Citation Nr: 0812192 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 03-31 581 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1151, based on treatment received April 5 and [redacted], 2000. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The veteran had active military service from October 1951 to February 1954. He died in April 2000, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2003 rating decision. FINDINGS OF FACT 1. The veteran died while at a VA hospital in April 2000. 2. The veteran's death was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 3. The veteran's death was not an unforeseeable result of emergency room treatment. CONCLUSION OF LAW Criteria for compensation based on the veteran's death at a VA hospital have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that the veteran died as a result of a delay in treating him while he was at a VA hospital, which she believes was negligent on the part of VA. VA records reflect that the veteran had been admitted to the VA Hospital's Blind Rehabilitation Center in February 2000 where his diagnoses included being legally blind (with chronic glaucoma), insulin dependent diabetes mellitus, diabetic retinopathy, diabetic neuropathy, arterial hypertension, allergic rhinitis, status post sigmoid polyp surgery, anxiety/depression, GERD, and diverticulosis. While in this setting, he was seen the morning of April 5, 2000 for abdominal discomfort. When this had not improved, he was sent to the emergency room for evaluation at approximately 2:00PM. The veteran was treated in the emergency room and then was taken for a surgery consultation around 5:15 PM. At 5:30 pm the veteran was given medication and records note additional treatment at 6:25 PM, 7 PM, 7:30 PM, 8:20 PM, 8:30 PM, 8:45 PM, 9:30 PM, 9:40 PM, 9:50 PM, and 10 PM. At 10:30 PM a record indicates that a consent for surgery and transfusions form was signed by the veteran's wife. At 11 PM the veteran was admitted to the operating room. At 12:30 AM the veteran was diagnosed with a large bowel obstruction and was judged to be in critical condition. Treatments continued to be provided through the night and the following day, with records updated at 2:40 AM, 2:45 AM, 4 AM, 7 AM, 9 AM, 12:30 PM, 1 PM, 3 PM, 6:30 PM, 9 PM, and 9:50 PM. Around 11:30 PM on April [redacted], 2000 the veteran passed away. The Death Certificate reflects the cause of death was sepsis due to intestinal obstruction and colon carcinoma. An autopsy was performed April [redacted] and the report from it showed there was no residual of the rectosigmoid adenocarcinoma tumor, but it did include the following findings: status post resection of the colon in December 1999; early intestinal hemorrhagic infarction, sepsis with 40% bacteremia, ascites and bilateral pleural effusion, pulmonary congestion and edema, bronchopneumonia, hypertrophy of the heart and generalized atherosclerosis including left main with 90 percent occlusion. In February 2001, the appellant wrote a letter indicating that the veteran arrived at the emergency room in the morning and that she was not contacted until 8:45 that night. She stated that when she and her daughters arrived doctors informed her that the veteran's vital organs had deteriorated and that exploratory surgery was needed as x-rays had showed a mass or cancer. In September 2002, a medical opinion was requested to determine whether VA had met the standard of care with regard to its treatment of the veteran in April 2000. The acting chief of the emergency room reviewed the veteran's case, noting that after presenting to the emergency department, the veteran was given a timely and complete medico-surgical evaluation. The doctor also noted that according to documentation and blood sample reports the veteran was critically ill and required emergency stabilization and resuscitation before being officially transferred to surgical services; and he stated that based on the clinical scenario, the laboratory results, and the pathology report, the veteran was already critically ill and apparently with a guarded prognosis upon his arrival to the emergency room. As such, the doctor concluded that the medical care provided to the veteran in the emergency room was within the standard of care parameters. In October 2002, another review of the veteran's treatment was made. The examiner noted that the veteran had been admitted to VA's blind rehabilitation training program for several months prior to his death and he went home on several weekend passes, without any indication of any medical problem. On April 5, 2000, the veteran had complained of abdominal pain after breakfast, and he was observed every 15- 30 minutes throughout the morning and then referred to the emergency room when symptoms continued. The examiner indicated that the veteran developed an acute, clinical condition that was not related to his previous resection of the colon; and she opined that the condition developed by the veteran was acute, unpredictable, and not related to any pre- existing disease or surgery. A physician (Dr. Gordon) apparently employed by the appellant's representative, The American Legion, reviewed the veteran's case in August 2006, and provided a Memo, (written on The American Legion stationery). She noted that the veteran had multiple medical problems including diabetes and related complications. After chronicling the veteran's medical treatment, Dr. Gordon stated that the evidence indicated that the veteran was treated conservatively for gastro-intestinal complaints, his symptoms persisted with the subsequent development of a lowering of his blood pressure and the veteran was referred to the emergency department for further evaluation and treatment. She stated that the initial assessment in the emergency room at 2:05 pm was consistent with an acute abdomen with evidence of hypotension. She also theorized that the differential diagnoses given the veteran's history of a prior abdominal surgery must have included bowel obstruction with probable infarction of the bowel, perforated viscus and/or viscus. She noted that the veteran continued to have severe hypotension during his stay in the emergency room despite the use of ionotropic agents and aggressive hydration; but she took note of the fact that it was not until 3 hours later that a surgical consultation was undertaken and 6 and a half hours before the veteran was taken to the operating room. Dr. Gordon noted the operative report was not available, which made it difficult to determine the actual findings during surgery. However, Dr. Gordon nevertheless stated that the pathological report did confirm what should have been expected given the critical nature of the veteran's condition, and she asserted that the appropriate management in the veteran's case would have been immediate surgical intervention given the tenuous nature of his condition on presentation to the emergency room and the significant risk of a poor outcome as a result of his multiple co-morbidities. Nevertheless, Dr. Gordon found that it was difficult to determine with any degree of medical certainty, given the veteran's multiple co-morbities, what the outcome would have been had earlier intervention been made; but she opined that it would be reasonable to conclude that the veteran's chance of surviving such a critical illness could have improved had an intervention been made earlier than 9.5 hours after his initial presentation to the emergency room. As requested by Dr. Gordon, the Board remanded the appellant's claim to obtain a copy of the operation report. The operative report was obtained, showing that an ischemic transverse colon was found and exteriorized. The report also noted that the veteran had to be resuscitated prior to the surgery, and that based on the family's desire to have everything done, the veteran was rushed into the operating room for a transverse loop colostomy and decompression of the colonic obstruction. The operation was completed without any further complications and the veteran was then rushed to the ICU where further resuscitative measures were started. Thereafter, the claims file with this record was provided to The American Legion, however, Dr. Gordon provided no further statement following the operation report being obtained. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. See 38 U.S.C.A. § 1151. Here, the record shows that although the veteran died while in VA care, the evidence does not support the conclusion his death was the result of 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 whether it was an event that was not reasonably foreseeable. 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 additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). In this case, there is no indication in any of the treatment records, including the surgery and hospitalization reports, to suggest carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. The surgery report found that no further complications resulted from the surgery; the veteran was critically ill when he was admitted for surgery and the family was advised at that time that the veteran had a high mortality rate. The appellant also signed a consent form that noted that risks from the surgery included bleeding, infection, and death. An internal review by the chief of surgical service in August 2002 found that from the surgical point of view, no delay in treatment occurred. There is also no allegation that treatment following the surgery was negligent in any way. The appellant's chief contention centers on whether the care of the veteran between the time he was brought to the emergency room until the time he actually underwent surgery was negligent. In this regard, Dr. Gordon asserted that the appropriate management in the veteran's case would have been immediate surgical intervention given the tenuous nature of the veteran's condition on presentation to the emergency room and the significant risk of a poor outcome as a result of his multiple co-morbidities. Nevertheless, Dr. Gordon found that it was difficult to determine with any degree of medical certainty, given the veteran's multiple co-morbities, what the outcome would have been had earlier intervention been made. She simply found that it would be reasonable to conclude that the veteran's chance of surviving such a critical illness could have improved had an intervention been made earlier than 9.5 hours after his initial presentation to the emergency room. Improved chances do not establish it is as likely as not the veteran would have survived. Likewise, it is noteworthy that Dr. Gordon did not affirmatively state that the care provided by the VA emergency room staff was negligent or careless, demonstrated lack of proper skill, or showed error in judgment. The hospitalization records show that the veteran was provided immediate care upon being admitted to the emergency room around 2 PM, and when this was unsuccessful, the veteran was sent for a surgical consultation. Furthermore, the only medical opinion of record that addresses VA's standard of care in the emergency room found that the medical care provided to the veteran in the emergency room was within the standard of care parameters Additionally, the only medical opinion of record addressing the veteran's surgical care also found that the operative care provided to the veteran was within the standard of care parameters. The appellant has made repeated complaints that she was not contacted until 8:45 PM when the veteran had been in the emergency room since 2 PM. While it is understandable she would be upset, as anyone would wish to be kept apprised of a loved one's state of health, the fact that the appellant was not contacted does not in any way relate to the care the veteran was receiving; and it does not show that VA was negligent in its treatment of the veteran. Accordingly, while the veteran has been shown to have died while in VA care, his death has not been shown to be the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. As to whether the veteran's death was reasonably foreseeable. Foreseeability is to be considered based on what a reasonable health care provider would have foreseen versus what they would not have considered to be an ordinary risk of the treatment provided. In this case, the veteran had numerous co-morbidities at the time he presented for treatment at the emergency room, and death would certainly have been a possibility, as a person would not go to the emergency room if serious health risks were not at stake. Additionally, before surgery was performed, the appellant was informed that death was a possibility, and she then consented to the surgery. As such, the veteran's death was not an unforeseeable result at the time he presented for treatment at the emergency room. Thus, evidence of fault on the part of VA has not been shown, and the veteran's death was not unforeseeable. Therefore, the criteria for an award of benefits under 38 U.S.C.A. § 1151 have not been met, and the appellant's claim is accordingly denied. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the present case, required notice was provided by a letter dated in September 2006, which informed the appellant of all four elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the appellant was not given prior to the first adjudication of the claim, the appellant has been provided with every opportunity to submit evidence and argument in support of her claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444. F.3d 1328 (Fed. Cir. 2006). Additionally, the appellant's claim was readjudicated by an October 2007 supplemental statement of the case following the completion of the notice requirements. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006). VA treatment records have been obtained, as have the surgical report and the appellant's consent form. Medical opinions also have been received. Additionally, the appellant testified at a hearing before the RO, and she was offered the opportunity to testify at a hearing before the Board, but she declined. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the appellant's claim, no benefit award or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. ORDER Entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1151 is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs