Citation Nr: 1301407 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-15 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to dependency and indemnity (DIC) compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from January 1953 to January 1955 and died in October 2006. The appellant, who is the Veteran's surviving spouse, appealed an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2011, the appellant testified during a hearing at the RO before the Board. A transcript of the hearing is of record. In April 2011, the Board of Veterans' Appeals (Board) remanded the appellant's claim to the RO for further evidentiary development. FINDINGS OF FACT 1. In July 2006, and approximately two weeks prior to the Veteran's scheduled surgery at a VA medical center (VAMC) in Sacramento, California, he was informed of the type of surgery that he would undergo along with any possible residuals or complications resulting from said surgery. Despite any complications or residuals, the Veteran voluntarily agreed to undergo the scheduled surgery. 2. On August 3, 2006, the Veteran underwent surgical removal of the right side of his colon for a large 3 centimeter (cm) benign polyp at the VAMC in Sacramento. He was discharged on August 10, 2006. On August 11, 2006, he began exhibiting signs of distress for which he was privately hospitalized on August 12, 2006. An exploratory laparotmy performed on August 13, 2006, revealed a right-sided abscess around the previous ileocolic anastomosis considered the source of profound sepsis. The Veteran died in October 2006 at the age of 74 from cardiac arrest due to hyperkalemia, renal failure, and sepsis. 3. 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 sepsis, 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. 2012); 38 C.F.R. §§ 3.159, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that compensation is warranted under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. In written statements, and during her February 2011 Board hearing, she avers that there was fault on the part of VA medical personnel in their releasing the Veteran from the VAMC Mather (in Sacramento) in August 2006, prior to his recovery. She asserts, most recently in her October 2011 written statement, that the surgery was properly performed and that she and the Veteran knew its risks. When he was released from the VA hospital, however, she contends that the Veteran experienced pain, nausea, and vomiting, and had a swollen abdomen, that led to his ultimate death. She states that, had he been accurately and timely diagnosed, he would have received proper treatment and would still be alive. Thus, 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. I. Duty to Notify and Assist In January 2007 and April 2011 letters, the Agency of Original Jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012). The AOJ notified the appellant of information and evidence necessary to substantiate her claim. She was notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide. The United States Court of Appeals for Veterans Claims (Court) has held that proper notice requirements apply to all five elements of a service connection claim. These are (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, that involves a claim for compensation under 38 U.S.C.A. § 1151, element (3) would be a connection between VA hospitalization, medical, or surgical treatment, and an additional disability or death. In such a claim, the appellant should also be advised that the additional disability or death must be the result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment, or not a reasonably expected result or complication of VA treatment. In its January 2007 letter, the RO provided the appellant with such notice. April 2008 and February 2010 letters provided her with notice consistent with the Court's holding in Dingess. In addition, specifically in the context of a 38 U.S.C.A. § 1310 (West 2002) DIC claim, the Court held that section 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 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). Because the case at hand involves entitlement to DIC compensation under 38 C.F.R. § 1151, the requirements of Hupp do not apply. In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the appellant's hearing and pre-hearing conference, this Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that the Veteran's death was related to VA medical treatment would be helpful in establishing the claim. Moreover, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012); she has not identified any prejudice in the conduct of the Board hearing. VA has done everything reasonably possible to assist the appellant with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records are presumed destroyed in a fire, according to a March 2005 service department notice. A March 2010 RO letter advised the appellant that the service treatment records were unavailable. The Board recognizes that there is a heightened obligation to assist the appellant in the development of her claim, a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in such cases. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's VA and private medical records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence pertinent to the claim on appeal. In June 2007, a VA physician provided a written medical opinion regarding the appellant's claim. As noted above, in April 2011, the Board remanded the appellant's case to the RO for further development that included obtaining a July 25, 2006 consent form signed by the Veteran and a medical opinion from a VA gastroenterology specialist. There has been substantial compliance with this remand, as a "Consent for Treatment/Procedure," dated on July 25, 2006 and signed by the Veteran, was obtained, along with medical records from the VAMC in Sacramento, dated from July 2002 to August 2006. In August 2011, the Chief of Surgery at a VA medical facility in California provided a written opinion indicating that the case was referred to a VA gastroenterologist for review who felt review by a trained and experienced surgeon would be more appropriate. The Board finds that the August 2011 VA medical opinion is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history and offered an etiological opinion with rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis The appellant filed her claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151. She, as her husband's widow, maintains that medical personnel at the VAMC in Sacramento provided inadequate care for her husband and, as a result of this improper treatment, he died due to his premature hospital discharge that led to the sepsis that caused his death. The record shows that, in July 2006, the Veteran, who was 74 years old, had a history of a benign polyp and underwent a screening colonoscopy. A biopsy of results revealed that he had a 3 cm. adenomatous polyp and was referred to the surgery clinic due to its size. According to a July 25, 2006, surgical clinic record, the Veteran's past medical history included coronary artery disease with a stent implanted after a heart attack in November 2004, hypertension, benign prostatic hypertrophy, back pain, hypospadias, hypercholesterolemia, and acid reflux. The Veteran denied any gastrointestinal symtoms, jaundice, swollen lymph nodes or weight loss. The record shows that the Veteran was informed of the risks and benefits of surgery and elected to proceed with a right hemicolectomy, as evidenced in the "Consent for Treatment/Procedure" he signed that day. On July 26, 2006, the Veteran was evaluated by an anesthesiologist prior to surgery who medically cleared him for surgery. The record further shows that, on August 3, 2006, the Veteran was admitted to the VAMC in Sacramento for a right hemicolectomy for his cecal adenoma. As noted, prior to the operation, the Veteran was informed of the possible complications of the surgery that included, but were not limited to, leak of the colonic anastomosis, cancer in the margins of the removed colon, intra-abdominal abscess infection, hemorrhage, death, complications associated with anesthesia, etcetera. He agreed to those risks and signed the consent form with respect to the surgery on August 3, 2006. The Board would also point out that the consent form was not accomplished on the day of the surgery but, instead, was accomplished two plus weeks prior to the surgery. The record shows that the Veteran and his wife were fully informed of the risks and complications that could result from said surgery, and he was given adequate time to reflect on said complications prior to the surgery. The appellant does not contend otherwise (see appellant's October 3, 2011, signed statement). Post operatively, records show that the Veteran did well and awaited return of his bowel movements and flatus. A Discharge Note, dated August 13, 2006, reflects that the Veteran tolerated the procedure well and his post operative course was largely unremarkable. He had flatus on "POD" (post operative day) 4 and was advanced to a clear diet. The Veteran developed heart burn and had bouts of emesis. Clinical records indicate that, on August 7, 2006, the Veteran complained of having reflux that was worse than the previous day with hiccups. An episode of nausea with a small amount of emesis the previous afternoon was noted. There was no flatus or bowel movement. His abdomen was soft and mildly distended and his wound incision was dry and intact. Results of laboratory tests performed that day revealed that his white blood count was 8.4. When examined by his surgeon later that day, the Veteran denied having nausea or vomiting and was walking a lot. It was noted that he was afebrile the past 24 hours. The surgeon reported that the Veteran looked well in general and that his abdomen was moderately distended and tympanitic. The incision looked fine. The surgeon said the Veteran was doing well after his right hemicolectomy and the plan was to await bowel function. According to an August 8, 2006, general surgery progress note, the Veteran was passing flatus and having loose stool. He was taking a liquid diet but had heartburn and was afebrile with good "UOP" (urine output?). The surgeon noted that the Veteran's abdomen was mildly distended, his incision was fine, and he was to be kept on clear liquids. When evaluated by the surgery team on August 9, 2006, the Veteran felt better. He was on a clear liquid diet, had fewer reflux symtoms, was passing flatus, and was afebrile. His abdomen was still a bit distended. Results of pathology tests showed that he had a tubular adenoma. Overall, the Veteran was described as doing well. He was to be kept on a liquid diet until his distention went down and should be ready for discharge in the next 1 or 2 days. According to an August 10, 2006, surgical progress note prepared by a medical student, the Veteran said his pain was controlled with medication, his reflux was nearly gone, and his belly felt less full. He vomited twice the previous day, after a lunch of liquids and dinner of solid foods with no hematemesis. He had 3 or 4 loose bowel movements the previous day and was walking around several times a day. His abdomen was mildly distended and bowel sounds were present. The Veteran's surgeon examined him later that morning and noted several isolated bouts of emesis the previous day after overeating. The Veteran felt well that morning and was passing flatus and stool. He was afebrile with good urine output and looked quite well in general. His abdomen was less distended and still a bit tympanitic in the left upper quadrant. The incision looked fine. The surgeon said that the Veteran could be discharged with a diet of choice. He was advised to take it slow with eating. The Discharge Note indicates that the Veteran's symptoms improved by discharge (on August 10th) such that he tolerated a regular diet, and he reported good pain control and was passing flatus/bowel movements. The Veteran was instructed to watch for symtoms of infection and poor intake. Private hospital records reveal that, apparently on August 11, 2006, the Veteran developed problems. According to August 12, 2006, admission notes, the Veteran denied having abdominal pain the previous day but, in the afternoon, his wife noted that he had slurred speech and complained of some difficulties talking, severe fatigue, and feeling generalized weakness. His symtoms worsened and he complained of "not feeling well" with shortness of breath. On August 13, 2006, the Veteran underwent an exploratory laparotomy and was found to have a right-sided abscess around the previous ileocolic anastomosis. This was considered the apparent source of his profound sepsis, multi-organ failure, downhill spiral and, eventual death, on October 6, 2006. A November 1, 2006, VA Disclosure of Adverse Event, prepared by the Veteran's surgeon, shows that the Veteran developed an unfortunate but well-described complication of colon surgery, an anastomotic leak. The surgeon said that, when discharged from the VAMC, the Veteran had no fevers or leukocytosis and had bowel movements. Once home, he developed progressive abdominal pain and went to a private hospital emergency room where aggressive medical and surgical intervention was rendered. The anastomosis leaked and a colostomy was performed. The Veteran died of multisystem organ failure. The VA surgeon said that he told the appellant that the leak (that ultimately led to the Veteran's death) was unfortunate, but a described complication. He said the case and instruments were being reviewed to see if any areas of improvement could be made. It was noted that the adverse event was previously discussed as a potential in the informed consent discussion. In June 2007, a VA physician reviewed the Veteran's medical records and relevant medical literature, and consulted with gastroenterology specialists. It was noted that the first complication noted on the consent form signed by the Veteran was leakage of colonic anastomosis. The Veteran's uneventful postoperative course was also noted with expected anemia but no evidence of increasing white blood cell counts, fevers, or hypertension indicative of sepsis. There was no other additional evidence to indicate that there was any leakage of the anastomosis site that appeared to be the complication that ultimately led to the Veteran's death. That leak was noted during his second hospitalization. The examiner said that, it appeared there was additional recognition of the adverse event in the form of the anastomotic leak by the operating surgeon within VA, as this was evidenced by the note he placed in the chart. In the VA examiner's opinion, it was "not at least as likely as [not] that the [V]eteran's death was due to carelessness, negligence, lack of proper skill, error on judgment, or similar instance on the part of [VA] in furnishing the hospital care, medical or surgical treatment, or examination and this was not due to an event that was not reasonably foreseeable." The VA examiner said that the Veteran's informed consent form reflected that the ansatomotic leak, that was the main complication he had that led to his demise, was noted as the first complication within the form. Further, the Veteran did not have any clinical signs that suggested he had evidence of an anastomotic leak while he was hospitalized for the eight day post surgical period. According to the VA examiner, a brief review of medical literature indicated that anastomotic leaks were often found within five days of the postoperative period; however, definition of ansastomotic leak and comparisons was somewhat vague and it was hard to define within the literature. The VA examiner said this should essentially be considered an unfortunate event but it did not appear that there was any evidence of negligence or carelessness or lack of proper skill or error in judgment on the part of the VA. In an October 2007 signed statement in support of the appellant's claim, the Veteran's VA surgeon said that one of the potential risks of his operation was a leak from the anastomosis (connection) in the colon. It was rare but could be fatal. The surgeon said that about a week after surgery, such a leak occurred and the Veteran had a progressive downhill course, and died in October 2006. A May 2008 signed statement from L.W.B., the appellant's friend, is to the effect that he believed VA was negligent in releasing the Veteran from the hospital before his problems were resolved. In L.W.B.'s opinion, the Veteran would be alive if VA personnel had done their job at his discharge from the hospital. During her February 2011 hearing, the appellant and her witness argued that VA medical personnel should not have the released the Veteran as he was experiencing pain, and had a swollen abdomen and was vomiting. Pursuant to the Board's April 2011 remand, an additional medical opinion was obtained that addressed whether there was fault on the part of the VA medical personnel in releasing the Veteran from the VA hospital in light of his symtoms at that time. As noted above, in August 2011, the Chief of Surgery at a VA medical facility in California reviewed the Veteran's medical records and provided an opinion as to whether the service member's death was the result of carelessness, negligence, lack of proper skill, error in judgment, or any similar instance of fault on VA's part from treatment at the Sacramento VAMC. Prior to the review, this medical specialist specifically noted that he had reviewed the Veteran's claims folder in the entirety. Upon completion of the review, the medical care provider offered the following opinion: "Based on the computerized records . . . and the materials forwarded to me, up to the time of discharge from the Sacramento VAMC on 8-10-2006, [the Veteran] appeared to have received appropriate care. Specifically the discharge decision on 8-10-2006 appears to be within norms." (Emphasis added). The VA surgeon said that he also reviewed the operative report for the Veteran's hemicolectomy and noted, "The note indicates a fairly routine operation. The anastomosis (i.e. the surgical connection between the ileum and the colon to restore intestinal continuity) was performed using a conventional 'double staple' technique and there was no apparent stapler malfunction, etc." According to this VA surgeon, "Anastomotic leakage and abscess, fortunately infrequent, nonetheless occurs. This event can lead to severe sepsis, begin a 'septic cascade,' and result in death even in the best of medical centers." The VA surgeon said, "For a patient to expire after an operation to address a pre-malignant condition, an operation which is supposed to help him, is a tragedy." Nevertheless, in this VA physician's opinion, the judgment to operate, the conduct of the operation, and the decision to discharge [the Veteran] on 8-10-2006 are well within medical and surgical norms. The informed consent process includes a frank discussion of risk of surgery, to be weighed against the potential benefits of the procedure. This was one of the risks of surgery. Unfortunately for [the Veteran], this infrequent risk materialized and led to his hospitalization and eventual death. (Emphasis added). The appellant filed her DIC compensation claim brought under the provisions of 38 U.S.C.A. § 1151. Dependency and indemnity compensation benefits may be awarded to a surviving spouse upon the service-connected death of the veteran. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a) (2012). Title 38, United States Code, Section 1151 provides that, where a veteran suffers an injury or aggravation of an injury resulting in additional disability or death by reason of VA medical or surgical treatment, compensation shall be awarded in the same manner as if such disability or death were service connected. See Anderson v. Principi, 18 Vet. App. 371, 376 (2004); see also Kilpatrick v. Principi, 16 Vet. App. 1, 3 (2002). The appellant does not contend, nor does the evidence reflect, that consideration under any other theory of entitlement is warranted. 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. 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). 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, that 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). 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). 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 evidence of record shows that the Veteran was hospitalized at the VAMC on August 3, 2006 and, in July 2006, was provided with a consent form with respect to gastrointestinal surgery that was to be accomplished in August 2006. The Veteran was informed by his surgeon about the surgical procedure he was scheduled to endure. He was told about the risks, the possible outcomes, and the possible residual side-effects. He was allowed to ask questions and he was informed of any complications. The record, per the consent form, clearly shows that the Veteran agreed to the surgery and understood that any surgical procedure might have complications and residuals. On August 3, 2006, the Veteran underwent anesthesia and surgical removal of the right side of his colon for a 3 cm. flat benign polyp. The record further shows that results of a white blood cell count performed on August 7, 2006, were normal. The Veteran was discharged on August 10, 2006, at which time his surgical incision appeared to be healing well, he was passing flatus and stool, his abdominal distension was diminishing, and he was afebrile. The service member, however, developed complications the following day and, on August 13, 2006, underwent an exploratory laporatomy. The Veteran was found to have a right-sided abscess around the previous ileocolic anastomosis that was considered the apparent source of profound sepsis that led to his multi-organ and declining health. Unfortunately, he died in October 2006. In essence, the appellant maintains that the VA care her husband received was inadequate/sub-standard and caused his death. Consistent with the analogy to a service-connection claim, since a section 1151 claim is a claim for disability compensation, a appellant is not only required to establish that additional disability occurred following VA treatment, but "must still submit sufficient evidence of a causal nexus between that event and his or her current disability, i.e. that additional disability was due to VA medical care to be ultimately successful on the merits of the claim." See Wade v. West, 11 Vet. App. 302, 305 (1998); see also Jimison v. West, 13 Vet. App. 75, 77-78 (1999) (claim for benefits under 38 U.S.C.A. § 1151 must be supported by medical evidence of additional disability (death) that resulted from VA hospitalization or medical or surgical treatment). To establish causation, the competent evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the service member's additional disability or death. Merely showing that a service member received care, treatment, or examination, and that the service member now has an additional disability or is now deceased, does not establish a causal relationship between the two. See 69 Fed. Reg. 46,433-35, codified at 38 C.F.R. § 3.361(c)(1) (2012). In this case, the Board observes that the Veteran's health prior to the surgery was such that he was considered healthy enough that he could undergo said surgery. There is also no question that, subsequent to his operation thereon, he experienced distress that was later determined to be an abscess around the previous ileocolic anastomosis. Such an acute condition led to profound sepsis, a collapse of the Veteran's bodily organ systems, and he died two months after the initial surgery. Accordingly, the Board concedes that additional disability was chronically shown following the Veteran's initial surgery at the VAMC in Sacramento on August 3, 2006. The probative and competent medical evidence of record, however, does not show that such an additional disability was attributable to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA treatment providers. The current provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361, applicable in this case, require a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA treatment providers. The record contains an opinion provided for the record addressing this point-the opinion of August 2011. This opinion provides that the care provided by VA was not in any way indicative of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault. There is no contrary medical opinion of record. In fact, the only opinion of record, that takes into account all of the service member's medical records, is that of the VA surgeon in August 2011. It is entirely consistent with the opinion rendered by the June 2007 VA medical examiner. As noted above, in August 2011, the doctor provided that there was no carelessness, negligence, lack of proper care, error in judgment, or a similar instance of fault by the VA surgeons or any other VA health care provider who treated or cared for the appellant during and after the surgery. There is no medical opinion of record to refute the VA examiners' opinions. Additionally, the question arises as to whether the acknowledged additional disability, or injury, was foreseeable. The Board would point out that, prior to the surgery, the service member was provided with a consent form with respect to the surgery. The service member was told about the upcoming surgery and he was told about the surgical risks and had to commit to the surgery by written consent. He did so when he signed the consent form. Therefore, because there was a possibility that, as a result of the surgery, and because the appellant was informed of the possible consequences, the Board finds that the complained of and documented additional symptoms were reasonably foreseeable. The Board would further point out that none of the medical evidence of record, to include the opinion provided by the VA doctor most recently in 2011, suggests or insinuates that the resulting death of the Veteran was not a reasonably foreseeable possible consequence of the surgery he underwent. Hence, there has been no competent medical evidence or opinion presented for the record that supports the appellant's primary contention that care provided by VA in August 2006 amounts to or was evidenced by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault. Essentially the only evidence of record supporting the appellant's contentions and claim is her own lay opinion and that of her witness. With regard to specific evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. The Federal Circuit, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this instance, the only contrary opinion provided is that of the appellant-endorsed by her accredited representative and her witness. The Board notes that, during her February 2011 Board hearing, the appellant's witness, a medical assistant, said that he believed that there was fault on the part of the VA medical personnel in causing the Veteran's death; however, there is no evidence that he has the specialized medical expertise needed to render a professional opinion as to the etiology of the disability that is the subject of this appeal. See Black v. Brown, 10 Vet. App. 279, 284 (1997); cf. Goss v. Brown, 9 Vet. App. 109, 113 (1996). Further, the witness did not provide a medical rationale for such an opinion. The claim has been made that the appellant's husband's death was caused by or the result of inappropriate care provided by the VAMC personnel and that because her husband died after undergoing a surgical procedure at that medical center entitles the appellant to DIC benefits pursuant to 38 U.S.C.A. § 1151. The matter at hand, however, involves complex medical assessments that require medical expertise. See Jandreau. The appellant is not competent to provide more than simple medical observations. She is not competent to provide complex medical opinions regarding whether her husband's death was not foreseeable or was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical treatment, and surgical intervention. In other words, she is not competent to provide an etiological opinion. See Barr. Competent evidence is required to show that there is a nexus between his death and the surgery and medical care provided to him. Moreover, competent evidence is also needed to show that the symptoms (his death) were not foreseeable or were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical treatment, and surgical intervention. The appellant's and her witness' statements are outweighed by the more probative medical evidence that indicates that the provisions of 38 U.S.C.A. § 1151 do not apply to this matter. The medical evidence is most probative as it was based on a thorough review of the medical history, the complete claims folder, and an opinion with rationale was provided. Because the August 2011 VA physician's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the appellant's claim. The Board emphasizes that the VA physician provided a valid medical analysis to the significant facts of this case in reaching his conclusion. In other words, the VA physician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the Court has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The opinion is entirely consistent with that provided by the VA examiner in June 2007. Therefore, although the Board is deeply sympathetic with the appellant's loss of her husband, it finds a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." See Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit any competent medical or other evidence to provide a nexus between any VA medical treatment and the conditions that caused or contributed to cause the Veteran's death. Therefore, the preponderance of the evidence is against the appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 and this claim must be denied. In reaching this determination the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the appellant's claim. See Gilbert v. Derwinski, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to dependency and indemnity compensation benefits pursuant the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs