Citation Nr: 1302131 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 07-28 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest (claimed as stroke), for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant & J.M. ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1967 to September 1993. The Veteran died in September 2006; the Appellant is the Veteran's surviving spouse. Procedural History This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the Appellant's claims of entitlement to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest (claimed as stroke), for accrued benefits purposes, and for the cause of the Veteran's death. The Appellant submitted a Notice of Disagreement (NOD) with this determination in March 2007, and timely perfected her appeal in September 2007. In December 2009, the Appellant testified before the undersigned Veterans Law Judge (VLJ), sitting at the RO in St. Petersburg, Florida. A transcript of this proceeding has been prepared and incorporated into the evidence of record. In April 2010, these claims came before the Board. At that time, the Board determined that additional evidentiary development was required prior to the adjudication of the Appellant's claims. VHA Medical Opinions In April 2012, the Board referred this case for medical expert opinion with the Veterans Health Administration (VHA). In May 2012, the Board received the VHA medical opinion. Unfortunately, however, in July 2012 the Board determined that additional clarification was necessary prior to the adjudication of the Appellant's claims and returned the claims file to VHA. In August 2012, a second VHA medical opinion was provided to the Board. The Appellant was provided with copies of both medical opinions and provided an opportunity to present further argument and/or evidence. Virtual VA The Board also notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the issuance of this decision. No additional records were added to the electronic record that were not already considered by the RO. FINDINGS OF FACT 1. The Veteran died in September 2006. 2. The Veteran's death certificate lists the immediate cause of death as aspiration pneumonia, with underlying causes of anoxic encephalopathy and respiratory failure. 3. At the time of the Veteran's death, he was service-connected for hypertension, considered noncompensably disabling. 4. The Veteran's anoxic encephalopathy and cardiopulmonary arrest did not manifest during, or as a result of, active duty service. 5. No disability that is attributable to the Veteran's active duty service substantially or materially contributed to his death. CONCLUSIONS OF LAW 1. Service connection for severe anoxic encephalopathy status post cardiopulmonary arrest, for accrued benefits purposes, is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The cause of the Veteran's death was not related to an injury or disease incurred in or aggravated by active military service, nor may it be presumed to be related thereto. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309(e), 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his 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. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a pre-decisional adjudication of the claim prior to providing § 5103(a)-compliant notice. In December 2006, notice was sent to the Appellant that partially complied with the requirements of Hupp. Specifically, this letter did not inform the Appellant as to what disabilities the Veteran was service-connected for at the time of his death. However, this was subsequently provided to the Appellant in an April 2010 notice letter. While this was not provided to the Appellant until after the initial adjudication of her claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Appellant prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Appellant in the development of a claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 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 obtained the Veteran's service treatment records. Also, a medical opinion was obtained from a VA physician in March 2011, and two additional VHA medical opinions were obtained in May 2012 and August 2012, copies of which have been incorporated into the claims file. Copies of the Veteran's death certificate and his private treatment records surrounding the time of his death have also been incorporated into the claims file. Significantly, neither the Appellant nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Appellant is required to fulfill VA's duty to assist her in the development of her claims. See 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its April 2010 remand directives. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the Appeals Management Center (AMC) provided the Appellant with notice consistent with the holding in Hupp, supra, and obtained a VA medical opinion. The AMC later issued a supplemental statement of the case in September 2011. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). As noted above, the Appellant was also afforded a hearing before the undersigned VLJ during which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the elements of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Appellant's claims. Significantly, neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Appellant is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Appellant has had a meaningful opportunity to participate in the adjudication of her claims such that the essential fairness of the adjudication is not affected. II. The Merits of the Claims The record reflects that the Veteran served in the United States Navy from March 1967 to September 1993. Service treatment records dated prior to December 1986 do not reflect that the Veteran suffered from a heart disability, respiratory disorder, anoxic encephalopathy or any associated symptomatology during his active military service. In December 1986, the Veteran sought medical treatment for a history of chest pains upon exertion, associated with shortness of breath. The examiner questioned whether the Veteran had a vague history of cardiac disease and hypertension. It was noted that the Veteran did not have a routine daily exercise program and smoked approximately two and a half to three packs of cigarettes per day for the prior 20 years. Examination of the heart revealed normal sinus rhythm. The examiner stated that he doubted the Veteran had any active cardiac disease. It was considered most likely that the Veteran's chest pain and associated shortness of breath were related to his being physically out of condition plus smoking excessively. See Service Treatment Record, December 15, 1986. During his February 1989 reenlistment examination, the Veteran's heart, lungs and chest were considered normal. A handwritten note indicated the presence of sinus tachycardia, which was due to the Veteran being overweight, but this was noted to be within normal limits. The Veteran also denied experiencing shortness of breath with exertion, high blood pressure, rapid heartbeat, irregular heartbeat, dizziness, fainting spells, chest pain or pressure, asthma or wheezing and pneumonia. See Standard Form (SF) 88, Service Reenlistment Examination Report, February 28, 1989. The Veteran continued to deny these symptoms in periodic examinations performed in June 1991 and May 1992. See SFs 93, Service Periodic Examination Reports, June 4, 1991 and May 30, 1992. Upon discharge, the Veteran's heart, lungs and chest were considered normal, though the Veteran was diagnosed with hypertension. The Veteran stated that he was in good health and specifically denied experiencing dizziness or fainting spells, asthma, shortness of breath, pain or pressure in the chest, palpitation or pounding heart and heart trouble. See SFs 88 & 93, Service Separation Examination Reports, July 19, 1993. The Veteran was service-connected for hypertension in October 1993, and assigned a noncompensable disability rating. In July 2002, the Appellant reported that the Veteran began to experience significant coughing, shaking, fever, exhaustion, and irritability. See Travel Board Hearing Transcript, December 8, 2009, p 5. On July 14, 2002, the Veteran was seen at the Mayport Naval Base clinic, transferred to Baptist Medical Center, and was ultimately admitted to the Jacksonville Naval Hospital. On July 15, 2002, the Veteran went into cardiac arrest. Shortly thereafter, he began to seize and required resuscitation. Following his resuscitation, the Veteran remained comatose until his death in September 2006. Id. at pp. 7 - 15. The Veteran's death certificate indicates that his death was caused by aspiration pneumonia with anoxic encephalopathy and respiratory failure listed as underlying causes. See Certificate of Death, September 25, 2006. A. Accrued Benefits Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. See 38 U.S.C.A. §5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). While an accrued benefits claim is separate from a Veteran's claim filed prior to death, the accrued benefits claim is derivative of the Veteran's claim; thus, an appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law. In January 2003, VA received a claim from the Veteran seeking entitlement to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest (claimed as stroke). The claim, inter alia, was denied in an April 2003 rating decision, which found that there was no record of the Veteran being treated for this condition while in service and although the current medical evidence did show that this condition existed in July 2002, this was more than eight years after the Veteran's discharge from active duty service, and there was no evidence that this condition was actually incurred in or caused by active duty service. The Veteran submitted an NOD in May 2003, and timely perfected his appeal in April 2004. Supplemental statements of the case were issued in September 2004 and April 2006. The Veteran died in September 2006. In October 2006, VA received the Appellant's claims of entitlement to DIC benefits. The Appellant seeks to establish service connection for severe anoxic encephalopathy status post cardiopulmonary arrest (claimed as stroke) for purposes of accrued benefits. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the Appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of his death, (iii) the Veteran would have prevailed on the claim if he had not died, and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. See 38 U.S.C.A. §§ 5101(a), 5121 (West 2002 and Supp. 2012); 38 C.F.R. § 3.1000 (2012); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The record reflects that the Veteran had an appeal for entitlement to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest pending at the time of his death. In addition, VA received the Appellant's claim for DIC benefits in October 2006, which was well within one year of the Veteran's death. Finally, the record reveals that the Appellant was the surviving spouse of the Veteran at the time of his death. Therefore, the only requirement that is in question is whether the Veteran would have prevailed on this claim, based on the evidence of record at the time of his death. Id. The Board now turns to the question of whether the Veteran was entitled to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest at the time of his death. A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As indicated above, the Veteran was diagnosed with severe anoxic encephalopathy status post cardiopulmonary arrest in July 2002. As such, Shedden element (1), current disability, has been satisfied. See Shedden, supra. With respect to Shedden element (2), in-service disease or injury, the Veteran's service treatment records reflect that in December 1986, the Veteran sought medical treatment for a history of chest pains upon exertion, associated with shortness of breath. It was noted that the Veteran did not have a routine daily exercise program and smoked approximately two and a half to three packs of cigarettes per day for the prior 20 years. Examination of the heart revealed normal sinus rhythm. The examiner stated that he doubted the Veteran had any active cardiac disease. It was considered most likely that the Veteran's chest pain and associated shortness of breath were related to his being physically out of condition plus smoking excessively. See Service Treatment Record, December 15, 1986. Upon discharge, the Veteran's heart, lungs and chest were considered normal, though the Veteran was diagnosed with hypertension. The Veteran stated that he was in good health and specifically denied experiencing dizziness or fainting spells, asthma, shortness of breath, pain or pressure in the chest, palpitation or pounding heart and heart trouble. See SFs 88 & 93, Service Separation Examination Reports, July 19, 1993. As such, while the Board acknowledges that the Veteran did suffer from some shortness of breath and chest pain during service, at no time was he diagnosed with severe anoxic encephalopathy, nor did he suffer from cardiopulmonary arrest during active duty service. As such, Shedden element (2) has not been satisfied. See Shedden, supra. Turning to crucial Shedden element (3), nexus, the Board finds that the post-service treatment records fail to establish that the Veteran suffered from a heart disability within one year of his discharge from service. Further, there is no post-service medical evidence to connect the Veteran's severe anoxic encephalopathy and subsequent cardiopulmonary arrest with his military service. As a final matter, the Board recognizes that the Appellant truly believes the Veteran's anoxic encephalopathy and subsequent cardiac arrest were a result of his military service. While the Board is extremely sympathetic to the Appellant's assertions, the evidence of record simply fails to demonstrate that it is at least as likely as not that the Veteran's active duty service resulted in anoxic encephalopathy. The evidence also fails to demonstrate that the Appellant is competent to offer a medical opinion as complex as the etiological origin of anoxic encephalopathy or cardiac arrest. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). As such, her testimony fails to demonstrate entitlement to service connection for accrued benefits purposes. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Appellant's claim of entitlement to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest (claimed as stroke), for accrued benefits purposes, must be denied. B. Cause of Death Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran's death. See 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related thereto. See 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially, and combined to cause death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(c)(1) (2012). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. "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." See 38 C.F.R. § 3.312 (c)(3) (2012). 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. See 38 C.F.R. § 3.312(c)(2) (2012). "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." See 38 C.F.R. § 3.312 (c)(4) (2012). The evidence of record demonstrates that the Veteran died in September 2006. The death certificate lists the immediate cause of death as aspiration pneumonia due to anoxic encephalopathy due to respiratory failure. In order to establish service connection for the cause of the Veteran's death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Cf. Shedden, supra. There is no question that element (1) has been met. The Board's discussion will therefore focus on elements (2) and (3). With respect to element (2), as discussed in part above, a review of the available evidence does not suggest that aspiration pneumonia, anoxic encephalopathy or respiratory failure was present in service. The Veteran's only service-connected disability was for hypertension, which was rated as noncompensably disabling. Therefore, element (2) has been met. With respect to element (3), nexus, in essence, the Appellant contends that the Veteran's cause of death should be service-connected because his service-connected hypertension either (a) caused or aggravated his cardiopulmonary arrest in July 2002, or (b) contributed substantially or materially to cause his death, combined to cause his death, or aided or lent assistance to the production of death. In attempting to determine the nature and etiology of the Veteran's cause of death, VA provided a medical opinion in March 2011. The VA examiner noted that at the time of death, the Veteran's temperature was 103 degrees, most likely secondary to aspiration pneumonia. The VA examiner noted that review of the Veteran's medical records revealed that he suffered from pneumonia in 2002, but had no significant recurrence until his death in 2006. Ultimately, the VA examiner stated that he could not determine whether the service-connected hypertension caused or aggravated any degree of the Veteran's cardiopulmonary arrest without resorting to speculation. In support of this conclusion, the VA examiner stated that the Veteran had a thyroid crisis and multiple medical problems, to include hypertension, diabetes mellitus, hyperthyroidism, esophageal motility condition and pulmonary infiltrates that all likely contributed to his cardiopulmonary arrest in July 2002. This determination was based upon the VA examiner's review of the relevant medical literature, review of the Veteran's VA claims file, and his own clinical experience. See VA Medical Opinion, March 9, 2011. Due to the speculative nature of the March 2011 VA medical opinion, the Board requested a medical opinion from VHA in April 2012. In May 2012, Dr. E.K.U. stated that he was a Board certified neurologist. The question posited was whether hypertension substantially or materially contributed to cause the death of the Veteran. Dr. E.K.U. noted that the Veteran was service-connected for hypertension in October 1993. Records revealed normal blood pressure readings upon enlistment and through 1978. Blood pressure readings were elevated beginning in 1984 through the Veteran's discharge in July 1993. It did not appear that the Veteran was treated for hypertension during his time in active duty service. The Veteran was also noted to be a smoker, up to two and a half packs of cigarettes per day. It appeared that his hypertension remained untreated for many years. The Veteran presented in July 2002 with several weeks history of cough, fever, and irritability and a one-week history of tremor and jitteriness. He was admitted due to these complaints, shortness of breath and tachycardia to a rate of 150, which did not respond to diltiazem. At the time of admission, he was noted to have not seen a doctor in many years, have a 60 pack-year smoking history (but quit two years prior) and drank up to 10 cups of coffee daily. There was no evidence of a stroke on examination. The chest examination showed diffuse wheezes, decreased air movement, and decreased breath sounds at the bases with tachycardia and normal heart sounds. After arrival on the floor, he became acutely short of breath and combative, pulling out his intravenous line. He was bagged and subsequently intubated when pulse was lost. Pulse was regained after introducing epinephrine into the endotracheal tube for a brief time, then converted to ventricular fibrillation. The Veteran was shocked once and pulse returned. He did not regain consciousness. Echocardiogram showed poor ventricular function with left ventricular ejection fraction of 10 to 15 percent, which improved over several weeks. Chest X-ray showed no infiltrates but cardiac enlargement, pulmonary congestion, and pulmonary effusion were evident. Creatine phosphokin (CPK) peaked at 20,000 and troponin at 25, subsequently returning to normal. He oxygenated poorly for weeks. He was found to be hyperthyroid with thyroid stimulating hormone of 0.02 (1 percent of normal). The Veteran remained in a persistent vegetative state. He was transferred to another hospital for ventilator weaning and ultimately to a long-term care facility. He expired in 2006 with fever and presumed sepsis due to aspiration pneumonia. See VHA Medical Opinion, May 22, 2012. The VHA examiner noted that he was neither a pulmonologist nor a cardiologist who might more appropriately address the question presented. He stated that he was most familiar with the risk factors for stroke, although they are essentially the same as those for coronary artery disease. It was noted that the Veteran had smoking, diabetes and hypertension as risk factors. Hyperlipidemia was not documented, but determined to also be likely. As such, the VHA examiner stated that hypertension was certainly a contributor to any vascular disease the Veteran may have had, but he could only speculate as to the degree of its contribution. It was noted that the Veteran did not have a stroke. Rather, he had anoxic brain damage from cardiopulmonary arrest. Id. From the available information, the VHA examiner opined that hypotension from a cardiac source was less likely a significant contributor. The Veteran responded to epinephrine down the endotracheal tube initially and rhythm was restored after the first cardioversion shock. The period of time where pulse was lost appeared to have been brief. It was noted that brain tissue is lost beginning in six minutes of complete ischemia. It was unlikely that these two brief episodes would result in a persistent vegetative state from wide-spread brain damage. In the VHA examiner's experience, clinical outcomes in such circumstances were much better. A more likely contributor was prolonged hypoxia with substantial contribution by hyperthyroidism causing a hypermetabolic state. The VHA examiner could only speculate as to the cause of the hypoxia and the role hypertension played in causing it. The elevated CPK and troponin suggested a myocardial infarction, but hypoxia/anoxia could have caused this as well. The improvement in cardiac function documented by echocardiogram without focal hypo- or dys-kinesia suggested the latter. As to the Veteran's ultimate demise, the VHA examiner stated that patients in a persistent vegetative state were at significant risk for pulmonary embolism from deep venous thrombosis (from immobility) and aspiration pneumonia. The most common cause of death was noted as respiratory related to pneumonia and sepsis. It was stated that hypertension did not directly contribute to either of these conditions in this setting and hence, was an unlikely contributor to the ultimate cause of death. Id. Dr. E.K.U. cited the following references in support of his medical opinion: * Stroke Risk Factors and Symptoms. National Institute of Neurological Disorders and Stroke, December 2009. http://www.ninds.nih.gov/disorders/stroke/stroke_bookmark.htm * Stroke Risk Factors. Mayo Clinic Staff, July 2010. http://www.mayoclinic.com/health/stroke/ds00150/dsection=risk-factors * Medical Aspects of the Persistent Vegetative State. Multi-Society Task Force on PVS, June 1994 NEJM 1994; 330: 1572-1579. * Coma Information Page. National Institute of Neurological Disorders and Stroke, October 2010. http://www.ninds.nih.gov/disorders/coma/coma.htm. * Coronary Artery Disease Risk Factors. Mayo Clinic Staff, July 2010. http://www.mayoclinic.com/health/coronary-artery-disease/ds00064/dsection=risk-factors * What are Coronary Heart Disease Risk Factors? National Heart Lung and Blood Institute, December 2009. http://www.nhlbi.nih.gov/health/health-topics/topics/hd/ See VHA Medical Opinion, May 22, 2012. Upon receipt of this opinion, the Board sought an additional medical opinion from a VHA cardiologist. In August 2012, Dr. C.C.H. submitted a second VHA medical opinion. The Veteran's aforementioned medical history was outlined in the report. Dr. C.C.H. was asked the following questions. (1) State whether it is "at least as likely as not" (a probability of 50 percent or higher) that the Veteran's service-connected hypertension caused or aggravated his cardiopulmonary arrest in July 2002. Dr. C.C.H. replied: Hypertension by itself does not lead directly to cardiopulmonary arrest. It was of note that the patient did not have extremely elevated blood pressure upon initial presentation. Indirectly, longstanding untreated hypertension is a risk factor for coronary disease and stroke. The presentation was not characteristic for acute coronary syndrome or typical for hypertensive urgency. From the information in the medical record, I do not see clinically that the service-connected hypertension is related to the primary life-ending event, hyperthyroidism; therefore not "50% or higher." (2) State whether it is at least as likely as not (a probability of 50 percent or higher) that the Veteran's service-connected hypertension contributed substantially or materially to cause his death, combined to cause his death, or aided or lent assistance to the production of death. Dr. C.C.H. replied: The fact that the patient had severe hyperthyroidism and clinical "thyroid storm," a very serious condition, which can lead to the deterioration of many organ systems, complicates the picture. Therefore, the answer is no, the service-connected hypertension did not contribute with a probability of 50 percent or higher. In other words, without a medical history of hypertension, one can have the same outcome with acute thyroid storm at least as likely. With respect to the question of supporting rationale, Dr. C.C.H. stated the following: What comes into question from a cardiac standpoint in this case is the reduced heart function found by echocardiogram (a type of ultrasound) of the cardiac muscle and elevated cardiac enzymes (troponins, CPK levels from blood testing) that suggest the heart was damaged. My opinion, based upon documented clinical presentation of the patient without chest pain or "angina equivalent" the presence of sustained atrial arrhythmias, electrocardiogram findings not suggestive of acute coronary thrombosis, with the above mentioned abnormalities suggestive of a type II non-st-elevation myocardial infarction, defined as: myocardial (heart muscle) injury consequent to increased oxygen demand or decreased supply seen in arrhythmias and severe acute disease states, which results in high myocardial oxygen demand. The Veteran appeared not to have had a classic "heart attack," but had secondary damage to the heart muscle as a result of the refractory arrhythmias and serious clinical picture characteristic of thyroid storm; hence, the cardiac enzyme elevations with reduction in heart muscle function by echocardiogram. Dr. C.C.H. cited the following references in support of her medical opinion: * http://www.uptodate.com/contents/classification-of-unstable-angina-and-non-st-elevation-myocardial-infarction/abstract/1 * http://www.uptodate.com/contents/cardiovascular-effects-of-hypothyroidism/abstract/1 * http://www.uptodate.com/contents/criteria-for-the-diagnosis-of-acute-myocardial-infarction/abstract/1 * http://www.uptodate.com/contents/thyroid-storm/abstract/7 See VHA Medical Opinion, August 22, 2012. The May 2012 and August 2012 VHA medical opinion reports are not speculative or inconclusive. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [medical opinions which are speculative, general or inconclusive in nature cannot support a claim]. The VHA examiners provided specific supporting reasons for their opinions that the Veteran's service-connected hypertension did not cause or contribute to his death. Further, the VHA examiners referred to specific medical treatise evidence in support of their opinions. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). As such, the Board finds that the medical evidence of record reflects that the Veteran's service-connected hypertension did not singly or jointly with some other condition cause the Veteran's death; did not contribute substantially or materially to the Veteran's death; did not combine to cause death; and did not aid or lend assistance to the production of death under 38 C.F.R. § 3.312(c). The Board is sympathetic to the Appellant in that it is clear she sincerely believes her spouse's death was caused by his service-connected hypertension. However, the most probative medical evidence of record does not support this contention. As a lay person who has not been shown to be capable of making medical conclusions, the Appellant's statements that his service-connected hypertension contributed to his death are substantially outweighed by the conclusions set forth in the aforementioned VA and VHA medical opinion reports. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In summary, the evidence clearly establishes that the Veteran's service-connected hypertension neither caused nor materially contributed to his death. Accordingly, the Appellant's claim fails on the basis of element (3) under Shedden and the claim of entitlement to service connection for the cause of the Veteran's death must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for severe anoxic encephalopathy status post cardiopulmonary arrest (claimed as stroke), for accrued benefits purposes, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs