Citation Nr: 1306241 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-16 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1151 for the death of the Veteran. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran served on active military duty from March 1936 to March 1939 and from April 1939 to January 1964. His awards and decorations included the Silver Star. The Veteran died in December 2005 and the appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant had a hearing before a Decision Review Officer (DRO) in December 2009. In January 2011, the appellant and her son testified at a videoconference hearing conducted before the undersigned. Both hearing transcripts are of record. In March 2011, the Board remanded the appeal for additional development. An outside medical opinion (OMO) was requested by the Board in August 2012 and received in September 2012. The appellant was notified about the OMO in October 2012 and given an opportunity to respond. A review of the Virtual VA paperless claims processing system does not show any pertinent records that have not been previously associated with the claims folder. 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). FINDINGS OF FACT 1. A December 2005 Death Certificate shows that the Veteran died the same month from an immediate cause of acute myocardial infarction with Parkinson's disease contributing to death, but not resulting in the underlying cause. 2. The competent evidence is against a finding 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 medical care or medical care by a VA contracted facility in furnishing hospital care; or an event which is not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C.A § 1151 for cause of death have not been met. 38 U.S.C.A. §§ 1151, 5107(b) (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a letter issued in July 2007, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate her claim for compensation under 38 U.S.C.A. § 1151. The letter also satisfied the second and third elements of the duty to notify by informing the appellant that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that she was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the appellant, including service treatment records, VA treatment records, private hospital records, and VA contracted nursing home records. Additionally, the appellant was provided with a June 2012 VA medical opinion and September 2012 OMO that together address all pertinent theories of entitlement and are adequate for adjudication purposes. Both opinions were furnished by appropriately qualified healthcare providers after review of the entire claims folder and contain definitive opinions with readily apparent rationales. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has considered whether the record reflects compliance with the March 2011 Remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran's Pasadena Care Center treatment records are associated with the claims folder. A March 2012 Report of Contact confirms that the Pasadena Care Center was a VA contracted facility during the Veteran's treatment period. The RO/AMC obtained a June 2012 medical opinion with definitive answers to the questions requested in the Remand. The RO/AMC readjudicated the case in July 2012. The Board is satisfied that there was substantial compliance with the March 2011 Remand instructions. Id. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128-01 (April 18, 2012). At the December 2009 DRO hearing, the hearing officer identified the issue on appeal. The appellant provided testimony as to all relevant treatment the Veteran received and explained her theory of entitlement. At the January 2011 Board videoconference hearing, the undersigned identified the issue on appeal. The appellant provided testimony as to all treatment received by the Veteran and her observations of his care. She was specifically queried about statements from treating healthcare providers regarding any deficiency in the Veteran's course of treatment. She was instructed to submit such information or statements from treating healthcare providers. Overall, she demonstrated actual knowledge of the ability to submit additional relevant evidence. In March 2011, the Board remanded the claim to further assist the appellant in obtaining outstanding VA contracted nursing home records and furnishing a medical opinion. The duties imposed by Bryant were thereby met. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Analysis The appellant contends that she is entitled to dependency and indemnity compensation based upon the provisions of 38 U.S.C. § 1151 (West 2002). In pertinent part, 38 U.S.C. § 1151 reads as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (West 2002). In determining whether a Veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2012). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or 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) (2012). To establish that 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 proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 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. 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) (2012). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim 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) (2012). The Veteran died in December 2005. The death certificate listed the immediate cause of death as acute myocardial infarction and noted that another significant condition contributing to death was Parkinson's disease. The appellant asserts that medical treatment during hospitalization at the Houston, Texas VA Medical Center (VAMC) prior to discharge to a VA-contracted nursing home, the Pasadena Care Center (PCC), and medical treatment at PCC caused the death of the Veteran. The appellant has asserted in various lay statements and in testimony provided at the December 2009 RO hearing and the January 2011 Board hearing that VA and/or its privately contracted nursing facility acted negligently. She asserts that the Veteran had an infection when discharged from the VAMC to PCC for which he was not treated and that treatment at PCC was substandard. She contends that the Veteran's eventual heart attack was caused by this lack of care. The Veteran was hospitalized November 6-8, 2005 at the Houston VAMC for evaluation of unresponsiveness. He was on medication for a urinary tract infection. He was then discharged to PCC in stable condition. Numerous PCC records over the course of the Veteran's November and December 2005 treatment are available. They are unremarkable as to any untreated infections upon admission or that any treating healthcare provider acknowledged a mistake in the course of treatment. Notably, the Veteran was last seen by the VAMC on November 28, 2005. He arrived via ambulance from the nursing home. Blood testing and a comprehensive metabolic panel were performed. He was taken back to the nursing home before a clinical examination could be conducted. After reviewing the laboratory results, the treating healthcare provider adjusted the Veteran's medication regimen. She removed Coumadin because of high international normalized ratio (INR) and falls. As relevant, PPC treatment notes taken on December 1st show that the Veteran had developed a urinary tract infection (UTI) and was placed on Macrobid, which is a marketing name for the antibiotic Nitrofurantoin. He was then transferred to the Bayshore Medical Center (BMC) on December [redacted], 2005 where he died within hours of arrival. The BMC admission note reflects diagnoses of UTI, systemic inflammatory response syndrome due to infectious process with organ dysfunction, pneumonia, hypertensive kidney disease, and congestive heart failure. The reason for admission was pneumonia, urosepsis, and renal failure. BMC records from December [redacted], 2005 reflect that the Veteran had alteration of consciousness upon admission. It listed the reason for arrival as pneumonia urosepsis renal failure. Secondary diagnoses included acute respiratory failure, pneumonia, UTI, congestive heart failure, hypertensive kidney disease, diabetes mellitus Type II, and systemic inflammatory response syndrome (SIRS). A variety of tests were performed. A urinalysis confirmed the presence of bacteria, klebsiella pneumoniae. The Veteran was not noted to be on antibiotics. Arterial blood gases (ABG) showed low oxygen saturation and low hemoglobin oxygen saturation. A Death Certificate was issued on December 22, 2005. It confirms that the Veteran expired on December [redacted], 2005 at the BMC hospital. The immediate cause of death was acute myocardial infarction. Parkinson's disease was listed as another significant condition contributing to death, but not resulting in the underlying immediate cause. The appellant had a DRO hearing in December 2009. She reported that she did not realize how poor of a condition the Veteran was in on the days preceding his death. She visited the Veteran everyday in the nursing home and spent most of the day with him. The day before the Veteran expired; a nurse informed her that his condition had improved. She also reflected on her observations of his apparently improved condition. To the best of her recollection, she recalled that the day before his death he was on oxygen. On December [redacted], 2005, she arrived early in the morning to feed him breakfast. He was not on oxygen. Someone came in to take his vital signs. Shortly thereafter, he was taken away in an ambulance to BMC. She was unaware that he had any sort of infection. When she arrived at the hospital, she noticed that his urine bag was full of pus. She did not believe he was on antibiotics. She contended that the nursing home was negligent in treating the infection and/or removing him from oxygen. Either or both of these actions led to the heart attack. She also observed PCC to be poorly managed as she believed caregivers would have neglected him had she not been there. She also recounted the story of her friend whose husband had difficulties with care at PCC. A June 2010 VA medical opinion was obtained. The examiner reviewed the claims folder and recounted the pertinent medical history. He stated that he could not find any evidence that the Veteran's death was a result of VA hospitalization, medical, or surgical treatment. The appellant had a January 2011 Board videoconference hearing. She reported that the Veteran initially underwent VA treatment for a kidney infection. Due to his progressively deteriorating health, the appellant could no longer care for him at home and requested a nursing home placement. During his nursing home stay, she constantly attended to him. She recalled the day before his death that he had been eating well. She stated that he had not been taking antibiotics. She arrived early morning on December [redacted], 2005 and found him to be in an altered state of consciousness. She requested that an attendant give him a bath. However, the attendant took his vital signs and left. Another man came into the room and informed her that the Veteran had to go to the hospital. Once they arrived at the hospital, she was asked if she wanted life support measures. She also observed that the urine bag was off white or yellow. She again contended that his death was related to lack of antibiotic treatment for UTI and/or cessation of oxygen. The Veteran's son reported that the nursing facility appeared to be poorly run whenever he had visited. He attested that the appellant spend much time at the facility and had a detailed knowledge of it. Upon query, the appellant stated that she had not been informed about possible negligence by any healthcare providers. A March 2012 Report of General Information confirms that the nursing facility treating the Veteran was a VA contracted facility at the time of his treatment. Another VA medical opinion was obtained in June 2012. The examiner reviewed the claims folder and answered the questions posed by the March 2011 Remand instructions. He stated it was not at least as likely as not that the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by medical treatment or lack of treatment at the Houston VA Medical Center (Houston VAMC). He stated that it is less likely than not that the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by medical treatment or lack of treatment at the private nursing home. He cited his review of pertinent treatment records from both facilities in support of his opinion. He also stated that VA and private nursing home personnel exercised the degree of care that would be expected of a reasonable healthcare provider, to include properly treating any UTI. Lastly, he opined that the Veteran's death was not caused by an event that was not reasonably foreseeable. He compared the cause of death for persons with advanced Parkinson's disease and the Veteran's co-morbidities. Based upon the Veteran's medical history, death from acute myocardial infarction would not be unexpected. VA contacted a non-VA physician, who was Board certified in internal medicine, for an outside medical opinion (OMO) in September 2012. He reviewed the claims folder in detail and recited the pertinent medical history. He noted that the Veteran died from myocardial infarction and Parkinson's disease complications. The Veteran initially had a UTI on October 30, 2005 and was given antibiotics. He had an inpatient admission on November 6, 2005 due to an altered state of consciousness. He did not have a UTI, but had urinary retention which was successfully treated with a Foley catheter and medication. The OMO examiner observed that the Veteran had chronic diseases of Parkinson's disease, hypertension, carotoid artery stenosis, chronic kidney disease, and hypercholesterolemia. He believed the Veteran had appropriate treatment once he was stabilized. He commented that the Veteran's comorbidities at his age were not reversible. He acknowledged that the private nursing home treatment records were not detailed, but maintained that they did not provide evidence to support a finding of clear negligence. He noted that the Veteran had a UTI upon his admission to the private hospital. He believed this infection could have contributed to his death; however, in clinical practice it was not always possible to identify the infection early. He also observed that there was no evidence his oxygen level was low and the records do not show he was on oxygen treatment. The OMO examiner additionally explained that treating similar situated patients with advanced age and multiple chronic diseases is complicated and does not work well. He stated that UTIs are very common in elderly patients. They may not be recognized early as often the patient has difficulty communicating or mental impairments. Hospitalization is focused on stabilizing the patient and treating acute issues. The goal is to discharge the patient as soon as possible. The role of the nursing home is to care for the patients outside the hospital and transfer them back as soon as possible if they decompensate. He reported that the decision of giving oxygen is determined by the general clinical condition and oxygen level, which is checked by an oxygen pulse monitor. He reported that in similarly situated patients, death is caused by interplay of different diseases and failure of different organs without a single isolative cause. In the Veteran's death, there may have been the role of UTI, but it was very likely the infection could spread so quickly that it would be near impossible for a clinician to identify beforehand. The appellant contends that the Veteran's death is related to an instance of fault by VA or its privately contracted nursing facility, PCC. As explained below, the Board finds the preponderance of the evidence to weigh against the claim, and it will be denied. The evidence is in support of the claim consists entirely of the appellant's lay assertions. The appellant is certainly competent to report about her personal observations or impressions of the Veteran's care. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, she is not shown to be a medical professional, and her opinions or characterizations of the Veteran's medical care are not competent medical evidence. By "competent medical evidence" is meant in part that which is 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). Generally, competent medical evidence is required to establish an etiology in a 38 U.S.C. § 1151 cause of death claim. However, in limited instances a lay observer may speak to instances where a nexus is apparent from lay observation alone. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (sometimes a layperson will be competent to identify the condition when the condition is simple, for example a broken leg, and sometimes not for example, a form of cancer). The Board has carefully considered the appellant and her son's lay statements that they believed VA and PCC's standard of care for the Veteran was poor. They reported observing an absence of care to the Veteran and other patients during his nursing home stay. The appellant contends that the Veteran was not on antibiotics shortly before his death and was withdrawn from oxygen treatment the morning of December [redacted], 2005. Nonetheless, the Veteran had a complex disability picture preceding his death with advanced age and multiple comorbidities. Medical records are absent for documentation of a mistake, accident, or trauma which would be tantamount to clear negligence readily capable of lay observation. The appellant's statements also conflict with PCC records showing that antibiotics were ordered for the Veteran on December 1, 2005. She has not cited or submitted any medical evidence in support of her contentions. For these reasons, the Board finds that any opinion on an instance of fault in the Veteran's care must be competent medical evidence. As the appellant and her son's opinions are not competent evidence of nexus for this matter, they have no probative value. Id.; 38 C.F.R. § 3.159(a); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that laypersons have are generally not competent to provide evidence in more complex medical situations). The competent medical evidence weighs against the claim. Briefly, the Board notes the December 2010 VA medical opinion was negative, but it did not answer the relevant questions in detail. It is not adequate for purposes of adjudication and is not further consideration. Barr v. Nicholson, 21 Vet. App. 303 (2007). In June 2012, a VA examiner provided a negative opinion. He stated from his review of the medical records he could not find evidence of fault by the VAMC Houston or PCC and that VAMC Houston and PCC personnel exercised the degree of care that would be expected of a reasonable care provider. He also determined that the myocardial infarction was a reasonably foreseeable event given the Veteran's medical history. He cited common causes of death for Parkinson's disease patients and the Veteran's comorbidities. Although the examiner does not fully elaborate on his explanation, it is apparent that, overall, his opinion is premised upon an absence of findings in the pertinent medical records that would be suggestive of negligence or fault. The Board considers the June 2012 VA medical opinion to reflect a fully informed review of record and have probative value. Barr, 21 Vet. App. 303. The September 2012 OMO examiner also gave a negative opinion. The opinion is based upon a fully informed review of the record, highly plausible, and consistent with the record. It includes an explanation of pertinent medical principles. The Board consider the September 2012 OMO to be highly probative and weigh against the claim. Id.; see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for dependency and indemnity compensation under 38 U.S.C.A. § 1151 for the death of the Veteran must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Dependency and indemnity compensation under 38 U.S.C.A. § 1151 for the death of the Veteran is denied. ___________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs