his military service. As far as the comorbidities of COPD, advanced dementia requiring a feeding tube and hyponatremia, none of these primary causes of death could be linked in any plausible fashion to the [V]eteran's service. Further, I will note that it would be at least plausible that the [V]eteran's dementia may have been related to the head trauma that he sustained decades before. However, the record shows that the [V]eteran had multiple cerebrovascular accidents prior to his death. Therefore, it is very likely and certainly more likely than not that his advanced dementia was on the basis of what we call vascular dementia. Vascular dementia felt to be the result of multiple small or not so small infarcts is the second most common cause of dementia. While there is increasing awareness that head trauma can lead to long-term cognitive difficulties, I feel it is much more likely than not that the [V]eteran's dementia was on the basis of his vascular infarcts and/or undiagnosed Alzheimer's disease. To say that the dementia was primarily due to his single instance of reported head trauma would be a leap and certainly less likely than 50%. I would put the number as less likely than 10%. C. Address the following five considerations. 1. The [V]eteran's report during his lifetime that he suffered severe frostbite while serving in Korea. ANSWER: There seems to be adequate documentation that he had frostbite. I would not characterize the frostbite as severe, as there was no mention that he lost any limbs, digits or even parts of digits, so any frostbite would be mild to moderate at most. 2. The [V]eteran had been granted entitlement to VA benefits on service connection of trichophytosis, residuals of left leg cellulitis, rated as non-compensable. ANSWER: I do feel that the [V]eteran suffered from some long-term sequelae of the frostbite and some abrasions were reported. These abrasions became infected, causing what we call cellulitis. Further, the compromised skin and venous stasis increased the risk of fungal infection, which [the Veteran] was reported to have. Still, as a mentioned above, I do not think any of the sequelae in the legs contributed significantly to [the Veteran's] death. 3. The May 1998 VA C&P cold injury protocol examination showing that the [V]eteran suffered from peripheral vascular disease, diabetes, and diabetic neuropathy prior to his death. ANSWER: I considered all of these. It does seem that [the Veteran] suffered from at least peripheral venous disease as a subset of peripheral vascular disease. Further, he required insulin as well as oral agents for diabetes. He certainly would have been at increased risk for diabetic neuropathy. I will note that frostbite can similarly cause a peripheral neuropathy. Distinguishing between the effects of diabetes and long-term sequelae of frostbite would be difficult if not impossible. In any regard, I do not think that it is materially relevant to the cause of death. 4. The opinions of Dr. Patel. ANSWER: I did review Dr. Patel's opinions and findings. I agree with Dr. Patel that the [V]eteran's injuries during military service did not contribute significantly, if at all, to his death. 5. The VA Chief Public Health Officer's acknowledgment that diabetes and circulatory problems are the most common longstanding complications for [V]eterans who suffered from frostbite while stationed in Korea (reference cited). ANSWER: I have reviewed online the statement from the Korean War Health Issues, Office of Academic Affiliations of the US Department of Veterans Affairs. I would like to point out that the statement as well as general medical knowledge makes clear that frostbite does not cause diabetes. Instead, the statement from the Office of Academic Affiliations says that the cold-related problems of frostbite may "worsen as veterans grow older and develop complications such as diabetes and peripheral vascular disease." It is important to realize that frostbite does not cause diabetes. However, the effects of frostbite may be worsened if [the Veteran], or in this case which generalizes, the veteran, goes on to develop diabetes, but, again, there is no direct cause of diabetes from the frostbite. REFERENCES: In my opinions above, I drew upon several articles from the well recognized online publication called Up-to-Date. These articles were entitled: 1. Frostbite. 2. Etiology and Classification of Stroke. 3. Etiology, Clinical Manifestations and Diagnosis of Vascular Dementia. 4. Concussion and Mild Traumatic Brain Injury. In addition, I drew upon the United States Department of Veterans Affairs Office of Academic Affiliations publication, Military Health History Pocket Card for Clinicians. (emphasis original). On consideration of the lay and medical evidence of record, the Board finds that the Veteran's death was not proximately due to or the result of a service-connected disability, and that a service-connected disability did not materially accelerate death. Here, the record does not contain any dispute that the Veteran died in April 2001 at the age of 79 with his immediate cause of death identified as aspiration pneumonia due to or as a consequence of dementia with COPD being another significant condition contributing to death. At the time of death, the Veteran was service-connected for trichophytosis as a residual of left leg cellulitis. The Board accepts as factually true that the Veteran incurred frostbite and head injuries during service. The July 2013 IME opinion persuasively establishes that the Veteran's peripheral venous disease with stasis, recurrent thrombophlebitis and susceptibility to fungal infections result from frostbite residuals incurred in service. Thus, the Veteran's peripheral venous disease is a disease process that can be deemed of service-connected origin. The credible evidence also reflects that the Veteran incurred a head injury during service. There is no medical evidence of record diagnosing any long-term residuals. The IME opinion found that, while it was "plausible" that a head injury could result in dementia, the particular facts of this case establish that the Veteran's dementia was the result of multiple small infarcts which are well-documented in the record. The examiner further noted that vascular dementia is the second most common cause of dementia. In this particular case, the examiner found that attributing the Veteran's dementia to the head injury would be a "leap" with the probability of a "10%" likelihood. This probability, unfortunately, falls well short of meeting the equipoise standard of at least a 50% probability. A further review of the evidentiary record reflects no medical evidence suggesting that the Veteran's in-service head injury played any role in his advanced dementia. Thus, the Veteran's vascular dementia is a disease process which cannot be deemed of service-connected origin. The Board also finds that no additional diseases or disabilities manifested during the Veteran's lifetime which can be attributed to a service-connected origin. Here, the uncontradicted evidence shows that the Veteran's disabilities of aspiration pneumonia, vascular dementia, COPD and diabetes mellitus first manifested many years after active military service, and are not shown to be related to an event during active service. Notably, the Appellant has not alleged, and the Veteran had not alleged during his lifetime, that he manifested aspiration pneumonia, vascular dementia, COPD and/or diabetes mellitus during service or within one year from service discharge. The medical evidence shows that these disease processes manifested more than one year from service discharge in October 1964. Thus, there is no lay or medical evidence of an in-service manifestation of any of these disease processes with continuity of symptomatology thereafter. The Appellant has argued that the Veteran's frostbite residuals included massive circulatory and vascular problems, to include peripheral vascular disease and multiple strokes. Based, in part, on the Appellant's description of symptomatology, the IME examiner has concluded that the Veteran's peripheral venous disease - manifested by stasis, recurrent thrombophlebitis and susceptibility to fungal infections - resulted from the frostbite injury. The IME examiner premised this opinion on the fact that frostbite injuries and/or cellulitis can compromise venous outflow of the legs and/or cause long-term complication of vasospasm of the small arteries of the feet. However, the IME examiner explained that a frostbite injury does not cause long-term complications of the main arteries of the legs or elsewhere on the body. Thus, this examiner concluded that the Veteran's vascular dementia demonstrated no plausible relationship to service. The record does include an October 2011 VHA examiner opinion which opines that the Veteran's "post service symptomatology is related to the frostbite that he suffered during his service in Korea." It appears the VHA examiner intended "Peripheral Arterial Disease (circulatory problems)" to be among the "post service symptomatology." The Board finds that the October 2011 VHA examiner's opinion holds significantly less probative weight than the July 2013 IME examiner's opinion. First, the parties to the JMR have essentially concluded that the VHA examiner's multiple opinions are flawed, which has led to a directive for an IME opinion. Second, the VHA examiner opinion on this particular point is not supported by any rationale other than an assertion that he was retracting a prior opposite opinion based solely on the Pocket Card information. Importantly, the Board agrees with the IME examiner that the Pocket Card itself does not assert that frostbite injuries actually cause diabetes mellitus and peripheral vascular disease. The IME examiner, in conjunction with review of other medical literature, interprets the Pocket Card to state that "cold-related problems" (such as peripheral neuropathy, skin cancer, arthritis, chronic tinea pedis, fallen arches, stiff toes, nocturnal pain and cold sensitization) "may worsen" when a Veteran develops an age-related disease such as diabetes mellitus and peripheral vascular disease. In this Board's opinion, the IME examiner has provided a totally reasonable interpretation of very ambiguous language. Notably, the Pocket Card does not identify diabetes mellitus and peripheral vascular disease in the specific preceding sentences which refer to the "the long-term and delayed sequelae" of cold injury "which include" peripheral neuropathy, skin cancer, arthritis, chronic tinea pedis, fallen arches, stiff toes, nocturnal pain and cold sensitization. Third, the IME opinion is based upon the particular facts of this Veteran, rather than a veteran population at large, and includes a sophisticated distinction between the subsets of peripheral vascular disease and a reasoned opinion that a cold injury does not cause a long-term complication to the large arteries - again based upon review of medical literature and his own expertise. For these reasons, the Board places greater probative weight to the IME opinion rather than the October 2011 VHA examiner opinion, the Pocket Card general information and the Appellant's own personal opinion as it reflects a sophisticated and well-reasoned analysis based upon significant expertise as a Board-Certified Internal Medicine Specialist combined with review of recent medical literature. Thus, the Board finds that the Veteran's vascular abnormalities other than peripheral venous disease and impairment of the small arteries of the feet cannot be attributed to service origin. Similarly, the October 2011 VHA examiner opinion asserts that the Veteran's diabetes mellitus is related to his frostbite injury in service. Again, the VHA examiner retracted a prior opposite opinion based solely on the Pocket Card material and provided no reasoning. The IME examiner has found "no plausible relation" between diabetes mellitus and service, including the frostbite injury, based upon the particular facts of this Veteran, review of medical literature and an interpretation of the Pocket Card material which the Board finds to be reasonable. For the same reasons as above, the Board finds that the Veteran's diabetes mellitus cannot be attributed to service origin. In so finding, the Board places significantly greater probative weight to the July 2013 IME opinion than the October 2011 VHA examiner opinion, the Pocket Card information and the Appellant's own opinion. The Board next addresses the Veteran's head injury residuals. The July 2013 IME examiner found it "plausible" that the Veteran's dementia may have been related to his head injury inservice. However, the IME examiner found that the Veteran primarily manifested vascular dementia which is supported by the documented history of multiple lacunar infarcts. The IME found that it was more likely than not that the Veteran's dementia was due to his vascular infarcts as opposed to a 10 percent likelihood that the head trauma was responsible for the dementia. There is no opinion to the contrary other than the Appellant's own personal opinion. Overall, the Board places significantly greater probative weight to the IME opinion as this physician has greater medical education, training, and experience than the Appellant to speak to the complex issues at hand. The Board finally observes that, under 38 C.F.R. § 3.309(a), purpura idiopathic hemorrhagic is a chronic disease subject to presumptive service connection if such a disease is shown within one year of separation from the Veteran's first period of active service (i.e. January 1946). Here, the Veteran was diagnosed with "mechanical" purpura. The VHA examiner opinion in May 2009, while flawed for other reasons, does include a well-explained difference between mechanical and idiopathic purpura. There is no evidence during the Veteran's lifetime that he manifested a disorder of his blood platelets to warrant a change in diagnosis to idiopathic hemorrhagic purpura. Thus, service connection would not be warranted for purpura idiopathic hemorrhagic. Finally, while determining that peripheral venous disease may be deemed of service-connected origin, the Board finds that the Veteran's death was not proximately due to or the result of a service-connected disability, and a service-connected disability did not materially accelerate death. The most persuasive opinion comes from the July 2013 IME examiner who, while conceding peripheral venous disease as being of service-connected origin, and accepting as fact that the Veteran incurred a head injury in service, nevertheless found that service-connected disability did not contribute significantly to the cause of the Veteran's death. This was based upon review of the medical progress notes showing no specific treatment for peripheral venous disease contemporaneous in time to death, the history of vascular dementia, his training and experience, and reference to medical literature. There is no medical opinion to the contrary. The Board has considered the Appellant's arguments in support of her assertions that the Veteran died as a result of injuries sustained during service. The Appellant asserts that the Veteran has long suffered with residuals of frostbite and head injury residuals and experienced a continuity of symptomatology since discharge from service. The IME examiner, relying in part on her descriptions of symptomatology, has found frostbite residuals of peripheral venous disease and accepted a history of a head injury in service. Nonetheless, the Board finds that the etiology of the Veteran's cause of death, in this situation, is difficult to establish solely on the basis of lay assertions. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Appellant's own diagnoses and opinions regarding the Veteran's medical conditions hold significantly less probative value than the opinion of the IME examiner, who possesses greater medical education, training, and experience than the Appellant for answering these complex medical issues. While it is clear that the Veteran suffered from multiple disorders, the medical evidence of record as a whole does not indicate that the Veteran's principal (aspiration pneumonia) or contributory (dementia and COPD) causes of death were a result of any injuries or disorders sustained during service. Therefore, the Board finds that the preponderance of the evidence is against the Appellant's claim of service connection for the Veteran's cause of death. There is no doubt of material fact to be resolved in the Appellant's favor. 38 U.S.C.A. § 5107(b). The claim of service connection for the Veteran's cause of death, therefore, is denied ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs