Citation Nr: 1122785 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 04-25 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1151, due to treatment received at Department of Veterans Affairs (VA) medical facilities. REPRESENTATION Appellant represented by: Samuel M. Tumey, Attorney at Law ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from July 1941 to November 1946 and from July 1953 to January 1968. Previously, he was also a member of the Mississippi National Guard. The Veteran passed away on August [redacted], 2000 and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs Regional Office (RO) in Jackson, Mississippi, denying the claim currently on appeal. This claim was previously denied by the Board in an October 2005 decision. However, in October 2006, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded this decision back to the Board. The issue was subsequently remanded back to the RO by the Board in February 2007, and in August 2008, the Board again denied the claim currently on appeal. The Veteran again appealed this decision to the Court, and in June 2009, the parties entered into a Joint Motion for Remand, vacating and remanding the Board's August 2008 decision back to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran suffered subdural hematomas following a fall on July [redacted], 2000 that were at least a contributing factor in his death. 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 the VA health care providers who provided treatment, nor does the evidence show that any additional disability and subsequent death was an event that was not reasonably foreseeable. CONCLUSION OF LAW The requirements for DIC compensation under 38 U.S.C.A. § 1151 as a result of medical treatment furnished at a VA Medical Center (VAMC) have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist appellants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the appellant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. In the present case, notice was provided to the appellant in January 2003, January 2005, and June 2008. These letters provided the appellant with all necessary information on how to substantiate a claim of DIC under 38 U.S.C.A. § 1151. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records. Also, VA medical examiner's opinions were obtained in February 2004, August 2007 and March 2008, to include opinions from the VAMC in Biloxi, Mississippi and Tuscaloosa, Alabama. An additional medical opinion was obtained from a physician outside of the VA health care system in February 2011 as well. VA has obtained these records as well as the records of the Veteran's inpatient treatment with VA. Significantly, neither the appellant nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her 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). Preliminary Matter The Veteran's representative has argued on many occasions that a claim of entitlement to service connection for cause of the Veteran's death due to service-connected disabilities is inextricably intertwined with the above 38 U.S.C.A. § 1151 claim, and as such, this issue must also be addressed by the Board. The appellant was denied entitlement to service connection for the cause of the Veteran's death in an April 2001 rating decision. This decision was not appealed and it is therefore final. As discussed below, the evidence of record demonstrates that these two types of claims are distinct from one another and are not inextricably intertwined, and as such, the issue of entitlement to service connection as secondary to service-connected disability will not be addressed by the Board. In a January 2007 statement, the Veteran's representative cited to, among other cases, the cases of Mintz v. Brown, 6 Vet. App. 277 (1994) and Alleman v. Principi, 349 F.3d 1368 (Fed. Cir. 2003) in support of his assertion. Specifically, it was argued that these cases demonstrated that entitlement to DIC benefits due to service-connected disability and under § 1151 were "indistinguishable" from one another. However, the case law does not in fact support this proposition. The issue at hand in Mintz was whether the Board was correct in finding that it lacked jurisdiction to decide a claim under 38 U.S.C.A. § 1151 when an appellant was already in receipt of DIC benefits due to the Veteran's overall disability rating. 6 Vet. App. at 280. The Board argued that even a favorable ruling would result in no additional benefit to the appellant. Id. The Court affirmed the decision of the Board, finding that a claimant would not be entitled to additional benefits, such as Chapter 23 burial benefits, under 38 U.S.C.A. § 1151 since this statute only entitled an appellant to "as if" service connection. Id at 283. In Alleman, the Court stated that a Veteran who has been awarded benefits under 38 U.S.C. § 1151 is clearly not considered to have been awarded service connection for the purpose of all ancillary benefits. 16 Vet. App. at 256. Therefore, rather than holding that these types of claims were "indistinguishable," the Court actually went to great lengths to explain just how these types of claims were distinguishable from one another. The appellant's representative also equated the present case to the Court's holding in Ashford v. Brown, 10 Vet. App. 120 (1997), asserting that the Court held that there can be only one claim as to any particular type of entitlement. However, the Court did not go so far as to apply its holding to the appellant's representative's assertion of "any particular type of entitlement," but instead, found that a claim for a lung condition, either due to asbestos exposure or not, was the same claim. The facts of this case are distinct from the facts of Ashford. In Ashford, the Veteran argued that a claim of entitlement to service connection for a lung disorder, as secondary to asbestosis, was distinct from his previously denied claim of entitlement to service connection for a lung disorder on a more general basis. However, the Court found the claims to be one in the same, as the Veteran was still arguing that his lung disorder manifested as a result of military service. In the present case, the appellant has made quite a different argument. Specifically, the appellant is now asserting that the Veteran's death is a result of treatment he received at a VA medical center decades after his separation from active duty. Such a claim has its own specific rules and regulations found at 38 U.S.C.A. § 1151. The appellant's previous claim was that the Veteran's death was a direct result of disabilities he acquired as a result of his military service. In other words, the appellant has asserted two entirely different factual scenarios. Essentially, the appellant's representative has argued that a number of factors, including the Veteran's age, Alzheimer's disease, and service-connected disabilities of inner ear and knee difficulties, a higher standard of care should have been implemented due to the Veteran's risk of falling, and as such, both types of DIC claims are inextricably intertwined. However, regardless of the asserted underlying rationale for why the Veteran fell in the first place, the appellant's current assertion is unchanged - namely, that were it not for the negligence of a VA medical treatment facility, the Veteran would not have fallen and subsequently passed away. This claim is wholly different from a claim that the Veteran's death arose as a direct result of injuries he sustained during active military service. Therefore, these claims are not inextricably intertwined since the actual claim in either situation is negligence on the part of VA. (CONTINUED ON NEXT PAGE) Relevant Laws and Regulations Under 38 U.S.C.A. § 1151 As the appellant's claim under 38 U.S.C.A. § 1151 was received after October 1, 1997, the following statutory and regulatory provisions apply. Compensation under 38 U.S.C.A. § 1151 is awarded for the death of a veteran in the same manner as if the Veteran's death were service-connected. Under 38 U.S.C.A. § 1151, benefits may be granted if the Veteran's death was caused by VA treatment, and the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or the Veteran's death was not reasonably foreseeable. Under 38 C.F.R. § 3.361(c), a claim based on death due to VA medical treatment requires actual causation. To establish causation, the evidence must show that the VA treatment resulted in the Veteran's death. Under 38 C.F.R. § 3.361(d), to establish that carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on VA's part in furnishing medical treatment, it must be shown that the treatment caused death; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Whether the proximate cause of death was an event not reasonably foreseeable, this is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. 38 C.F.R. § 3.361(d). Relevant Facts The appellant contends that she is entitled to DIC benefits under 38 U.S.C.A. § 1151 for the Veteran's death. However, as discussed below, the preponderance of the evidence of record demonstrates that 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 the VA health care providers who provided treatment, nor does the evidence show that any additional disability was an event that was not reasonably foreseeable. As such, the claim must be denied. The record demonstrates that the Veteran was diagnosed with Alzheimer's disease in 1995. According to a February 1999 VA discharge summary, the Veteran had a past medical history of coronary artery disease since 1985, labyrinthitis which was diagnosed in service, bilateral cataract removal years earlier, and a 1965 car accident resulting in decreased range of motion of the right shoulder, neck pain and his jaw being wired shut at the time of the accident. The Veteran was noted to be a high fall risk. The Veteran was subsequently admitted into the VA Dementia Unit in August 1999. Examination of the extremities at this time revealed full range of motion and good muscle strength for his age. He was noted to have a scar on the right anterolateral aspect of the right lower leg that was consistent with harvesting of veins for cardiac bypass surgery. Records demonstrate that the Veteran exhibited minimal to moderate progression in his cognitive decline during the following year in the Dementia Unit. However, in June 2000, the Veteran fell and struck his head. It was noted that the Veteran had lacerations of the head that were repaired and an X-ray of the cervical spine was negative. The Veteran was subsequently returned to the Dementia Unit where neuro-checks were performed every two hours for 24 hours but no neurological problems were reportedly demonstrated. The record contains a notation to suggest that the Veteran fell on July 15, 2000. However, there are no specific records regarding this incident. The Veteran was again found on the floor on July 16, 2000. There was no evidence of head trauma or trauma otherwise and he had no change in his loss of consciousness or mentation as observed by the medical doctor on call. He was again observed closely but no neurological sequelae were seen. The records demonstrate that the Veteran fell again on July [redacted], 2000. It could not be ascertained whether he had fallen or slipped, but again, there was no evidence of head trauma. However, there was abduction of the right hip and a decrease in his weight bearing ability. A hip fracture was suspected but X-rays taken on July 20, 2000 revealed no actual fracture of the hip or pelvis. The Veteran was also moved to a room closer to the nurses' station on July 20, 2000 where he was assisted into bed by two staff members. The records note that the Veteran was alert and oriented to time and place at this time. The following day, the Veteran demonstrated a clear decrease in his level of consciousness and alertness, as well as decreased motor function. A computed tomography (CT) scan of the head was performed revealing bilateral subdural hematomas. Laboratory findings revealed an increased white blood cell count, increased potassium, and significantly increased blood urea nitrogen (BUN) and creatinine. The Veteran was subsequently discharged from the Dementia Unit with arrangements to be made by the emergency room doctor at the Biloxi VAMC for transfer to a new facility for possible neurosurgical intervention. The Veteran was transferred to the Keesler Air Force Base on July 21, 2000 upon discovery of bilateral subdural hematomas. Evaluation at Keesler also revealed the Veteran to be suffering from acute renal failure. The Veteran was treated and his creatinine kidney indices rapidly normalized over the next three days. He was subsequently monitored in the intensive care unit (ICU). At this time, the Veteran's wife notified Keesler Air Force Base that she did not want the Veteran to have any surgical intervention. A do not resuscitate order was also obtained per the Veteran's advanced directives. The Veteran subsequently stabilized and he was transferred to the floor to await a transfer back to the VA hospital. A mental status examination at this time revealed severe impairment, but his vital signs remained stable. The Veteran was subsequently transferred back to VA. The Veteran was monitored and continued on his pre-admission medicines. The records note that for a while, the Veteran looked a little bit alert. However, he later continued to go downhill, developing some fever and pseudomonas grew from his wound. It was again noted that the family did not want any aggressive intervention, and on August [redacted], 2000, the Veteran was found pulseless. He was pronounced dead, probably subsequent to bilateral subdural hemorrhage and pseudomonas infections of his wounds. The record contains two separate certificates of death. According to one labeled "institution copy," which was signed on the date of the Veteran's death, the immediate cause of death was bilateral subdural hemorrhage, due to or as a consequence of a fall. Other significant conditions listed as contributing to death but not resulting in the underlying cause, consisted of coronary artery disease and hypertension. The second death certificate, which was signed ten days after the Veteran's death, listed the immediate cause of death as bilateral subdural hematomas. No other condition was listed as a condition giving rise to the immediate cause. Also, under the section for cause of death, the certificate of death noted that the Veteran was injured in an accident on July 21, 2000 in which he fell and struck his head on the floor at the VA hospital in Gulfport, Mississippi. No autopsy was performed. A VA examiner reviewed the Veteran's claims file in February 2004, and concluded that there was no evidence, in review of the Veteran's care, both at the domiciliary and at the Biloxi VA Medical Center, that would indicate negligence in care. The examiner stressed that once it was identified that the Veteran did have subdural hematomas, he was transferred to Keesler Air Force Base for further care by a neurosurgeon since Biloxi did not have such a specialist on staff. The examiner noted that the Veteran's family did not desire further surgical intervention, and as such, the Veteran was transferred back to the VAMC in Biloxi, Mississippi. The examiner was of the opinion that even if appropriate care had been available more expeditiously upon his arrival at the VAMC in Biloxi, this would not have prevented the Veteran from dying. The examiner explained that if surgical intervention was denied by the Veteran's family shortly after the initial identification of the Veteran's condition in Biloxi, then there is no reason to believe that the same surgical intervention would hot have been denied upon earlier discovery of the Veteran's subdural hematomas. The examiner also concluded that the lack of a neurosurgeon in and of itself does not demonstrate negligence on the part of Biloxi, since the Veteran was transported appropriately and timely to the Keesler Air Force Base for further evaluation. However, the examiner noted that an opinion could not be offered as to whether the domiciliary caregivers were negligent in not preventing the Veteran's falls since a review of the records did not reveal whether there were standing orders for hands on supervision. A VA physician reviewed the Veteran's claims file in August 2007. The examiner concluded that the immediate cause of the Veteran's death was aspiration pneumonia with contributing causes of ischemic heart disease, Alzheimer's dementia, and a chronic subdural hematoma. The examiner opined that the Veteran's falls were not as least as likely as not a contributing factor to the proximate cause of death. The rationale for this opinion was that while the Veteran fell numerous times in June and July 2000, he died two weeks later on August [redacted], 2000. A review of ICU records from Keesler Air Force Base revealed close follow-up by neurosurgery, and he was kept in the ICU until he was stable. The examiner further explained that the proper standard of care in this case was a team approach, including the involvement of other clinical services such as dieticians and physical therapists. It was the examiner's opinion that the Veteran's need for help ambulating and cognitive impairment were met in this case. The Veteran was frequently seen by the medical and nursing staff several times a day as recorded in daily progress notes. The Veteran also had X-rays and neurosurgery consultation follow-ups and he had adequate lab work completed to evaluate the treatable causes of illness. Finally, there was physical therapy, social work involvement and daily progress tracking. Likewise, the examiner opined that VA medical personnel, including night monitors or orderlies, were not as least as likely as not negligent in this case, as a review of the Veteran's medical records revealed proper care during his hospitalization. Finally, the examiner noted that the appellant believed that there was delay and noncompliance in treating the Veteran after his fall of July 19, 2000. The examiner opined, however, that medical decisions were done properly and on time, as demonstrated by the progress notes revealing vital signs being taken daily. He was transferred to the ICU at Keeler Air Force Base for the necessary acute treatment. Therefore, the examiner concluded that the appellant's allegations were not at least as likely as not to reflect carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. In February 2008, the same VA physician from Tuscaloosa, Alabama again reviewed the Veteran's claims file. The examiner indicated that the immediate cause of the Veteran's death was aspiration pneumonia with contributory causes of ischemic heart disease with residuals of coronary artery bypass graft surgery, Alzheimer's dementia and chronic subdural hematoma. The examiner noted that the Veteran fell a number of times in June and July 2000, and following his final fall of July 19, 2000, he was admitted to the Keesler Air Force Base intensive care unit on July 21, 2000. The Veteran was transferred to the medical unit in Keesler Air Force Base the following day, and on July 28, 2000, he was discharged and admitted to the VA Medical Center. The examiner noted that during the Veteran's stay at the VA hospital, he had a complete evaluation per the physicians and he was frequently seen by the registered nurse (RN) and the Licensed Practical Nurses (LPN). It was also noted that the Veteran had a team approach involving the dietitian, the recreational therapy department and the physical therapy department. The Veteran also had his vital signs monitored frequently with regular neurologic checks. The Veteran was also frequently turned to avoid the development of decubitus ulcers. Finally, it was noted that the Veteran's wife was a frequent visitor to the hospital and that she was actively involved in the Veteran's care, diet, dress and activities. In March 2008, the above physician provided a medical opinion in response to the review of the claims file. The examiner noted a more than 20 year history of working as a staff physician at a facility with a large nursing home care unit including a dementia unit. The examiner opined that the Veteran's falls were not as least as likely to be the proximate cause of his death. The examiner explained that the Veteran was an 83 year old male who fell on three different dates. However, a neurological evaluation performed at Keesler Air Force Base following these falls revealed no neurological deficits. Also, while the Veteran did suffer from subdural hematomas, he subsequently recovered from his dehydration and renal insufficiency and his family opted to not resuscitate. The examiner indicated that the Veteran's actual cause of death was due to aspiration pneumonia. The examiner was also asked to explain the proper standard of care required for the Veteran's safety. The examiner explained that the Veteran had neurologic checks every two hours for 48 hours, but there was no change in his mental status. It was also noted that geriatric medical care involves a team approach, with input from nurses, physicians, dieticians, physical therapists and social workers. The examiner also felt that fall precautions were established, with hip protectors to prevent hip injuries, low laying bed to prevent falling from the bed, and close observation to note any behavioral changes due to his poor communication skills related to his dementia. The examiner indicated that all of these precautions were taken and well-documented by the nursing staff. In addition, the Veteran was provided with an air cushion mattress and was turned every two to three hours to prevent skin breakdown. Due to this treatment, the examiner opined that VA personnel were not as least as likely as not negligent in the Veteran's care. Finally, the examiner noted that the claimant asserted that the Veteran's sustained an injury that subsequently led to his death upon falling on July 19, 2000. It was also her contention that there was a delay until July 20, 2000 in seeing the doctor and that this doctors orders for transfer and evaluation were not complied with until July 21, 2000. However, the examiner opined that it was not at least as likely as not that these alleged delays and noncompliance with the doctor's orders contributed to the Veteran's death. The examiner explained that following the Veteran's July 19, 2000 fall, he was adequately treated as documented in the progress notes and X-rays were taken along with an external and internal injury assessment. The examiner further opined that these alleged delays were not at least as likely as not a reflection of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. The examiner again explained that the Veteran was adequately treated in the ICU at Keesler Air Force Base and that intravenous (I.V.) hydration promptly improved his renal function. A neurosurgery consultation was also performed but no focal neurological deficit was found. Finally, while there was evidence of subdural hematomas, the family elected to not resuscitate. The Jackson RO also contacted a number of physicians in August 2007. According to the RO's written summary of a conversation with a physician with the initials G.P, there existed in medicine a "National Fall Protocol" that facilities use as a guide in preventing and treating patient's falls. When asked about the reasonableness pertaining to the frequency of the Veteran's falls, Dr. P referred the RO employee to a physician with the initials D.B. The RO employee subsequently contacted Dr. B, and according to the employee's summary of the conversation, Dr. B felt that there was a lack of comprehensive documentation of some appropriate fall prevention interventions that could have lessened the risk of falling in July 2000 based on the RO employee's summation of the details of the case. However, it is noted that Dr. B was reluctant to say that any negligence had actually occurred. Dr. B noted that some possible precautions that could have been taken were installing a bed monitor, ensuring that both handrails were up at night, or, in extreme cases, assigning a sitter to monitor the patient. He also noted that a CT scan should be provided to any fall victim when there is evidence of head injury. Finally, the Board obtained a medical opinion from a private physician with the UMass Memorial Medical Group's Department of Neurology in February 2011. The physician reviewed the Veteran's claims file and concluded that the cause of the Veteran's death was bilateral subdural hematomas. The physician opined that the falls sustained by the Veteran were most likely related to the wondering behavior of Alzheimer's disease and not the longstanding service-connected disabilities of labyrnthitis, tinnitus or anterior cruciate ligament relaxation. The physician noted that there was nothing in the medical records to suggest that he was having an exacerbation of these conditions in June 2000 or July 2000. The physician further opined that the level of care provided by the VA Dementia Unit and the inpatient service of the VA Medical Center was appropriate in this case and did not contribute to the Veteran's demise. It was further explained that the care received by the Veteran was tempered by his family's wishes, so any further surgical intervention that may have helped the Veteran was not pursued. The physician concluded that the staff of the Dementia Unit tried to prevent falls by the Veteran, and when he deteriorated further they appropriately referred him to the acute care VA facility associated with the Dementia Unit. Therefore, in conclusion, it was noted that the care provided by the Dementia Unit after the Veteran's admission in 1999 but prior to the June/July 2000 time period was appropriate for a patient with his degree of Alzheimer's. Analysis The preponderance of the above evidence demonstrates that the appellant is not entitled to benefits under 38 U.S.C.A. § 1151 due to treatment at VA medical facilities. While the medical opinions disagree as to whether the immediate cause of death was subdural hematomas due to a July 19, 2000 fall or pneumonia, the evidence clearly demonstrates that the Veteran's subdural hematomas were at least a contributing factor in the Veteran's death. However, for the benefit sought to be granted under 38 U.S.C.A. § 1151, the evidence must also demonstrate that carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on VA's part in furnishing medical treatment resulted in the Veteran's death and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. See 38 C.F.R. § 3.361(d). As discussed below, the evidence of record fails to demonstrate such a lack of care on the part of VA. Treatment records demonstrate that while the Veteran did fall on a number of occasions in June 2000 and July 2000, this was not a result of carelessness, negligence, lack of proper skill, error in judgment or other similar instance of fault on the part of VA. Each time the Veteran fell, he was inspected and examined for injury. In June 2000, X-rays were taken of his neck and subsequent neurological evaluations were performed every two hours. He again fell on July 15, 2000 and July 16, 2000, but despite close evaluation, no neurological sequelae were identified. Finally, the records demonstrate that the Veteran either slipped or fell on July 19, 2000. Following this incident, the Veteran was X-rayed and closely monitored. The following day, he was moved to a room closer to the nurse's station and a CT scan was performed once there was evidence of cognitive impairment. He was then transferred to Keeler Air Force Base on July 21, 2000 to determine whether neurosurgical intervention was necessary. However, the Veteran's family did not desire such intervention. According to the February 2004 VA examiner, the above sequence of events demonstrated that there was no negligence in care on the part of VA. The Veteran was transferred to another facility once neurologic symptomatology was identified. The examiner did indicate that the record contained insufficient evidence to conclude whether the Veteran's caregivers were negligent in preventing the Veteran's falls. However, in March 2008, the VA physician opined that all necessary precautions were taken to prevent the Veteran from falling, including close observation by the nursing staff. Finally, according to the private physician's opinion of February 2011, the Veteran's falls were most likely related to the wandering behavior of Alzheimer's disease and the staff of the Dementia Unit tried to prevent falls by the Veteran. The physician concluded that the level of care provided to the Veteran was appropriate for someone with his degree of cognitive deterioration. The appellant has also argued that VA was negligent by failing to obtain a CT examination of the Veteran's head until the day following his fall. However, VA treatment records demonstrate that once the Veteran fell he was closely monitored and a CT scan was performed upon the discovery of neurologic symptomatology. The VA physician also opined in August 2007 that medical decisions were done properly and on time following the Veteran's fall. The physician from the UMass Memorial Medical Group also opined in February 2011 that the level of care provided by the VA Dementia Unit and the inpatient service of the VAMC was appropriate and did not contribute to the Veteran's demise. The February 2004 VA examiner also explained that since the Veteran's family refused surgical treatment upon discovery of his subdural hematomas, there is no reason to assume that their decision would have been any different if these were discovered the previous day. While Dr. B suggested in his August 2007 communication with an RO employee that there are additional fall prevention methods that can be implemented, he certainly did not suggest that the failure to use all of these possible methods would be indicative of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. Furthermore, the evidence of record does not explicitly demonstrate that the RO in fact failed to implement at least some, if not all, of these methods. Finally, the summarized communications between the RO employee and the doctors do not indicate what information was provided to the doctors by the RO employee, and as such, it is not at all clear if the doctors were provided a sufficient amount of information to offer a valid opinion. Therefore, the summarized conversations between Dr. P and Dr. B and the RO employee fail to demonstrate that the care provided by VA involved carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault. As a final matter, the Board has considered the argument posited by the appellant's representative that an even higher degree of care was needed in light of the Veteran's service-connected disabilities, including labrynthitis and a right knee disability. However, the record contains no evidence to suggest that these disabilities contributed in any way to the Veteran's falls. According to treatment records, it was unclear whether the Veteran slipped, rather than fell, on July 19, 2000. Furthermore, the February 2011 private physician found nothing in the medical records to suggest that the Veteran was suffering from any exacerbation of these disabilities at the time of his falls in 2000. As such, no evidence has been presented to indicate how or why any additional level of care, above and beyond that provided to the Veteran, would have been necessary due to the Veteran's service-connected disabilities. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The appellant's claim of entitlement to service connection for DIC under 38 U.S.C.A. § 1151 must be denied. ORDER Entitlement to DIC under 38 U.S.C.A. § 1151, due to treatment at VA medical facilities, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs