Citation Nr: 1307352 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-01 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for gunshot wound to the throat for purposes of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and 3 Witnesses ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1952 to October 1954. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which, in relevant part, denied service connection for a gunshot wound to the throat and granted service connection for residuals of a scar from a tracheotomy and assigned a noncompensable disability rating, effective August 23, 2007, the date the claim for service connection was received. In July 2012, the appellant, the Veteran's daughter, and two family friends testified at a Travel Board hearing before the undersigned. A copy of the hearing transcript is of record. The above claim was remanded by the Board in April 2012 for additional development. The additional development having been completed, the case was returned to the Board for adjudication. A review of the Veteran's Virtual VA electronic claims file is negative for additional evidence or information pertinent to the claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had a claim for entitlement to service connection for a gunshot wound to the throat pending at the time of his death, and a claim for accrued benefits was received within one year after his death. 2. The preponderance of the evidence indicates that the Veteran did not sustain a gunshot wound to his throat during military service. CONCLUSION OF LAW Entitlement to service connection for a gunshot wound to the throat is not warranted for purposes of accrued benefits. See 38 U.S.C.A. § 1110, 1154(b), 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires the United States Department of Veterans Affairs 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). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the claimant of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent a letter to the appellant in February 2008 that addressed the notice elements concerning the accrued benefits claim. In the February 2008 letter, VA explained the evidence necessary to substantiate the appellant's accrued benefits claim, as well as the legal criteria for entitlement to such benefits. VA also provided notice regarding how disability ratings and effective dates for the award of benefits will be assigned if service connection is granted or a higher evaluation is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the foregoing, the Board finds that VA has discharged its duty to notify. For the reasons discussed above, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The Board also concludes VA's duty to assist has been satisfied. A review of the record shows that it contains the Veteran's complete service treatment records. Correspondence received from the NPRC in October 2007 and February 2011, however, indicates that the Veteran's service personnel records are fire-related, cannot be reconstructed, and are therefore unavailable for review. A formal finding as to the unavailability of the Veteran's service personnel records was completed in September 2011. In October 2011, the appellant completed and returned NA Form 13055 (Information to Reconstruct Medical Data) and 13075 (Questionnaire About Military Service). An April 2012 deferred rating decision indicates that the Veteran's service treatment records are complete and any further development as to his service personnel records is futile because NA Form 13055 pertains to development of service treatment records rather than personnel records. The RO determined that as a formal finding as to the unavailability of the Veteran's service personnel records was completed in September 2011, a new formal finding was not necessary. The appellant was notified as to the unavailability of the Veteran's service personnel records in March 2012 and she was requested to submit any records or alternative forms of evidence in her possession. The appellant responded with a statement indicating that she was the Veteran's girlfriend at the time of his alleged gunshot wound during service. She recalled the military notified his parents who notified her that he had been shot during service. In light of the foregoing, the Board finds that any further attempts to obtain the Veteran's service personnel records would be futile. The record also contains a report of a private CT scan dated in June 2007, an April 2008 statement from Dr. PL, Vet Center treatment notes dating from August to October 2007, the Veteran's death certificate, and testimony of the claimant, her daughter in common with the Veteran, and two longtime family friends during the July 2007 Travel Board hearing. Neither the appellant nor her representative have referenced further outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. As explained below, there is no credible evidence that the Veteran sustained a gunshot wound to his throat during service as alleged by him prior to his death and as alleged by the appellant. Thus, a VA medical opinion addressing any residuals of such was not obtained and it is not necessary to obtain a medical opinion to resolve the claim. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir 2008); Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). See also 38 U.S.C.A. § 5103A(a). 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accrued Benefits The appellant essentially contends that the Veteran asserted to her that he was shot in the throat while on the battlefield in Korea, and, when he awoke, he was in the hospital in Seoul, Korea. Thus, she contends that service connection is warranted for a gunshot wound to the throat for accrued benefits purposes. The law and regulation governing claims for accrued benefits state that, upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). Although the appellant's claim for accrued benefits that are at issue in this appeal are separate from the claim of the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the claim of the Veteran and, by statute, the appellant takes the Veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). Further, a "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104. "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). Entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as VA treatment records) in the Veteran's claims folder when he died. See 38 U.S.C.A. § 5121(a) (West 2002); see also Ralston v. West, 13 Vet. App. 108, 113 (1999). In August 2007, the Veteran submitted an application for service-connected compensation for multiple claimed conditions, to include a throat condition resulting from a gunshot wound. While the Veteran's service connection claim was being developed, and prior to adjudication of the claim, VA was informed of the Veteran's death in October 2007. On November 1, 2007, the appellant submitted a claim for any accrued benefits. As claim for service connection for a gunshot wound to the throat was pending at the time of his death and the appellant filed a claim for accrued benefits within one year of the Veteran's death, the Board will consider the merits of the claim based on the evidence of record at the time of the Veteran's death. See 38 C.F.R. § 3.1000. As noted above, entitlement to accrued benefits is determined based on evidence in the file or constructively of record at the time of his death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000. As the Veteran died in October 2007, evidence which was not of record or constructively of record at that time may not be considered in the adjudication of the appellant's claim for accrued benefits. For instance, a private medical statement dated in April 2008 from Dr. PL, as to the nature and the Veteran's reported etiology of the scar on his neck, was clearly not in the file or constructively of record at the time of his death. Therefore, this evidence may not be considered in the adjudication of the appellant's claim for accrued benefits. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, a veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes the Veteran was in receipt of a Korean Service Medal, a United Nations Korean Medal, a National Defense Service Medal, a Combat Infantry Badge, a Republic of Korea Presidential Unite Citation, and one Bronze Service Star for his combat service in Korea. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. 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). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Here, prior to his death, the Veteran sought entitlement to service connection for "throat trouble" in March 1955. He indicated that his throat was operated on in September 1953at the 48th Station Hospital in Seoul, Korea. The claim was denied in March 1955 due the Veteran's failure to provide information requested to substantiate his claim. The Veteran's service treatment records showed that on August 22, 1953, he received treatment, to include an injection of penicillin, at the 548th General Dispensary due to complaints of a sore throat and a temperature of 101 degrees. The following day he complained of a sore throat, mostly on the left, with some dysphagia, difficulty swallowing, and dyspnea. He was given injections of penicillin and epinephrine with some improvement and medevaced to the 48th Station Hospital for edema (angioedema) of the glottis. Upon arrival at the 48th Station Hospital, there was tenderness in left side of his neck over the submandibular area, edema of the uvula, and effusion and swelling of the pharynx with exudate. He was given sedation and a paravertebral injection of Benadryl with slight to no improvement. Over the next three hours, there was an increase in edema, dyspnea and the Veteran became unable to swallow. He had an episode of severe dyspnea, was agitated, and there was slight cyanosis. A tracheotomy was performed. The following day his condition was improved. His temperature was down and he was able to swallow liquids. His throat was aspirated for thick mucus. The left throat and peritonsillar area was swollen. General physical examination was otherwise normal. A throat culture was positive for staph albus bacteria and streptococcus. On August 25th, the tracheotomy tube was removed. The wound healed satisfactorily and the remainder of his hospital course was uneventful through September 7, 1953. At that time, he was discharged to duty. His discharge diagnoses included acute tonsillitis and tracheotomy. On September 10, 1953, the Veteran underwent an ENT consultation due to complaints of shortness of breath when overheated due to exercise. It was noted that he was post tracheotomy three weeks prior due to epiglottitis and laryngeal edema secondary to a peritonsillar abscess. Physical examination revealed a tracheotomy scar at the midline of his neck, which was described as well healed, non tender, and non adherent to the trachea. Laryngeal examination was negative. The diagnostic impression was that there was no evidence of a trachea stricture. In October 1954, the Veteran's separation examination was negative for any abnormalities of the head, face, and neck and he was qualified for release from active duty service. A VA report of hospitalization for an anal fissurectomy dated in April 1959 shows an "other condition" of chronic tonsillitis, asymptomatic, untreated and unchanged. In August 2007, the Veteran filed a claim for service connection for multiple conditions, to include a gunshot wound to his throat. In October 2007, VA was notified that the Veteran passed away on October [redacted], 2007 due to acute cardiac arrest and atrial fibrillation. Correspondence received from the NPRC in October 2007 indicated that the Veteran's service records are fire-related. It was noted that although there are alternate records sources that often contain information which can be used to reconstruct parts of a lost service record, the type of information requested (records of the Veteran's claimed in-service asbestos exposure or jobs the Veteran performed) could not be reconstructed. In November 2007, the claimant's application for accrued benefits was received. In February 2008, the RO contacted the claimant to see if she had any evidence to submit in support of her claim. She said that she was not sure and wanted to think about it for a day or two before making a decision. In a statement received in March 2008, the claimant stated that the Veteran, her deceased husband, served in the Korean War where he sustained serious injuries when he was shot in the throat/neck during the war. She indicated that she had no additional evidence to submit. She waived the 60 day waiting period and requested that her claim be decided. In the March 2008 rating decision, the RO, in relevant part, granted service connection for residuals of a scar from a tracheotomy and denied service connection for a gunshot wound to the throat. In April 2008, a statement was received from Dr. PL, the Veteran's private physician prior to his death. He stated that he provided medical treatment to the Veteran for a number of years prior to his death. He stated that the Veteran had a large scar on his neck consistent with his report that he sustained a gunshot wound during military service. He stated that there was no other surgical or medical reason for the scar to be there. During the July 2012 Travel Board hearing, the claimant, her daughter in common with the Veteran, and two longtime family friends testified that the Veteran reported that the single scar on his neck was the result of a gunshot wound sustained on the battlefield in Korea. He reportedly indicated that when he "came to" he was receiving treatment at a facility in Seoul, Korea. The claimant stated that she was the Veteran's girlfriend at the time that he was shot during service. She recalled that the military notified the Veteran's parents of his gunshot wound and they notified her. They testified that the Veteran had a single, odd shaped scar on his neck that was not present prior to his enlistment but was present at the time of his discharge. At the time of his discharge the Veteran reportedly related the scar on his neck to a gunshot wound sustained during combat. He frequently spoke of his military service and of his military occupational duties as an infantryman in Korea. He never described any other gunshot wound or shrapnel injury that the appellant, her daughter, or the other witnesses could recall. His daughter recalled that he experienced difficulty swallowing, which he related to surgical treatment in the field that ruined how his esophagus worked. The claimant did not recall whether the Veteran sought medical treatment for complications of the scar immediately after service. As previously noted, the Board remanded this claim in October 2012 for obtainment of the Veteran's VA treatment records pertaining to a work-up for posttraumatic stress disorder as alluded to during the July 2012 hearing. Those records show that he underwent an initial assessment for PTSD in August 2007. He was accompanied by his wife and daughter. He reported that he was exposed to combat daily during service in Korea and that he was shot at by children while performing the duties of his military occupational specialty as a rifleman. He reportedly sustained a gunshot wound to his neck in the Korean War Zone when a bullet ricocheted off of a piece of metal. He was reportedly placed on convalescence in Seoul, Korea, for four months prior to being discharged to duty. He stated that he received a Purple Heart for his injury and that VA should give him the money that he is owed.. He reported difficulty swallowing, breathing, and speaking since the alleged gunshot wound. He denied any prior VA treatment. His reported medical problems and medications at that time were negative for any medical problems or medications pertaining to his throat and his claimed residuals of his gunshot wound during service. Following service, he worked for his city maintenance department where he retired from in 1996. During a PTSD group treatment session in October 2007, the Veteran stated that he was on Pork Chop Hill in 1953. It was noted that his speech was difficult to understand due to his throat injury and a stutter. Regrettably, the Veteran's service personnel records could not be obtained as they have been found to be fire-related. His service personnel records could not be reconstructed. Where "service records are presumed destroyed . . . the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board has reviewed all relevant service and post-service medical evidence. The Veteran's service treatment records, which appear to be complete as they were associated with the claims file in connection with a 1955 claim for service connection many years prior to the fire at the NPRC in 1973, are negative for any mention of a gunshot wound to the throat. Indeed, physical examinations during service, to include at the time of the tracheotomy in August 1953 and during a follow-up ENT consultation in September 1953 due to concern for a possible trachea stricture, specifically state that with the exception of the tracheotomy due to laryngeal edema secondary to quinsy (peritonsillar abscess), physical examination was otherwise negative. Moreover, as noted above, the report of the Veteran's separation examination in October 1954 was negative for any findings, complaints, or diagnoses of the head, neck, or throat and there was no mention of any history of a gunshot wound to the throat at that time. Such findings in the Veteran's service treatment records are also consistent with the Veteran's initial March 1955 claim for service connection for "throat trouble," which was negative for any mention or report that he sustained a gunshot wound to his throat during service. Additionally, on his March 1955 claim for service connection for throat trouble, the Veteran reported that it pertained to surgery on his throat in September 1953. This coincides with his August 1953 tracheotomy documented in his service treatment records for which he received treatment for through September 1953. Additionally, the April 1959 report of hospitalization for anal surgery noted a condition of chronic tonsillitis that was asymptomatic and untreated and unchanged, which is consistent with the Veteran's in-service tracheotomy in August 1953 due to laryngeal edema secondary to quinsy. The April 1959 report of hospitalization also contained no mention of any history of a gunshot wound to the Veteran's throat and his throat was stated to be asymptomatic at that time. Finally, during the July 2012 hearing, the appellant and her daughter testified that he had only a single odd shaped scar on his neck which is not consistent with both a tracheotomy as documented in his service treatment records and a gunshot wound to the neck during service as alleged. At the July 2012 hearing, the representative argued that service connection should be granted for the alleged gunshot wound to the Veteran's throat during service based on 38 U.S.C.A. § 1154, which provides that consideration should be accorded to the circumstances of service. 38 U.S.C.A. § 1154(b) provides that in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. However, it is also provided that service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. In this case, the Board accepts that the Veteran engaged with combat with the enemy during service. However, as noted above, there is simply no evidence in the Veteran's service treatment records to corroborate that he sustained a gunshot wound to the throat during service as alleged. In fact, as discussed above, there is substantial evidence against finding that he sustained any such wound. In particular, the Board again notes the treatment records explaining the nature and circumstances of the tracheotomy performed in August 1953 and the follow-up ENT consultation in September 1953 due to concern for a possible trachea stricture. Most significantly, in addition to the absence of any reference to any history of a gunshot wound at separation, the record reflects that the Veteran himself filed a March 1955 claim for service connection for "throat trouble," which he reported was related to surgery on his throat in September 1953. As noted, the Board finds it very significant that this date corresponds roughly to the his August 1953 tracheotomy documented in his service treatment records for which he received treatment for through September 1953. Given the contemporaneous clinical findings establishing the circumstances surrounding his tracheotomy in 1953, as well as the Veteran's own statements shortly after service attributing his throat problems to that tracheotomy with no mention of any intervening injury, to include a gunshot wound, the Board must conclude that the presumption of credibility afforded under 38 U.S.C.A. § 1154(b) as to any statements he subsequently made regarding sustaining a gunshot wound in service are rebutted by clear and convincing evidence to the contrary. Under these circumstances, the criteria for service connection for a gunshot wound to the throat have not been met, and the claim for service connection for such for the purpose of accrued benefits must be denied. The Board acknowledges that the claimant, her daughter, and the witnesses at the hearing are competent to report what the Veteran told them as to the etiology of the scar on his neck. The Board finds, however, in light of the evidence discussed above, that any report by the Veteran that he sustained a gunshot wound to his throat during service are not credible and of no probative value. As the contentions of the appellant's daughter and the witnesses at the hearing that the scar on the Veteran's neck is the result of a gunshot would to the throat during military service are based solely on those reports, the Board must conclude that they are also of no probative value. The Board also acknowledges that the appellant is competent to report that she was told by the Veteran's parents that he was shot during military service shortly after the injury occurred. However, in weighing the credibility and probative value of her report, it must be considered that the appellant is recalling events that occurred approximately 60 years ago, and that there is no question that a significant medical emergency occurred leading to a tracheotomy, but it is only the circumstances surrounding that event that are at issue. In any event, given the detailed clinical findings in his service treatment records as well as the Veteran's own report when he filed his initial claim in 1955, regardless of whether the appellant is purposely mischaracterizing what she was told while he was on active duty or unintentionally doing so, the ultimate conclusion is that her report of being told by the Veteran's parents that he was shot in service is simply not credible evidence. In closing, the Board is certainly sympathetic to the contentions of the appellant and her family members, and appreciates the sincerity of their belief that the Veteran sustained a gunshot wound on active duty. Nevertheless, for all the foregoing reasons, the Board concludes that the claim for service connection for a gunshot wound to the throat for accrued benefits purposes must be denied. In this regard, the Board emphasizes that service connection was established for a scar of the throat as a residual of the in-service tracheotomy. However, as the combat presumption annunciated above has been rebutted and there is no credible evidence to support a finding that the Veteran sustained a gunshot wound to this throat during service, the claim of entitlement to service connection for the residuals of a gunshot wound for the purposes of accrued benefits must be denied. ORDER Entitlement to service connection for a gunshot wound to the throat for accrued benefits purposes, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs