Citation Nr: 0636221 Decision Date: 11/21/06 Archive Date: 11/28/06 DOCKET NO. 04-19 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from January 1985 to February 1992. He died in September 2002 and the appellant is his surviving spouse. This appeal arose from a May 2003 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO), which denied entitlement to the requested benefits. The appellant requested a video conference hearing to be held before a Veterans Law Judge of the Board. The requested hearing was scheduled in July 2006, the appellant was notified of this fact, and she failed to appear for the hearing with no reason provided. FINDINGS OF FACT 1. The veteran died in September 2002. The death certificate shows that the immediate cause of his death was listed as malignant arrhythmia due to or as a consequence of atrial fibrillation due to or as a consequence of cerebral hypoxia. Other significant conditions contributing to death but not resulting in the underlying cause included hypertension, pulmonary embolism and low back pain. 2. At the time of the veteran's death, service connection was in effect for Hepatitis B and for asymptomatic malaria, each assigned a non-compensable evaluation. 3. The veteran's service-connected disabilities did not result in, cause, contribute to or otherwise hasten his death. 4. No cardiovascular or pulmonary condition, including hypertension, was demonstrated either during the veteran's active military service, or the first post-service year, and the primary causes of the veteran's death, malignant arrhythmia due to or as a consequence of atrial fibrillation due to or as a consequence of cerebral hypoxia, have been attributed to a drug overdose; those disorders are not shown to have been related to service, and there has been no evidence presented establishing or even suggesting that those disorders were caused or chronically worsened by the veteran's service-connected disabilities. 5. The record reflects that the veteran underwent a lumbar laminectomy in December 2001, and thereafter in approximately January 2002, VA staff discontinued using blood thinners including, Warfarin and Coumadin on the veteran. 6. The record reflects that the veteran underwent procedures performed by VA in December 2001 and January 2002, consisting of surgery of the lumbar spine, incision and drainage of an epidural abscess and insertion of a catheter respectively. 7. The evidence does not show that the veteran suffered from additional disability that contributed to cause death as the result of VA hospitalization, medical or surgical treatment provided in December 2001 and January 2002, or as a result of the discontinuance of the use of blood thinners including, Warfarin and Coumadin. 8. There is no competent medical evidence demonstrating that the veteran died as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or as a result of an event not reasonably foreseeable, as a result of VA medical treatment received in December 2001 and January 2002. CONCLUSIONS OF LAW 1. A disability of service origin did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.312 (2006). 2. The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for the veteran's death as claimed to be caused by VA medical treatment furnished in December 2001 and January 2002, to include the discontinuance of the use of blood thinners on the veteran, have not been met. 38 U.S.C.A. §§ 1151, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.361 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) The VCAA was enacted on November 9, 2000. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002). This law emphasized VA's obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In August 2001, VA issued regulations to implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). In this instance, notice of the VCAA was provided in February 2003, before the initial adjudication in May 2003 and subsequently in March 2004. The requirements with respect to the content of the VCAA notice were met in this case. VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In this case, the RO informed the appellant in the February 2003 and March 2004 VCAA letters about the information and evidence that is necessary to substantiate a cause of death claim, to include brought under a theory of entitlement pursuant to 38 U.S.C.A. § 1151. The claimant has been provided with every opportunity to submit evidence and argument in support of her claims and to respond to VA notices. Although the VCAA notice letters that was provided to the appellant did not specifically contain the "fourth element," the Board finds that she was otherwise fully notified of the need to give to VA any evidence pertaining to her claims. In this regard, the RO has informed the appellant in the May 2003 rating decision, May 2004 statement of the case (SOC), and SSOCs of the reasons for the denial of her claims and, in so doing, informed her of the evidence needed to substantiate the claims. All the VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As noted above, because each of the four content requirements of a VCAA notice has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all content requirements is harmless error. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection for the cause of death or compensation under the provisions of 38 U.S.C.A. § 1151 is awarded. Id. In the present appeal, the appellant was provided with this notice in correspondence from the RO dated in June 2006. Accordingly, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Factual Background The veteran died in September 2002 at age 37. The immediate cause of his death was listed as malignant arrhythmia due to or as a consequence of atrial fibrillation due to or as a consequence of cerebral hypoxia. Other significant conditions contributing to death but not resulting in the underlying cause include hypertension, pulmonary embolism and low back pain. There was no autopsy performed. At the time of his death, service connection was in effect for Hepatitis B and for asymptomatic malaria, both assigned a non-compensable evaluation. The appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse, in September 2002, claiming that the cause of the veteran's death was due to service. In October 2002, the appellant also filed a DIC claim under the provisions of 38 U.S.C.A. § 1151. The service medical records (SMRs) show that malaria with associated dehydration, anemia and thrombocytopenia was diagnosed in November 1989. The SMRs also include a January 1991 Medical Board Report. The report indicated that acute Hepatitis B was diagnosed in September 1989. Physical examination conducted in January 1991 was within normal limits with no evidence of chronic liver disease. The diagnoses included: asymptomatic chronic persistent hepatitis with abnormal liver function tests, and active hepatitis B, not existing prior to service. It was determined that the veteran was unfit for further duty. The SMRs included no treatment for or diagnosis of any cardiovascular disorder including hypertension and atrial fibrillation. Post-service records dated in June 1992 show that the veteran was treated for duodenitis and duodenal ulcers. During a June 1992 VA examination the diagnosed conditions included: symptomatic duodenitis and arthritis, a history of Hepatitis B, history of malaria, and a neuropsychiatric disorder. A malaria smear done by VA in October 1992 was negative indicating, no evidence of current malaria infestation. A VA stomach examination was conducted in January 1993 at which time a diagnosis of peptic ulcer disease was made. VA medical records dated in 2001 and 2002 showed that the veteran's disorders included: back/hip pain; hepatitis, with no clinical evidence of active disease; well controlled hypertension; gastroesophageal reflux disease (GERD), hiatal hernia, depression, pulmonary embolism and infarction, chronic sinusitis, and a history of malaria. VA records dated in November 2001 show that the veteran signed an authorization form for invasive back surgery (lumbar microdiscectomy) which indicated that the risk factors included bleeding, risk of anesthesia, infection, need for additional surgery and death. An MRI revealed congenital stenosis with left lumbar 4 and 5 herniated nucleus pulposus and nerve root compression. The records noted that the veteran had been on Coumadin for DVT/pulmonary embolism since September 2001 and that it was held as of December 6, 2001. The veteran underwent lumbar microdiscectomy in mid-December 2001. The veteran was seen at private hospital emergency room in December 2001, 10 days post-VA surgery, with complaints of back pain and possible leaking fluid from the surgical area. Physical examination revealed that the wound was definitely healing appropriately. Minimal fluid was noted above the wound with no sign of infection. VA records indicate that the veteran was admitted on December 26, 2001, due to drainage from the back. On December 27, 2001, the veteran signed a consent form for incision and drainage of an epidural abscess. The enumerated risks were listed as bleeding, infections, cerebral spine fluid leak, need for antibiotics, failure to improve and death. Directions to discontinue Warfarin on December 26, 2001 were noted. On January 2, 2002, the veteran signed an authorization form for placement of a PICC (catheter insertion) line. The risks involved in that procedure included bleeding, infection, the need for further procedures, and damage to the adjacent vascular/neurological structures. Medications discontinued as of January 3, 2002, included Warfarin. A record dated on January 18, 2002, states that the veteran's wife reported that a VA doctor told them that the veteran did not need to be on Warfarin any longer, it was also noted that as of January 14, 2002, the veteran was off Coumadin due to abscess and home IV and would not resume. At the end of January 2002, the veteran was treated for a post-operative staph infection and assessed with lower back pain. It appears that the veteran did not take any blood thinners thereafter. When examined by VA in August 2002, the diagnoses included: essential hypertension, well-controlled; history of pulmonary embolism with no residuals; history of chronic sinusitis; symptoms of GERD uncomplicated and without evidence of ulcer disease, well controlled on medications, low back pain, status post laminectomy, a history of Hepatitis B without evidence of residuals and a history of malaria without evidence of residuals. The medical history indicated that the veteran was not taking Coumadin or Warfarin at that time. The veteran's terminal hospital records are on file reflecting that he was admitted to a private hospital on an emergent basis in September 2002, in full respiratory distress. The veteran's family reported that they had found him unconscious at home and had begun CPR. A history of a methadone overdose was noted. CPR was performed and the veteran was intubated. Thereafter, he went into SVT, atrial fibrillation with rapid ventricular response and developed ventricular fibrillation. A brain CT could not be done secondary to the veteran's unstable condition and he died the next day. The expiration diagnoses consisted of: malignant arrhythmia, atrial fibrillation, severe hypoxia and narcotic overdose. Legal Analysis The appellant has offered two primary contentions in support of her claim for service connection for the cause of the veteran's death. She believes that the veteran's service- connected Hepatitis B and malaria played a role in his death. She has also filed a DIC claim under the provisions of 38 U.S.C.A. § 1151, claiming that following back surgery performed by VA in December 2001, VA had discontinued the veteran's blood thinner, which she maintains resulted in blood clotting and ultimately brain damage and his death. Service Connection cause of death Benefits may be awarded to a veteran's surviving spouse for death resulting from a service-connected disability. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310 (West Supp. 2005); 38 C.F.R. § 3.312(a) (2006). The service-connected disability will be considered as 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. See 38 C.F.R. § 3.312(b) (2006). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially to death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c)(1) (2006). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. See 38 C.F.R. § 3.312(c)(2) (2006). However, service- connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of the death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. See 38 C.F.R. § 3.312(c)(3) (2006). The regulations also state that there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition affected a vital organ and was of itself of a progressive and debilitating nature. See 38 C.F.R. § 3.312(c)(4) (2006). Where a veteran has served for 90 days or more during a period of war and hypertension becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C.A. § 5107(b) (2006). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102 (2006). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In essence, the appellant contends that the veteran's death was caused by his service-connected disabilities. In this case, the death certificate shows that the malignant arrhythmia due to or as a consequence of atrial fibrillation due to or as a consequence of cerebral hypoxia were the primary causes of the veteran's death. Other significant conditions contributing to death but not resulting in the underlying cause include hypertension, pulmonary embolism and low back pain. The terminal medical records indicate that the causes of the veteran's death were precipitated by a drug overdose. The evidence does not demonstrate that either a cardiac disorder or pulmonary disease, to include hypertension, began during his period of active service or was diagnosed as shown by any clinical evidence of record during the first post-service year. The veteran's service medical records do not reflect treatment for either cardiac or pulmonary problems. In brief, the medical evidence does not demonstrate the presence of cardiac or pulmonary problems during service, and in fact shows that these disorders were initially diagnosed at a period removed from the veteran's separation from service. In addition, since neither a cardiac nor pulmonary disability was manifested to a compensable degree within one year following his separation from service (that is, by February 1993), the laws and regulations whereby that disability can be presumed to have been incurred during service are not for application. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2006). At the time of the veteran's death, he was service connected for malaria and for hepatitis B, neither of which was assigned a compensable evaluation. Although the appellant urges that these conditions somehow contributed to or hastened the veteran's death, there is no competent or clinical evidence of record which supports this contention. Examinations conducted in June and October 2002 revealed no residuals of Hepatitis B or malaria, nor were any such residuals documented thereafter. In fact, when examined by VA in August 2002, just a month prior to the veteran's death, diagnoses of a history of Hepatitis B without evidence of residuals and a history of malaria without evidence of residuals, were made. Significantly, neither Hepatitis B nor malaria was implicated as either a primary or contributory cause of the veteran's death. Furthermore, upon careful review of this case, the Board finds that no competent medical evidence has been submitted to relate the decedent's death to service or to any service-connected disability. The Board recognizes the appellant's sincere belief that the veteran's death was related in some way to his military service or his service-connected disabilities. The Board has considered the appellant's statements to this effect. Nevertheless, in this case the appellant has not been shown to have the professional expertise necessary to provide meaningful evidence regarding the claimed causal relationship between the decedent's death and his military service. See, e.g., Routen v. Brown, 10 Vet. App. 183, 186 (1997); ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied 119 S. Ct. 404 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, although the Board is sympathetic with the appellant's loss of her husband, we find a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit any competent medical evidence to provide a nexus between any in- service injury or disease and the conditions that caused or contributed to the cause of death of the decedent. As the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death, the benefit-of-the-doubt rule does not apply, and the appellant's claim of service connection for the cause of the veteran's death must be denied. See 38 U.S.C.A §5107 (West Supp. 2005). 38 U.S.C.A. § 1151 - Cause of Death Claim With regard to eligibility for benefits under 38 U.S.C.A. 1151(a) for additional disability or death due to hospital care, medical or surgical treatment, or VA examination, 38 C.F.R. § 3.361 (2006) provides, in pertinent part, as follows: (a) Claims subject to this section. (1) General. Except as provided in paragraph (2), this section applies to claims received by VA on or after October 1, 1997. This includes original claims and claims to reopen or otherwise readjudicate a previous claim for benefits under 38 U.S.C. 1151 or its predecessors. The effective date of benefits is subject to the provisions of §3.400(i). For claims received by VA before October 1, 1997, see §3.358. (2) [Relates to compensated work therapy, not pertinent here.] (b) Determining whether a veteran has an additional disability. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. (c) Establishing the cause of additional disability or death. Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. (1) Actual causation required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. (2) Continuance or natural progress of a disease or injury. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. (3) Veteran's failure to follow medical instructions. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. (d) Establishing the proximate cause of additional disability or death. The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. (1) Care, treatment, or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of §17.32 of this chapter. Minor deviations from the requirements of §17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in §17.32(b) of this chapter, as in emergency situations. (2) Events not reasonably foreseeable. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of §17.32 of this chapter. (3) [Relates to training and rehabilitation services or compensated work therapy program, not pertinent here.] (e) Department employees and facilities. (1) A Department employee is an individual: (i) Who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. 2105; (ii) Who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) Whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. (2) A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. (f) Activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. 1151(a): (1) Hospital care or medical services furnished under a contract made under 38 U.S.C. 1703. (2) Nursing home care furnished under 38 U.S.C. 1720. (3) Hospital care or medical services, including examination, provided under 38 U.S.C. 8153 in a facility over which the Secretary does not have direct jurisdiction. (g) Benefits payable under 38 U.S.C. 1151 for a veteran's death. (1) Death before January 1, 1957. The benefit payable under 38 U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring before January 1, 1957, is death compensation. See §§3.5(b)(2) and 3.702 for the right to elect dependency and indemnity compensation. (2) Death after December 31, 1956. The benefit payable under 38 U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring after December 31, 1956, is dependency and indemnity compensation. (Authority: 38 U.S.C. 1151). The appellant has also argued that the medical treatment which the veteran received from VA caused his death. She maintains that the veteran was taken off a blood thinner, Coumadin and Warfarin, which resulted in a blood clot in his brain and ultimately in his death. In addressing the question of whether additional disability, or in this case the veteran's death, is the result of VA medical treatment, the Board notes that, to establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, in this case death, does not establish cause. 38 C.F.R. § 3.361(c)(1) (2006). The medical evidence reflects that the veteran underwent procedures performed by VA in December 2001 and January 2002, consisting of surgery of the lumbar spine, incision and drainage of an epidural abscess and insertion of a catheter respectively. In this case, the veteran's death, although occurring approximately a year after the VA treatment at issue, was not shown in any manner to have been caused by that treatment. As indicated previously, the immediate cause of death was listed as malignant arrhythmia due to or as a consequence of atrial fibrillation due to or as a consequence of cerebral hypoxia. Other significant conditions contributing to death but not resulting in the underlying cause include hypertension, pulmonary embolism and low back pain. The terminal medical records indicate that the veteran's death and the causes thereof were believed, by the private medical staff who treated him terminally, to have been precipitated by a drug overdose. Neither VA treatment, nor specifically the claimed discontinuance of the use of a blood thinner on the veteran by VA from approximately January 2002 forward, has been implicated as a contributory or primary cause of the veteran's death. Concerning the matter of foreseeability, the predicate to a determination of whether there was "an event not reasonably foreseeable" (in this case, the veteran's death) is that such event must have been "caused" by VA hospital care or medical treatment. Although the veteran's death essentially due to a non-prescribed drug overdose may not in fact have been reasonably foreseeable, as discussed above a preponderance of the evidence of record indicates that the death was not "caused" by VA treatment or lack thereof. See 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361(d) (2006). Finally, the appellant has essentially argued that negligence on the part of the VA staff contributed to the veteran's death, inasmuch as the blood thinner the veteran was taking in 2001 was discontinued by VA in 2002, the year in which he died. However, a review of the applicable records discloses no evidence which would suggest that VA's treatment, including the decision to discontinue the use of blood thinners including Coumadin and Warfarin caused or contributed, through carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, the death of the veteran. Simply put, the appellant has submitted no competent evidence which tends to substantiate her contentions that the veteran's death resulted from additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical and/or surgical treatment to the veteran. In the absence of competent evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, the Board concludes that entitlement to DIC pursuant to 38 U.S.C.A. § 1151 is not warranted. Accordingly, the claim is denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs