Citation Nr: 0812030 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-29 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1151 for the cause of the veteran's death. 2. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from February 1954 to February 1974. He died in August 2003, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 2002, which denied the appellant's claim for DIC benefits under 38 U.S.C.A. § 1151, and for Chapter 35 dependent's educational assistance. In an August 2005 rating decision, the RO denied service connection for the cause of the veteran's death. The record does not show that the appellant has appealed that decision, and, accordingly, that issue is not before the Board at this time. FINDINGS OF FACT 1. The veteran died on August [redacted], 2003, at the age of 69 years, of blastomycoses, due to or as a consequence of emphysema, due to or as a consequence of chronic bronchitis. 2. Prior to his death, the veteran was treated periodically at VA facilities for breathing complaints, although he received most of his treatment for his lung conditions from private and military sources. 3. The veteran was hospitalized in a VA Medical Center (VAMC) from July 20 to 27, 2003, at which time he left, against medical advice, and was admitted to a private hospital, where he remained until his death on August [redacted], 2003. 4. While the veteran's pulmonary condition increased in severity during the hospitalization, its continuance or progress was not proximately caused by VA's failure to timely diagnose or properly treat the disease. 5. VA exercised the degree of care that would be expected of a reasonable health care provider. 6. The veteran was not in receipt of a permanent and total service-connected disability rating, due to service-connected disabilities at the time of his death, nor did he die of a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for DIC for death due to VA treatment have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). 2. The basic eligibility requirements for entitlement to Dependents' Educational Assistance are not met. 38 U.S.C.A. §§ 3500, 3501(a)(1), 3510 (West 2002); 38 C.F.R. § 3.807, 21.3021 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. In September 2005, VA sent the appellant a letter, advising her of the information necessary to substantiate her 38 U.S.C.A. § 1151 DIC claim, and of her and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although she was not explicitly told to provide any relevant evidence in her possession, she was informed of the specific types of evidence she could submit which would be pertinent to her claim, and she was told that it was still her responsibility to support the claim with appropriate evidence. These statements served to convey the information that she should provide any relevant information or evidence she possessed. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This letter was not sent until after the adjudication of the claim, and there was no subsequent readjudication after the letter was sent. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. In this case, the appellant did not submit any additional evidence or information during the two years that elapsed between the mailing of the content-complying letter and transfer of the file to the Board. The case turns on medical questions of causation and negligence, and the records of the hospitalization at issue have been obtained. Since she had sufficient time to respond to the letter, which provided her with actual knowledge of the requirements to establish her claim, the Board finds that the error did not affect the essential fairness of the adjudication. See Sanders. Although the veteran was not provided information regarding the rating assigned or effective date of a grant of benefits, prior to a decision, the failure to provide notice as to these matters is harmless error, since there is no monetary award or an effective date to be assigned as a result of this decision. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, the duty to notify has been satisfied. The Board also concludes VA's duty to assist has been satisfied. Service medical records and all available, potentially relevant VA treatment records have been obtained, including the records pertaining to the VA hospitalization from July 20 to 27, 2003. In addition, military and private records dated from 1975 to 2003 have been obtained, including the records of the veteran's hospitalization from July 27 to August [redacted], 2003. The appellant has not identified any other potentially relevant records. A VA medical opinion was obtained in April 2005. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). With respect to the Chapter 35 claim, the provisions of the VCAA do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the circumstances of this case, there is no reasonable possibility that additional efforts to assist or notify the appellant in accordance with the VCAA would assist her in substantiating her claim. Therefore, she is not prejudiced as a result of the Board proceeding to the merits of the claim. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. DIC claim According to the death certificate, the veteran died on August [redacted], 2003, at the age of 69 years, in the Southern Ohio Medical Center (SOMC). The immediate cause of death was blastomycoses, due to or as a consequence of emphysema, due to or as a consequence of chronic bronchitis. An autopsy was not performed. The appellant contends that the veteran's death was due to the malpractice of VA physicians. She states that they failed to take appropriate actions when clearly advised by veteran and his wife. She alleges that he died as a result of the VAMC physicians failing to properly diagnose and treat the veteran. She maintains that the VA doctor insisted that the veteran did not have a problem, that he told the veteran that he needed to go home and get off his medicines, take a sugar pill, and he would be fine. She contends that both she and the veteran pleaded with the doctor to treat the veteran but it was to no avail. Moreover, she states that the VA employees refused to give the emergency transport people any information whatsoever. His private doctor, Dr. Saab, personally called the emergency squad to pick up the veteran after discussing the issue with the veteran on the telephone. Although he signed out AMA, he went directly to SOMC where he was admitted to the ICU and died on the [redacted] day. She also states that there were problems with the staff in the veteran's ward. Compensation or DIC shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the 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. To establish causation, evidence must show that the VA medical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran died does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). 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). In addition to proximate cause, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that 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). See also VAOPGCPREC 5-01. The essence of the appellant's argument is that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, which resulted in his death. Records of the veteran's treatment as a retiree at Wright- Patterson Air Force Base dated from 1975 to 1999 show that in May 1976, while being evaluated for ear pain, congestion, and sinus problems, at history of bronchial asthma in 1962 was noted. An abnormality was detected on chest X-ray. A chest X-ray in December 1979 noted, by way of history, that he had not had a chest X-ray for three years and that he had been said to have a spot. The chest X-ray showed a calcified granuloma in the right lower lung field. A small bullous formation was seen in the right upper lobe as well. A July 1983 chest X-ray similarly disclosed a density thought to represent a parenchymal scar or granuloma. Records dated from 1988 to 1994 show the veteran's treatment at Adams County Hospital. In December 1988, he complained of in sharp intermittent pain in the left rib cage, with increasing pain on inspiration beginning that morning. Evaluation included a chest X-ray, which disclosed bolus changes compatible with chronic obstructive pulmonary disease, and a nodule in the right middle lobe that was suspicious for neoplasm. The veteran was hospitalized in February 1989 due to the right lung mass discovered on chest X-ray and computerized tomography (CT) scan. Pulmonary function tests on the last admission were very poor. A right middle lobe resection was performed, which was determined to be a fungal infection, Cryptococcus, of questionable origin. On surgery, bolus emphysematous changes were seen, and the right lower lobe appeared to be essentially normal with chronic smoking changes. In the right middle lobe, there was a 1.5 to 2 cm firm nodule, which was removed. There was another small granulomatous appearing lesion approximately 2 cm in the right middle lobe, which was not disturbed. In May 1989, severe obstructive lung disease was shown, and in September 1990, severe an asthmatic component was noted. In May 1991, a cardiology consult was obtained, due to ventricular tachycardia. Subsequent records show his ongoing treatment for chronic obstructive pulmonary disease. Records dated from 1995 to 2002 from E. Saab, M.D., show that on his initial evaluation in April 1995, the veteran was noted to have diminished breath sounds. His neck veins were distended on exhalation, he was barrel-chested, and very hyperinflated. The X-rays disclosed a hyperinflated chest with a scar, and an old granuloma in the right middle lobe. The impression was severe intrinsic asthma and bronchitis and emphysema. By June 1999, despite treatment, he was noted to have bullous emphysema, as well as coronary artery disease. His condition continued to be subject to exacerbations, requiring hospitalization for instance in October 2001. VA treatment records show the veteran was seen in January 2003 for evaluation of his lung disability. He received most of his treatment from outside doctors. Recently, he had completed a course of prednisone, and felt better. He was compliant with his many medications. The diagnoses included asthma and COPD, and it was noted that there was no change in treatment and that he was to be seen in 3 months. VA records show the veteran was seen as a medical emergency on June 2, 2003, for generalized weakness and shortness of breath. After resting, his respirations improved. He said he had been on prednisone since April. His wife said he became short of breath with exertion, and on examination, lung sounds were diminished in the posterior lower lobes. The chest X-ray showed severe emphysema. It was noted that the veteran refused admission and was discharged AMA (against medical advice). He was told to take activities slow and rest in between. In addition, the doctor noted that he was going to follow up with primary care. The chest X-ray showed lungs overrinflated due to pulmonary emphysema, but there was no acute disease. On July 20, 2003, he was brought to the VAMC by ambulance, and admitted. He complained of shortness of breath, a feeling as if he were being smothered, as well as swelling of the hands and feet. He had a history of multiple conditions including COPD, asthma, and bronchiolitis obliterans with organizing pneumonia (BOOP), for which he was treated by a private doctor, Dr. Saab; currently, he was on prednisone therapy. He had difficulty ambulating due to shortness of breath. The impression was exacerbation of BOOP. He was admitted for treatment. Chest X-ray showed multifocal patchy infiltrate in the right mid lung zone and right lower zone suggestive of pneumonia. He was given broad-spectrum antibiotics and noninvasive ventilatory support, together with steroid therapy. Nursing notes show that sometimes he felt better, but then at times, he would feel worse again. On July 25, 2003, the nurse noted that the veteran became anxious at times and worried about various things, such as the presence of sugar on his breakfast tray, and his concern to have not have any sugar and no added salt was discussed with the doctor. The doctor noted that his pneumonia was not improving. Further tests were planned, and his antibiotics were changed. On July 27, 2003, however, his wife said that her husband's condition had been worsening since admission, and she would like him to be transferred to another hospital. He said he had been seen by private pulmonologist and private cardiologist. The doctor on duty was recommended that they wait and discuss the situation with his treating doctor. The veteran was also placed on Lasix for a finding of mild congestive heart failure. However, he signed out against medical advice on July 27, 2003. Records from SOMC show that he was admitted to that facility on July 27, 2003. On examination, he was in respiratory distress. He also had cyanosis. He had right lower lobe pneumonia with advanced emphysema and COPD exacerbation. He was to be treated with intravenous antibiotics, septic work- up, bronchodilator therapy, and steroids. Unfortunately, his condition continued to deteriorate, and he required intubation. Bronchial washings obtained at that time had revealed blastomyces, and he was started on medication for that, but little improvement had been shown. On an August 4 consultation, it was noted that he also had methicillin- resistant Staph infection, as well as Candida. The impression was end-stage lung disease. Eventually, the veteran said that he only wanted to be kept comfortable, and the remainder of the treatment focused on palliative care during the remainder of the hospitalization until his death on August [redacted], 2003. In April 2005, the file was referred to a physician for a medical opinion. The examiner noted that noted that on admission to the hospital on July 20, 2003, the veteran's temperature was normal, his blood pressure was 115/69, and his oxygen saturation was between 89 and 93 percent on 2 liters of oxygen. There were scattered rales and rhonci on examination, and a chest X-ray showed an infiltrate in the right lower lung field. Sputum cultures were obtained, which later grew enteroacter, Staph aureus, and pseudomonas. He was started on antibiotic treatment, bronchodilator and steroids. Over the next several days he continued to cough and produce purulent, blood-tinged sputum. The intensity of his dyspnea waxed and waned, but his oxygenation improved slightly, and he remained afebrile. X-rays taken on July 25, 2003, showed some clearing of the lung infiltration, but a repeat sputum culture grew staph aureus. On July 26, 2003, there was deterioration in his condition. His wife requested that he be transferred to a private hospital, and on July 27, 2003, he was discharged against medical advice. He was admitted to SOMC on July 27, 2003. Bronchodilator and corticosteroid treatment was continued, and antibiotic coverage was expanded. However, he continued to deteriorate with increasing hypoxemia. On July 30, he underwent endotracheal intubation and bronchoscope, which disclosed budding organisms consistent with blastomyces. Treatment with Amphoteracin was started but subsequently discontinued due to worsening renal function. By August 5, 2003, a hospice consultation had been made, and a decision for comfort care. He died on August [redacted], 2003. The physician concluded that the medical records clearly documented that he suffered from severe and long-standing COPD, repeated infectious exacerbations, and BOOP. His underlying lung disease rendered him susceptible to recurring respiratory infections, and the required treatment with antibiotics and corticosteroid treatment resulted in superimposed fungal infection. The doctor's opinion was that with reasonable medical certainty, the veteran's death was more likely than not the expected outcome for an individual with severe COPD, BOOP, and acute pneumonia. The medical care that he received during his hospitalization from July 20 to 27, 2003, at the VAMC was appropriate according to accepted medical standards and did not contribute to his subsequent death. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The appellant is competent to give evidence about what she experienced or personally observed. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a layman, however, she is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because she does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). With respect to the appellant's contentions that the VA doctor insisted that the veteran did not have a problem, that he told the veteran that he needed to go home and get off his medicines, take a sugar pill, and he would be fine, these statements are contradicted by the VA medical records, and the Board does not find them credible. There is no suggestion that the veteran's condition was not considered serious; indeed, his pneumonia had been observed to be worsening, and he was awaiting a consult, at the time of his discharge. Likewise, her contention that both she and the veteran pleaded with the doctor to treat the veteran but it was to no avail is contradicted by the medical records. It must be pointed out that it is a matter of the doctor's medical judgment as to the specific treatment to provide. Moreover, as a layperson, the appellant is not competent to state that the care the veteran received was inadequate. In this case, the only competent evidence addressing the issue of causation and fault is the April 2005 VA medical opinion, which resulted in the conclusion that it was unlikely that there was any causal connection or VA fault. Moreover, the opinion was based on the medical evidence of record, and included a detailed summary of the pertinent evidence. Neither the Board nor the appellant possesses the necessary medical expertise to challenge the results of this medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (a layman is not competent to offer a diagnosis or medical opinion); Jones v. Principi, 16 Vet. App. 219, 225 (2002) (Board must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision); Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment). The question at issue requires medical expertise, and the only competent medical evidence of record addressing the mater is the VA medical opinion, which is unfavorable to the appellant's claim. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Eligibility for Educational Assistance under 38 U.S.C. Chapter 35 For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35 (see § 21.3020), the child, spouse or surviving spouse of a veteran will have basic eligibility if certain conditions are met, including, that a permanent total service-connected disability have been in existence at the date of the veteran's death, or that the veteran died as a result of a service-connected disability. 38 C.F.R. § 3.807(a) (2007). At the time of his death, service connection was in effect for bilateral varicose veins, assigned a 10 percent rating for each leg; and sinusitis, also assigned a 10 percent rating. Service connection for the cause of the veteran's death was denied by the RO in August 2005. Consequently, the appellant's claim fails because of absence of legal merit or lack of entitlement under the law, and the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). ORDER Entitlement to DIC under 38 U.S.C.A. § 1151 for the cause of the veteran's death is denied. Entitlement to dependent's educational assistance under 38 U.S.C. Chapter 35 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs