Citation Nr: 1012746 Decision Date: 04/05/10 Archive Date: 04/14/10 DOCKET NO. 04-08 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from April 1952 to April 1955. He died in May 2002. The appellant is his widow. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefit sought on appeal. The Veteran appealed the decision to the Board, and the case was referred to the Board for appellate review. A hearing was held in May 2004 at the RO; the hearing was conducted by a local RO hearing officer. A transcript of the testimony is in the claims file. The Board remanded the claim in May 2006 so that additional development of the evidence. In an April 2007 decision, the Board denied the appellant's claim for DIC benefits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2008 Order, the Court vacated the April 2007 Board decision and remanded the matter to the Board for development consistent with the parties' September 2008 Joint Motion for Remand (Joint Motion). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The appellant claims that while the Veteran was treated at VA clinics and hospitals in 2001 and 2002, he developed numerous infections which she contends contributed significantly to cause his death in May 2002. She contends that the infections occurred because of negligence, carelessness, and lack of knowledge of the Veteran's condition. The record on appeal contains VA clinical records, dated from September 1988 to May 2002. These records show that the Veteran was treated on numerous occasions during this period for many medical conditions, including alcoholic encephalopathy, chronic obstructive pulmonary disease, degenerative joint disease, alcoholic hepatitis, hyperthyroidism, and hypertension. In September 1988, the Veteran was hospitalized at the Ann Arbor VA medical Center (VAMC) for a right upper lobe collapse and mental status changes, secondary to alcoholic encephalopathy and Librium toxicity. Upon discharge, the Veteran was given a three-week course of oral Bactrim therapy for bronchitis. He thereafter developed a rash and temperature. The Veteran was determined to be allergic to Bactrim and the medication was discontinued. There was also a question of Penicillin sensitivity. The diagnosis was toxic epidermal necrolysis versus erythema multiforme. In April 2002, the Veteran was hospitalized at the Saginaw VAMC with atrial fibrillation and rapid ventricular rate. During the course of admission, he developed acute congestive heart failure as well a right lower lobe pneumonia leading to an exacerbation of his COPD and respiratory failure. The Veteran initially refused to be intubated; however, after his family intervened, he agreed and the Veteran was intubated. He was also fitted with a feeding tube. As a result of diagnostic testing, the Veteran was found to be thyrotoxic. His physicians determined that the Veteran would need radioactive ablation of the thyroid gland and would therefore need to be transferred to the Ann Arbor VAMC. Prior to his transfer, the Veteran was treated for numerous conditions, including thryotoxicosis, atrial fibrillation with a rapid ventricular rate secondary to thryotoxicosis, hypertension and congestive heart failure, severe acute hepatic failure, COPD, thrombocytopenia, and respiratory failure secondary to right lower lobe pneumonia and COPD. While at the Saginaw VAMC, the Veteran was administered Ceftriaxone empirically for right lower lobe infiltrate/pneumonia, although it was noted that cultures had been negative. Later in April 2002, the Veteran was transferred to the Ann Arbor VAMC. There it was noted that the Veteran's respiratory failure had required prolonged intubation and ventilator support, resulting in a recent staph infection. He was treated with Ceftaz/Levo for sepsis. During the course of hospitalization, the Veteran remained critically ill. He was diagnosed as having sepsis syndrome with multiple system organ failure. In May 2002, the Veteran died. According to his death certificate, the cause of the Veteran's death was pneumonia due to sepsis. Other significant conditions contributing to death were disseminated intravascular coagulation, chronic pulmonary disease, liver disease, and congestive heart failure. In June 2002, the appellant submitted an application for DIC benefits, pursuant to 38 U.S.C.A. § 1151. In an October 2002 statement, she outlined her contentions. Specifically, the appellant noted that in April 2002, the Veteran was hospitalized at the Saginaw VAMC for treatment of his overactive thyroid and was put on a ventilator to stabilize his breathing and heart condition. She indicated that he was then transferred to the Ann Arbor VAMC later that month to see specialists for his heart and thyroid. However, his condition deteriorated shortly after he arrived due to three infections caused by the Veteran's various feeding and breathing tubes. She indicated that the staph infection did not respond to five different antibiotics, and she was told that there was no hope for the Veteran's recovery. The appellant indicated that it was her belief that carelessness in monitoring the Veteran's IV tubes caused all the infections which ended his life at an early age. In support of her contentions, the appellant submitted two newspaper articles noting that sepsis, a common blood infection, killed more than 200,000 people annually in the United States. It was noted that sepsis could come from bacteria that invaded the body through wounds or IV lines. The article noted that an international group of doctors was meeting to develop guidelines for treatment to prevent sepsis deaths. Another article noted that many of the deaths from infections were caused by unsanitary facilities and careless by doctors and nurses. In an October 2003 opinion, a VA physician reviewed the record and provided an expert opinion with respect to the appellant's claim. He indicated that he had reviewed the Veteran's claims folder and noted that the Veteran had been admitted to the Saginaw VAMC with atrial fibrillation and rapid ventricular rate and was intubated for increasing respiratory distress and hypoxic respiratory failure. He noted that sepsis and infections were very likely in such circumstances. The Veteran had MRSA pneumonia, fungemia, secondary to line infection, and bacteroides bacteremia from an unknown source, complicated by DIC and multi-organ failure. He indicated that it was his opinion that the procedures like intubation and central catheters, both of which were necessary for medical management, likely contributed to the Veteran's death. However, after reviewing the medical records, from both Ann Arbor and Saginaw VAMCs, he concluded that there was no evidence of negligence and carelessness of medical management and VA care. In a December 2003 opinion, the VA medical expert clarified that the Veteran's physicians performed procedures like intubation and placement of central catheters because they were necessary for the management of the Veteran's respiratory distress and hypoxic respiratory failure. He indicated that the infections the Veteran developed were known complications of these procedures, especially in patients with COPD. He concluded that there was no negligence or carelessness of medical management and VA care. As noted, the Board denied the claim in April 2007, and the appellant thereafter appealed the decision. In September 2008, the Court ordered compliance with the September 2008 Joint Motion. The parties agreed that the Board [as part of its April 2007 decision] "neither discussed nor applied the standard of care to be applied in determining Department of Veterans (VA) fault as required by VA regulation. See 38 C.F.R. § 3.3619d)(1)(i) and § 17.32. In addition, the Board did not ensure that the VA opinions upon which it relied [dated in October and December 2003] applied the appropriate standard of care." See page two of Joint Motion. The Joint Motion also observed that the Board "merely found that there was no evidence of 'carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" of the health care provider. Id. In reaching this determination, the Board indicated that it relied on the October and December 2003 VA medical opinions. However, the Board never stated the standard of care to be applied in this manner." See pages five and six of Joint Motion. The Joint Motion found that "the parties agree that the medical opinions upon which the Board relied in denying Appellant's claim are inadequate to the extent that they were not based on the appropriate standard of care. The question of whether inpatient treatment rendered to Appellant in April 2002 was the proximate cause of Appellant's demise is a medical issue that must be determined by a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992." Finally, the Joint Motion, at page seven, indicated that "the October and December 2003 VA examiner rendered an opinion as to whether VA was at fault in this matter. These opinions are inadequate to the extent that they did not take in the appropriate standard of care upon which his opinions were based. In other words, the examiner did not determine whether a 'reasonable health care provider' would have provided this type of care. 38 C.F.R. § 3.361(d)(1)(i). The examiner merely concluded that 'there is no negligence and carelessness of medical management and VA care.'" The Joint Motion added that "[t]herefore, a medical opinion is required to complete the analysis by stating whether VA exercised the degree of care that would be expected of a reasonable health care provider. 38 U.S.C. § 5103A(d)." See pages seven and eight of Joint Motion. DIC shall be awarded for a qualifying death of a veteran in the same manner as if the death were service connected. Such is considered a qualifying death if the death was not the result of the veteran's willful misconduct and the death was caused by hospital care, medical or surgical treatment, or examination, and the proximate cause of the death was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a) (West 2002). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's death. Merely showing that a veteran received care, treatment, or examination and that the veteran has died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2009). Medical treatment 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. 38 C.F.R. § 3.361(c)(2) (2009). The proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2009). Showing that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination proximately caused death can be done by one of two ways. First, fault can be shown by evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Second, fault can be shown by evidence that VA furnished the care without the veteran's, or in appropriate cases, the veteran's representative's informed consent. See 38 C.F.R. § 3.361(d)(1)(i)-(ii) (2009). Accordingly, the case is REMANDED for the following action: 1. The RO must obtain a medical opinion from a VA physician regarding the relationship between VA care received between April 2002 and the Veteran's death in May 2002. The Board poses the following specific question to the reviewing physician: Was the Veteran's death caused by hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility between April 2002 and the Veteran's death in May 2002 and was the proximate cause of the death due to (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing such care, treatment, or examination; or (2) an event not reasonably foreseeable? The reviewing physician is advised that the "proximate cause" is the action or event that directly caused the death, as distinguished from a remote contributing cause. The reviewing physician is also advised that "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" may be shown by evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner is specifically requested to address whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in its April 2002 inpatient treatment of the Veteran, and if so, whether such care or lack of care was a proximate cause of the Veteran's death: 2. Thereafter, the appellant's claim of entitlement to service connection for DIC under 38 U.S.C.A. § 1151 should be readjudicated. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response by the appellant and her representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to ensure due process, as well as to ensure compliance with the directives of the September 2008 Joint Motion. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until she is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).