Citation Nr: 20002589 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 08-13 489 DATE: January 14, 2020 ORDER Entitlement to service connection for the Veteran’s cause of death is denied. FINDINGS OF FACT 1. The Veteran died in May 2007. His death certificate lists the immediate cause of death as anoxic encephalopathy due to cardiopulmonary arrest of unknown cause. 2. At the time of his death, the Veteran was service-connected for residual scars of a gunshot wound to the right side of his neck, left nasal orbital area, right leg, right shoulder, and left hand. 3. The most probative evidence of record is against a finding that any service-connected disability, singly or jointly with some other condition, was the immediate or underlying cause of the Veteran’s death, was etiologically related thereto, contributed materially or substantially to death, combined to cause death, or aided or lent assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death are not met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1951 to March 1954. He was awarded a Purple Heart Medal with one oak leaf cluster and the Combat Infantryman Badge. He died in May 2007, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in March 2010, September 2012, July 2014, and February 2019. In a November 2017 decision, the Board denied the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted a Joint Motion for Remand (JMR), remanding the matter for action consistent with terms of the JMR.. Entitlement to service connection for the Veteran’s cause of death The Appellant contends that the Veteran’s service-connected neck scars prevented paramedics from promptly intubating the Veteran following his cardiopulmonary arrest in May 2007, resulting in his death. Alternately, the Appellant asserts that surgery performed in 1953, following the Veteran’s gunshot wound in service, resulted in a myocardial infarction that caused injury to the Veteran’s heart, contributing to heart disease later in life and, ultimately, to his death. To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal or contributory cause of death. A service-connected disability is considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A service-connected disability is considered the contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the evidence of record, the Veteran’s service treatment records (STRs) reflect that in January 1953, he sustained shell fragment wounds (SFWs), to include a fragment entering the left side of his nose and exiting the right side of his neck. A few days following the injury, it was noted that the Veteran reported some difficulty with swallowing but that he was handling liquids okay. In March 1953, the Veteran underwent an operation for his SFWs. During surgery, he experienced a blood pressure reaction, resulting in a diagnosis of myocardium infarction. In June 1953, the Veteran underwent a cardiac fluoroscopy following his provisional diagnosis of myocardium infarction, which yielded normal cardiac results. In November 1953, the Veteran underwent an electrocardiogram which was normal. The examiner opined that the sequence of events that transpired during the Veteran’s March 1953 surgery “strongly suggest an adrenaline reaction,” stating that there was no evidence of actual necrosis, and that clinical findings 9 months later indicated that healing was complete. The examiner concluded that, at the time of the examination, there was no evidence of heart disease. The Veteran’s March 1954 separation examination is silent for reported symptoms of or a diagnosis of a heart disorder, nor did the Veteran report any difficulty with swallowing. Post-service private treatment records confirm a diagnosis of coronary artery disease (CAD). The Veteran was initially treated in 2006 for underlying CAD. In early May 2007, he was found unresponsive outside his place of employment. Attempts by emergency medical services (EMS) to intubate the Veteran in the field were unsuccessful, but emergency room (ER) staff were able to intubate the Veteran without issue. Upon examination, a neurologist determined that the Veteran suffered from anoxic encephalopathy post cardiopulmonary arrest. While electroencephalogram (EEG) testing showed only brainstem functioning, the Veteran was given a poor prognosis, resulting in his family removing him from life support. He passed away soon after. The Veteran’s death certificate lists the immediate cause of death as anoxic encephalopathy due to cardiopulmonary arrest of unknown cause. In support of her claim, the Appellant submitted a private medical opinion in April 2010 by Dr. D. H., who specializes in diseases and trauma to the head, neck, and spine. Dr. D. H. acknowledged that there are many unanswered questions, to include whether the Veteran’s in-service gunshot wound to the neck hindered initial intubation following his cardiorespiratory event resulting in his death, and whether the Veteran suffered a cardiac injury during service that contributed to his cardiorespiratory event that resulted in his death. Dr. D. H. opined that the Veteran’s in-service gunshot wound caused difficulty in initial intubation following the Veteran’s cardiac event that resulted in his death, stating that medical technologists are well-trained and highly qualified so the trouble that they faced with initial intubation was due to the Veteran’s service-connected neck scars. Dr. D. H. also opined that he believed there was sufficient evidence within the Veteran’s STRs to suggest that some cardiac injury may have occurred. However, he indicated that this fact is not provable. Pursuant to the Board’s March 2010 remand directives, a VA medical opinion was obtained in June 2010 to determine whether the Veteran’s death was related to his active service or a service-connected disability. The VA medical opinion provider, Dr. D. M., opined that it is less likely than not that the Veteran’s 1953 surgery to correct a SFW injury is related to the cardiac events that occurred prior to the Veteran’s death, stating that the Veteran had risk factors for CAD, to include diabetes and hypertension (HTN), which are more likely to contribute to his CAD diagnosis later in life than the 1953 surgery in-service. Regarding the Veteran’s service-connected neck scars, Dr. D. M. opined that it is less likely than not that these scars contributed to the Veteran’s cause of death, indicating that the inability of EMS to intubate the Veteran in the field is more likely a reflection of an EMS personnel’s ability to perform intubation successfully on the ground versus in the ER where there is a more controlled environment. An addendum VA medical opinion was obtained in October 2010 from Dr. D. M., in accordance with the Board’s September 2012 remand directives. Dr. D. M. was asked to consider the Veteran’s lay statements of records, as well as Dr. D. H.’s April 2010 private medical opinion. Dr. D. M. indicated that, upon review of the record, his previous June 2010 VA medical opinion remained unchanged. Moreover, he refuted Dr. D. H.’s April 2010 private medical opinion, stating that Dr. D. H. indicated that many of his own medical questions regarding the Veteran’s death were unanswerable. Lastly, Dr. D. M. indicated that the evidence of record did not suggest that the Veteran had difficulty swallowing due to his service-connected neck scars. Pursuant to the Board’s July 2014 remand directives, a VA medical opinion was sought from an expert in cardiac medicine to determine whether the Veteran’s death by anoxic encephalopathy due to cardiopulmonary arrest of unknown cause was in any way related to his active service, to include his March 1953 surgery for a sustained gunshot wound. The August 2014 medical opinion provider, Dr. W. M., opined that it is extremely unlikely that the Veteran’s death by anoxic encephalopathy due to cardiopulmonary arrest of unknown cause is related to the March 1953 surgery that was associated with an initial diagnosis of myocardial infarction. In support of his opinion, Dr. W. M. stated that according to the Veteran’s STRs, the myocardial infarction noted in 1953 had resolved within two months, as confirmed by additional in-service medical tests. These in-service examinations determined that the Veteran did not have cardiac disease. Dr. W. M. also opined that it is extremely unlikely that any service-connected disabilities contributed to the Veteran’s death, stating that the record is silent for evidence that facial and neck scars from the Veteran’s previous shrapnel injury affected oropharyngeal or tracheal anatomy such that endotracheal intubation would have been more difficult. He indicated that it is unlikely that delayed intubation would have contributed to Veteran’s death because the Veteran was found after a prolonged period of unconsciousness and neurologic function is likely to have already been compromised by that point with very little chance of recovery. In February 2016, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). In May 2017, the VHA medical expert opinion provider, Dr. E. B., opined that it is less likely than not that any service-connected disabilities contributed substantially or materially to Veteran’s cause of death, stating that the Veteran’s service-connected neck scar from the 1953 in-service injury had no attachment to deeper structures, as it was found to be freely movable and without pain on subsequent examinations prior to the Veteran’s death. Further, Dr. E. B. rationalized that the Veteran was able to be intubated in the ER without issue, and that it is known that intubation in the field may be difficult due to the positioning of the patient and the lack of access to suctioning. Additionally, Dr. E. B. opined that it is less likely than not that the Veteran’s death by anoxic encephalopathy due to cardiopulmonary arrest of unknown cause was in any way the result of his active service or any incident therein, to include the March 1953 surgery that resulted in an initial diagnosis of myocardial infarction. In support of her opinion, Dr. E. B. indicated that the Veteran received epinephrine during the first nasal surgery to prevent excess bleeding, which is a common practice. She stated that, as the Veteran’s STRs reflect that the initial cardiac issue resolved, confirmed in November 1953 by an examining cardiologist who concluded that the Veteran’s symptoms were not consistent with ischemia, it is more likely that the Veteran’s March 1953 notation of a myocardial infarction was in response to the epinephrine received during the March 1953 surgery, which caused the Veteran to develop extreme HTN and demonstrate electrocardiogram (EKG) changes during this episode. Following the Board’s November 2017 denial of the Appellant’s claim for service connection for the cause of the Veteran’s death, which a September 2018 Court Order remanded in accordance with the JMR to obtain an adequate medical opinion that considers the Veteran’s reported difficulty swallowing, the Board remanded the matter in February 2019. In accordance with the Board’s remand directives, upon review of the Veteran’s claims file, the June 2019 VA medical opinion provider, Dr. G. B., opined that it is less likely than not that the Veteran’s service-connected neck scars prevented intubation by EMS, stating that there is only one mention of difficulty swallowing in the record, which was three days after the Veteran was wounded in 1953, although it was noted that he could swallow liquids without trouble. Dr. G. B. stated that, while the Appellant’s statements of record indicate that the Veteran had a long history with swallowing and/or choking issues, there are no notations in his medical records indicating choking problems associated with eating or drinking. Dr. G. B. goes on to state that, even accepting that the Veteran had chronic difficulty with choking while eating and drinking, this type of choking would involve a problem with the Veteran’s esophagus and not his larynx. If the Veteran had significant scarring in his esophagus that adversely affected his swallowing, he would have had dysphagia and weight loss. In support of his opinion, Dr. G. B. points out that the Veteran’s weight in 1999 was 172 pounds, while his weight in December 2006, a few months prior to his death, was 171 pounds. He concludes that this evidence supports the contention that the Veteran did not have difficulty swallowing or choking severe enough to adversely affect his health, as the record is silent for evidence of extreme weight loss or inadequate nutrition, therefore, his service-connected neck scars would not have prevented intubation by EMS due to difficulty with swallowing and/or choking. Additionally, Dr. G. B. opined that it is less likely than not that Veteran’s service-connected neck scars produced difficulty swallowing to a significant enough of a degree that would have prevented EMS from intubating him in the field in May 2007. He indicated that the medical evidence of record does not reflect that the Veteran had any scarring of his larynx or trachea, which normally would lead to difficulty breathing, as well as voice alterations or hoarseness. He stated that while the Veteran was seen numerous times over the years by many different medical providers, there is no mention of difficulty breathing or hoarseness in his STRs or post-service treatment records. Further, in support of his opinion, Dr. G. B. states that while intubating in the field is much more of a challenge than doing so on an ER table in a more controlled setting, the Veteran was promptly intubated without problems by ER staff as soon as he was taken there by EMS. Dr. G. B. indicated that if there was scar tissue that prevented him from being intubated by EMS, this would have been encountered and noted by the ER attending, and here, the ER notes state that intubation was accomplished without complication. Dr. G. B. concludes that there was no scarring of the Veteran’s larynx or trachea from his service-connected neck scars that prevented intubation, and that EMS was simply not able to intubate the Veteran in the field given the challenging environment versus a more controlled ER environment. After consideration of the entire record and relevant law, the Board finds that service connection for the cause of the Veteran’s death is not warranted. Turning first to the Appellant’s contention that the Veteran’s service-connected neck scars prevented paramedics from promptly intubating him following his cardiopulmonary arrest in May 2007, which ultimately resulted in his death, the Board finds Dr. G. B.’s February 2019 VA medical opinion to be highly probative, as it is competent, credible, persuasive, based on a review of the Veteran’s entire claims file, and it is supported by an adequate rationale. Here, Dr. G. B. opined that, accepting the fact that the Veteran had difficulty swallowing, as the Appellant’s lay statements indicate, this difficulty swallowing was not severe enough in nature to have prevented EMS from intubating him in May 2007, as the Veteran’s STRs and post-service treatment records are silent for symptoms of difficulty breathing and voice hoarseness, which would contribute to scarring on the larynx or trachea and could ultimately cause difficulty with intubation. Further, Dr. G. B. opined that the Veteran did not have any problems with his esophagus, as the medical evidence of record did not reflect symptoms of dysphagia or weight loss, which would be suggestive of significant scarring of the esophagus and could cause difficulty with intubation. Here, Dr. G. B. concluded that while EMS faced more of a challenge in the field intubating the Veteran, the Veteran was promptly intubated without problems upon his arrival by the ER staff, and that had there had been scar tissue of significance that prevented him from being intubated by EMS, this would have been encountered and noted by the ER attending, and the Veteran’s file is silent for any such notes. The Board acknowledges the Appellant’s July 2019 statement arguing that Dr. G. B.’s medical opinion is inadequate because it found that the Veteran’s neck scars “had no attachment to deeper structure” and did not consider the Appellant’s lay statements that the Veteran experienced difficulty swallowing throughout his life. The Board notes that Dr. G. B. merely lists that he reviewed the 2017 VHA medical opinion of record which provided the above-quoted statement. The Board finds that Dr. G. B.’s medical opinion is adequate as it reflects consideration of the Appellant’s lay statements as to the Veteran’s swallowing issues and the rationale for his opinion includes discussion of these statements in relation to the relevant medical evidence of records. In light of the foregoing, the Board finds that the Veteran’s service-connected neck scars were neither the principal or contributory cause of his death. Lastly, regarding the Appellant’s assertion that the surgery performed in 1953, following the Veteran’s in-service gunshot wound, resulted in an initial diagnosis of a myocardial infarction that caused injury to the Veteran’s heart, contributing to heart disease later in life and, ultimately, to his death, the Board finds the May 2017 VHA expert medical opinion by Dr. E. B. to be highly probative, as it is competent, credible, persuasive, based on a review of the Veteran’s entire claims file, and it is supported by an adequate rationale. Here, Dr. E. B. indicates that the Veteran’s STRs reflect that during a November 1953 examination, following the March 1953 initial myocardial infarction diagnosis, the examining cardiologist found no current evidence of ischemia, noting that any issues found in March 1953 had resolved. Further, Dr. E. B. agreed with the in-service examining cardiologist findings that the Veteran’s noted myocardial infarction from March 1953 occurred in response to receiving epinephrine during the surgery, which is a common practice, and thus caused the Veteran to develop HTN and demonstrate EKG changes during the surgery. While Dr. D. H.’s April 2010 private medical opinion suggests that the Veteran suffered a cardiac injury in service that contributed to the cardiac event that resulted in his death, the Board affords greater probative weight to Dr. E. B.’s May 2017 VHA expert medical opinion, as it is based on a full review of Veteran’s claims file and it offers adequate supporting rationale, citing specifically to the Veteran’s STRs and post-service treatment records, whereas Dr. D. H.’s opinion is furnished without the benefit of access to the Veteran’s claims file, specifically, to include the nature of the Veteran’s in-service 1953 injury, and it primarily relies on speculation, rather than adequate supporting rationale. Based on the foregoing, the Board finds that the Veteran’s cause of death did not have its onset in or is otherwise related to his period of active service, to include due to the March 1953 surgery that resulted in an initial diagnosis of myocardial infarction. As such, the claim for service connection for the cause of the Veteran’s death is denied. Although the Board is sympathetic to the Appellant’s claim and acknowledges the years of honorable service the Veteran provided, taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. Although the Appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.