Citation Nr: 21025372 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-43 331 DATE: April 28, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in April 2013; his death certificate lists the cause of death as multiple injuries due to a fall from a height; no other underlying cause of death or significant condition contributing to death is listed. 2. The Veteran had established service connection for posttraumatic stress disorder with associated insomnia and depression (PTSD), migraine headaches, chronic bilateral thumb strain, thoracolumbar spine degenerative joint disease, bilateral knee degenerative joint disease, status post right foot fracture to include degenerative joint disease with minimal calcaneal plantar and achilles tendon spurs, residual of healed right scapula fracture with severe limited motion, chronic condition to account for dizziness, status post fractured coccyx, hemorrhoids, and status post right inguinal hernia repair with residual scar. 3. The evidence shows that the Veteran ‘s death resulted from traumatic injuries sustained in his postservice occupation; the preponderance of the evidence is against a finding that his service-connected disabilities caused or contributed to cause his death or the traumatic event that resulted in his death. CONCLUSION OF LAW Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to August 2007, including two combat tours . He died in April 2013, and the appellant is his surviving spouse. This matter is before the Board on appeal from an April 2014 Department of Veterans Affairs (VA) rating decision. In August 2018 and October 2020, the matter was remanded for additional development. Entitlement to service connection for the cause of the Veteran’s death is denied. The Veteran died in April 2013. His death certificate lists the immediate cause of his death as multiple injuries due to or as a consequence of a “fall from height”. Other listed details show that the fatal injury occurred when the Veteran fell from a tree. The manner of death was deemed an accident, and the Veteran died at a private emergency room, less than one hour after the accident occurred. At the time of his death, the Veteran’s service-connected disabilities included PTSD, migraine headaches, chronic condition manifested by dizziness, hemorrhoids, hernia residuals, and disabilities of the thumbs, knees, right foot, right shoulder, thoracolumbar spine, and coccyx. The appellant contends that the Veteran’s PTSD, migraine headaches, chronic condition to account for dizziness, multiple musculoskeletal disabilities, and/or medications taken to treat such conditions, caused, or contributed to, his death. An April 2013 newspaper article includes details of the incident that resulted in the Veteran’s death. Paramedics responded to a “fall call”, and they arrived to learn that the Veteran had fallen between 40 and 50 feet from a tree while trimming it. The Veteran’s brother stated that he took all of precautions while working on cutting a tree that was hanging over his street: he had his ladder and chainsaw tied to a tree and was wearing a safety harness; however, part of the tree he cut fell in an unexpected direction and knocked him from the tree, and it appeared the safety line either snapped or was cut by the chainsaw. The article states that resuscitation efforts were successful while en route to the hospital until he went into cardiac arrest, and he was pronounced dead at the hospital. The appellant submitted an August 2013 medical opinion from a nurse practitioner who treated the Veteran intermittently for multiple health issues both acute and chronic. The provider noted that the Veteran was also treated by VA physicians for multiple chronic service-related issues including migraines, vertigo, and mood disorder for which he was treated with medications. The provider opined that due to the actual conditions (specifically the migraines, dizziness, and mood disorder) in conjunction with the medications he was taking, these factors most likely also contributed to the Veteran’s fall and subsequent death. The provider opined that the medication regimen alone could cause slower reflexes, noting that the Veteran awoke with headaches and that the Topamax he took had listed as a side effect dizziness, from which he already suffered. The provider noted that the medication can also cause ataxia, diplopia, tremor, nystagmus, and many other side effects. The provider noted that another medication the Veteran took, carbamazepine, had listed as common reactions dizziness, drowsiness, impaired coordination, blurred vision, nystagmus, confusion, and weakness, among others. The provider opined, “Without specifically listing all his other medications and common reactions to the medications, it is clear to me that given his service related disabilities and the medication regimen used to treat those conditions, this must be taken into consideration as a significant contributing factor in his death.” In a March 2014 VA advisory opinion, the reviewing provider opined that it is less likely than not that the Veteran’s service-connected conditions, to include PTSD, migraine headaches, chronic dizziness, degenerative joint disease of both knees, chronic bilateral thumb strain, residual of healed fracture of the right scapula, degenerative joint disease of the thoracolumbar spine, degenerative joint disease of the right foot, status post fractured coccyx, hemorrhoids, and status post inguinal hernia repair, and the effects of the medications to treat these disabilities, caused or contributed to the Veteran’s death. The medical opinion was based on a review of the claims file, the death certificate which noted a fall from a height and multiple injuries as the cause of death, an April 2011 ear disease report which noted no signs of a staggering gait or imbalance, and that the provider could find no clear evidence in the medical records presented for review to support such a claim. In a November 2020 VA record review and advisory medical opinion. the reviewing provider noted that an April 2011 examination noted that the Veteran reported becoming lightheaded and dizzy on standing up for a while or even when sitting down, which happened daily. The provider opined that this indicated that change of position triggered his dizziness and may come any time, and strongly suggested that it may happen anywhere, even on the ground or up on a tree. The provider noted that dizziness comes with loss of balance and falling from a tree is always associated with loss of balance. The provider noted that the Veteran had established service-connected for a chronic condition manifested by dizziness and opined that his principle cause(s) of death, accidental fall, or the contributing cause(s) of death, chronic condition manifested by dizziness, is at least as likely as not (50 percent or greater probability) related to the Veteran’s service-connected disability. The reviewing provider opined that the remaining service-connected disabilities less likely than not have a causal relationship with dizziness or cause loss of balance. In a December 2020 addendum, the VA reviewing provider amended the previous medical opinion. The reviewing provider cited the death certificate’s listed cause of death, and the Veteran’s brother’s statements in the newspaper article that he had taken all of the safety precautions while working on cutting the tree. The reviewing provider opined that that the brother’s statement was consistent with the incident and therefore dizziness did not contribute to the Veteran’s death, as the incident was purely accidental. The reviewing provider opined that there is no clear evidence to note that the Veteran had issues with dizziness at the time of the incident. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must be shown to have contributed substantially and materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Because the August 2013 private opinion submitted by the appellant and the March 2014 VA reviewing provider’s opinions were inadequate for rating purposes (and based on an incomplete record, because critical details regarding the circumstances of the incident were not of record, noted, or addressed), the Board sought further development to ascertain the circumstances (and cause) of the Veteran’s fall from the tree, and an additional medical opinion based on a review of the record to reconcile the previous opinions. The December 2020 clarifying addendum VA opinion reflects familiarity with the Veteran’s record, and includes rationale that cites to supporting factual data. It is probative evidence in the matter, and the Board finds it persuasive. There is no equally (or more) probative evidence in the record that the listed underlying cause of death (multiple injuries due to a fall from a height) was etiologically related to the Veteran’s service, or that his service-connected disabilities contributed materially to cause the fall that resulted in his death, or hastened his death from the traumatic injuries. The Board acknowledges the appellant’s sincere belief that the cause of the Veteran’s death was etiologically related to his service connected disabilities. Whether the Veteran’s fall was due to his service-connected dizziness disability or the various medications he took for service-connected disabilities (which may have equilibrium or dizziness or light-headedness side-effects) is only in part a medical question. The medical opinion that addresses that question must be based informed by complete knowledge of the demonstrated facts regarding the circumstances of the fall in question. Here that best evidence of those circumstances is in the newspaper account described above. No first-hand evidence disputing that account has been submitted or is shown to be available. The Board interprets the medical opinions in the record that support the appellant’s claim as stating, in essence, that the Veteran’s service-connected disabilities included one that that was manifested by equilibrium and balance problems (and that he also took medication that may cause such problems and light-headedness); that such problems may cause sudden onset loss of balance or equilibrium; that such loss of equilibrium may cause falls; and that therefore the Veteran’s fall that resulted in his death was due to his service connected disabilities and medication he took for such disabilities. However, neither of the opinions supporting the claim accounts for (or acknowledges awareness of the shown facts in this case). Neither addresses that the known facts (based on the account by the Veteran’s brother) regarding the incident show that the fall was precipitated by the accidental cutting of a branch, which fell in an unforeseen direction, knocking the Veteran from his roost high above the ground and causing him to fall to the ground far below, and that the safety line which would have protected him from a complete fall either snapped or was severed by the chainsaw the Veteran was using. There is nothing in those circumstances that suggests dizziness, light-headedness, or loss of equilibrium was a factor, and neither supporting opinion provider explains the basis for the assumption, considering the circumstances, that it was. Accordingly, the Board finds the supporting medical opinions less than persuasive. The only medical opinion in the record that addresses the question of whether the Veteran’s service-connected disabilities and medication he took for such disabilities caused or contributed to cause his death by causing or contributing to cause the fall and resulting traumatic injuries that caused his death and also includes rationale that reflects consideration of all the critical facts, particularly the full circumstances of the fall, is the December 2020 VA provider’s clarifying opinion. In that opinion, upon consideration of additional evidence in the record pertaining to the circumstances of the Veteran’s fall, and in particular the Veteran’s brother’s account of how the fall occurred (which was found to be consistent with what the record otherwise shows), the provider concluded that dizziness was not a factor in the death causing fall, and that the facts show that the cause of the fall was purely accidental. Because that opinion reflects familiarity with the entire factual record and includes rationale that cites to facts shown, the Board finds it to be probative, indeed the most probative, evidence in the matter, and persuasive. The Board notes the Veteran’s meritorious service to our country. He is a hero, and his death is a great loss to his community and the country he served, as well as to the family he has left behind. The Board sympathizes with his wife and children who must now face that loss, knowing it will not be easy. Nevertheless the Board must make its decision based on governing law and regulations applied to facts found. Considering the factual record described above, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s death was caused by a service connected disability or that a service-connected disability contributed materially to caused his death. Therefore, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.