Citation Nr: 1123999 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 06-16 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from January 1959 to April 1960. He died in June 2004. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2010, the Board remanded this claim for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, a medical opinion was obtained and the appellant was contacted and requested to supply additional information. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. The Veteran died in June 2004. The death certificate identified the immediate cause of death as cardiac arrest due to or as a consequence of ischemic cardiomyopathy. 2. A preponderance of the evidence is against finding that the Veteran's death resulted from by VA treatment and was proximately caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for DIC benefits under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Further, the Court has held that, for a DIC claim, VCAA notice must further include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). In a September 2004 notice letter, the RO advised the appellant of what the evidence must show to establish entitlement to DIC under 38 U.S.C.A. § 1151. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the appellant's behalf in support of her claim. The RO further described what evidence that the appellant should provide in support of her claim. In particular regard to Dingess notice requirements, the Board notes that the appellant was advised, in the notice letter, how VA determines the effective date once a claim for death benefits has been granted. Thus, notice requirements have been fully satisfied. In view of the foregoing, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the appellant that any additional information or evidence is needed. Moreover, neither the appellant nor her representative has alleged or demonstrated any prejudicial or harmful error in VCAA notice. In regard to VA's statutory duty to assist, VA treatment records have been obtained. The record further includes written statements from the appellant and a stated from a private pharmacologist and toxicologist. The Board also notes that the RO obtained a VA medical opinion in connection with the claim. Based on review of the claims folder, the reviewing physician provided an opinion regarding the likely causes of the Veteran's death as well as the relative likelihood that the Veteran's death was related to VA treatment. Upon review, the Board finds that the opinion is adequate for the purposes of this adjudication. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claim adjudicated herein. Accordingly, the Board will proceed with appellate review. II. Pertinent Law, Facts, and Analysis The Board has thoroughly reviewed all the evidence in the claims folder. Although we have an obligation to provide reasons or bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, in the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In the present case, the appellant, who is the Veteran's widow, contends that the Veteran ultimately died because the VA failed to issue a prescription refill for his Plavix after the Veteran had requested such. She argues that the lack of medication was the cause of the Veteran's demise. Compensation under 38 U.S.C.A. § 1151 is awarded in the same manner as if the death were service connected, but a claim for benefits under section 1151 is not based upon service connection. Thus, this claim must be supported by medical evidence of death that resulted from VA hospitalization or medical or surgical treatment, unrelated to the Veteran's military service. See Jimison v. West, 13 Vet. App. 75, 77-78 (1999). To establish a claim for compensation under 38 U.S.C.A. § 1151, there must be (1) medical evidence of a current disability; (2) medical or, in some circumstances, lay evidence of the incurrence or aggravation of an injury or disease as the result of VA hospitalization or treatment; and (3) medical evidence of a nexus between the asserted injury or disease and the current disability. See Jones v. West, 12 Vet. App. 460, 464 (1999). In analyzing claims under section 1151, it is first important to note that the law underwent significant amendment, effective for claims filed on or after October 1, 1997. Because the appellant filed her DIC claim under the provisions of section 1151 claim in 2004, the post-October 1, 1997, version of the law and regulation will be applied. 38 C.F.R. § 3.361 (2010); VAOPGCPREC 40-97. As noted, under 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the Veteran's own willful misconduct or failure to follow instructions, DIC may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. §§ 3.361. In determining whether a Veteran sustained additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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). 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. In addition, 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(c)(3). 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 or medical or surgical treatment caused the Veteran's death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is 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. As specified in 38 C.F.R. § 3.361(d)(2), 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 38 C.F.R. § 17.32. In the present case, the Veteran's death certificate discloses that he died in June 2004. The immediate cause of death is identified as cardiac arrest due to or as a consequence of ischemic cardiomyopathy. The appellant in this case is the Veteran's widow. As noted above, she contends that the Veteran ultimately died because the VA failed to issue a prescription refill for his Plavix after the Veteran had requested such. She argues that the lack of medication was the cause of the Veteran's demise. The record shows that the Veteran's prescription for Plavix was renewed on February 24, 2004 for a 90 day supply. The medical evidence shows that in June 2004, the Veteran had a long medical history including, but not limited to, diabetes mellitus insulin-dependent, coronary artery disease (CAD), hypertension, atrial fibrillation and flutter, hyperlipidemia, and obesity. On June 3, 2004, he was seen for chronic renal insufficiency. On June 9, 2004, the Veteran was seen by M.B., a VA nurse practitioner who, the appellant contends, "was concerned about" the fact that the Veteran had been prescribed Plavix(r) and Coumadin(r), drugs which are essentially used to prevent the coagulation of blood. M.B. noted the concerns in a June 9, 2004, treatment note in the record. The appellant states that the Veteran was instructed by M.B. to stop taking the blood thinning drugs and resume taking them on June 17, the day after the Veteran's biopsy procedure. On June 24, 2004, the Veteran contacted Dr. B. via email regarding a refill. He was to be mailed a refill prescription on June 28, 2004. The medical evidence includes a June 28, 2004, addendum to the Veteran's medical record authored by Dr. Barrie which states that the Veteran called "out of Plavix." After review of the medical records, Dr. Barrie wrote "not clear to me he continues to needs (sic) plavix." The death certificate of record indicates that the Veteran was pronounced dead at 5:49 a.m., June 29, 2004 at a private hospital after being taken there by ambulance. The immediate cause of death listed on the death certificate is "cardiac arrest" as a result of a 5 year history of ischemic cardiomyopathy. The appellant describes in her August 2004 statement that she assisted the Veteran in maintaining his numerous prescriptions and the normal procedure they employed to ensure all prescriptions were properly and timely filled. She states that the Veteran determined he needed to refill Plavix(r) and made phone calls to VA to have the prescription refilled. The calls were unsuccessful, so the Veteran sent an e-mail to Dr.Barrie, a physician who practiced at the VA medical facility in Ann Arbor, Michigan, explaining he was "out of Plavix(r) and a diabetes" medication. The appellant states that subsequent to the e-mail the Veteran had a phone conversation with Dr. Barrie who, among other things, told him he was not refilling the Plavix(r) because he "didn't think I [the Veteran] need it." The Veteran died five days later. The appellant contends that the lack of Plavix(r), caused by VA's failure to refill the prescription, is the proximate cause of death. Also of record is the opinion of Dr. W.W., Ph.D., a pharmacologist and toxicologist. Dr. W.W. indicated in a letter dated June 8, 2005, that she had reviewed "the medical records" of the Veteran and determined that it was within a reasonable degree of scientific certainty that the Veteran's death was due to the sudden withdrawal of Plavix which caused the aggravation of his ischemic cardiomyopathy and was a cause of his death. In August 2005, Dr. S.R., M.D., a VA physician, was unable to provide an opinion regarding the issue at hand because at the time he reviewed the Veteran's record, there were no records regarding the Veteran's death. The Veteran's records were reviewed by a VA examiner in response to the Board's April 2010 remand request. The examiner stated that after review of the records and consultation with Dr. Kamalesh, the Chief Cardiologist at Indianapolis VA medical center, it was decided that likely as not, with-holding Plavix for 5 days was not the proximate cause of the Veteran's death and was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault and was not an event reasonably foreseeable by Dr. Barrie. It was noted that the Veteran was on Coumadin which would be expected to prevent blood clotting. It was stated that the Veteran had a history of hematuria and that it appears reasonable that Dr. Barrie was concerned about the continuation of multiple anticoagulant medications. The clinician noted that the Veteran had a cardiac cath in 2003 secondary to his excess weight, exceeding the 350 pound limit of the VA table. It was stated that these films demonstrate all of the SV graphs had closed and his disease was extensive. She reported that the LIMA was patent but likely had a lesion distal to in anastomsis site. She noted that upon review of the films with Drs. Lim and Grossman, it was felt that his lesion should be explored with additional views and was a reasonable target for an intervention. This was discussed with the Veteran who wished to cautiously think about an intervention. It was noted that at that time, his weight was excessive, the angina pattern stable, and he elected to continue medical management only. The VA clinician noted that there are multiple co-morbid conditions that could be responsible for the Veteran's death in addition to his coronary artery disease, such as exacerbation of CHF or life threatening arrhythmia due to ischemic cardiomyopathy. It was noted that a LVSF/EF of 25% has a mortality rate of 50% per year without ICD. Other complicating factors were noted to include IDDM with A1CHb >9, CRI, morbid obesity, sleep apnea, and multiple allergies to many cardiac medicines that would have benefited him, such as Beta blockers, ACEI, digoxin, statins, and bumex). Analysis It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). There are two opposing opinions regarding this claim. Upon review, the Board finds the VA examiner's opinion in this case to be more probative. In this regard, the VA examiner had access to the Veteran's claims file. The finding is well reasoned, detailed, consistent with other evidence of record, supported by rationale, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Additionally, the examiner conferred with the Chief Cardiologist in rendering her findings. The opinion of Dr. W.W. is largely conclusive and does not specifically address the Veteran's complex medical history. The Dr. did not refer to the exact records reviewed. Moreover, although Dr. W.W. certainly brings an expertise to bear on the issue at hand, as a pharmacologist, she does not have the medical background or expertise regarding medical treatment of CAD in connection with the other complicating conditions presented by the Veteran at the time of his death. For these reasons, the Board finds the medical opinion of the VA examiner to be of greater probative value in resolving the medical question of whether there is a relationship between the treatment provided and/or not provided by VA, and the cause of the Veteran's death. Although the appellant has repeatedly asserted that the Veteran's death was due to negligent or improper treatment by VA, the Board affords the medical opinion provided by VA more probative value because she, unlike the appellant, has specialized expertise in the subject matter of the diagnosis and treatment of medical disorders, and is able to render a competent opinion with respect to the medical question of whether the Veteran's death was caused by VA treatment. The appellant, as a layperson without relevant medical qualifications, is not competent to render such an opinion. The appellant may well have observed certain symptom changes in the Veteran as a result of claimed medication changes. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, even a finding of causation due to VA treatment (or lack thereof) is insufficient to support this claim. Instead, there must be evidence of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA providers; or a causal event not reasonably foreseeable. A competent opinion as to those criteria requires a showing of medical training, credentials, or other expertise that the appellant has not been shown to possess. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"); 38 C.F.R. § 3.159(a)(2). Accordingly, the appellant's lay opinion lacks probative value and is substantially outweighed by the aforementioned VA opinions. The evidence does not demonstrate 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. Thus, although the Board is sympathetic to the appellant's contentions, the Board is unable to provide any legal remedy. See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Accordingly, the claim for DIC under 38 U.S.C.A. § 1151 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because the Board has concluded that the preponderance of the evidence is against this aspect of the appellant's claim, entitlement to DIC under 38 U.S.C.A. § 1151 for the cause of the Veteran's death is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs