Citation Nr: 0912167	
Decision Date: 04/01/09    Archive Date: 04/10/09

DOCKET NO.  91-44 197A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) 
under the provisions of 38 U.S.C.A. § 1151, for the cause of 
the Veteran's death.  


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney 
at Law


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A. J. Turnipseed, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1951 to March 
1954.  He died in May 1991, and the appellant is his 
surviving spouse.  

This matter comes before the Board of Veterans' Appeals 
(Board) from a July 1995 rating decision by the above 
Department of Veterans Affairs (VA) Regional Office, which 
denied entitlement to benefits under 38 U.S.C.A. § 1151.  

In April 1999, the Board issued a decision denying the 
appellant's claim for DIC under the provisions of 38 U.S.C.A. 
§ 1151, as well as another claim for DIC based upon service 
connection for cause of the Veteran's death, which had been 
denied in an August 1991 rating decision.  The appellant 
appealed the Board's April 1999 decision to the United States 
Court of Appeals for Veterans Claims (Court) and, in 
September 2000, the appellant's representative and VA's 
General Counsel filed a joint motion to affirm the Board 
decision in part, and to remand the decision in part.  The 
joint motion stated that the appellant did not contest the 
Board's denial of DIC based upon the claim of service 
connection for cause of death, and the parties moved to 
dismiss that claim from the appeal.  The joint motion moved 
to remand the remaining issue for a more thorough discussion 
of the evidence, particularly relating to a January 1992 VA 
medical opinion.  In a September 2000 Order, the Court 
granted the joint motion, vacated the Board's April 1999 
decision, and remanded the claim to the Board for compliance 
with the directives specified in the joint motion.  




On remand from the Court, the Board requested an independent 
medical expert's opinion, which was provided in August 2001.  
In April 2002, the Board denied the appellant's claim for DIC 
under the provisions of 38 U.S.C.A. § 1151, and the appellant 
appealed that decision to the Court.  After litigation of the 
issues, the Court issued an Order remanding the appellant's 
claim to the Board for compliance with the Veterans Claims 
Assistance Act of 2000 (VCAA) as it relates to VA's duty to 
notify a claimant about procedural and evidentiary matters in 
the VA claims process.  In August 2008, the Board remanded 
the appellant's claim to the RO in order to provide the 
appellant with notice which complied with the VCAA.  All 
requested development has been completed, and the claim is 
now before the Board for appellate consideration.  


FINDINGS OF FACT

1.  The Veteran died in May 1991.  According to the official 
certificate of death, the immediate cause of death was 
prostate cancer of six years' duration, with bladder rupture 
of three weeks' duration, the latter listed as a condition 
leading to the immediate cause of death.  

2.  The Veteran was first diagnosed with prostate cancer in 
1982 and underwent both private and VA treatment from then 
until his death; in April and May 1991, just prior to his 
death, he was hospitalized at a VA medical center, during 
which hospitalization a bladder rupture occurred.  

3.  At the time of the Veteran's death, service connection 
was in effect for residuals of a through-and-through gunshot 
wound sustained in service, with scars on the right buttock 
and right anterior thigh, and for schizophrenia; both 
disabilities were rated 30 percent disabling.  

4.  Additional disability, specifically a rupture of the 
urinary bladder, occurred during VA treatment of the 
Veteran's prostate cancer; however, the bladder rupture 
either resulted from the continuation or natural progress of 
his longstanding prostate cancer, or was merely coincidental 
therewith; or it was a necessary consequence of the treatment 
of the cancer, to include radiation therapy.  

5.  No additional disability incurred as a result of VA 
medical care contributed substantially or materially to cause 
the Veteran's death, or combined with another disorder to 
cause his death, and no such disability aided or lent 
assistance to the production of death.  


CONCLUSION OF LAW

The criteria by which dependency and indemnity compensation 
may be awarded under the provisions of 38 U.S.C.A. § 1151 are 
not met.  38 U.S.C.A. §§ 1151, 5107(b) (West 1991 & Supp. 
2001); 38 C.F.R. §§ 3.102, 3.358, 3.800 (2001).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty 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, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008); 
38 C.F.R. § 3.159, 3.326(a) (2008).

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), as amended, 73 Fed. Reg. 23,353 (April 30, 
2008).  This notice must be provided prior to an initial 
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).  However, if VCAA notice is provided after 
the initial decision, such a timing error can be cured by 
subsequent readjudication of the claim, as in a Statement of 
the Case (SOC) or Supplemental SOC (SSOC).  Mayfield v. 
Nicholson, 20 Vet. App. 537, 543 (2006).  

The U.S. Court of Appeals for the Federal Circuit has held 
that, if a claimant can demonstrate error in VCAA notice, 
such error should be presumed to be prejudicial.  VA then 
bears the burden of rebutting the presumption, by showing 
that the essential fairness of the adjudication has not been 
affected because, for example, actual knowledge by the 
claimant cured the notice defect, a reasonable person would 
have understood what was needed, or the benefits sought 
cannot be granted as a matter of law.  Sanders v. Nicholson, 
487 F.3d 861 (Fed. Cir. 2007); petition for cert. granted 
(U.S. June 16, 2008) (No. 07-1209).

The Court of Appeals for Veterans Claims has held that, in 
the context of a claim for dependency and indemnity 
compensation seeking service connection for cause of death, 
notice under 38 U.S.C.A. § 5103(a) 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.  There is no 
preliminary obligation on the part of VA to conduct a 
predecisional adjudication of the claim prior to providing a 
section 5103(a)-compliant notice.  Hupp v. Nicholson, 21 Vet. 
App. 342, 352-53 (2007). 

Although the appellant's present appeal seeks DIC, and 
compensation under 38 U.S.C.A. § 1151 is awarded in the same 
manner as if the additional disability were service 
connected, a claim for benefits under section 1151 is not 
based upon service connection.  Thus, the Hupp precedent is 
not directly applicable to this case, and the Board 
recognizes that this claim must be supported by medical 
evidence of additional disability that resulted from VA 
hospitalization or medical or surgical treatment, unrelated 
to the Veteran's service.  See Jimison v. West, 13 Vet. App. 
75, 77-78 (1999).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial RO decision by way of a letter sent 
to the appellant in November 2008 that fully addressed all 
required notice elements.  The letter informed the appellant 
of what evidence was required to substantiate her claim and 
of the appellant's and VA's respective duties for obtaining 
evidence.  Although no longer required, the appellant was 
also asked to submit evidence and/or information in her 
possession to the RO.

Although the notice letter was not sent before the initial RO 
decision in this matter, the Board finds that this error was 
not prejudicial to the appellant because the actions taken by 
VA after providing the notice have essentially cured the 
error in the timing of notice.  The appellant was advised of 
her opportunities to submit evidence in support of her claim 
and the RO issued numerous SSOCs which provided her with an 
additional 60 days to submit evidence.  Thus, the Board finds 
that the purpose behind the notice requirement has been 
satisfied because the appellant has been afforded a 
meaningful opportunity to participate effectively in the 
processing of her claim.  In addition, the RO readjudicated 
the case by way of an SSOC issued in December 2008 after the 
notice was provided.  For these reasons, it is not 
prejudicial to the appellant for the Board to proceed to 
finally decide this appeal, because the timing error did not 
affect the essential fairness of the adjudication.  


In addition, to whatever extent the decision of the Court in 
Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires 
more extensive notice in claims for compensation, e.g., as to 
potential downstream issues such as effective date, the Board 
finds no prejudice to the appellant in proceeding with the 
present decision.  Because the claim is herein denied, the 
effective date issue is moot.  Moreover, the appellant is 
represented by experienced counsel, who is expected to 
apprise her client of all aspects of the law as to all 
aspects of notice and assistance, thus curing any error under 
Dingess or Sanders, supra.

The Board also finds VA has satisfied its duty to assist the 
appellant in the development of the claim.  The RO has 
obtained VA and private medical records showing treatment the 
Veteran received from 1983 up until his death.  The RO also 
obtained two VA medical opinions in conjunction with this 
claim.  It appears that all obtainable evidence identified by 
the appellant relative to her claim has been obtained and 
associated with the claims file, and that neither she nor her 
attorney has identified any other pertinent evidence, not 
already of record, which would need to be obtained for a fair 
disposition of this appeal.  It is therefore the Board's 
conclusion that no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
Veteran 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).

Accordingly, we find that VA has satisfied its duty to assist 
the appellant in apprising her as to the evidence needed, and 
in obtaining evidence pertinent to her claim under the VCAA.  
Therefore, no useful purpose would be served in remanding 
this matter for yet more development.  Such a remand would 
result in unnecessarily imposing additional burdens on VA, 
with no additional benefit flowing to the appellant.  The 
Court of Appeals for Veterans Claims has held that such 
remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).  

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a).  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.

II.  Applicable Law

The issue of service connection for cause of the Veteran's 
death has already been decided and is not currently on appeal 
before the Board.  However, the law pertaining to such cases 
will be briefly summarized, given the appellant's assertion 
that a disability incurred at a VA medical facility caused 
the death of the Veteran.  

The surviving spouse of a veteran whose death was caused by a 
service-connected disability may be entitled to benefits.  
38 U.S.C.A. § 1310.  Death is deemed to have been caused by a 
service-connected disability when the evidence establishes 
that a service-connected disability was either the principal 
or contributory cause of death.  38 C.F.R. § 3.312(a).  A 
service-connected disability will be considered the principal 
(primary) cause of death when such disability, either singly 
or jointly with some other condition, was the immediate or 
underlying cause of death or was etiologically related 
thereto.  38 C.F.R. § 3.312(b).  The service-connected 
disability will be considered a contributory cause of death 
when it contributed substantially or materially, combined 
with another disability to cause death, or aided or lent 
assistance to the production of death.  38 C.F.R. § 3.312(c).  

Under the provisions of 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, disability compensation or dependency and 
indemnity compensation (DIC) may be awarded in the same 
manner as if the additional disability or death were service 
connected.  See 38 C.F.R. §§ 3.358(a), 3.800(a).  

Implementing regulations provide that, in determining whether 
additional disability exists, the veteran's physical 
condition, including the condition that the treatment was 
intended to alleviate, immediately prior to the VA treatment 
on which the claim is based will be compared with the 
physical condition subsequent thereto.  Compensation is not 
payable if the additional disability or death results from 
the continuation or natural progress of the disease or injury 
for which the Veteran was treated.  38 C.F.R. § 3.358(b)(1), 
(2).  Regulations also provide that the additional disability 
or death must actually result from VA treatment and not be 
merely coincidental therewith.  In the absence of evidence 
satisfying this causation requirement, the fact that 
additional disability or death occurred would not, in and of 
itself, warrant compensation.  38 C.F.R. § 3.358(c)(1), (2).  

Regulations further provide that compensation is not payable 
for the necessary consequences of VA treatment properly 
administered with the express or implied consent of the 
veteran or, in appropriate cases, the veteran's 
representative.  "Necessary consequences" are those which 
are certain or intended to result from the treatment 
provided.  Consequences otherwise certain or intended to 
result from treatment will not be considered uncertain or 
unintended solely because it had not been determined, at the 
time consent was given, whether that treatment would, in 
fact, be administered.  38 C.F.R. § 3.358(c)(3).  

Earlier interpretations of the statute and regulations 
required evidence of negligence or other fault on the part of 
VA, or the occurrence of an accident or an intervening, 
unforeseen event, to establish entitlement to section 1151 
benefits.  See 38 C.F.R. § 3.358(c)(3) (1994).  Those 
interpretations and the cited regulatory provision were 
invalidated by the Court in the case of Gardner v. Derwinski, 
1 Vet. App. 584 (1991), aff'd sub. nom. Gardner v. Brown, 5 
F.3d 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 
115 (1994).  Accordingly, in March 1995, VA published an 
interim rule amending 38 C.F.R. § 3.358 to conform to the 
case law.  The amendment was made effective from November 25, 
1991, the date the initial Gardner decision as issued.  60 
Fed. Reg. 14,222 (Mar. 16, 1995).  The interim rule was later 
adopted as a final rule, 61 Fed. Reg. 25, 787 (May 23, 1996) 
(codified at 38 C.F.R. § 3.358(c)(2008)).  

Thereafter, Congress amended 38 U.S.C.A. § 1151 to preclude 
compensation in the absence of negligence or other fault on 
the part of VA or an event not reasonably foreseeable.  That 
amendment applies to claims filed on or after October 1, 
1997.  Pub. L. No. 104-204, §§ 4.22(a), 110 Stat. 2926 (Sept. 
26, 1996); VAOPGCPREC 40-97 (Dec. 31, 1997).  

III.  Facts and Analysis

The appellant filed her claim for benefits under 38 U.S.C.A. 
§ 1151 in November 1991, prior to the effective date of the 
legislative amendment to 38 U.S.C.A. § 1151.  Therefore, the 
1997 statutory amendment does not apply.  Accordingly, this 
claim was adjudicated by the RO, and has been reviewed by the 
Board, under the Gardner interpretation of 38 U.S.C.A. § 1151 
and the interim rule issued by the Secretary on March 16, 
1995, and adopted as a final regulation on May 23, 1996.  
Thus, if the applicable statutory and regulatory criteria are 
otherwise met, this claim could be granted without evidence 
of either fault by VA or an intervening event not reasonably 
foreseeable.  

In this case, the Board's principal concern is whether any 
additional disability resulted from VA treatment and (if it 
did not represent natural progress of the disability for 
which treatment was being rendered, was not merely 
coincidental with the treatment, and was not a necessary 
consequence of the treatment) whether it caused or 
contributed in a substantial way to cause the Veteran's 
death.  



The appellant has not claimed that the Veteran's prostate 
cancer resulted from VA hospitalization or medical treatment, 
and there is no evidence that it did.  The appellant's 
primary contention is that, during the Veteran's final month 
of treatment by VA, in April and May 1991, his genitourinary 
system was damaged during Foley catheter placement, resulting 
in gross hematuria, urosepsis, and eventual bladder rupture 
due to over-distention, and that this series of events 
hastened his demise.  

Review of the evidence reveals that adenocarcinoma of the 
prostate was initially identified and diagnosed in early 
1982.  The Veteran exhibited symptoms of hematuria as early 
as 1983, and radiation therapy began that year.  Blood 
clotting of the bladder and hematuria continued to be 
problematic as shown in records dated from 1983 to 1985.  The 
Veteran underwent radiation therapy in early 1987 and again 
in May 1990.  By September 2000, a total body bone scan 
revealed marked progression of metastatic disease in the 
skull, spine, sternum, pelvis, and bilateral ribs, shoulders, 
and femurs.

It would be helpful, in understanding the condition of the 
Veteran's bladder at the time of his terminal 
hospitalization, to review the previous invasive procedures 
he had undergone, and the reports of hematuria and urinary 
tract infections.

In February 1982, the Veteran underwent his first 
transurethral resection of the prostate, which resulted in 
the diagnosis of moderately well-differentiated 
adenocarcinoma of the prostate.  In February 1983, he had 
gross hematuria, underwent a second transurethral resection 
of the prostate, and was given 4400 rads of radiation to the 
pelvis and 2200 rads directed at the prostate.  In March 
1983, he again presented with gross hematuria, and underwent 
a third transurethral resection of the prostate.  In 
September 1983, he again had gross hematuria, and underwent 
cystoscopy that revealed hemorrhagic cystitis; urinalysis 
revealed a urinary tract infection, and an intravenous 
pyelogram showed that the bladder was small and contracted.  
In October 1983, he had gross hematuria and was unable to 
urinate because the urethra was clogged with blood clots.  He 
was catheterized and the bladder was irrigated, but hematuria 
continued.  He underwent a cystoscopy and bleeding was found 
at the bladder neck; blood clots were irrigated free and the 
area was fulgurated.  Hematuria persisted, and he underwent 
another cystoscopy that revealed radiation cystitis in the 
bladder.  The clots were irrigated free and the bladder was 
fulgurated.  A three-way catheter was emplaced and he 
underwent continuous bladder irrigation.

In December 1983, the Veteran again was unable to void.  
Catheterization showed grossly bloody urine, and blood tests 
showed loss of blood that necessitated transfusion.  The 
Veteran underwent continuous bladder irrigation, formalin was 
instilled into the bladder, and the bladder was again 
fulgurated.  In January 1984, he presented with retention of 
blood clots in the bladder that interfered with urination.  
He was catheterized, the bladder was irrigated free of clots, 
and urinalysis revealed a urinary tract infection.  The 
bladder was examined under general anesthesia, and the 
examination showed sloughing of mucosa and friable, dilated 
blood vessels.  All of the foregoing occurred in outside 
hospitals, before he was ever seen by VA.  

Although he was first seen at a VAMC in January 1984, it was 
not until February 1985 that the Veteran presented with a 
one-month history of hematuria.  The bladder was irrigated 
and cystoscopy and an intravenous pyelogram showed that it 
was small and contracted.  Hematuria continued and, in July 
1985, he was transfused with two units of packed red blood 
cells.  Hematuria was again reported in October 1985, but no 
invasive procedures were performed.  In January 1987, he 
presented with hematuria and a urinary tract infection.  At 
that time, he was given 3000 rads of palliative radiation 
therapy for bone pain.  In 1989, a left adrenal mass appeared 
on a computerized tomography scan and he developed 
hyponatremia and was given steroids to replace adrenal 
hormones.  In addition, a urinary tract infection was found.  
In May 1990, back pain became severe, he was unable to walk, 
and he had a urinary tract infection.  He was given 2000 rads 
of palliative radiation therapy for pain.  In March 1991, he 
had another urinary tract infection and, in April 1991, he 
was admitted to the VAMC.

When the Veteran was admitted to the VAMC in April 1991, his 
wife reported that he had not had a bowel movement for a 
week, he had severe leg and abdominal pain, and he had 
vomited in the waiting area.  His urine was yellow and cloudy 
and contained bacteria and white blood cells, suggesting a 
urinary tract infection, and his temperature, respirations, 
and pulse were elevated, suggesting urosepsis.  Thus, the 
evidence shows the Veteran had urosepsis at the time of his 
admission and before he was catheterized.  In addition, 
urinalysis showed red blood cells, and blood tests showed 
anemia thought to be a result of extensive metastatic 
carcinoma and chronic loss of blood through urine.  However, 
blood in the urine was not visible to the naked eye, but only 
by microscopic examination.  

The most critical evidence is that dated between April 16, 
1991, when the Veteran was hospitalized and treated by VA, 
and the date of his death in mid-May 1991.   When he 
presented himself at the VA hematology oncology clinic, urine 
analysis was positive for leukocytes and bacteria, suggestive 
of a urinary tract infection.  It appears that, on the 16th 
or 17th, a Foley catheter was inserted due to concerns of 
possible obstruction.  The hospital summary reflects that the 
Foley passed with difficulty and there was a "traumatic 
Foley" leading to hematuria.  The patient was seen by the 
urologist on the 18th due to hematuria.  Clotting occurred on 
the 18th and 19th, and doctors ordered manual bladder 
irrigation three times a day.  Clotting was kept under 
control with irrigation, although hematuria continued, which 
was though to be due to radiation cystitis.

On April 24, the catheter became clogged and could not be 
manually irrigated.  The catheter was replaced on the 24th 
and, on the same day, it was discovered that the Veteran's 
bladder was ruptured.  Surgery was performed to repair the 
bladder, and during surgery a dense clot was removed.  
Subsequently, continuous bladder irrigation was reinstituted.  
For several days thereafter, the Veteran's condition seemed 
to improve until April 29, when impressions of septic 
syndrome and possible early adult respiratory distress 
syndrome were made.  On May 1, the Veteran's condition 
improved and sepsis began resolving, although he was unable 
to tolerate a feeding tube.  On May 14, hematuria recurred; 
it became worse and, on May 15, the Veteran died.

Turning to the merits of this case, the evidence of record 
suggests different causes for the Veteran's ruptured bladder, 
including catherization, over-distention due to aggressive 
irrigation, and radiation.  With respect to catherization as 
the cause of the Veteran's ruptured bladder, the clinical 
evidence indicates no association between the two.  In this 
regard, a discharge summary for the period of April 16 to 
April 24 reflects that a traumatic catherization led to 
hematuria.  The Board has reviewed the claims file and 
clinical records, in their entirety, for nurses' notes, 
doctors' progress notes, or any other record that references 
traumatic catheterization.  However, the only reference to a 
traumatic catheterization was in the discharge summary.  The 
discharge summary cannot be discounted since April 17 nurses' 
notes recorded 1300 cc of bloody urine emptied, which is 
clearly evidence of the hematuria referred to in the 
discharge summary.  However, since the bladder drained 
properly on April 17, 18, and 19, there is no indication that 
the catheterization caused the bladder rupture.

On April 19, a cystoscopy to examine the bladder was 
attempted but failed, due to pain the Veteran experienced.  
At that time, a three-way catheter was emplaced and 
continuous bladder irrigation was started in an effort to 
keep the bladder free of clots.  There is no evidence that 
the three-way catheter ruptured the bladder, because it was 
draining properly on April 21, 22, and 23.  On the evening of 
April 23, doctors identified the need for cystoscopy but, 
before they could perform the procedure, the catheter became 
clogged with clots.  It was replaced at 2:00 am on April 24, 
the bladder was irrigated free of clots, and continuous 
bladder irrigation resumed.  It does not appear that 
catherization ruptured the bladder as the evidence shows the 
bladder drained properly until approximately 6:30 am, when it 
stopped.  At that time, a cystogram showed the bladder 
rupture.  The evidence also shows that, following bladder 
repair surgery performed on April 24th, the bladder performed 
well for almost 3 weeks until May 14, just prior to the 
Veteran's death on May 17.  

In addition to the clinical evidence, the record contains 
several medical opinions addressing the events leading up to 
the Veteran's death, to include the ruptured bladder, which 
occurred while he was under VA treatment.  The Board is 
mindful that it cannot make its own independent medical 
determinations, and that it must have plausible reasons, 
based upon medical evidence in the record, for favoring one 
medical opinion over another.  See Rucker v. Brown, 10 Vet. 
App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 
171 (1991).  In addition, the probative weight of a 
physician's statement is dependent, in part, upon the extent 
to which it reflects clinical data or other reasoned analysis 
to support his opinion.  See Nieves-Rodriguez v. Peake, 22 
Vet. App. 295 (2008); Bloom v. West, 12 Vet. App. 185 (1999).  

The evidentiary record contains a memorandum, dated January 
1992, from the Chief of Urology at the VAMC, which reflects 
that the Veteran's claims file was reviewed in its entirety.  
The VA urologist noted that placement of the catheter early 
on in the Veteran's hospital course was non-traumatic, and 
that hematuria was related to a progressive tumor, or to 
radiation cystitis.  The urologist also opined that whether 
there was any iatrogenic (i.e., medical-care-induced) 
perforation of the bladder was not clear, but explained that 
previously radiated bladders are extremely prone to even 
spontaneous perforation with over-distention, and noted the 
attempt by VA medical personnel to aggressively irrigate the 
Veteran's bladder.  The urologist stated that it appeared 
that the patient was expeditiously and appropriately managed 
in terms of exploration and management of the bladder, 
without perforation, at the time of the recognition of the 
Veteran's problems.  Finally, the doctor concluded that the 
sequence of events was all part of the accumulating 
complications which commonly occur in terminal cases.

The January 1992 opinion reflects that additional disability, 
in the form of the Veteran's bladder rupture, was sustained 
during the course of VA treatment.  The VA urologist 
essentially opined, however, that the additional disability 
resulted from the continuation or natural progress of the 
disease or injury for which the Veteran was treated.  The 
Board notes that the opinion did not indicate, or even 
suggest, that VA treatment in April and May 1991, 
specifically the bladder rupture, caused or hastened the 
Veteran's death.  

The record also contains a February 2001 private medical 
opinion of Dr. C.N.B, a neuroradiologist.  Dr. B opined that: 
(1) the Veteran's bladder was ruptured due to over-distention 
during his hospital care (and Dr. B indicated that this 
opinion is in agreement with the January 1992 VA opinion); 
(2) if the Veteran had not had his bladder ruptured due to 
over-distension he would likely have not died three weeks 
later; and (3) the Veteran would not have needed bladder 
irrigation had the hospital staff not damaged his 
genitourinary system while attempting Foley catheterization.

As to Dr. B's statement that the Veteran would not have 
needed bladder irrigation had the hospital staff not damaged 
his genitourinary system while attempting Foley 
catheterization, the Board notes that, while difficulty 
placing the catheter was noted in a clinical record, there is 
no evidence which establishes that the Foley catheter 
permanently damaged the Veteran's genitourinary system.  
Dr. B opined that the placement of the Foley catheter 
resulted in hematuria which led to eventual clotting and 
ultimately the need for bladder irrigation.  As shown by the 
clinical evidence, however, the Veteran experienced hematuria 
even prior to the first catheter placement on the 16th or 
17th.  Moreover, after catheter placement on April 19 and 
April 24, the bladder drained properly.  The 1992 VA opinion, 
in which the doctor clearly indicated that placement of the 
catheter was non-traumatic, and that hematuria was related to 
a progressive tumor, also stands in conflict with the 
conclusion that the genitourinary system was damaged during 
placement of the Foley catheter.

Both the January 1992 VA opinion and the February 2001 
opinion of Dr. B identified over-distension as a possible 
cause.  However, the VA urologist noted that perforation due 
to over-distention may have occurred during aggressive 
irrigation of the bladder, whereas Dr. B opined that over-
distention "clearly caused" the Veteran's ruptured bladder.  
In addition, it appears Dr. B apparently believes that over-
distension of the bladder in this case was the result of 
improper treatment (i.e., fault) by VA.  The January 1992 VA 
opinion contains no such conclusion; although over-distention 
was mentioned, there was no indication that it was due to 
inappropriate care in this case.  Therefore, Dr. B's 
characterization that his opinion is in agreement with the 
January 1992 opinion is incorrect.  

The Board observes that the evidence does not clearly or 
conclusively establish the immediate reason for the Veteran's 
bladder rupture.  Nevertheless, it appears that additional 
disability, in the form of bladder perforation, did result 
from VA treatment, as has been contended.  However, even if 
accepted as fact, this in and of itself does not provide a 
basis upon which compensation for the cause of the Veteran's 
death may be awarded.  As noted, in order to establish 
entitlement to benefits pursuant to 38 U.S.C.A. § 1151, the 
additional disability must have resulted from other than a 
natural progression of the condition or the necessary 
consequences of the treatment for the condition, and must not 
be merely coincidental to VA treatment.  Moreover, the 
additional disability must be shown to have been either the 
principal or a contributory cause (i.e. it contributed 
substantially, materially, or combined with another disorder 
to cause death, or it aided or lent assistance to the 
production of death) of the Veteran's death.

As noted, the January 1992 VA urologist essentially opined 
that the Veteran's additional disability resulted from the 
continuation or natural progress of the disease or injury for 
which the Veteran was treated, with no indication that VA 
treatment in April and May 1991, specifically the bladder 
rupture, caused or hastened his death.  

In his February 2001 opinion, Dr. B opined that, if the 
Veteran had not had his bladder ruptured due to over-
distension, he would likely have not died three weeks later.  
Dr. B stated that the Veteran would likely have lived many 
more years with his prostate cancer spinal cord metastasis.  
The Board must note, with all due deference to a medical 
doctor, that this aspect of the opinion, rendered 10 years 
after the Veteran's death by a doctor who never treated the 
Veteran, is merely speculative.  Moreover, although insisting 
that the bladder perforation hastened the Veteran's death, 
Dr. B failed to discuss the long history of the Veteran's 
prostate cancer, initially diagnosed in 1982, which 
progressively worsened and was reported to be stage D2 as 
early as 1985, as to which the results of the September 1990 
total body bone scan revealed marked progression of 
metastatic disease in the skull, spine, sternum, pelvis, and 
bilateral ribs, shoulders, and femurs.  Dr. B also failed to 
discuss the extensive and aggressive treatment of the 
Veteran's cancer, including multiple transurethral resections 
of the prostrate and radiation therapy, by non-VA providers; 
the Veteran's unfortunately very feeble condition when he 
arrived for hospitalization on April 16, 1991, to include 
evidence of urosepsis on admission; and the fact that, 
following bladder repair, his condition showed improvement 
for approximately 20 days.  Accordingly, the Board finds this 
aspect of the opinion of very little probative value, due to 
a lack of evidentiary support for its conclusions.

In light of the conflicting opinions existing in the record, 
the Board elected to obtain the opinion of an independent 
medical expert (IME).  The expert opined, in August 2001, 
that the bladder rupture most likely resulted from either 
clot retention, which was a result of prostate cancer, or the 
effect of the Veteran's extensive radiation therapy to the 
bladder, or both in combination.  He added that it was highly 
unlikely that the catheter placement procedure caused bladder 
rupture.  The expert concluded that the Veteran died of 
terminal prostate cancer that was not cured by radiation 
therapy and subsequently advanced and metastasized to result 
in a variety of cancer related problems.  The IME opinion 
indicates that whether a bladder rupture related event 
hastened death is not clear.  However, the expert observed 
that the Veteran did well for 20 days after the bladder 
repair surgery, and concluded that it is likely that advanced 
prostate cancer was responsible for his death rather than 
surgery related conditions.

The IME opinion reflects, in summary, that the Veteran's 
death occurred due to the natural progress of the underlying 
and primary condition, prostate cancer, and that, moreover, 
the bladder rupture was due to clot retention which was a 
result of prostate cancer and/or radiation effect to the 
bladder, and not due to over-distention or any act or 
omission by VA.

The record contains a second opinion of Dr. B, dated November 
2001.  This opinion was essentially offered in rebuttal of 
the August 2001 IME opinion.  Dr. B's critique was 
essentially as follows: (1) the opinion did not comment on 
the previous opinions of Dr. W or of Dr. B dated in February 
2001; (2) the doctor mis-stated lab results when he observed 
that the Veteran had hematuria prior to catheterization (in 
this regard Dr. B noted that the hematuria which existed 
prior to catheterization was microscopic but was gross 
thereafter); (3) the opinion did not discuss the conclusions 
made in the death certificate; (4) the doctor did not comment 
on reported over-irrigation of the Veteran's bladder; and (5) 
the opinion focused only on possible negligence rather than 
on whether the Veteran incurred additional disability, namely 
bladder rupture; had unnecessary consequences of hospital 
treatment, namely bladder bleeding; or had over-irrigation of 
his bladder resulting in rupture; and whether these events 
hastened his demise as stated on the death certificate and in 
the terminal record.  Dr. B stated that he disagreed with the 
opinion provided in August 2001.  Specifically, Dr. B opined 
that the Veteran's genitourinary system was damaged during 
Foley catheter placement resulting in gross hematuria, 
bladder rupture was due to over-distention and blood clot 
formation, and blood clot rupture hastened his demise.

With respect to Dr. B's first critique, the Board notes that 
the opinion of the independent medical expert was requested 
in July 2001 and he was not asked to specifically comment on 
any of the previously provided medical opinions.  
Nevertheless, the IME did address the issues raised by the 
medical records.  As pertains to (2), Dr. B contradicts his 
own criticism by acknowledging that, in fact, the Veteran 
demonstrated even the smallest amount of hematuria prior to 
catheterization.  Therefore, the evidence shows the Veteran 
had ongoing hematuria, and his hematuria was not caused by 
the catheterization in issue.  As for (3), the expert did not 
discuss the conclusions reached on the death certificate, nor 
was he asked to do so.  That matter is for the Board to 
discuss herein.  With regard to (4), the IME discussed the 
factors which he believed contributed to the bladder rupture, 
and over-irrigation was not among them.  Finally, addressing 
(5), although the expert did not specifically state that the 
Veteran sustained additional disability, namely bladder 
rupture, as a result of VA treatment, as noted previously 
this has already been established by the Board.  Moreover, 
the expert clearly opined that the Veteran's death was due to 
the natural progression of his underlying condition, prostate 
cancer, with no indication that bladder rupture was a 
contributory cause.  The expert also addressed as fully as he 
was able the issue of whether VA treatment hastened the 
Veteran's death.

We are aware that, although negligence or fault is not at 
issue in this case due to the version of section 1151 which 
is applicable, the IME opinion did comment that the medical 
records do not indicate that any negligence was implicated in 
the Veteran's death. The Board regards such comments as mere 
surplus language, and the present decision does not rely upon 
them.

In sum, all of the medical opinions collectively appear to 
indicate that additional disability, in the form of bladder 
rupture, occurred during the course of VA treatment.  
However, the preponderance of the evidence, inclusive of the 
clinical evidence, the 1992 VA opinion, and the August 2001 
IME opinion, reflects that the series of events which 
occurred from April 16th forward, including bladder rupture, 
resulted from the natural progression of the Veteran's very 
advanced prostate cancer, and not as a result of VA 
treatment.  On the other hand, Dr. B submitted two 
conflicting medical opinions, to the effect that the 
Veteran's genitourinary system was damaged during Foley 
catheter placement resulting in gross hematuria, bladder 
rupture was due to over-distention and blood clot formation, 
and blood clot rupture hastened his demise.

The Board acknowledges that we must account for the evidence 
that we find persuasive or unpersuasive, and provide reasons 
for rejecting material evidence favorable to the claim.  See 
Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. 
Brown, 7 Vet. App. 429, 433 (1995).  It is also the 
responsibility of the Board to determine the probative weight 
to be ascribed as among multiple medical opinions in a case, 
and to state reasons or bases for favoring one opinion over 
another.

In assessing credibility, the Board places a great deal of 
probative weight on the 1992 VA medical opinion, in that it 
was provided by the source which treated the Veteran's 
terminal cancer and was in fact prepared by the Chief of the 
Urology Section at the VAMC.  The Board also places a great 
deal of probative weight on the August 2001 opinion of the 
independent medical expert.  This opinion was specifically 
sought by the Board in order to address the complex questions 
here at issue.  That specialist, a professor and the Chief of 
a Division of Urologic Surgery, provided an analysis of the 
history of the Veteran's condition, and discussed the 
clinical findings which supported his positions.

In contrast, the Board places a lower probative value on the 
two opinions provided by Dr. C.N.B.  Initially, the Board 
notes that Dr. B is a neuroradiologist and not a urological 
specialist as were the doctors who provided opinions in 1992 
and August 2001.  As for Dr. B's February 2001 opinion, the 
Board has previously identified several shortcomings in that 
opinion, including a failure to support all of the 
conclusions reached with clinical evidence, particularly the 
conclusion that if the Veteran had not had his bladder 
ruptured due to over-distension he would likely have not died 
three weeks later.  The November 2001 medical statement was 
primarily a critique of the August 2001 IME opinion.  
Although the doctor restated the conclusions previously 
reached, he failed to provide any further explanation of 
clinical evidence in support of his conclusions.  As noted 
above, the probative value of a physician's statement is 
partly dependent upon the extent to which it contains 
clinical data or reasoned analysis in support of the 
conclusion.  See Nieves-Rodriguez, supra; Bloom, supra.  As a 
result, the Board finds that the 1992 VA opinion and August 
2001 opinion of the independent medical expert are the most 
competent and probative medial opinions of record, with 
lessened probative value assigned to Dr. C.N.B.'s two 
opinions.  

In sum, the preponderance of the clinical evidence and the 
most probative medical opinions on file reflect that 
additional disability, bladder rupture, was sustained during 
VA treatment in April and May 1991, but that this occurred 
due to the natural progress of the Veteran's advanced 
prostate cancer.  The death certificate did not provide any 
clinical evidence bearing on the characterization of the 
additional disability, established as bladder rupture, and it 
therefore neither supports nor undermines the claim as to 
this issue.

The death certificate is significant in conjunction with the 
question of whether bladder rupture was shown to have been 
either the principal or a contributory cause of the Veteran's 
death.  On the death certificate form used in this case, the 
certifying physician was instructed to list sequentially the 
conditions leading to the patient's death, with the immediate 
cause, i.e., the final disease or condition resulting in 
death, listed first, and the underlying cause, i.e., the 
disease or injury that initiated events that resulted in 
death, listed last.  In another column, the physician was 
instructed to show the approximate interval between the onset 
of each condition and death.  

In this case, the May 20, 1991, death certificate lists 
prostate cancer as the immediate cause of death, with onset 
six years earlier, and lists bladder rupture, with onset 
three weeks earlier, as a condition leading to the underlying 
cause.  

Clearly, the bladder rupture was not the primary cause of the 
Veteran's death according to the death certificate and the 
extensive evidence and opinions of record.  Although the 
death certificate, which was completed by a VA physician, 
purports to show that bladder rupture was a contributory 
cause of the Veteran's death, the Board observes that this 
conclusion was reached without any supporting clinical 
evidence in the medical records.  A bare conclusion, even one 
reached by a medical professional, is not probative without a 
factual predicate in the record.  Miller v. West, 11 Vet. 
App. 345, 348 (1998).  Moreover, the form was completed in an 
anomalous manner, so as to literally indicate that the 
prostate cancer was "due to (or as a consequence of)" 
bladder rupture.  Nowhere in this case is there any assertion 
that a bladder rupture caused cancer.  It is significant to 
note that the Veteran's terminal clinical records reflect 
that prostate cancer alone was identified as the cause of his 
death.

Because of the questions raised by the information provided 
on the death certificate, the medical opinions of record must 
be carefully evaluated.  As has already been discussed, the 
most probative of those opinions, the 1992 VA opinion and the 
August 2001 independent medical expert opinion, did not 
identify bladder rupture as a contributory cause of the 
Veteran's death.  The two medical opinions offered by Dr. B 
did identify bladder rupture as a cause significantly 
contributing to the Veteran's death.  However, as has been 
discussed herein, it is the Board's opinion that those two 
statements are of less probative value than the two 
statements by the urological specialists.  Accordingly, the 
preponderance of the evidence weighs against finding that 
bladder rupture was a contributory cause of the Veteran's 
death.

Moreover, even were the Board to accept as fact that bladder 
rupture was a contributory cause of the Veteran's death, 
compensation under the provisions of 38 U.S.C.A. § 1151 for 
the cause of the Veteran's death would not be warranted, 
inasmuch as the preponderance of the evidence indicates that 
bladder rupture likely occurred as a natural progression of 
the overwhelming disease which afflicted the Veteran, that 
is, advanced (and apparently metastatic) prostate cancer.  

Additional arguments have been raised by the appellant, which 
were addressed in the Board's (vacated) April 1999 and April 
2002 decisions, and the Board wishes to reiterate them herein 
for the sake of completeness.  In a January 1996 statement 
with an extract of a magazine article attached, the appellant 
noted that radiation has been recognized as carcinogenic.  
The magazine article noted that VA regulations include bone 
and bladder cancer among radiogenic diseases for which 
service connection could be presumptively granted.  However, 
the situation in the article referred to exposure in service 
to ionizing radiation, followed by later onset of cancer.  
Here, the Veteran was already diagnosed with carcinoma of the 
prostate before he was exposed to radiation, he was never 
diagnosed with bladder cancer, and cancer in his bones was 
not due to radiation but was due to his prostate cancer 
metastasizing to remote locations.

Finally, in an October 1998 statement, the appellant's 
representative contended that the Veteran's service-connected 
schizophrenia might have hindered his treatment, and queried 
whether he was able to "participate fully in his treatment 
plan."  In response, we would note that, first, there is no 
evidence that, at least prior to his terminal 
hospitalization, the Veteran was incompetent to make 
decisions regarding his medical care.  Second, the evidence 
does show that, during his terminal hospitalization, his wife 
was consulted for consent as needed, and we have no reason to 
believe that she did not fully and carefully pursue the 
Veteran's best interests.  Third, no requirement has been 
made to appear that one be able to "participate fully" in 
one's treatment plan.  If there were such a requirement, some 
of the most serious medical conditions would go untreated due 
to some real or claimed incapacity of the patient.  Finally, 
none of the medical opinions secured in this case has 
indicated that the Veteran's service-connected mental 
disorder, which was in remission, detracted in any way from 
his responsiveness to treatment for his cancer.  Accordingly, 
the Board does not view the issue of the Veteran's capacity 
as relevant to the instant claim.

Under these circumstances, the preponderance of the evidence 
is against the claim to establish entitlement to DIC for the 
cause of the Veteran's death under the provisions of 38 
U.S.C.A. § 1151.  The Board has carefully considered the 
appellant's assertions that a result of the VA treatment, 
specifically a rupture of the bladder, caused or hastened his 
death.  We do not doubt that the appellant sincerely believes 
the Veteran's death was caused by the treatment he received 
immediately prior to his death, and we recognize that, "in 
some cases, lay evidence will be competent and credible 
evidence of etiology."  Robinson v. Shinseki, No. 2008-7096 
(Fed. Cir. March 3, 2009).  However, it is important to 
remember that there is no indication the appellant has the 
requisite knowledge of medical principles such as would 
permit her to render an opinion regarding matters involving 
medical diagnosis or medical etiology, and the complexity 
this case clearly requires professional evidence.  See 
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  

The Board is certainly sympathetic with the appellant's loss 
of her husband due to his prostate cancer.  However, because 
the record preponderates against a finding that the Veteran's 
death was due to additional disability incurred as a result 
of VA medical care, the reasonable-doubt/benefit-of-the-doubt 
doctrine does not come into play in our decision.  
Accordingly, based upon the record and analysis above, the 
claim must be denied.


ORDER

Entitlement to dependency and indemnity compensation 
benefits, under the provisions of 38 U.S.C.A. § 1151, for the 
cause of the Veteran's death is denied.


____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs