On appeal from the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant, C.W., and D.L.
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is the surviving spouse of the veteran who
served on active duty from April 1943 to July 1945. The
veteran died in February 2000.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 rating decision by the
Newark, New Jersey, Regional Office (RO) of the Department of
Veterans Affairs (VA). In April 2002, the appellant
testified at a personal hearing before the undersigned
Veterans Law Judge. A copy of the transcript of that hearing
is of record. In light of the determination below, the Board
finds the appellant's claim for compensation under the
provisions of 38 U.S.C.A. § 1318 is moot.
FINDINGS OF FACT
The medical evidence shows that there is a reasonable
probability that the veteran's death due to myocardial
infarct, sepsis, and pneumonia was incurred as a result of
medication taken for his service-connected psychiatric
disorder.
CONCLUSION OF LAW
Resolving all reasonable doubt in the appellant's favor,
service connection for the cause of the veteran's death is
warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.303, 3.312 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. § 3.303 (2004).
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. See 38 U.S.C.A. § 1310 (West
2002); 38 C.F.R. § 3.312(a) (2004). In order to constitute
the principal cause of death the service-connected disability
must be one of the immediate or underlying causes of death,
or be etiologically related to the cause of death. See
38 C.F.R. § 3.312(b).
In order to be a contributory cause of death, it must be
shown that there were "debilitating effects" due to a
service-connected disability that made the veteran
"materially less capable" of resisting the effects of the
fatal disease or that a service-connected disability had
"material influence in accelerating death," thereby
contributing substantially or materially to the cause of
death. See Lathan v. Brown, 7 Vet. App. 359 (1995);
38 C.F.R. § 3.312(c)(1).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102 (2003).
In this case, the veteran's death certificate listed the
cause of his death as myocardial infarct, sepsis, and
pneumonia. VA records show that at the time of the veteran's
death service connection had been assigned for post-traumatic
stress disorder (PTSD) (100 percent), defective hearing (20
percent), and tinnitus (10 percent).
In statements and personal hearing testimony submitted in
support of the claim the appellant asserted that the
veteran's long-time use of the medication Stelazine for his
service-connected PTSD had resulted in Parkinson's-like
symptoms and an eventual inability to swallow. It was
claimed that because of this inability to swallow a feeding
tube had been inserted and the veteran subsequently developed
the infection and aspiration pneumonia that caused his death.
VA examination in April 1966 noted the veteran was taking
Stelazine daily. An April 2001 VA medical report noted the
veteran had received psychotropic medications including
Sertraline and Olanzapine which could cause dysphagia, but
that the disorder could also be caused by other pathological
conditions. The examiner stated it was impossible to
determine the etiology of the veteran's dysphagia.
Medical literature submitted in support of the claim included
articles noting that antipsychotic/neuroleptic medications
such as Olanzapine may result in pseudo-Parkinsonism
contributing to dysphagia. Another report noted Olanzapine
and other anti-psychotic drugs should be used cautiously in
patients at risk for aspiration pneumonia.
An April 2004 VA medical opinion noted there were no records
of the detailed work-up that led to a feeding tube placement
and that it could not be confirmed that the veteran had
dysphagia. The examiner stated that in the absence of
records confirming dysphagia an opinion as to the etiology
could not be provided. It was noted, however, that in
patients that cannot protect their airway from their own
secretions or feedings there was a baseline increased risk
for aspiration. The examiner stated it was likely this,
rather than the feeding tube itself, contributed to the
veteran's aspiration pneumonia.
Thereafter, a copy of a "Dysphagia Evaluation" report dated
September 25, 1998, was added to the records assembled for
appellate review. This report reflects that the veteran was
seen for a clinical dysphagia evaluation on September 22 and
a videofluoroscopy swallow study on September 24, 1998. The
assessment was as follows: "Severe pharyngeal dysphagia
characterized by reduced pharyngeal bolus propulsion, large
amounts of stasis in the valleculae and pyriform sinus,
laryngeal penetration and silent aspiration. Prognosis for
improvement is guarded given the patient's age and cognitive
status."
On September 29, 1998, the veteran was placed on nasogastric
tube feedings at the recommendation of the dysphagia team.
He tolerated his feedings. Subsequently, in October 1998, he
had a percutaneous endoscopic gastrostomy inserted.
Thereafter, he was fed through a gastrostomy tube. Treatment
records dated in December 1999 show that the veteran's
gastrostomy tube had been plugging frequently. In January 5,
2000, the veteran's abdomen was noted to be distended, soft,
and firm. Medication and extra fluids were given. On
January 23, 2000, he was seen for a fever of 103.4 degrees,
tachypnea and diaphoresis. He was noted to have rhonchi in
his lungs with decreased breathing sounds on the right. His
abdomen was soft and nontender with his feeding tube in
place. An impression of aspiration pneumonia was rendered.
He was transferred to the East Orange, New Jersey, VA Medical
Center (VAMC).
The veteran remained hospitalized with a fever at the East
Orange VAMC from January 23, 2000, until his death on
February 1, 2000. Laboratory findings during this
hospitalization were positive for a Staph infection. He was
transferred to the Medical Intensive Care Unit (MICU) for
impending respiratory failure with only a transient response
to Lasix and Proventil nebulizer. While in the MICU, he had
a possible left lower lobe infiltrate. He was noted to have
pneumonia and probable aspiration. Laboratory findings were
consistent with a myocardial infarction. Chest x-ray
revealed congestive heart failure and left lower lobe
infiltrate. Principal diagnosis was septic shock with
additional diagnoses of myocardial infarction, diabetes,
dementia, coronary artery disease, and hypertension.
In an April 2005 report, a VA medical expert who reviewed the
records in this case, stated that the possible etiologies for
pharyngeal dysphagia included dementia and neuroleptic
medication. It was noted that both of these factors may have
contributed to the disorder, but that it could not be
determined which of these was the main factor. The physician
also stated that the main contributing factor for the
veteran's aspiration was pharyngeal dysphagia which can lead
to pneumonia and sepsis.
In a statement dated in June 2005, C. Bash, M.D., reported
that he had reviewed the records in this case and offered the
following opinion:
It is my opinion that this patient's
swallowing problems were likely due to
his service induced need for psychotropic
medications and that this swallowing
problems likely lead to his aspiration
pneumonia and eventual demise.
Based upon the evidence of record, the Board finds the
medical evidence shows the veteran's death due to myocardial
infarct, sepsis, and pneumonia was incurred as a result of
medication taken for his service-connected psychiatric
disorder. The medical evidence demonstrates dysphagia was
the main contributing factor for the veteran's aspiration
pneumonia and that his use of neuroleptic medication for a
service-connected disability may have caused his dysphagia.
Applying all reasonable doubt in the appellant's favor, the
Board find entitlement to service connection for the cause of
the veteran's death should be granted.
ORDER
Service connection for the cause of the veteran's death is
granted.
