Citation Nr: 1128062 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 03-32 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2010). REPRESENTATION Appellant represented by: Eric A. Gang, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to October 1964. He died in October 2000. The appellant claims as the Veteran's widow. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions or the VA Regional Office (RO) in Fort Harrison, Montana, that denied the appellant's claims of entitlement to service connection for the cause of the Veteran's death, entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, and entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. The Board remanded the case in March 2005 and May 2007 for further development. The appellant was afforded a Travel Board hearing in June 2008 before the undersigned Veterans Law Judge sitting at Fort Harrison, Montana. A transcript is of record. In a December 2008 decision, the Board denied the appeal in its entirety. The appellant appealed the determination to the United States Court of Appeals for Veterans Claims (Court). The parties filed a joint motion for remand in June 2010. In an ensuing June 2010 Order, the Court granted the joint motion and dismissed the claims of entitlement to service connection for the cause of the Veteran's death and entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, and vacated and remanded the issue of entitlement to DIC under the provision of § 1151 for readjudication. The case was remanded for further development by Board decision in November 2010 and has since been returned to the Board for disposition. FINDING OF FACT The Veteran's death was not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include any failure to timely diagnose acute myeloid leukemia (AML), and is not the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for DIC benefits under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.361 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant asserts that compensation is warranted under 38 U.S.C. § 1151 for the cause of the Veteran's death. In multitudinous statements in the record and on personal hearing in June 2008, she avers that they had Veteran a 'smoldering" leukemia since discharge from service. She maintains that when he was seen at VA in the 1990s and found to have lymphocytosis, a blood culture or a bone marrow biopsy should have been performed. She argues that if VA had done these studies, leukemia would have been found and aggressive treatment pursued. The appellant contends that it was only when the Veteran was seen in 1999, after having developed ulcers all over his body, including the rectum, that VA finally performed blood work that disclosed leukemia. The appellant noted that the Veteran was intermittently seen and treated at VA hospital during his adult life for symptoms but was not timely diagnosed with leukemia. She asserts that had he been accurately and timely diagnosed, he would have received proper treatment and would still be alive. For these reasons, she maintains that the Veteran's death was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA for which compensation under § 1151 is payable. Preliminary Considerations - Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). The notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the appellant was sent a letter in March 2004 prior to the initial unfavorable decision on the claim supplemented by correspondence dated in July 2005, and February and April 2008 that informed her of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. Notification that includes information pertaining to a disability rating and an effective date for the award if compensation were granted has not been sent to the appellant. In this case, however, compensation is being denied. Therefore, no rating or effective date will be assigned with respect to the claim of entitlement to compensation under 38 U.S.C.A. § 1151. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's voluminous VA file including the extensive clinical record, has been reviewed in its entirety. The case was remanded for evidentiary and procedural development in March 2005 and May 2007. The appellant presented testimony on personal hearing in June 2008. The Veteran's Law Judge conducting the hearing identified and advised the appellant of a potential evidentiary defect, and allowed the case be left open for 60 days for the submission of additional evidence. The actions of the Veterans Law Judge supplement VCAA and comply with 38 C.F.R. § 3.103 (2010). The case was remanded again November 2010 whereupon a VA physician reviewed the case and offered an opinion. The case was also sent to an oncologist for independent medical expert review and opinion. These examination reports are found to be adequate for compensation purposes. The appellant's many statements in the record in support of the claim, as well as the whole of the evidence have been carefully considered. Neither she nor her representative contends that there is outstanding evidence that has not been received or considered. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5103A (a) (2); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000); aff'd 281 F.3d 1384 (Fed. Cir. 2002); see also Quartuccio v. Principi, 16 Vet. App. 183; Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (2002). The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for DIC is ready to be considered on the merits. Law and Regulations The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not recently foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2010). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health-care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. 38 C.F.R. § 3.361(d)(1)(ii). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable in each claim 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 the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2010). The above cited regulations governing claims under 38 U.S.C. § 1151 were amended effective September 2, 2004, while the appellant's appeal was pending. 69 Fed. Reg. 46,426 (Aug. 3, 2004). Given that the effect of the changes is to make VA regulations consistent with the changes previously made to 38 U.S.C.A. § 1151, she is not prejudiced in the disposition of the claim herein. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Determinations of whether there is informed consent involve consideration of whether the health care providers substantially comply with the requirements of 38 C.F.R. § 17.32 (2010), which states that general requirements for informed consent include an explanation "in language understandable to the patient . . . the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done." 38 C.F.R. § 17.32(c)(2010). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2010). The Court has held that a "generic, standard form is the best overall approach to accomplishing documentation of the consent process." Halcomb v. Shinseki, 23 Vet. App. 234, 241 (2009). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran died in October 2000 at the age of 61. An October 2000 certificate of death shows the cause of death as acute myelogenous leukemia. No other significant condition contributing to death was recorded on the death certificate. An autopsy was not performed. The Veteran was not service-connected for any disability at that time of death. VA clinical records dating from 1995 reflect that the Veteran sought treatment in for various complaints, primarily knee pain diagnosed as degenerative joint disease that required the use of braces. He was also treated for sore throat, hyperglycemia, and glucosuria during this time frame. Obesity was noted to be a problem. Complete Blood Counts (CBCs) in December 1996 and June 1997 were interpreted as showing findings that included atypical lymphocytes with no blast cells. He was treated in January 1998 for complaints of chest cold where a 10-14 day history of bronchitis was noted. A subsequent entry in January 1998 showed a more than one-week history of productive cough and hoarseness diagnosed as viral upper respiratory infection. VA medical records dating from February 1999 reflect that in that month, the Veteran was seen for maxillary sinus tenderness and was placed on medication. He subsequently experienced some nausea after about four to five days on Septra and began developing some chills and low-grade fevers. The diagnostic impression was sinusitis, not improved on Septra, probable viral gastroenteritis as well. The Veteran was admitted to a VA hospital between October and December 1999 where it was noted he had previously been healthy except for constant rectal pain for several months prior to admission. It was noted that prior to this admission, he had been seen at another VA facility for routine blood work and that his white blood count was mildly elevated. It was reported that a repeat complete blood count (CBC) had been obtained approximately one week prior to the present admission and that some abnormal circulating leukocytes were seen. The Veteran denied any easy bruisability, or bleeding, night sweats, fevers, chills recent infections, lumps or bumps and that except for rectal pain, had no gastrointestinal symptoms. He did report a 40-pound weight loss over the last 6 months. During hospitalization, the Veteran was found to have acute myelocytic leukemia (AML) M2. It was also noted that he had evidence for chronic lymphocytic lymphoma, B-cell type. He received multiple courses of chemotherapy to which his white blood cell count responded. It was noted that there were lymphoid aggregates that most likely represented persistent CLL/low grade lymphoma. Hematocrit dropped several times and he required transfusions of red packed blood cells and platelets. The Veteran underwent diagnostic work-up and aggressive clinical management of all systems, including laparoscopic cholecystectomy. On discharge, his condition was reported to be guarded but more stable. It was felt at that point that as far as hematology and oncology were concerned, his acute AML and CLL were in remission. He was afebrile, had no further chest pain, and that colitis and rectal pain had improved. He was discharged on multiple medications. The Veteran was admitted to a VA facility in January 2000 for consolidation chemotherapy. It was noted that he had a history of AML-M2 and CLL diagnosed in October 1999 who underwent induction chemotherapy with ARA-C and idarubicin and subsequently had a prolonged hospital course. It was noted that he had been transferred to the Fort Harrison VA in late December and was discharged on January 6, 2000. It was recorded that since discharge, the Veteran reported increasing strength, good appetite, the ability to keep food down and more formed stools. He was without complaints on admission. A high-dose ARA-C consolidation chemotherapy regimen for AML M2 was planned which was thought would lead to myelosuppression and neuropenia. Due to concerns regarding potential infection during his neutropenic nadir, work-up on his gastrointestinal system was performed that disclosed the presence of Clostridium difficle. It was decided that this necessitated postponement of chemotherapy. The Veteran decided that he wished to pursue antibiotic therapy at home and he was discharged prior to receiving chemotherapy in stable condition without dietary or exercise limitations. In a letter dated in March 2000 from VA physician at the Salt Lake City VA to a VA doctor at Fort Harrison, the Veteran's prior history was relayed including that he had had a complete remission without major difficulties after December 1999. It was noted that he had been brought back for high-dose ARA-C consolidation induction in early February 2000 that was relatively uncomplicated, although requiring antibiotics for a high fever of up to 106 degrees. The Veteran was reported to have been discharged and doing well. The VA physician stated that he had spoken with the Veteran the previous day and had informed him that he had received the maximum recommended amount of consolidation therapy and that he was being treated more aggressively than other patients his age. It was explained to him that "...it was clear that any additional therapy would be unlikely to prolong his survival, and that it was also likely that he had at least a 30-50% change of being cured. I also told him that it was unlikely that early detection of relapsed AML would necessarily prolong survival." It was noted that the Veteran told him that he was feeling well and was capable of doing all of his usual activities. The VA physician recommended that the Veteran have a follow-up bone marrow sometime during the next one to four weeks that would serve as a baseline for any future relapse. "Aside from that, he does not require regular bone marrows as follow-up but simply a CBC every three months or so..." "One reason for obtaining CBCs periodically is that his CLL (which may be more chemo resistant than his AML) could again become notable, even though his AML would remain in remission. It is even conceivable that he may require treatment for the CLL, even though he would be cured of his AML." The doctor further stated that if the Veteran had a relapse of AML or developed signs or symptoms of CLL, they would be happy to see him again for consideration of therapy. Subsequent VA outpatient clinical records reflect that the Veteran received regular and continuing follow-up in this regard The Veteran was readmitted to a VA hospital for chemotherapy after relapse of AML. It was noted that he had been in remission and was doing well as confirmed by bone marrow biopsy in April 2000. It was reported that he had a routine CBC in late June 2000 that showed an elevated white count, which led to further evaluation and to a determination that he, was in relapse. It was reported that he had no fever, chills, night sweats, bruising or bleeding prior to admission. The Veteran was treated with idarubicin and ARA-C. His hospital course was complicated by prolonged neutropenia with fevers, anemia, thrombocytopenia, severe typhlitis, significant electrolyte abnormalities, as well as multiple other complications. The Veteran was noted to be ambulatory but debilitated. It was reported that the hematology/oncology service spoke with the VA Medical Center in Seattle, Washington that performed mini transplants for AML. The Veteran was currently in the process of an extensive work-up for this treatment and only lacked a stress-thallium scan. It was reported that the test was scheduled but that the Veteran has some personal and financial obligation that required his presence, and urgently requested that he be transferred to Fort Harrison to complete the work-up and be able to take care of his business from there. He was transferred by air to Fort Harrison in stable condition. Upon ensuing admission to Fort Harrison VA the following day, it was noted that the Veteran had AML and lymphoma, had failed chemotherapy with relapse after initial induction and consolidation therapy, had repeat induction chemotherapy and was awaiting a decision of bone marrow transplant. It was reported that he had returned to the facility to recuperate prior to returning home. Diagnoses on discharge were acute myelogenous leukemia, moderate leucopenia without significant neutropenia, deconditioning but able to care for himself, and forearm dermatitis. The Veteran was readmitted in September 2000 with a two-day history of increasing fatigue. A bone marrow biopsy was perfumed on the day of admission and aspirate was discovered to be infiltrative, predominantly blasts. It was felt that the Veteran appeared to be in relapse. It was noted that a physician spoke with the bone marrow transplant physician in Seattle regarding the criteria for transplant, but was told that the Veteran was not a candidate for bone marrow transplant because he had to successfully undergo one round of induction as well as consolidation without relapse which he had not as of that point. It was stated that the bone marrow transplant was therefore not an option at that point. The Veteran was treated and his white blood cell count came down. He developed complications that included fevers, subcutaneous nodules, low hematocrit requiring blood transfusion, thrombocytopenia, and a macular rash that were all treated. During this admission, the Veteran decided not to pursue further aggressive chemotherapy treatment. It was reported that this decision came about as a result of multiple meetings with the hematology/oncology team, and his primary care team and that he was there at all times. The Veteran was readmitted on October 3, 2000. It was noted there was a history of AML initially diagnosed one year before for which he had initially been treated with Idarubicin and ARA-C. It was reported that his post chemotherapy course was extremely complicated and that he had developed severe anemia and thrombocytopenia due to the chemotherapy. The Veteran was felt to be septic on admission, complicating acute AML with a crisis, and was felt to be functionally agranulocytic with almost all of his white cells being blasts. Blood cultures were obtained and grew Klebsiella pneumonia for which he was started on broad-spectrum antibiotics. The Veteran developed a gastrointestinal bleed with a drop in his hemoglobin for which transfusion was implemented. He developed increasing respiratory distress and his condition continued to deteriorate. Staff and spouse discussed the probability that he would not survive this acute event. It was noted that the Veteran had formerly expressed his desire to not be resuscitated or placed on a ventilator. His respiratory status diminished throughout the day and he was placed on a morphine drip for better comfort. The Veteran expired on October 7, 2000. The cause of death was felt to be sepsis secondary to Klebsiella pneumonia, probably with a pulmonary source of infection. It was recorded that this was superimposed on acute lymphocytic leukemia with blast crisis refractory to standard therapy with no functional granulocytes. Received in March 2003 was a copy of a Social Security Administration determination dated in January 2000 showing that the Veteran was found to be disabled due to acute myelogenous leukemia and non-Hodgkin's lymphoma. Disability was determined to have begun on September 18, 1999. The appellant's claim for DIC benefits under the provisions of 38 U.S.C.A. § 1151 was received in October 2003. Based upon a review of the claims file, a VA nurse practitioner provided an opinion in June 2004 on the efficacy of the Veteran's care by VA. She stated that clinical records indicated that he received appropriate care for AML/CLL that "the records do not show failure to diagnose timely", and that in fact, follow-up after initial lab reports was within 24 hours. She related that proper and timely treatment was provided, appropriate referrals were made and transportation was arranged for specialty care. The reviewer further stated that the VA care and treatment provided neither hastened or caused the veteran's death. She observed that complications could occur when a patient was critically ill, but that these were not due to malpractice or negligence. It was noted that she discussed the file with a VA physician and that he concurred that appropriate care was provided. Received in July 2004 from the appellant were two internet articles; one article discussed questions regarding lymphocytosis, the other one discussed acute myeloid leukemia in mice. Also submitted was a copy of a complete blood count (CBC) report dated June 20, 1997 that noted a finding of lymphocytosis. Received in April 2008 were VA treatment records dated from September 1989 to January 1998 showing treatment mainly for chronic knee disability. In January 1998, the Veteran was diagnosed with a viral upper respiratory infection. In May 2008, following review of additional evidence, the VA nurse practitioner concluded that there was no new evidence to support the claim that VA failed to diagnose the Veteran's medical condition in a timely fashion. She reiterated statements made in June 2004, and noted that the terminal record dated October 6, 2000 showed that the cause of death was felt to be sepsis, secondary to Klebsiella pneumonia, probably with a pulmonary source of infection. She stated that this was superimposed on acute lymphocytic leukemia with blast crisis refractory to standard therapy with no functional granulocytes. A statement dated in June 2008 was received from T. Weiner, M.D., noting that he had reviewed the Veteran's chart. It was his opinion that the Veteran clearly had lymphocytosis as far back as 1996 when some atypical lymphocytes noted. Dr. Weiner related that this probably represented chronic lymphocytic leukemia, and stated that it would have been normal at that time if either flow cytometry of the blood or a bone marrow biopsy had been done to determine the nature of lymphocytosis. Also submitted in July 2008 were several articles pertaining to leukemia, including the actual risk for a particular individual to develop that type of cancer, and the survival rate of people with various types of leukemia. In October 2010, the appellant's attorney submitted a clinical report from medico-legal expert Dr. E. J. Grasmann reportedly setting forth breaches of standards of care in the Veteran's case. He listed his credentials as a graduate in osteopathic medicine, a three-year residency followed by a 19-year practice in family and internal medicine, and a law degree. He related that he had treated and performed medical consultations for numerous patients with various forms of leukemia and their complications. Dr. Grasmann wrote that it was clear that the Veteran's blood counts in 1996 and 1997 showed atypical lymphocytes and that a blood count should have been repeated every two weeks as certain diseases could cause atypical lymphocytes. He stated that these atypical lymphocytes were myelocytes or juvenile forms of lymphocytes that, in his professional opinion and within a reasonable degree of medical certainty, represented the abnormal or cancerous line of the lymphocytes, and that a simple blood smear along with a bone marrow biopsy, chromosomal analysis and flow cytometry would have identified this abnormal cell line. Dr. Grasmann stated that by the time the Veteran was diagnosed [for AML] he was aggressively treated in an attempt to control a 'blast crisis' from the advanced leukemia from which he suffered. It was noted that a blast crisis wiped out any functioning white cells and that the patient typically died from overwhelming infection. He stated that in his opinion, with a reasonable degree of medical certainty, it was a departure not to further investigate, or seek hematologic consultation on the blood count in December 1996 because of the elevated white blood cell count, the numerous atypical lymphocytes and the low number of segmented white blood cells that are a critical part of the immune system. It was noted that the segmented white blood cells were low because their precursor cells were being crowded out by the cancerous abnormal lymphocytes. In his discussion, Dr. Grasmann stated that leukemias developed over a lengthy period of time, and that abnormal precursor cells were noted on the Veteran's blood counts in 1996 and 1997 as atypical lymphocytes. It was reported that in both of those years, the Veteran had many abnormal or atypical lymphoid cells that represented the abnormal and cancerous line of the lymphocytes. It was also noted that liver enzymes were elevated at 53. Dr. Grasmann stated that VA medical staff took no action on the clearly abnormal blood count and abnormally elevated liver function study. It was reported that in October 1997, another blood count was performed which was abnormal and no action was taken on the clearly abnormal study. Dr. Grasmann related that at some point in October 1999, the Veteran developed symptoms consistent with acute leukemia and that a bone marrow biopsy, bone marrow aspirate, examination of blood smear, chromosomal analysis and flow cytometry were done. He emphasized that these were the appropriate tests that should have been performed in 1996, but that because they were not, the opportunity for an early diagnosis was lost. He stated that early treatment with chemotherapy, radiation and possible bone marrow transplant were the only options for cure, and that the Veteran's brother was an exact match for a bone marrow transplant. It was reported that after the Veteran's admission to the Salt Lake City VA Hospital, he was diagnosed with several types of leukemia, including acute myelogenous leukemia, non-Hodgkin's lymphoma, chronic myelogenous leukemia and chronic lymphocytic leukemia, but that all of these were missed in 1996 by VA staff. It was noted that subsequent to his admission, he began a long, painful and complicated treatment course in an effort to overcome the blood cell cancers and briefly went into remission but that the leukemias quickly recurred. Dr. Grasmann identified the departures from standard of care as the following: 1. Failure to repeat the abnormal CBC of December 19, 1996 in a timely fashion (two weeks or so). 2. Failure to obtain manual evaluation of a peripheral blood smear, chromosomal analysis, a bone marrow aspirate and biopsy, flow cytometry and a CAT scan to look for an enlarged spleen or enlarged abdominal lymph nodes. It was noted that "In other words, the initial abnormal CBC was ignored by the nurse practitioner and led to the Veteran's early death." 3. The second CBC done on June 19, 1997 revealed the same abnormities and again no work-up was done. 4. Lymphocytosis (an elevated lymphocyte count) is normal in certain conditions but is never normal for a year. This finding is ignored as was the finding of abnormal (or atypical) lymphocytes. 5. Failure to diagnose acute leukemia in its early stages. 6. Failure to evaluate and diagnose the Veteran's leukemia that prevented him from receiving early and potentially curative treatment. 7. The failure to diagnose the leukemia in 1996 was the proximate cause of the Veteran's death. 8. Failure to fully evaluate the Veteran's abnormal blood and liver function tests in 1996 which represented a departure from the then and there accepted standards of medical care and as such, constituted professional negligence and medical malpractice on the part of VA, the nurse practitioners and physician Alvarez. 9. Dr. Grasmann noted that histochemical studies, cytogenetics, blood smear, bone marrow biopsies and bone marrow aspirates along with immuniophrenotyping and molecular biology studies help distinguish the blasts of leukemia from other disease processes and are critical for treatment of leukemias. It was his professional opinion, within a reasonable degree of medical certainty, that the failure to obtain those studies in 1996 constituted professional negligence and medical malpractice on the part of VA employee nurse practitioner J. L. and physician A. The medico-legal expert further noted that the death certificate issued by the state of Montana gave Veteran's cause of death as acute myelogenous leukemia but that this was not diagnosed by VA medical staff and Dr. A. in 1996 and that the failure to diagnose led to the Veteran's death and clearly constituted negligence and medical malpractice. Pursuant to the Board's November 2010 remand, a VA physician reviewed the claims folder and opined in a December 2010 clinical report that the lack of a diagnosis of leukemia prior to 1999 did not cause the Veteran's death. The rationale for this opinion was based on review of medical records indicating that the Veteran had a very complicated and rare case of two hematological malignancies at the same time. It was reported that longstanding CLL was evident from CBCs done in 1996 and 1997, but that the current standard of care for the condition was to monitor for CBC changes and clinical symptoms. It was noted that in reviewing the CBCs done in those years, no aggressive therapy or work-up was indicated since the Veteran was asymptomatic. He related that CBCs drawn in 1996 and 1997 showed atypical lymphocytes but did not reveal evidence of anemia, thrombocytopenia (low platelets) or blast cells. It was reported that the results obtained on those occasions were more indicative of CLL and was not life-threatening AML that was the underlying cause of death in 2000. The examiner stated that the lymphocytosis shown in 1996 and 1997 was not that high and could have been reactive rather than unequivocally neoplastic which was why the CBC was repeated and the lymphocyte count watched. The examiner related that the second more malignant disease, AML, was identified on a CBC drawn in 1999, and that once the grossly abnormal CBC suggested AML, aggressive evaluation and therapy was promptly initiated, despite the fact that the Veteran was 'remarkably asymptomatic'. The VA examiner added that the standard of care for CLL was to monitor patients, and that particular attention was paid to 'lymphocyte doubling' and clinical findings and symptoms. It was reported that since there was no doubling of the lymphocytes between December 1996 and June 1997, and no enlarged organ or lymph nodes noted on physical examinations, continuation of monitoring was warranted. He stated that neither bone marrow biopsy or flow cytometry is recommended during the monitoring phase, and that only after a change in the CBC count with evidence for anemia, low platelets or a change in clinical status is the more invasive and specific testing recommended. It was pointed out that the Veteran was a 'no-show' for a November 1997 appointment and was only seen during the interim for complaints that did not require a CBC. The VA examiner stated that "in my medical opinion, [the] lack of a leukemia diagnosis prior to 1999 did not represent carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment [to the Veteran]." The rationale for this opinion was that a repeat CBC was obtained within six months of the original abnormal CBC, and that at that point, there was no significant change in his CBC, in particular, no doubling of lymphocytes." The examiner related that since the Veteran's blood count remained otherwise normal, it was appropriate to continue to monitor his blood counts and clinical course, and that a diagnosis of CLL could be clinically followed and monitored without aggressive work-up or the initiation of active treatment. The examiner opined that it was his medical opinion that the lack of a diagnosis of leukemia prior to 1999 did not represent an event reasonably foreseeable by VA. He stated that the Veteran died of complications from AML that was not evident from the CBC done in 1996 or 1997. It was reiterated that the Veteran suffered from a rare combination of two simultaneous leukemias, namely AML-M4 Subtype and low-grade B-Cell lymphoma. He related that this was a rare situation and that his AML was the more aggressive destructive leukemia that ultimately was a contributing cause of death. The examiner stated in regard to the statements provided by Drs. Weiner and Grasmann, per 'Up to Date', an online medical reference source used by practicing providers, and currently accepted in the medical field as reliable, "it is the standard of care today that asymptomatic CLL can be monitored and there are no recommendations to proceed with flow cytometry, or especially with invasive bone marrow biopsy until the clinical situation and laboratory findings warrant." VA obtained an independent medical review and opinion from Karl Guter, M.D., board-certified in oncology and internal medicine. In a report dated in February 2011, Dr. Guter presented a comprehensive overview of the Veteran's clinical history. In so doing, he noted that when the Veteran was seen in December 1996 for complaints that included musculoskeletal pain, a CBC showed a normal hemoglobin and platelet count with a white blood cell count of 12, 600 with an absolute lymphocytosis of 6174, with some lymphocytes described. It was noted that similar findings were shown in June 1997. Dr. Guter stated that there were no subsequent CBCs from that time until his presentation in October 1999 when a CBC was considerably different with anemia and immature cells in the peripheral blood that were not present in the preceding two blood counts. Dr. Guter stated that the question was posed as to whether the lack of a diagnosis prior to 1999 caused the Veteran's death. It was found that the Veteran had a persistent absolute lymphocytosis over six months between December 1996 and June 1997; that there was no increase in lymphocytosis during that time but that it was persistent and represented chronic lymphocytic leukemia since a clonal lymphocytosis consistent with CLL was described at the time he presented for AML in October 1999. Dr. Guter stated that the lymphocytosis noted in 1996 and 1997 was minimal and asymptomatic, and that had a diagnosis of CLL been pursued at that time, there would have been no therapeutic implications from making that diagnosis since there would be no indication to treat. He supported his conclusion by referring to the current National Comprehensive Cancer Network (NCCN) guidelines [of record] for diagnosing CLL that requires an adequate immunophenotype to establish the diagnosis, and requiring an absolute monoclonal B lymphocyte count greater than 5000. It was noted that, historically, a marrow was often done under those circumstances but that at that time, a marrow was only recommended, if at all, at the initiation of therapy, and that there was no indication to pursue any therapy in June 1997 or earlier. Dr. Guter stated that it was conceivable that a marrow would have come up with some unsuspected problem, but that "I think a major unsuspected problem would be unlikely since the patient was not anemic, had a normal neutrophil count and a normal platelet count." Dr. Guter stated that he viewed the diagnosis of AML in October 1999 as a separate cancer since it is of myeloid lineage rather than lymphoid lineage, reflected in part by the presence of Auer Rods. He stated that there was no data to support transformation of CLL to AML over time. Dr. Guter stated although the diagnosis of CLL presumably could have been made prior to October 1999, "I do not know that there would be a compelling reason to do so in the absence of symptoms and with such a borderline lymphocytosis as was noted on those two occasions. He said that the usual strategy is to follow a patient and at some point decide whether there is enough of a persistent lymphocytosis to warrant a flow cytometry evaluation. He related that usually one would do that in the face of progressive lymphocytosis, patient concerns, or other concerns that would suggest a need for further evaluation. It was noted that such symptoms identified in the NCCN guidelines would include fatigue, night sweats, weight loss, unexplained fever, progressive lymphadenopathy, anemia or thrombocytopenia. He stated that exactly when one "pulls the trigger" on the lymphocytosis and got a flow cytometry was not always clear, since all lymphocytosis was not CLL but could be a related lymphoproliferative disorder such as follicular lymphoma or splenic marginal zone lymphoma. Dr. Guter stated that "I do not think the minimal lymphocytosis noted on the clinic visits in December 1996 and 1997 mandated flow cytometry at that time to confirm Chronic Lymphocytic Leukemia." Dr. Guter stated that the VA nurse practitioner reviewed the record in 1998, mentioned CBCs in 1996 and 1997 but did not address lymphocytosis. It was noted that there was a reference to the effect that there were no signs of CLL in 1996 and 1997, but that in fact, there was an absolute lymphocytosis that in retrospect "certainly represented CLL since such was presented in October 1999. He said that most persistent lymphocytosis in that age group indeed represented CLL or a related disorder. Dr. Guter stated that he agreed with Dr. Weiner's opinion that the Veteran clearly had a lymphocytosis in 1996 with some atypical lymphocytes that likely represented chronic lymphocytic leukemia, but did not think there was a therapeutic implication in making the diagnosis in 1996 or 1997. Dr. Guter referred to the assessments in Dr. Grasmann's review and report indicating that testing should have been performed around the Veteran's earlier visits to VA but countered that "I would offer that the CBC in October 1999 was dramatically different than what was seen before and again I don't think that there was a therapeutic implication in diagnosing CLL in either December 1996 or June 1997. It seems improbable to me that a marrow done in either December 1996 or June 1997 would diagnose acute myelogenous leukemia which then smoldered for over 2 years before declaring itself clinically and leading to a fatal outcome in about 11 months. It was noted that in Dr. Grasmann's discussion, he mentioned that myeloid or myelocyte precursors produced abnormal or nonfunctional lymphocytes. It was Dr. Guter's opinion that the evidence supported that myeloid precursors produced progeny of the granulocyte series and not lymphocytes. He related that "it is my feeling that the patient in fact had 2 separate lineages, namely myeloid leukemia and CLL. I do not see where the failure to diagnose CLL somehow influenced the subsequent finding of acute myelogenous leukemia, which in fact was ultimately fatal for this patient." It was reported that the Veteran had in fact died of blast crisis and complications thereof rather than from complications of remission induction therapy, and that there were multiple complications of his treatment which were not uncommon in this context. Dr. Guter stated that Dr. Grasmann indicated that the Veteran died from Klebsiella pneumonia sepsis secondary to acute lymphocytic leukemia and blast crisis, but that in fact, the Veteran had had acute myelogenous leukemia with blast crisis. He noted that "I do not think myelogenous leukemia could have been reasonably diagnosed 2 years prior to his presentation in October 1999. Dr. Guter noted that review of the chart by [the VA physician in December 2010] reflected that he discussed two separate leukemias, and that it was indicated that CBCs in 1996 and 1997 showed lymphocytosis, and suggested that it could have been reactive. He stated that it was possible, but that since it persisted over six months and the patient was subsequently found to have CLL, it probably was CLL all along as noted, and that most patients in this age group with persistent lymphocytosis have CLL or a related lymphoproliferative disorder. It was found that there was a lack of progressive lymphocytosis between December 1996 and June 1997 that reflected an indolent biology, but did not exclude the presence of CLL. The examiner noted that when the Veteran was seen in October 1999 it was to pursue routine care and that "I do not know that in fact that was the case, but he did not have enough anemia to cause symptoms, was not severely neutropenic and that his platelet count was normal, so it was unclear that he was symptomatic from his acute myelogenous leukemia at that time." Dr. Guter reiterated that the standard of care in CLL is to follow patients after initial diagnosis until they have one of the findings indicated in the NCCN guidelines as an indication for treatment, to include constitutional symptoms, end organ dysfunction, bulky disease, rapid lymphocyte doubling time or progressive anemia or thrombocytopenia. He stated that simply making a diagnosis is not an indication to treat, and that 30 percent of all patients with CLL never come to treatment. It was related that there were different biologies within CLL with some requiring treatment earlier than others. It was noted that this could sometimes be predicted by cytogenetics, but most often, regardless of cytogenetics, patients would be followed at least initially to see how the disease behaved in them. Dr. Guter stated that "As I reviewed the record, I see no evidence that [the Veteran] was at all symptomatic or progressive in the interval from December 1996 through June 1997. Dr. Guter summarized that "It is my assessment that the patient indeed had chronic lymphocytic leukemia reflected in a persistent lymphocytosis in December 1996 through June 1997, but that this was asymptomatic, indolent and a diagnosis of CLL at that time would have had no therapeutic implication. I think the hematologic findings in October 1999 represented a separate disease of myeloid lineage which was ultimately quite aggressive and any remission obtained with standard induction therapy was short lived. The patient relapsed and ultimately had a blast crisis leading to his death. I do not feel that CLL evolved to, or that treatment of CLL would have prevented the development of acute myelogenous leukemia. Indeed some regimens for CLL can cause AML over time." Dr. Guter concluded that "Thus, I do not feel that the diagnosis CLL would have prevented or influenced the subsequent development of acute myelogenous leukemia which was the patient's life-threatening illness leading to his death 11 months after diagnosis." Legal Analysis The Board has meticulously developed and presented the evidence in support of a against the claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. The findings and conclusions of the various practitioners associated with this case have been carefully considered. The Board finds that the evidence in its entirety weighs in favor of a finding that the Veteran's death was not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include any failure to timely diagnose acute myeloid leukemia (AML), and is not the result of an event that was not reasonably foreseeable by VA. The preponderance of the evidence is against the claim. In support of the claim, Dr. T. Weiner found that the Veteran clearly had lymphocytosis as far back as 1996 probably represented chronic lymphocytic leukemia, and that it would have been normal at that time if either flow cytometry of the blood or a bone marrow biopsy with flow cytometry or chromosomes were performed to determine the nature of lymphocytosis. Dr. Grasmann's primary assertion in September 2010 was that the atypical lymphocytes on CBC in 1996 and 1997 were myelocytes or juvenile forms of lymphocytes that represented an abnormal or cancerous line of lymphocytes. He opines that a simple blood smear along with a bone marrow biopsy, chromosomal analysis and flow cytometry would have identified this abnormal cell line as acute leukemia warranting early and potentially curative treatment. He avers that VA ignored the abnormal CBCs in 1996 and 1997, failed to order more extensive and definitive diagnostic procedures at that time, and failed to diagnose and treat AML as early as 1996. It is his conclusion that such omissions on VA's part constituted professional negligence and medical malpractice on VA's part which led to the Veteran's early and untimely demise. In February 2011, the independent medical expert, Dr. Guter appears to corroborate a diagnosis of leukemia by finding that the persistent absolute lymphocytosis over six months between December 1996 and June 1997 represented chronic lymphocytic leukemia since a clonal lymphocytosis consistent with CLL was described at the time the Veteran presented for AML in October 1999. The Board finds, however, while laboratory findings of chronic lymphocytosis in 1996 and 1997 may have represented chronic lymphocytic leukemia as noted by Dr. Weiner in June 2008 and Dr. Guter in 2010, the crux of this claim necessarily rests on the standard of care warranted for such symptoms at that time, and whether VA acted in accordance with such prior to the Veteran's death in October 2000. In this regard, Dr. Weiner's statement is cursory, at most, does little more than confirm what was already known that the Veteran had lymphocytosis and some atypical lymphocytes in 1996. While he stated that it was normal in such cases to perform additional testing, he did not factually establish or explain the sequence of medical causation leading to the Veteran's death using the facts of the case. The Board observes that Dr. Grasmann specifically states that had VA done due diligence and performed CBCs every two weeks, as well as additional and continuing testing such as a blood smear along with a bone marrow biopsy, chromosomal analysis and flow cytometry upon findings of continuing lymphocytosis, the Veteran would have been treated for leukemia and not succumbed to an early death from AML. The Board has contrasted the above statements with those of the VA physician in December 2010 and the independent medical expert in February 2011. In both cases, each examiner stated unequivocally that the Veteran's lymphocytosis in 1996 and 1997 was asymptomatic, even 'remarkably' so, and that in the absence of additional symptoms such as fatigue, night sweats, weight loss, unexplained fever, progressive lymphadenopathy, anemia, thrombocytopenia or blast cells, no treatment or therapy implication was indicated. Dr. Guter described lymphocytosis as minimal, and attached specific NCCN guidelines outlining the recognized standard of care in such circumstances. The VA examiner stated in December 2010 related that since the Veteran's blood count remained otherwise normal, it was appropriate to continue to monitor his blood counts and clinical course, and that a diagnosis of CLL could be clinically followed and monitored without aggressive work-up or the initiation of active treatment. The Board thus observes, that even if the Veteran's symptoms had been diagnosed as chronic lymphocytic leukemia in 1996 or 1997, the current standard of care was to monitor for other physical or laboratory changes; none of which the Veteran exhibited at that time. Both examiners, at least one a board-certified oncologist, stated that neither bone marrow nor a flow cytometry is recommended during the monitoring phase, and that it is only after a change in the CBC count that more specific and invasive testing is indicated. The evidence reflects that on routine CBC testing in October 1999, more than two years after the June 1997 CBC reflecting no more than lymphocytosis, anemia and blast cells were noted for which aggressive treatment was rendered leading to a temporary remission. Such treatment measures were on point with NCCN guidelines. The VA examiner stated in December 2010 that the Veteran died of complications from AML which was not evident from the CBC done in 1996 or 1997 and did not represent an event reasonably forseeable by VA. This was determined to be a separate disease process from the CLL which the Veteran initially manifested. The board-certified independent medical expert oncologist, Dr. Guter opined that CLL did not evolve into, or that treatment of CLL would not have prevented the development of acute myelogenous leukemia. He stated that he viewed AML diagnosed in October 1999 as a separate cancer since it is of myeloid rather than lymphoid lineage. He also found that it was improbable that a marrow examination done in either December 1996 or June 1997 would have diagnosed acute myelogenous leukemia which then smoldered for over 2 years before declaring itself clinically and leading to a fatal outcome in about 11 months. In view of the above, Dr. Grasmann's conclusion in September 2010 that the VA medical staff's failure to diagnose acute myelogenous leukemia in 1996 and that this led to the Veteran's is clearly inconsistent with the prevailing and more probative opinions and is of diminished probative value. Here, the Board is presented with a substantial conflict in evidence. When there is a difference in medical opinion, as there is in this case, it is the Board's responsibility to weigh the credibility of the evidence of record. Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992)). While the Board may not reject a medical opinion based on its own medical judgment (See Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)), it has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2010) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In light of the above, the Board finds that December 2010 VA physician and Dr. Guter's February 2011 findings and opinions are more probative. This is because they are based on recognized standards of care that is not reflected in the report provided by Drs. Weiner or Grasmann. As such, the Board finds that Dr. Grasmann's report is not reliable or persuasive. In December 2010, the VA examiner presented the case in detail and found that the lack of a leukemia diagnosis and treatment prior to 1999 did not represent carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment to the Veteran for reasons outlined in detail above. The Board sought an opinion from an outside expert oncologist, Dr. Guter, in order to ensure that all the possible avenues for a grant of benefit sought were addressed in the medical opinion. Dr. Guter reviewed the claims file and as demonstrated in the comprehensive clinical report above, effectively echoed the conclusions of the VA examiner in establishing that VA followed the proper standard of care, and that an earlier diagnosis of CLL would not have prevented or influenced the subsequent development of acute myelogenous leukemia which led to the Veteran's death. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Therefore, with consideration of the above, the Board finds that the VA medical examiners' opinion in 2010 and Dr. Guter's conclusions in 2011 have substantially more probative weight than those of Dr. Weiner and Dr. Grasmann. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board has carefully considered the appellant's contentions in support of the claim. Lay statements are competent to establish the presence of observable or symptomatology as such comes through one of the senses, and may provide sufficient support for a claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). However, the issue in this case is a complex matter which requires specialized training for a determination as to causation, standard of care, forseeability, etc., and is therefore beyond the ken of a lnonprofessional'scompetence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this context, the Board gives greater probative value to the medical opinion of a skilled clinical professional than to the contentions of the appellant and her representative. Under the circumstances, the Board concludes that the more reliable and probative evidence demonstrates that the Veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment, or an event not reasonably foreseeable. The Board thus concludes that entitlement to DIC pursuant to 38 U.S.C.A. § 1151 is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs