Citation Nr: 1306094 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-10 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to dependency and indemnity compensation (DIC) for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 as a result of VA medical care. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her granddaughter ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to January 1954. He died in 2004. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this claim for further development in April 2008 and November 2009, and issued a decision denying the claim in May 2011. In a November 2011 Order, the Court of Appeals for Veterans Claims (Court) endorsed a November 2011 joint motion for remand, vacated the May 2011 Board decision denying the claim, and remanded the matter for compliance with the instructions in the joint motion. Based on the November 2011 joint motion, the Board remanded this case in June 2012 with instructions to the AMC to request that the appellant provide the names and addresses, as well as the dates of treatment, of any healthcare providers, both VA and non-VA, who might have medical evidence relevant to this case. After obtaining an appropriate release of information from the appellant, the AMC was to try to obtain the records of any and all home healthcare nurses or aides and associate those records with the file. If the AMC determined that home health care was not provided, this finding was to be clearly stated in the readjudication of this claim. Accordingly, in June 2012, the AMC sent a letter to the appellant requesting her to provide the names and addresses, as well as the dates of treatment, of any healthcare providers, both VA and non-VA, to include any and all home health nurses or aides (either VA or non-VA) who might have medical evidence relevant to this case. The appellant was also furnished an authorized release form for all private treating providers. She was informed that if no response was received from her, a decision on her claim might be made after 30 days had passed. Strikingly, the appellant did not respond to this letter. In December 2012, an SSOC was issued which, in pertinent part, stated that the appellant did not respond to the June 2012 letter requesting her to provide information on any home healthcare treatment and that it had not received any additional treatment records. It is clear from this finding that the AMC could not make efforts to obtain any home healthcare records when the appellant did not respond to the June 2012 letter. The June 2012 notice letter and December 2012 SSOC therefore comply with the Board's November 2009 and June 2012 remand directives to request the appellant to provide sufficient information regarding any home healthcare treatment for the Veteran and, if the RO/AMC was not able to obtain such records, to set forth this finding in its subsequent adjudication of this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand). Moreover, while VA has a duty to assist the claimant in developing evidence pertinent to his claim, the appellant also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159(c). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Because the appellant has not cooperated with the AMC in providing enough information to enable VA to obtain any home healthcare records on her behalf, no further action is necessary. Therefore, the Board may proceed with appellate review. The appellant and her granddaughter testified at a March 2008 hearing before the undersigned at the St. Petersburg RO. A transcript of the hearing is in the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent evidence does not show that the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, that his death was caused by an event not reasonably foreseeable as a result of such care, or that there was lack of informed consent with regard to such care. CONCLUSION OF LAW The criteria for DIC benefits for the cause of the Veteran's death under 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Prior to the initial rating decision in this matter, an October 2005 letter informed the appellant of the requirements for establishing entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. The letter also notified the appellant of her and VA's respective responsibilities for obtaining relevant records on her behalf. Although the letter did not inform her of the degree of disability and the effective date assigned granted claims, lack of such notice is non-prejudicial as this claim must be denied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the duty to notify has been satisfied. See id. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical records are in the claims file. Private medical records identified by the appellant have also been associated with the file to the extent possible. In accordance with the Board's April 2008 and November 2009 remand directives, copies of signed consent forms for VA treatment dated in February, March, and April 2004, as well as VA clinical records for hospitalization dated from March 2004 to July 2004, have been obtained and associated with the file. As noted, as a result of the joint motion for remand filed by the parties and the Court, and the Board's resulting remand to the RO, the appellant was specifically requested to provide further information towards substantiation of her claim. The appellant has not identified any other outstanding records that she wanted VA to obtain or that he felt were relevant to the present claim, notwithstanding the fact that she was sent letters in January 2010 and June 2012 requesting her do to so, to include any home healthcare treatment for the Veteran, as discussed above. Accordingly, the duty to assist has been satisfied with respect to obtaining relevant records on the appellant's behalf. See 38 C.F.R. § 3.159(c); see also Wood v. Derwinski, 1 Vet. App. 190 (1991) (holding that the duty to assist is not a "one-way street"). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA opinions were obtained from a VA doctor in May 2006, May 2009, and July 2010. The May 2009 and July 2010 VA opinions were issued in accordance with the Board's April 2008 and November 2009 remand directives instructing the VA doctor to provide further opinion and clarification as to whether the Veteran's death was caused by VA negligence in rendering care or by an event not reasonably foreseeable as a proximate result of such care. The VA doctor's opinion, as clarified in July 2010, is adequate for decision-making purposes, as she reviewed the claims file and medical history, and provided a complete explanation for the opinion stated which provides sufficient information to enable the Board to make a fully informed decision on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The appellant has had ample opportunity to participate in the development of her claim. Thus, no prejudice exists and the Board may proceed with appellate review. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also Mayfield 19 Vet. App. at 115. For the reasons discussed above, there has been compliance with the Board's remand directives with regard to securing VA clinical records of hospitalization and signed consent forms, submitting requests to the appellant to identify any home healthcare treatment records, including a finding that such records could not be obtained in the December 2012 SSOC, and obtaining an adequate VA medical opinion. See Stegall, 11 Vet. App. at 271; see also D'Aries, 22 Vet. App. at 105. II. Analysis The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must assess the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit, the law requires that lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and that the claimant's testimony on this issue was not competent simply because she was a lay person). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See id. at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight and credibility assigned to the evidence. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). The appellant argues that she is entitled to DIC benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151. Specifically, according to her statements in the February 2005 claim for benefits and at the March 2008 Board hearing, she argues that an infection that contributed to the Veteran's death was due to improper implantation of a feeding tube by VA. She also argues that she did not sign any consent form for the Veteran's VA surgery and was not told of the risks involved. The preponderance of the evidence is against the claim, and the appeal will be denied. Because the appellant's claim for benefits under 38 U.S.C.A. § 1151 was filed after October 1, 1997, the current version of that statute and its implementing regulations applies. See VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). Under section 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To establish causation, evidence must show that the VA medical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2012). 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 death certificate shows that the Veteran died in 2004 from sepsis fungemia, renal failure, respiratory failure, and cardiac failure. At his death, the Veteran's service-connected disorders were posttraumatic stress disorder, rated as 30 percent disabling; and a gunshot wound of the right foot, rated as 10 percent disabling. His combined rating was 40 percent. The appellant does not argue that these service-connected disabilities contributed to his death. According to an undated Aid and Attendance letter from M.S. Struller, M.D., the Veteran was to undergo surgery on February 20, 2004 for repair of an ascending aortic aneurysm and valvular disease. The Veteran was hospitalized at a VA facility from February 27, 2004 to June 9, 2004 with complaints on admission of dizziness on exertion or when bending over and, sometimes, at rest. He also complained of palpitations and shortness of breath at rest and on exertion. The Veteran said that nothing, not even prescribed medication, alleviated the symptoms. He noted that he had lost consciousness three times between 2000 and May 2003 from dental workup. His past medical history included atrial fibrillation, hypertension, mitral stenosis, aortic and mitral insufficiency, and ascending aortic aneurysm. A venogram revealed right subclavian vein total occlusion and probably some thrombus at the junction of his right jugular SVC junction. A March 2004 VA operation report reflects that the Veteran had a history of progressive shortness of breath and was shown on workup to have severe mitral stenosis and severe aortic insufficiency with left ventricular dysfunction. The surgical procedure consisted of mitral valvulotomy, replacement of the aortic valve, and apex mitral wave ablation of the atrial fibrillation. A VA operation report dated in late March 2004 shows that the Veteran was found to have paralysis of the right hemidiaphragm and underwent a tracheostomy with a preoperative diagnosis of respiratory failure. It was noted that blood loss was minimal and that there was no complications. An April 2004 VA hospital report that the Veteran was malnourished and that he underwent an open gastrostomy and jejunostomy with feeding tube placement. Due to paralysis of the right hemidiaphragm, the Veteran underwent plication of the right hemidiaphragm on April 28, 2004. It was noted in a discharge summary that the Veteran was discharged on June 9, 2004 in stable condition. He was able to feed himself, ambulate, and express himself. A VA hospital discharge summary reveals that the Veteran was readmitted on June 15, 2004 complaining of fatigue, shortness of breath, loss of appetite, and lower extremity edema. He was discharged on June 18, 2004 with the diagnoses of status post aortic valve replacement and diaphragm plication. The Veteran was hospitalized again on June 25, 2004 with complaints of difficulty breathing and swelling of the feet. He was placed on continuous cardiac monitoring. According to an infectious disease note dated on July 14, 2004, the Veteran had persistent tropicalis fungemia and congestive heart failure. VA progress notes dated in July 2004 reveal that the Veteran developed renal failure secondary to sepsis on July [redacted], 2004. He was aggressively treated with antibiotics, vasopressors, and supportive care. It was determined that he was not a candidate for surgical intervention due to the severity of symptoms, as he had not improved after five weeks of being in the Intensive Care Unit. The treatment team advised that supportive care be withdrawn, as the Veteran had multiple end organ damage constituting a terminal condition. The treatment records also note that the Veteran was unresponsive except to pain. The Veteran died after supportive care was withdrawn by family request. An addendum summarizing the course of the Veteran's last hospital stay at VA indicates that the Veteran had developed a Candida tropicalis infection on the mitral valve. Although the author of this record observed that it was the Veteran's aortic valve that had been replaced in March 2004 prior to his readmission, the actual March 2004 operation report does reflect that surgery on the mitral valve, namely a mitral valvulotomy, was also performed. Complications of the sepsis fungemia of the mitral valve included respiratory failure, renal failure, and cardiovascular collapse. The Veteran also had atrial fibrillation and blood loss which seemed to be somewhere in the gastrointestinal tract, as well as blood clots. The authoring physician concluded that the course of the illness was "extremely complicated," but that the "primary problem" was sepsis and fungemia. As discussed above, VA obtained several opinions from a VA physician, P.G., M.D., as to whether the Veteran's death was proximately caused by negligence or fault on the part of VA in furnishing treatment, care, or examination. The initial opinion was provided in May 2006, with addenda provided in May 2009 and July 2010. After reviewing the medical records and discussing the treatment received by the Veteran from VA, Dr. P.G. concluded that the Veteran's death was less likely the result of failure to properly diagnose or treat or due to premature discharge on the part of VA. In her May 2009 opinion, she confirmed that the Veteran received proper treatment from VA. Specifically, proper diagnostic procedures were done to identify the cardiac abnormality, with the Veteran being evaluated by a qualified cardiothoracic surgeon and anesthesiologist; and he was anticoagulated prior to the procedure to prevent thrombosis and embolism. The Veteran was placed in a surgical intensive care unit after the surgery and monitored, evaluated, and treated for complications of the surgery. According to Dr. P.G, the Veteran was given the proper antibiotics for his infections. His complications of respiratory failure due to diaphragm paralysis were resolved by antibiotics, mechanical ventilations, and diaphragm placation. A gastrointestinal consultant was called to evaluate his abdominal distention and recommendations were followed. A speech pathologist evaluated his dysphagia, and a feeding tube was later placed via jejunostomy. The Veteran was discharged home on June 9, 2004. Doctor P.G. did not note any deficiencies in this treatment. Dr. P.G continued her opinion by noting that the Veteran was again hospitalized by VA on June 25, 2004 due to confusion, increasing tiredness, increasing shortness of breath, and vague abdominal pain. He was treated for congestive heart failure, ileus, and anemia. After endocarditis was discovered, the Veteran was started on antifungal antibiotics; and a consultation for infectious disease was obtained. The Veteran's condition initially improved but subsequently deteriorated, with repeat blood cultures continuing to show fungemia despite optimal therapy. He developed acute renal failure despite treatment and life support was withdrawn on July [redacted], 2004. The physician noted that review of all electronic medical records showed that consent was obtained for all surgical procedures. Dr. P.G concluded that there was no evidence of VA negligence, carelessness, lack of skill, or error in judgment. In the July 2010 addendum, Dr. P.G. again reviewed the pertinent evidence and concluded that the Veteran's death was less likely as not, meaning less than a 50 percent probability, caused by or a result of VA treatment. Although she had initially stated in the May 2006 opinion that the fungal endocarditis was unforeseen, she revised this statement by noting that the Candida fungemia/endocarditis, which was the primary cause of the Veteran's death, is an event that is reasonably foreseeable, based on her review of relevant medical literature. She noted that an International Collaboration on Endocarditis Cohort Study revealed that 49 percent of cases of Candida endocarditis were in patients with prostatic heart valves, compared with only 20 percent of cases of non-fungal endocarditis. Additionally, Candida endocarditis occurred significantly more often in patients with a history of prior endocarditis and in patients with healthcare-associated infections. Prosthetic valve infection could occur at the time of surgery or later during an episode of candidemia. The opinions provided by Dr. P.G. are highly probative. Based on her review of the pertinent medical records and the Veteran's medical history, a consultation of relevant medical literature, as well as her own expertise, she did not find evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in treating the Veteran. She concluded that the Veteran's infection was a foreseeable consequence of the heart surgery performed in March 2004, including valve replacement. The Board accords more weight to the findings of Dr. P.G. than to the appellant's lay argument that the Veteran's infection or death was proximately caused by fault on the part of VA in furnishing medical care. According to her testimony at the March 2008 Board hearing and in a statement submitted with her February 2005 claim for benefits, the appellant noticed pus in the incision where the Veteran's feeding tube was inserted, and notified the nurse or nurses who were bathing him at home. However, the nurses told her that the pus was "nothing to worry about." Her testimony at the hearing seemed to imply that she may have sought treatment for the Veteran a little earlier had the home nurse alerted her to danger associated with the pus, and that a delay in treatment may have hastened or caused his death. She further testified at the hearing that during the Veteran's final hospital stay in June 2004, the treating doctors did not seem to focus on or concern themselves with the incision at the site of the feeding tube. However, treatment records associated with the Veteran's June 2004 hospital stay and death make no mention of pus at the site of the feeding tube. There are no findings that the Veteran died of an infection associated with his feeding tube. Thus, to the extent the appellant argues that the infection was either caused by improper insertion or management of the Veteran's feeding tube or by a delay in seeking treatment due to the nurse's alleged unconcern regarding pus at the incision site, this argument is outweighed by the fact that the Veteran's infection was associated with his mitral valve and not with the feeding tube. Stated otherwise, there is no competent evidence indicating that pus at the feeding tube site was associated with the mitral valve infection or was a warning of this infection. This is a medical determination that is too complex to be made based on lay observation alone. The appellant, as a lay person, thus cannot render a competent opinion on this issue and her statement therefore lacks probative value. The appellant's overall contention is that because the Veteran developed an infection subsequent to the surgical procedures performed in March and April 2004, the infection was proximately the result of VA negligence or fault. However, whether the infection was caused by VA fault or negligence in furnishing treatment or care is a medical determination that is too complex to be made based on lay observation alone and therefore requires medical expertise. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. The appellant does not have medical training or expertise to render a competent opinion on this issue. See id. Thus, her mere assertion that the Veteran's infection was due to VA fault or negligence, without any other supporting evidence or explanation, lacks probative value and is outweighed by the findings to the contrary by the VA medical doctor discussed above. Doctor P.G.'s opinion is supported by a complete explanation and grounded in a review of the medical records and pertinent medical literature reflecting that an infection is a known complication of heart valve replacement surgery. As discussed in more detail below, the Veteran and the appellant-as the Veteran's authorized legal guardian-signed consent forms notifying them of complications and risks of the procedures to be performed. In sum, and for the reasons discussed above, the Board assigns more weight to the findings of the VA medical doctor than to the statements made by the appellant. Therefore, in the absence of any other evidence supporting the appellant's contentions, the preponderance of the evidence weighs against a finding that the Veteran's death, to include as due to sepsis fungemia and associated complications, was proximately caused by any fault on the part of the VA in furnishing medical care or examination, or due to an event not reasonably foreseeable. Thus, compensation under section 1151 for the cause of the Veteran's death on this basis is not warranted. Compensation under section 1151 can also be established if additional disability was incurred, in pertinent part, due to VA care furnished without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). VA regulation defines informed consent as follows: Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate 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. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). As noted above, 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 appellant testified at her March 2008 hearing that she did not sign any form consenting to the Veteran's surgery and was not told of the risks involved. However, copies of consent forms dated in February, March, and April 2004 are of record and signed by either the Veteran or the appellant-in her capacity as the Veteran's legal guardian when he was incapacitated-for a tracheostomy, a fiberoptic bronchoscopy, aortic valve repair/replacement, mitral valve repair/replacement, repair of ascending aortic aneurysm, atrial fibrillation surgery, and any other indicated operative procedure. These forms note that the risks and complications of the performed surgeries were fully explained. Thus, the appellant's assertion that she did not sign any informed consent forms is not credible as it is inconsistent with more probative evidence in the form of contemporaneous medical documentation. See Caluza v. Brown, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the claimant); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the claimant). Thus, the provisions of 38 C.F.R. § 17.32 have been satisfied. Finally, even assuming, for the sake of argument, that there was some deficiency in the informed consent process, failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment in view of the consequences of foregoing the surgery. See McNair v. Shinseki, 25 Vet. App. 98 (2011). The March 2004 heart surgery, including aortic heart valve replacement and a mitral valvulotomy, was performed because the Veteran had developed "severe" mitral stenosis and "severe" aortic insufficiency with left ventricular dysfunction. Given the marked severity of the Veteran's health at the time of hospitalization, it cannot be doubted that a reasonable person in similar circumstances would have consented to these procedure - the risk of foregoing such intensive and invasive surgery was likely much greater than the risk of undergoing such surgery in the presence of severe heart problems. Clearly, the physicians who conducted this surgery had come to this conclusion or otherwise would not have performed it. Thus, a reasonable person would have proceeded with such surgery notwithstanding the risks involved. Therefore, a finding of informed consent is not defeated by any deficiency in the consent process. Moreover, no such deficiency has been shown. Thus, DIC compensation under the provisions of section 1151 is also not warranted on the basis of lack of informed consent. See 38 C.F.R. § 3.361(d)(1). Accordingly, the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule does not apply, and DIC compensation for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 as a result of VA medical care is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to DIC benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 as a result of VA medical care is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs