Citation Nr: 1221709 Decision Date: 06/21/12 Archive Date: 07/02/12 DOCKET NO. 08-30 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1151 due to VA medical treatment. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1988 to October 1991. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the St. Petersburg, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant initially requested a Travel Board hearing, but subsequently withdrew this request in writing in January 2010. 38 C.F.R. § 20.704(e) (2011). FINDINGS OF FACT 1. The appellant is the Veteran's surviving spouse. 2. The Veteran died on August [redacted], 2005, the death certificate lists the immediate cause of death as thrombosis of the right coronary artery. The stated underlying cause was coronary atherosclerosis. 3. At the time of the Veteran's death, service-connection was not in effect for any disabilities and no claims for service connection were pending. 4. The preponderance of evidence is against a finding that a disability of service origin or a service-connected disability caused or contributed to the Veteran's death. 5. VA failed to timely diagnose and properly treat the Veteran's thrombosis of the right coronary artery which caused the continuance or natural progress of thrombosis of the right coronary artery. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2011). 2. The criteria for compensation for death secondary to coronary thrombosis under the provisions of 38 U.S.C.A. § 1151 are met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). As the Board is granting the issue of entitlement to DIC pursuant to 38 U.S.C.A. § 1151 due to VA medical treatment., the claim is substantiated and there are no further VCAA duties in this case. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In the context of a claim for dependency and indemnity compensation (DIC) benefits, section 5103(a) notice must 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, 352-53 (2007). In a May 2007 letter issued prior to the rating decision on appeal, the RO provided notice to the appellant regarding an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition in accordance with Hupp. As noted, however, in a March 2010 Board remand, the May 2007 letter failed to complete the requirements of Hupp in that it failed to provide a statement of the conditions, if any, for which the Veteran was service-connected at the time of his death or an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. This was remedied in an April 2010 post-remand notification letter. A May 2008 letter advised the appellant of how the VA assigns an effective date, and the type of evidence relevant to that determination. The case was last adjudicated in September 2011. As noted above, in March 2010, the Board remanded the issues to the VA RO in St. Petersburg (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to provide adequate notice under Hupp, to obtain any outstanding private and/or VA treatment records, and to new examinations. All of the actions previously sought by the Board through its prior development request appear to have been completed as directed, and it is of note that the appellant does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a supplemental statement of the case (SSOC) was issued in September 2011, which continued the previous denials. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant, including service treatment records, a statement from private medical experts, multiple VA examinations and opinions physician, and statements from the appellant. VA has considered and complied with the VCAA provisions discussed above. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant, has been an active participant in the claims process by providing argument to support her claim. Thus, the appellant has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria-Service Connection for Cause of Death The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis- Service Connection for Cause of Death In this case, the Veteran's death certificate identifies the cause of death as being thrombosis of the right coronary artery with the underlying cause listed as coronary atherosclerosis. Consistent with the findings expressed in the death certificate, ambulance and terminal hospital records from August [redacted], 2005 reflect that the Veteran was transported to Brandon Regional Hospital following cardiac arrest. The report demonstrated that resuscitation was unsuccessful and the Veteran was pronounced deceased at 4:04pm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104 , Diagnostic Code 7101, Note (1) (2011). The Veteran's service treatment records are silent as to complaints of or treatment for hypertension or high blood pressure. A July 1990 service medical record demonstrates the Veteran's complaints of a lump in his chest and difficulty breathing. It was noted that the Veteran had a family history of heart attacks and that the Veteran was a smoker. Lipoma was noted and an assessment of mild upper respiratory infection was assigned. At the time of treatment the Veteran's blood pressure was 120/80. Blood pressure readings taken during service varied. For example, a record dated in February 1991 notes that when seen for an illness involving diarrhea and abdominal pain, his blood pressure was 158/77. In March 1991, it was down to 136/69. A record dated in April 1991 noted that while being seen for an illness manifested by diarrhea and nasal and chest congestion, his blood pressure reading was 139/61. While standing, it was 148/74. Subsequently, in May 1991, the reading was down to 118/74. On another occasion in May 1991, the reading was only 110/70. The Veteran's blood pressure was recorded as 128/69 at the time of separation in June 1991, and neither high blood pressure nor hypertension were noted. Also, during a medical Board examination in July 1991, his blood pressure was only 118/74. Post-service treatment records include a January 2004 treatment note from the VA medical center in Tampa which demonstrates the Veteran's reports that he had a high blood pressure reading at a local market. He stated that he had no previous history of hypertension, later records show treatment for hypertension. The claims file includes an August 2007 letter from Dr. H.W. in which Dr. H.W. states that he reviewed the Veteran's records and that the Veteran clearly had hypertension post-service, with etiology due to his military service, and that this hypertension "significantly and materially contributed to his death." Dr. H.W. further stated "[i]t is as likely as not the hypertension in the military service was the ultimate cause of his death." In a May 2010 VA examination report the examiner stated that without seeing any elevated blood pressure readings in service or a diagnosis of hypertension, he believed there was no relationship between hypertension and service and thus such hypertension would be unrelated and would not materially cause the Veteran's death. In an October 2010 VA examination report from the same examiner, the VA examiner stated that, following a review of the Veteran's claims file, the Veteran's coronary artery disease was likely aggravated or caused by hypertension. However, service treatment records demonstrated normal blood pressure readings. He noted an isolated elevated blood pressure reading in his separation examination but stated that a single incident of elevated blood pressure did not warrant diagnosis of hypertension. He noted that a diagnosis of hypertension requires multiple elevated blood pressures over a period of time. Thus, though he had one elevated blood pressure reading, the examiner stated that he was not considered to have a diagnosis of hypertension in service. The examiner further noted that the Veteran presented with a complaint of a lump in his chest in service which was diagnosed as a lipoma. The examiner noted, however that the Veteran's symptoms seemed to have resolved. He stated that this could have been an episode of coronary ischemia at the age of 26 which, if it was, would be related to the Veteran's cause of death. The examiner stated, however, that the examiners at the time did not find that this was very likely and the fact that this was an isolated incident made him believe that it was unlikely that this was an episode of coronary ischemia or a precursor to that, stating further that many things can cause shortness of breath and a lipoma on the chest was not a precursor for coronary artery disease. He stated that although it was possible that the episode was related he thought it was speculative at best and unlikely that this one episode was a manifestation of the coronary artery disease or contributed to his coronary artery disease death several years later. Overall, the preponderance of the evidence does not relate the Veteran's hypertension to service. As noted above, the Veteran's service medical records do not demonstrate hypertension in service or within a year thereof. Significantly, only a single elevated blood pressure reading is demonstrated in service and the Veteran himself stated that he had no idea he had hypertension until it was discovered in 2004, over ten years after the Veteran's service. The Board notes that it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board finds the opinion of the VA examiner more probative than the opinions of Dr. H.W. due to the fact that the VA examiner provides a rationale for his determination that the Veteran did not have hypertension noting that a single finding of elevated blood pressure did not warrant a diagnosis of hypertension. Dr. H.W., conversely, fails to note any reasons for his belief that the Veteran "clearly" had hypertension in service. Further, and notably, the Veteran is shown to have stated that he never was told he had hypertension prior to a 2004 high blood pressure reading, going against Dr. H.W.'s finding that the Veteran had hypertension in service. Presumably, had the Veteran been found to have hypertension in service, within a year of service or at the time of separation from service, he would have been informed of such. Accordingly, the record supports the negative nexus of the VA examiner. Thus, given the absence of a diagnosis in service or within a year of service of hypertension, and given the fact that the preponderance of the competent medical evidence weighs against a finding that hypertension was related to service, the appellant's claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the appellant's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Legal Criteria- Entitlement to DIC Pursuant to 38 U.S.C.A. § 1151 Under 38 U.S.C.A. § 1151, a veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. See also 38 C.F.R. §§ 3.154, 3.358, 3.361, 3.362, 3.363. Under the law, 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. 38 C.F.R. § 3.361(c)(2). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability 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 38 C.F.R. § 17.32 (2011). 38 C.F.R. § 3.361(d)(2). Factual Background and Analysis-Entitlement to DIC Pursuant to 38 U.S.C.A. § 1151 VA treatment records reflect that the Veteran underwent umbilical hernia surgery on the morning of August [redacted], 2005 and that the Veteran was discharged to his home later that same morning. Information expressed through the appellant's various claims submissions and in terminal private hospital records from Brandon Regional Hospital reflect that, while recovering at home on the afternoon after his surgery, the Veteran complained of chest pain and left arm soreness. According to the appellant, she contacted the Tampa VA medical center to report the Veteran's symptoms and was advised that the Veteran was likely experiencing discomfort from intubation during the surgery. The appellant asserts further that she was instructed to give the Veteran two painkillers and to advise the Veteran to rest. As also asserted by the appellant, the Veteran complied with the instructions that were provided over the telephone. The record demonstrates that, a short time later, the appellant returned to the Veteran to check on his condition and found the Veteran non-responsive. Emergency medical technicians were called to the Veteran and appellant's home where they unsuccessfully attempted to resuscitate the Veteran. The Veteran was immediately transported to Brandon Regional Hospital where further attempts to resuscitate him were also unsuccessful. He was pronounced dead at 4:04 p.m. on August [redacted], 2005. An autopsy of the Veteran was performed the following day on August [redacted], 2005. The autopsy revealed coronary atherosclerosis with the cause of death being an acute thrombosis of the right coronary artery due to coronary arteriosclerosis. The Board notes that the autopsy also revealed hypertensive left ventricular hypertrophy, although it is unclear from the report as to what role, if any, that condition had in causing the Veteran's death. The autopsy report also contains a notation indicating that the appellant had reported that VA had been called before the Veteran's death and had been informed of his chest pain, and that the Veteran had been advised that it was due to the intubation. In support of her claim for benefits pursuant to 38 U.S.C.A. §1151, the appellant has argued that the medical treatment provided on August [redacted], 2005 by the Tampa VA medical center was below the accepted standard of medical care. Specifically, and as expressed in the appellant's claims submissions and in an April 2006 affidavit from D.H., RN, the appellant appears to assert that the Tampa VA medical center: (1) failed to provide appropriate instructions related to expectations of the Veteran's post-operative pain; (2) failed to recognize the signs and symptoms of an acute myocardial infarction based on the medical history given by the Veteran and the appellant before the surgery, documented history of hypertension, elevated cholesterol, and family history of coronary artery disease; and (3) failed to properly instruct the Veteran and appellant to immediately seek an appropriate for diagnosis and treatment of the chest pain and left arm symptoms when they were first reported over the telephone by the appellant to Tampa VA medical center personnel on the afternoon of the Veteran's surgery. In January 2008, the claims file was provided to a VA examiner for his review and opinion as to whether any additional disability incurred by the Veteran as a result of his August [redacted], 2005 VA umbilical hernia surgery was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing hospital care, medical or surgical treatment, or examination. In the examination report, the examiner stated that there was nothing in the care at the Tampa VA medical center that resulted in the Veteran's myocardial infarction and no evidence of carelessness, negligence, lack of proper skill, error in judgment or similar finding of fault on the part of the VA over any event not reasonably foreseeable. In May 2010, the Veteran was afforded a new VA examination. In his report the VA examiner opined that, regarding the hernia surgery itself, that he "believe[d] that care was done appropriately for the hernia and did not relate to his myocardial infarction as far as carelessness goes." As rationale for his stated opinion, the VA examiner observed that there was no documentation in the claims file that the appellant contacted the Tampa VA medical center on the afternoon after the Veteran's surgery to report the Veteran's post-surgical symptoms of chest or left arm pain. The VA examiner did concede, however, that "if there was evidence that [the Veteran or the appellant] called the VA and he was having chest pain and they dismissed it as being trivial, then that would open the door..." Finding that additional medical information was necessary, in January 2011, the undersigned Acting Veterans Law Judge requested a cardiology medical opinion asking whether the death of the Veteran was due to improper treatment. The medical expert was asked whether the Tampa VA Medical Center: 1) failed to provide appropriate instructions related to the expectations of the Veteran's post-operative pain; 2) discharged the Veteran from the hospital too quickly 3) failed to recognize the signs and symptoms of an acute myocardial infarction based on the medical history by the Veteran and the appellant before the surgery, documented history of hypertension, elevated cholesterol, and family history of coronary artery disease, abnormal EKG results from July 2005, and the findings from the August 17, 2005 pre-admission physical examination; and/or 4) failed to properly instruct the Veteran and appellant to seek an appropriate diagnosis is and treatment of chest pain and left arm symptoms when they were first reported over the telephone by the appellant to Tampa VA medical personnel on the afternoon of surgery. The examiner was told that the Board had found the Veteran's wife to be credible and that in his analysis he was to assume that the events that she described following the Veteran's discharge did in fact occur. In response to these questions, the examiner stated that, assuming that the Veteran's wife called the Tampa VA medical center reporting chest pain, left arm pain and diaphoresis, "the conclusion would be that [the Veteran] was not referred appropriately for emergency treatment." The examiner stated further, however, that he was unable to confirm or deny that what the Veteran's wife asserted occurred in light of her original answer of 2007 and subsequent response of 2008 which makes no mention of any telephone conversation with the Tampa VA medical center where misinformation was given. Affording the appellant the benefit of reasonable doubt, the Board finds that she is entitled to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1151. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Under 38 U.S.C.A. § 1151, compensation is awarded for a qualifying additional disability or qualifying death caused by improper VA treatment. For purposes of that section, a death is a qualifying event if it was not the result of the Veteran's own willful misconduct and the Veteran's death was caused by hospital care, medical or surgical treatment, or examination provided to the Veteran under any law administered by the Secretary, either by a VA employee or in a VA facility. Regarding "improper VA treatment", the evidence must show that the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. As noted, the Board finds that the appellant's assertions that she called the VA medical center following her husband's complaints of chest pain credible. Supporting this finding is the autopsy report which notes a phone call made to the Tampa VA medical center. Assuming then, that the Veteran's wife's assertions are credible and that she was in fact instructed that the Veteran probably had pain in his chest secondary to his intubation tube and that he should take pain killers, the Board finds that the VA medical center failed to recognize the signs and symptoms of an acute myocardial infarction and therefore failed to properly instruct the Veteran's wife to report to the emergency room. The Board finds, then, that VA made an error in judgment in its failure to timely diagnose and instruct the appellant regarding the reported symptoms of what turned out to be a myocardial infarction. Giving the appellant the benefit of the doubt, this failure is found to proximately cause the continuance or natural progress of the myocardial infarction. Supporting this finding is the fact that both the May 2010 VA examiner and the February 2012 medical examiner are shown to indicate that if the appellant was found credible, and the Board finds her to be so, VA erred in its failure to properly instruct the appellant once she described the Veteran's symptoms. The May 2010 VA examiner notes a finding that the appellant was credible "that would open the door," presumably to a claim of negligence and the February 2012 medical expert additionally stated that if such a phone call was demonstrated that the Veteran was not referred appropriately for emergency treatment of myocardial infarction. Further, D.H.'s opinion that the VA medical center failed to recognized the signs and symptoms and failed to properly instruct the Veteran and appellant to seek treatment for his chest pain supports a finding that inappropriate instruction demonstrated a failure to exercise the degree of care that would be expected of a reasonable health care provider. The fact that three medical professional all suggest that, if the phone call occurred, and the Board has found this assertion credible, it was unreasonable to suggest as the VA did, that the Veteran stay at home and take pain medication for his chest pain and related symptoms. Given the evidence described above, the appellant's claim for entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1151 is granted. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1151 due to VA medical treatment is granted. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs