Citation Nr: 0504612 Decision Date: 02/17/05 Archive Date: 02/24/05 DOCKET NO. 02-09 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to compensation under the provisions of title 38, United States Code, Section 1151, for the veteran's death claimed to have resulted from treatment at a VA medical facility. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from October 1941 to April 1945. He died in January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision by of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2002, the appellant appeared at a hearing local hearing at the RO. The case was previously before the Board and was remanded in October 2003. FINDINGS OF FACT 1. The veteran died as a result of a self-inflicted gunshot wound. 2. The proximate cause of the veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing medical treatment. CONCLUSION OF LAW The requirements for compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for the cause of the veteran's death resulting from a January 1998 hospitalization have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.358 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), is codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. After reviewing the claims folder, the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The discussions in the February rating decision, the May 2002 statement of the case, and the August 2002 and January 2004 supplemental statements of the case informed the claimant of the information and evidence necessary to warrant entitlement to the benefit sought. Moreover, in February and March 2001 letters, the appellant was advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that these letters were sent to the appellant prior to the February and May 2002 rating decisions. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). It is further noted that February 2001 and March 2001 RO letters and the October 2003 Board remand implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was repeatedly advised to identify any source of evidence and that VA would assist in requesting such evidence. The Board believes that a reasonable inference from such communications was that the appellant must also furnish any pertinent evidence that the appellant may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. The record contains an opinion from a VA examiner as to the impact the veteran's hospitalization had on his death. Moreover, all available pertinent records, in service, private, and VA, have been obtained, including an autopsy report. In addition, the appellant appeared at a hearing at the RO in April 2002. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to the issue on appeal. Under these circumstances, no further action is necessary to assist the claimant with the claim. 38 U.S.C.A. § 1151 Initially, the Board notes that 38 U.S.C. § 1151 was amended by section 422(a) of Pub. L. No. 104-204. The revised law is effective with respect to claims filed on or after October 1, 1997. The appellant's claim for DIC was after this date and therefore, the amended law is applicable. See VAOPGCPREC 40- 97 (Dec. 31, 1997). Under the amended law, compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service- connected. For purposes of this section, a disability or death is a qualifying additional disability if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). The regulations provide that, in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the physical condition subsequent thereto. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition that the medical or surgical treatment was designed to relieve. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358(b). The additional disability or death must actually result from VA hospitalization, medical treatment, or surgical treatment, and not merely be coincidental therewith. In the absence of evidence satisfying this causation requirement, the mere fact that aggravation occurred will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.358(c)(1), (2). Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the medical or surgical treatment provided. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would in fact be administered. 38 C.F.R. § 3.358(c)(3). If the evidence establishes that the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, the additional disability or death will not be compensable, except in the case of a veteran who is incompetent. 38 C.F.R. § 3.358(c)(4). A review of the record demonstrates that the veteran died on January [redacted], 1998. The immediate cause of the veteran's death as listed on the death certificate is a perforating contact gunshot wound to the head. There were no other causes listed. The appellant contends that the VA hospital improperly discharged the veteran on January 24, 1998, and that as a result of the improper discharge, the veteran committed suicide. In support of her claim, the appellant submitted a July 2001 letter from C. S., M.D. Dr. S. indicated that he had been asked to review the veteran's medical records and assess whether proper care and diligence were applied to the veteran's care. He noted that the veteran died just one day after discharge from hospitalization for gastrointestinal bleeding due to duodenal ulcers which were not actively bleeding during his hospital stay. Dr. S. noted that during his hospital stay, the veteran had fevers in excess of 101 degrees. He had an upper gastrointestinal endoscopy that confirmed small duodenal ulceration and erosions. There was mild gastritis as well. He was discharged on a number of medications which included Prevacid, Metronidazole, Tetracycline, and Benazepril. He noted that the latter medication and dosing was of extreme interest in that the discharge medications advised him to take this as 40 mg four times daily. This dosage for a hypotensive agent of ACE inhibitor class exceeded the upper limit maximal dose by 2-4 fold. He further reported that additionally, the veteran was known to have coronary heart disease. He stated that according to observations during his hospitalization and from his spouse, he was confused intermittently, seemed to have personality changes, and was more distant and noncommunicative. The veteran seemed to be too ill to be discharged at that time per his spouse and clearly acted unlike his usual self. He stated that constitutionality and emotionally, the veteran seemed too ill for discharge. On top of this he was to take a significant and toxic benazepril dose per medical instructions. He noted that the veteran was a devout Jehovah's Witness, in whom suicide was anathema. He indicated that the final act of his self-inflicted gunshot wound to the head seemed incomprehensible except in a situation of medical and toxic depression. He noted that it was his belief that serious concerns regarding the veteran's quality of care had been raised including issues of premature discharge from the hospital, toxic medication doses, fevers of unknown origin, and so on. At the time of her April 2002 hearing, the appellant testified that the veteran was wearing diapers when she took him to the hospital due to bleeding. Thereafter, he was admitted. She noted that when she arrived at the hospital one morning she was met by five doctors to discuss the veteran's discharge plans. She indicated that she told them that the veteran was in no condition to go home. She testified that the veteran had written a note stating that he was throwing up blood and bleeding red blood from his rectum and that he was not going back to the hospital. She stated that his religion did not permit him to commit suicide. The appellant noted that the veteran was not stable on discharge despite what was reported. She indicated that the veteran had never been seen by Dr. S. The appellant also described how she found the veteran in the garage after he had committed suicide. The appellant further testified that the veteran was running fevers while in the hospital. She also reported that Dr. S. had told her that he was taking a lethal dose of certain medications. The appellant also noted that the veteran was not given a psychiatric evaluation. The appellant indicated that it was her belief that VA was negligent with the treatment of her husband and that this resulted in his death. In March 2003, the Board requested further development on the issue of whether the appellant was entitled to benefits under 38 U.S.C. § 1151. In conjunction with development, the matter was referred to a VA gastroenterologist for review. The examiner noted that the veteran had been hospitalized from January 19, 1998, to January 24, 1998. During that time he was admitted to the hospital for evidence of upper gastrointestinal bleeding for seven days with a history of black tarry stools consistent with melena. Apparently, the veteran had had a history of melena in the past and had refused evaluation previously. At the time of his admission to the hospital, the veteran was found to have evidence of upper gastrointestinal bleeding with a hemocrit falling to 27 percent. He was admitted on January 19, 1998, and upper gastrointestinal panendoscopy was performed on January 21st. At that time he was found to have evidence of multiple duodenal ulcers with erosion. There was also evidence of gastritis. At the time of an endoscopy, active bleeding from any of the lesions was noted. Biopsies were taken from the stomach area of gastritis which showed evidence of helicobacter pylori infection thought to related in part to the duodenal ulcers. The veteran had been started on Lansoprazole twice a day to which was added Bismuth two tablets four times per day, Tetracycline 500 mg four times per day, and Flagyl 250 mg four times a day. It was planned that this combination of medications would be continued for a total of seven days with the Lansoprazole being continued thereafter. Over the course of the next three days, from January 21st to the 24th, the veteran was deemed to be stable with regard to the episode of upper gastrointestinal bleeding. The examiner further noted that during his hospital stay, the veteran was found to have a fever which was evaluated thoroughly at which time he was found to have no overt infection other than the helicobacter pylori induced gastritis as noted above. After starting the above antibiotics for the helicobacter pylori, his temperature returned to normal and remained there for the rest of his hospital stay. Nevertheless, the etiology of the fever was still undetermined at the time of discharge. Provisions for further evaluation as an outpatient were established including a CT scan of the abdomen as well as further follow up with the veteran's primary care physician. The possibility of multiple myeloma was raised during the veteran's hospitalization and the appropriate tests were performed and pending at the time of discharge. The examiner noted that the veteran had had a history of coronary artery disease but had had no episodes of chest pain or evidence of myocardial injury during his hospitalization. His anti-hypertensive medications were held during his hospitalization. However, at the time of discharge it was felt that these medications could be restarted as an outpatient as his hemoglobin and hemocrit improved at the time. He further observed that at the time of discharge, the veteran was deemed to be stable and could be safely discharged to home. At the time of discharge, he was continued on Lansoprazole 300 mg twice a day, Bismuth tablets at two four times a day, Tetracycline 500 mg four times per day, Flagyl 250 mg four times per day and iron sulfate one tablet per day. Nitroglycerin was reinstituted on a prn basis should the veteran develop chest pain and his anti- hypertensive Benazepril was restarted as 40 mg once a day. He indicated that it was important to note that during the veteran's hospitalization he did not receive any blood products because he was a Jehovah's Witness. On the morning after the first day of discharge, the veteran was found to have sustained a gunshot wound to the head which was considered to be self-inflicted. There was an apparent suicide note found which indicated that he had noted rectal bleeding once again and that he was not going to undergo or tolerate further tests. The examiner indicated that the veteran had been offered a colonoscopy during his hospital stay but refused that procedure. He further observed that extensive review of the record over the course of the years indicated no overt evidence of any type of psychiatric disorder or suicidal ideation at any time. He also noted that at the time of discharge, the veteran was deemed competent to handle VA funds. The examiner stated that it was his belief that the medications at the time of discharge were appropriate, including the Benazepril dose of 40 mg once a day. Also, the therapy for his duodenal ulcers, including Lansoprazole, Bismuth tablets, Tetracycline, and Flagyl, was appropriate for the treatment of the helicobacter pylori induced peptic ulcer disease. He indicated that it was also appropriate to withhold the veteran's aspirin at that time and that the iron sulfate was appropriate for the treatment of the acute blood loss anemia. The examiner stated that the medications prescribed at the time of discharge did not contribute to the veteran's suicide. The examiner also noted that the veteran underwent extensive evaluation for his medical problems as it pertained to the gastrointestinal bleeding, fever of unknown origin, aortic stenosis, and history of coronary artery disease. He also reported that the colonoscopy was offered but refused. The examiner further indicated that during the last three days of hospitalization, the veteran had no fever. He also observed that outpatient and appropriate follow-up was arranged in February 1998. The examiner indicated that it was his opinion that the veteran was not prematurely discharged and that the appropriate therapy for his medical condition was applied and in no way contributed to his suicide. The Board notes that the appellant has continuously expressed her belief that the veteran was discharged too early and/or did not receive proper care during his period of hospitalization from January 19, 1998, to January 24, 1998, and that this led to his committing suicide on January [redacted], 1998. The Board does not doubt the sincerity of the appellant's belief in this claimed causal connection. However, as the appellant has not been shown to be a medical expert, she is not qualified to express an opinion regarding any medical causation which led to the veteran's death. As it is the province of trained health care professionals to enter conclusions which require medical expertise, such as opinions as to diagnosis and causation, Jones v. Brown, 7 Vet. App. 134, 137 (1994), the appellant's lay opinions cannot be accepted as competent evidence to the extent that they purport to establish such medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995). As to the July 2001 letter from Dr. S., the Board notes that Dr. S. was never the veteran's physician and that he had been asked by the appellant to review the veteran's medical records and assess whether proper care and diligence were applied to the veteran's care. The Board further observes that while Dr. S. reported that taking 40 mg of benazepril 4 times per day would exceed the upper limits by two to four fold, the actual discharge orders called for taking 40 mg of the medication daily. As to the veteran's fevers, the Board notes that the veteran was not found to have a fever at the time of discharge. Although Dr. S. noted that the veteran appeared to be confused during his period of hospitalization, he was found to be competent for VA purposes at the time of his discharge. There were also no psychiatric findings made at the time of the veteran's hospitalization. The July 2003 VA examiner's report was made following a thorough review of the veteran's claims folder. The examiner observed that the veteran was deemed to be stable with regard to the episode of upper gastrointestinal bleeding as of January 24th. He further noted that after treatment with antibiotics, the veteran's temperature returned to normal and remained there for the rest of his hospital stay. The examiner also observed that provisions for further evaluation as an outpatient were established including a CT scan of the abdomen and further follow up with the veteran's primary care physician and that the possibility of multiple myeloma was raised during the veteran's hospitalization and the appropriate tests were performed and pending at the time of discharge. The examiner also noted that while the veteran had had a history of coronary artery disease, he had no episodes of chest pain or evidence of myocardial injury during his hospitalization and that at the time of discharge it was felt that heart medications could be restarted as an outpatient as his hemoglobin and hemocrit had improved. He further observed that at the time of discharge, the veteran was deemed to be stable and could be safely discharged to home. The examiner noted that the morning after the first day of discharge, the veteran was found to have sustained a gunshot wound to the head which was considered to be self inflicted and that there was an apparent suicide note found which indicated that that veteran had noted rectal bleeding once again and stated that he was not going to undergo or tolerate further tests. The examiner stated that the veteran had been offered a colonoscopy during his hospital stay but refused that procedure. He further indicated that an extensive review of the record over the course of the years revealed no overt evidence of any type of psychiatric disorder or suicidal ideation at any time. He also noted that at the time of discharge, the veteran was deemed competent to handle VA funds. The examiner stated that it was his belief that the medications at the time of discharge were appropriate, including the Benazepril dose of 40 mg once a day. He opined that the medications prescribed at the time of discharge did not contribute to the veteran's suicide. The examiner also noted that the veteran underwent extensive evaluation for his medical problems as it pertained to the gastrointestinal bleeding, fever of unknown origin, aortic stenosis, and history of coronary artery disease. The examiner indicated that it was his opinion that the veteran had not been prematurely discharged and that the appropriate therapy for his medical condition was applied and in no way contributed to his suicide. The Board is giving more probative weight to the VA examiner's opinion as it was based upon a thorough review of the veteran's claims folder and he provided specific and detailed reasons for his conclusions. Moreover, it addressed and persuasively refuted each of the points raised in Dr. S's July 2001 letter. Accordingly, in this case, for reasons cited above, the preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Entitlement to compensation under the provisions of title 38, United States Code, Section 1151, for the veteran's death claimed to have resulted from treatment at a VA medical facility is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs