Citation Nr: 1307449 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-22 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151 for the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Curry, Attorney ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION 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). The Veteran served on active duty from July 1941 to September 1945. He died in December 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied service connection for the Veteran's cause of death. In her June 2008 notice of disagreement (NOD), the appellant indicated that she was also seeking entitlement to benefits under 38 U.S.C.A. § 1151. The RO subsequently issued a statement of the case (SOC) which continued the denial of benefits, including those available under 38 U.S.C.A. § 1151. In August 2010 the Board denied entitlement to benefits under 38 U.S.C.A. § 1151 and service connection for the cause of the Veteran's death. However, the appellant appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims and in February 2012, the Court vacated the Board's August 2010 decision and remanded the matter for further proceedings consistent with the Court's decision. Essentially, the Court took issue with a May 2009 medical opinion and the clarity (or lack thereof) of the medical determination that there was no causation between the Veteran's hospital treatment and the Aspergillus infection that proximately caused his death. The case was then returned to the Board. In August 2012, the Board requested an independent medical expert opinion, which was subsequently provided in November 2012. The appellant received a copy of the opinion and indicated in December 2012 that she had no further argument or evidence to submit and that she wanted the Board to immediately proceed with adjudication of her appeal. In November 2012, the appellant's current representative submitted a signed a 21-22a dated in October 2012, additional argument, and a copy of a private medical opinion dated in September 2012 with supporting studies addressing the issue on appeal. There was no waiver of RO jurisdiction included in the information received. Given the favorable outcome below, however, there is no prejudice to the appellant with the Board proceeding with a decision on appeal. See 38 C.F.R. § 20.1304. FINDING OF FACT Resolving all doubt in the appellant's favor, the Veteran's Aspergillus infection that proximately caused his death was at least as likely as not contracted by his stay in the VA hospital to treat his respiratory complaints; and the Aspergillus pneumonia was the result of an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for VA DIC under 38 U.S.C.A. § 1151 for the Veteran's death are met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 2. As the appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1151 has been granted, the issue of entitlement to service connection for the cause of the Veteran's death is dismissed as moot. 38 U.S.C.A. §§ 1110, 1310, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for the Veteran's death due to VA treatment. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. I. Legal Requirements for 38 U.S.C.A. § 1151 Claims The appellant's claim for 38 U.S.C.A. § 1151 benefits was submitted in 2008. For claims filed on or after October 1, 1997, the provisions of 38 U.S.C.A. § 1151 require that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA. 38 U.S.C.A. § 1151 (West 2002); see VAOPGCPREC 01-99 (February 16, 1999). Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service-connected. A disability or death is a qualifying additional disability 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, 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.A. § 1151 (West 2002). VA regulations governing the adjudication of claims for benefits under 38 U.S.C.A § 1151(a) were amended, effective September 2, 2004. 69 Fed. Reg. 46,426 (Aug. 3, 2004) (codified at 38 C.F.R. § 3.361 ). The new regulation implements the current provisions of 38 U.S.C.A. § 1151 . The regulations have no retroactive effect and, in any event, merely implement existing law. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). The RO considered the new regulation in June 2009 and the appellant had opportunities to submit evidence before and after that decision. Therefore, the Board finds the appellant is not prejudiced by this decision. Bernard v. Brown, 4 Vet. App. 384 (1993). To determine whether additional disability exists within the meaning of § 1151, the veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination 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 or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). 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. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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. 38 C.F.R. § 3.361(d). 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 § 17.32 of this chapter. II. Facts of This Case The appellant asserts that her husband, the Veteran, died as a result of an infection of the lungs, Aspergillosis, that was contracted during his stay at the VAMC in Leavenworth. She stated that the doctors told her that as healthy as he was at the time of admission into the hospital the Aspergillus of the lungs was usually limited to people who had transplants or acquired immunodeficiency syndrome (AIDs). She asserts that since her husband had neither it was her belief that he did not have the lung infection prior to his admission to the hospital and that he got Aspergillus of the lungs while he was in the VA hospital, which in turn contributed to his death. By way of background, the Veteran was diagnosed with mild COPD in January 2003. Treatment records dated April 2006 noted the Veteran had a stable combined obstructive and restrictive ventilation defect. In June 2007, the Veteran complained of a cold that had persisted for one week. He reported having a productive cough with vague anterior chest pain. He denied any fever, nausea, vomiting, or bleeding. He was diagnosed with acute bronchitis. The treatment in question involves a period of hospitalization at the VAMC in Leavenworth that began in September 2007, at which time the Veteran was seen again and reported having a productive cough that had progressively worsened during the preceding two weeks. He also complained of tightness in the chest. He was again diagnosed with acute bronchitis and prescribed antibiotics. One week later, the Veteran's wife called to report that the Veteran's condition had not improved. After examination, the Veteran was diagnosed with unresolved bronchitis and costochondritis. He was prescribed a Z-pak and discharged in stable condition. The Veteran returned for treatment later in September 2007, and was hospitalized from September 17, 2007 to October 12, 2007. He complained of increasing dyspnea on exertion and a dry, hacking cough during the preceding four weeks. After his condition failed to improve, he underwent a bronchoscopy, which was suggestive, though not diagnostic, for Aspergillus. Treatment records note that the Veteran became hypotensive, cold, clammy, and confused after an initial intravenous dose of Voriconazole. He was transferred to the intensive care unit (ICU) for closer monitoring. His Voriconazole treatment was changed to oral administration, but he only received 1 or 2 doses before the pharmacy apparently ran out. Itraconazole was started in place of Voriconazole. He was later switched back to oral Voriconazole. The Veteran's condition improved while on anti-fungal therapy, and treatment records noted that he was able to go outside for the first time in nearly a month. He was discharged with instructions to complete 10 days of oral Voriconazole and 5 days of Moxifloxacin. Treatment records dictated in December 2007 include a notation that the Veteran was treated in October for hospital-acquired pneumonia. He was noted to have been admitted to NHCU for rehab on October 12, 2007. He was readmitted on October 15, 2007 until October 18, 2007 for Aspergillus infection. He returned on November 13, 2007 for hypoxia. He was placed in the ICU and was dependent on a ventilator. Despite his long stay and aggressive treatment, he could not be weaned off of the ventilator or steroids. His family decided to remove him from mechanical ventilation and be placed in comfort care. He succumbed to end-stage COPD and respiratory failure in December 2007. The death certificate notes that the immediate cause of death was interstitial pulmonary fibrosis due to or as a consequence of chronic obstructive pulmonary disease. VA obtained an opinion in this case in May 2009 to determine whether there was a relationship between the Veteran's death and the care he received at the VAMC in Leavenworth. The examiner reviewed the claims file, and included the above history in the examination report. The examiner stated that it was not possible to say beyond mere speculation that the Aspergillus organism was a nosocomial, or hospital-acquired, infection. The records did not indicate any breach of technique during the Veteran's hospitalization prior to the bronchoscopy which detected the Aspergillus. The treatment he received was at least partially successful because he was discharged in October and remained out of the hospital until almost a month later. The examiner further found that the Veteran's medical care, treatment, and examinations were not the cause of his Aspergillus infection. He stated that Aspergillus is a very common nosocomial or acquired cause of pneumonia and that the overall fatality rate is quite high. (Note: Nosocomial is defined as "pertaining to or originating in the hospital; said of an infection not present or incubating prior to admittance to the hospital, but generally occurring 72 hours after admittance....." See Dorland's Illustrated Medical Dictionary, 1152 (28th ed., 1994)). Usually, this type of infection was associated with surgical procedures, examinations such as bronchoscopy, ventilators, and endotracheal tubes. It was not beyond the realm of possibility, however, that the Veteran came into the hospital in September with the Aspergillus infection already extant. It might have been caused by contaminated aerosol devices (which were used by the Veteran at home). The examiner also stated that, if one was to conclude that the Aspergillus infection was truly hospital-acquired, then the pneumonia caused by this organism was less likely than not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault. In the best hospitals, this type of infection occurs in people who are already compromised, as the Veteran was. His preexisting COPD, long smoking history, age, and multiple medical problems, including heart and neurological disease, were predisposing factors to his lack of resistance to this organism. Finally, the examiner also noted that the Aspergillus pneumonia was the result of an event which was not reasonably foreseeable. It was not possible for hospital personnel to have known that this condition would develop, and indeed, he received proper diagnostic procedures and laboratory procedures to make the diagnosis. His age and preexisting COPD were the circumstances that caused him to be unable to recover from this problem, coupled with the fact that relevant literature stated that the fatality rate from high-risk organisms such as Aspergillus was as high as 95 to 100 percent. The examiner attached the referenced literature to the examination report. The Board relied on this opinion to deny the appellant's claim in August 2010. However, as noted in the introduction, the Court vacated the Board's August 2010 decision and remanded the matter finding that the May 2009 medical opinion was inadequate. The Court noted that the examiner contradicted himself by determining that it was impossible to say beyond mere speculation that the Aspergillus organism was a nosocomial infection by later stating that infection was actually very commonly acquired in hospitals in patients who are already compromised, as was the Veteran. The Court reasoned that if an Aspergillus infection was commonly acquired in hospitals and the Veteran had no other proven risk factors except for his extended stay in the VA hospital, then a connection would appear to be much more than speculation. The Court thus determined that the Board should obtain a medical opinion on remand addressing whether the Aspergillus infection was caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" by VA staff and, if not, whether the infection was "an event not reasonably foreseeable." 38 U.S.C.A. § 1151(a)(1). The Court went on to find that the examiner's speculation about other possible causes of the Veteran's infection, such as using inhalers at home, or the possibility that he had been sick for a considerable time prior to his hospitalization, lacked support. Among other cases, the Court cited Jones v. Shinseki, 23 Vet. App. 382, 394 (2010) (Lance, J., concurring) ("if...a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant's disability would place the evidence in equipoise, and the benefit of the doubt rule would apply"). Finally, the Court determined that the Board erred by not considering other medical evidence including the December 2007 notation that the Veteran was treated in October for hospital-acquired pneumonia, and the lay statements from the appellant asserting that the Veteran did not have the lung infection prior to his admission to the VAMC. Thereafter, the Board requested an independent medical expert opinion to address this matter, which was subsequently received by the Board in November 2012. The pulmonologist reviewed the Veteran's claims file including the pertinent treatment records prior to his death in December 2007 and listed the Veteran's relevant history. In providing the opinion, the pulmonologist assessed that this was the case of an elderly 88-year old male with multiple medical comorbidities, who was admitted to the hospital with pneumonia and ultimately passed away as a result of this. The pulmonologist indicated that Aspergillus was a relatively rare but well-known cause of pneumonia both in immune-suppressed and immune competent individuals, and, in general, carried a poor prognosis. Given the Veteran's advanced age, poor functional capacity (wheelchair bound) and multiple medical comorbidities, his prognosis at the time of the initial admission, regardless of the cause of the pneumonia, was quite poor. The pulmonologist noted that one question was whether he acquired the Aspergillus in the hospital during his first admission or whether it was present prior to his admission. The pulmonologist found that this could not be conclusively determined, however, given his presentation and failure to improve on broad spectrum antibiotics and noting that Aspergillus was ubiquitous in the environment, it was at least as likely as not that he acquired the Aspergillus prior to his initial admission. In either case, the pulmonologist found that the Veteran received what appeared to be appropriate care, with further testing done when he failed to initially improve and prompt treatment of Aspergillus when it was identified. The pulmonologist went on to address each question that had been posed by the Board. In addressing the question of whether it was at least as likely as not that the Aspergillus infection diagnosed in the Veteran was the result of, or related to, hospital care, medical treatment, or surgical treatment furnished to the Veteran by VA, the pulmonologist stated, no. He indicated that, as noted above, it was unclear whether or not the Veteran acquired the Aspergillus in the hospital or whether it was present prior to his admission. Even if it was the case that it was a hospital acquired infection, there was nothing in the record to suggest that it was the result of his care or treatment in the hospital. In addressing whether the Aspergillus infection was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the pulmonologist answered, no. Review of the available records indicated that the Veteran received appropriate care and there was nothing to suggest negligence, lack of skill, or medical error. Finally, the pulmonologist was asked to address the question of whether if such additional disability was sustained during the Veteran's admission, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; and was the proximate cause of the Aspergillus infection due to an event not reasonably foreseeable. The pulmonologist found that there was nothing to suggest that the Veteran received anything other than what would be considered standard medical care during his VA treatment. The pulmonologist reiterated that he did not know the proximate cause of his Aspergillus infection (i.e., whether it was acquired in the hospital or prior to admission), and the Veteran certainly was at some risk given his underlying lung disease and overall poor health status. However, given that Aspergillus was a relatively rare infection, there would have been no reason to suspect it at the time of his initial hospital admission and it was only discovered after additional investigations that were undertaken due to his failure to improve. Therefore, it was the pulmonologist's opinion that the Veteran received appropriate medical care during his treatment at VA and his Aspergillus infection was not something that could have been reasonably foreseen. A private medical opinion was submitted by the appellant's representative dated in September 2012 from a Dr. Monroe. Dr. Monroe noted that he had reviewed the relevant portions of the Veteran's treatment records including the May 2009 VA medical opinion, as well as the Court's remand. The doctor went on to list the pertinent medical history leading up to the Veteran's death. In addressing the issue of whether the Veteran contracted the Aspergillus infection in the VA hospital, Dr. Monroe stated that even in conducting a comprehensive survey of the literature there remained great uncertainty in knowing the exact probabilities for infection via contamination of the Veteran's home-use aerosol inhalers, contamination of the equipment used in the bronchoscopy performed during the hospitalization from September to October 2007, or contamination of the ambient air in the VAMC. Dr. Monroe commented, however, that the literature regarding Aspergillus infections suggested a higher rate of nosocomial, or hospital-acquired infections. With regard to the inhalers the Veteran used regularly, there was nothing in the literature that identified regular outpatient use of inhalers in general as a risk factor for Aspergillus infections. However, invasive procedures such as bronchoscopy had been identified as a potential vector of transmission of Aspergillus infections. Dr. Monroe also noted that the Veteran's COPD infection was likely an independent risk factor for acquiring Aspergillus infections, but there was a genuine paucity of data regarding whether or not his inhaled corticosteroids added to his risk of acquiring Aspergillus infections. Thus, it was Dr. Monroe's opinion that the Veteran's eventually fatal infection was - at a minimum - as likely as not to have been hospital-acquired. The physician noted that in his opinion the literature summarized above increased the likelihood that the infection was likely to have been acquired while receiving care through the VA medical system. Dr. Monroe went on to find that the VA hospital staff also was as likely as not careless in that the degree of care that would be expected of a reasonable health care provider was not exercised. He found that the hospital staff failed to properly treat and diagnose pneumonia in a patient who presented with a high risk for invasive pulmonary Aspergillosis, given his age, COPD condition, and relatively recent history of bronchitis. He also noted that the VAMC failed to order CT scans after seeing the chest x-rays and should not have waited until October to provide a bronchoscopy. He indicated that Aspergillus was a treatable condition if caught early and that the Veteran would have likely fared much better if treated earlier, especially given that he first presented at the VAMC with only mild, stable COPD. Therefore, Dr. Monroe determined that the VAMC's carelessness caused the Veteran's condition to progress into a fatal illness. Dr. Monroe also found that the Veteran's death would not be considered an ordinary risk of treatment provided, if the Aspergillus infection had been caught early. He indicated that a reasonable doctor would not have foreseen death as an ordinary risk of Aspergillosis infection if caught early and treated aggressively. Additionally, Dr. Monroe determined that the Veteran did not assume the risk of not being treated appropriately or receiving a late diagnosis and that he could find no evidence in the record that written or oral consent had been obtained from the Veteran. Finally, Dr. Monroe reiterated that Aspergillus was typically a hospital-acquired infection and that the Veteran as likely as not acquired it from the ambient hospital air or through hospital equipment. III. Analysis In analyzing the facts of this case, the primary hurdle in asserting a claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is to determine whether there is an additional disability that was caused by VA treatment. The two medical opinions provided by physicians in May 2009 and November 2012 do not reach a clear conclusion in determining whether the Veteran's Aspergillus infection that caused his death was acquired during his admission to the hospital at the VAMC in Leavenworth, or whether this was something he had prior to admission. The May 2009 physician speculates that the Veteran could have had this infection prior to his hospitalization in that he could have been sick for a long time, or that he could have gotten it from his inhalers. The November 2012 physician also comments that it could not be determined whether the Veteran acquired the Aspergillus during his hospitalization or had it prior to admission. The physician went on to find, however, that given the Veteran's presentation and failure to improve on broad spectrum antibiotics and noting that Aspergillus was ubiquitous in the environment, it was at least as likely as not that he acquired the Aspergillus prior to his initial admission. But then, in the same opinion, the physician later comments twice that the proximate cause of the Aspergillus infection was unknown and unclear. Therefore, the two physician's opinions concerning the issue of causation seem to come down to this: the Aspergillus infection could have been acquired during his hospitalization, or he could have had it prior to his admission. Dr. Monroe, however, found in September 2012 that it was at least as likely as not that the Veteran acquired the lung infection during his stay in the hospital. He based his opinion on the literature studies that were also included in the claims file noting the higher rate of hospital-acquired Aspergillus infections, versus, the Veteran's regular use of inhalers at home. Dr. Monroe also mentioned that the invasive bronchoscopy that was performed at the VA hospital increased the Veteran's chances of transmission of the Aspergillus infection. Thus, while the other two medical opinions of record are equivocal, Dr. Monroe determined that it was at least as likely as not that the Veteran acquired his Aspergillus infection during his VA hospital treatment from September to October 2007. As noted by the Court, in Jones v. Shinseki, 23 Vet. App. 382, 394 (2010) (Lance, J., concurring), the Court held that "if...a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant's disability would place the evidence in equipoise, and the benefit of the doubt rule would apply." In weighing the medical opinions of record regarding whether the Veteran had an Aspergillus infection prior to his admission to the VA hospital in Leavenworth or whether he contracted it there, the evidence is at least equivocal. Therefore, the benefit of the doubt goes to the Veteran that it is at least as likely as not that he acquired the Aspergillus infection in the hospital. However, it is not enough to show that the Veteran received care and then had an additional disability or died. The evidence must show that the hospital care resulted in the Veteran's additional disability or death. 38 C.F.R. § 3.361(c)(1). The U.S. Court of Appeals for Veterans Claims (CAVC) and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) have addressed this issue of what is considered "causation" in terms of claims pursuant to 38 U.S.C.A. § 1151. One key matter that has been addressed, which is important in this case, is whether there has to be some action on the part of VA medical personnel to establish causation. In other words, if the Veteran acquired Aspergillus from the air in the hospital, presumably from another patient who was infected while he was receiving treatment, is this enough to satisfy the causation requirement? Or must it be shown that an actual procedure administered by VA medical personnel, such as the bronchoscopy or some other such treatment caused him to contract the Aspergillus infection? In a similar instance, the Federal Circuit Court determined that a claimant who while being hospitalized at a VA facility was subject to verbal and physical assaults from another patient, which then led to her posttraumatic stress disorder, met the causation requirement under 38 U.S.C.A. § 1151 because she was being hospitalized when the assaults occurred. Jackson v. Nicholson, 433. F.3d. 822 (Fed. Cir. 2005). The Federal Circuit Court determined that the injury need not be a result of the fault or action of VA personnel; the fact that an injury occurred as a circumstance of being in the hospital was enough to establish the causation requirement for compensation purposes. Id. at 825-26. The Federal Circuit Court distinguished the case from Sweitzer v. Brown, 5 Vet. App. 503, 506 (1996) in which a patient left the clinic area while he was waiting for an examination to visit another area of the hospital where he was injured by another patient on a motorized scooter. The Federal Circuit Court also disagreed with the Secretary's argument that the U.S. Supreme Court case of Brown v. Gardner, 513 U.S. 115 (1994) implied that there must be some form of VA action to establish compensation under 38 U.S.C.A. § 1151. Id. at 825. This case is similar to the facts of the Federal Circuit case in Jackson, as the Veteran possibly acquired his lung infection as a result of other patients who were in the hospital during the course of his prolonged hospitalization, outside the action of any VA personnel. The CAVC has taken a more conservative stance than the Federal Circuit Court in terms of what is considered causation in 38 U.S.C.A. § 1151 claims and has determined that there must be some sort of action on the part of VA personnel to establish causation. In Mangham v. Shinseki, 23 Vet. App. 284 (2009), the CAVC found that a third party opening fire in the cafeteria of a VA domiciliary unit, which caused mental distress for the claimant, was not part of VA hospital care, or medical or surgical treatment. Mangham, 23 Vet. App. at 288-89. In attempts to reconcile its holdings with the Federal Circuit Court, the CAVC noted that the Federal Circuit Court in Jackson was addressing the pre-October 1997 version of 38 U.S.C.A. § 1151 in terms of what "hospitalization" meant, which now refers to "hospital care" in the statute, and also in terms of requiring negligence on the part of VA personnel. 38 U.S.C.A. § 1151. Id. The CAVC also referred to its earlier decision in Loving v. Nicholson, 19 Vet. App. 96, 101 (2005), in which the CAVC found that "additional disability sustained as a result of the falling ceiling grate was not part of the natural sequence of cause and effect flowing directly from the actual provision of 'hospital care, medical or surgical treatment, or examination' furnished by VA and that any such additional disability was not 'direct[ly] cause[d]' by that VA activity...". Mangham, 23 Vet. App. at 288-89. However, most recently, the Federal Circuit Court in the case of Viegas v. Shinseki, 2012-7075, 2013 WL 363004 (Fed. Cir. January 31, 2013), has effectively overruled the CAVC's holdings in Mangham and Loving as it pertains to the issue of causation. On appeal before the Federal Circuit was a decision by the CAVC affirming a decision of the Board to deny the Veteran's claim for disability compensation under 38 U.S.C. § 1151. See Viegas v. Shinseki, No. 10-0568, 2011 WL 5865451 (Vet. App. Nov. 23, 2011). In reversing and remanding the CAVC's decision, the Federal Circuit found that the CAVC misinterpreted the causation requirement set forth in section 1151(a)(1). Viegas v. Shinseki, 2013 WL 363004 at *1. For background purposes, the Veteran was injured in a diving accident that occurred after active duty service and now suffers from "incomplete" quadriplegia. Id. In May 2004, he participated in a prescribed aquatic therapy session at a VA medical center in Palo Alto, California. Id. After one of these sessions, he stopped to use a restroom located in the VA facility. Id. While in the restroom, the grab bar he was using to lift himself into the wheelchair became loose from the wall and he fell to the ground, causing him to sustain additional injuries to his upper and lower extremities. Id. In July 2004, the Veteran filed a claim for section 1151 benefits, asserting that because of his fall in the VA restroom he "incurred severe injury to his shoulder and neck resulting in loss of use of his lower extremities and impairment of his upper extremities." Id. The RO denied his claim by concluding that he was "not in direct VA care at the time of [his] fall." Id. On appeal, the Board affirmed and found that benefits are available under section 1151 only if a veteran's "additional disability [is] the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of hospital care, medical or surgical treatment, or examination furnished by [the] VA and . . . such additional disability was directly caused by that VA activity." Id. The CAVC held that although the Veteran's injury occurred in a VA facility, it was not caused directly by "hospital care, medical or surgical treatment, or examination furnished by [the] VA." The CAVC then noted that while the Veteran might potentially be able to seek compensation for his injuries under the Federal Torts Claim Act, 28 U.S.C. § 1346(b), the additional disabilities incurred as a result of his fall were "simply not covered by section 1151." Id. The Federal Circuit disagreed, noting that section 1151 delineates three prerequisites for obtaining disability compensation. Id. at *2. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Id. § 1151(a)(1). Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." Id. §§ 1151(a)(1)(A), 1151(a)(1)(B). Thus, section 1151 contains two causation elements-a veteran's disability must not only be "caused by" the hospital care or medical treatment he received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." Id. § 1151(a)(1). Viegas v. Shinseki, 2013 WL 363004 at *2. In the Viegas case, the Federal Circuit found that there was no question that the Veteran's injury met section 1151's second causation element since it was proximately caused by VA's failure to properly install and maintain the grab bar in the VA medical facility's restroom. Id. The sole remaining issue was whether his injury was "caused" by the medical treatment or hospital care he received from VA. After reviewing the language of the statute and its legislative history, the Federal Circuit noted that there was nothing in the plain language of section 1151 that required a veteran's injury to be "directly" caused by the "actual provision" of medical care by VA personnel. Id. at *3. Instead, the statute requires only a "causal connection," which includes injuries that occur in a VA facility as a result of VA's negligence. Id. Accordingly, the Federal Circuit found that there was nothing to indicate that Congress had intended to preclude compensation for injuries stemming from VA's failure to properly install and maintain the equipment necessary to provide health care services, and stated that if Congress had wanted to impose a requirement that the "direct" cause of a veteran's injury must be the "actual" medical treatment provided by VA personnel, it could readily have inserted such a requirement into the statutory text. Id. The Federal Circuit cautioned, however, that section 1151 does not cover every injury sustained by a veteran in a VA facility. Citing to Brown v. Gardner, 513 U.S. 115 (1994), the Federal Circuit noted that the statute does not extend to "remote consequences" of hospital care or medical treatment provided by VA. Id. at *6. The Federal Circuit found that in Viegas, however, the Veteran's injury was not a "remote consequence" of the treatment he received at a VA facility. Rather, it occurred because VA failed to properly install and maintain equipment necessary for the provision of his medical care. Id. Based on the Federal Circuit Court's holding in Viegas, since it has been determined that the Veteran's Aspergillus infection was acquired in the hospital, it does not need to be established that the infection was directly caused by the actual provision of medical care by VA personnel. The November 2012 physician noted that even if it was the case that the Aspergillus was a hospital acquired infection, there was nothing in the record to suggest that it was the result of his care or treatment in the hospital. However, in light of the Federal Circuit Court's holdings in Viegas and Jackson, if the Veteran acquired the Aspergillus infection as a result of being exposed to the infection at the VA hospital in Leavenworth, and he might not have otherwise acquired this infection if he had not been admitted to the VA hospital, then it is irrelevant whether the actual procedures used by the VA medical professionals caused the infection. In addition to the Federal Circuit Court's findings, VA regulations do not state that only the VA procedures used must have caused the disability or death, but that VA hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. 38 C.F.R. § 3.361(c)(1). Thus, in determining causation, one would look to whether the disability or death was a result of the circumstances of being in a hospital for treatment, rather than directly related to the care provided, for instance, to one specific procedure, such as the bronchoscope performed on admission in September 2007, to determine whether the Veteran's death that resulted from his Aspergillus infection was related to his care received at the VA hospital. The CAVC also has recently indicated that the circumstances of each case must be weighed to determine the issue of causation due to hospital care. Bartlett v. Shinseki, 24 Vet. App. 328 (2011) (holding that the determination as to whether a situation involves "hospital care" will depend on a variety of factors, including the nature of the services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms). Applying the Federal Circuit Court's reasoning in Jackson and Viegas, and the CAVC's reasoning in Jones and Bartlett to this case, it would appear that since a private physician has determined that the Veteran acquired his Aspergillus infection from his hospitalization at the VAMC in Leavenworth and the other two physicians have apparently been unable to provide a clear reason why the Veteran's Aspergillus infection was not contracted during his hospital stay, this would place the evidence in at least relative equipoise as to the issue of causation. In these cases, all doubt goes to the claimant. See 38 C.F.R. § 3.102. It is also worth mentioning that the appellant has asserted that she did not believe the Veteran had any lung infection prior to admission to the VA hospital. In addition it was noted in the records that he had been treated for hospital-acquired pneumonia in October 2007. Based on the medical evidence of record, it is as likely as not that the Veteran's stay in the VA hospital at Leavenworth led to his contracting Aspergillus, either from the ambient air or through the hospital equipment. He arguably would not have contracted Aspergillus had he not had his prolonged stay in the VA hospital. Therefore, it appears that the appellant has cleared the first hurdle in substantiating a claim pursuant to the provisions of 38 U.S.C.A. § 1151(1), as resolving all reasonable doubt in her favor, the treatment provided by VA resulted in the Veteran's Aspergillus infection that caused his death. The next issue is whether the medical evidence establishes that the Veteran's Aspergillus infection was a result of 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. The VA physician in May 2009 determined that if the lung infection was hospital-acquired, then the pneumonia caused by this organism was less likely than not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA medical personnel. The physician indicated that the Veteran had other multiple medical problems that predisposed him to the lung infection. The November 2012 pulmonologist also found that review of the available records indicated that the Veteran received appropriate care and there was nothing to suggest negligence, lack of skill, or medical error. The October 2012 private physician, Dr. Monroe, found, however, that there was negligence on the part of the VAMC in Leavenworth in that they did not institute procedures such as a CT scan to properly diagnosed the Aspergillus infection earlier, which in his opinion, would have made it more of a treatable condition. Dr. Monroe also found that there was no informed consent for the bronchoscopy or indication that the Veteran assumed the risk of not being treated appropriately or receiving a late diagnosis. So there is some probative evidence for and against the claim in determining that the VA care received by the Veteran was negligent. Without having to address the issue of negligence definitively, however, the medical evidence does establish that the Veteran's Aspergillus infection that led to his death was an event not reasonably foreseeable. All three medical opinions of record have determined that the Veteran's contracting the Aspergillus infection was the result of an event not reasonably foreseeable, as this is a relatively rare lung infection. The May 2009 VA examiner noted that the Aspergillus pneumonia was the result of an event which was not reasonably foreseeable and that it was not possible for hospital personnel to have known that this condition would develop. The November 2012 pulmonologist also determined that given that Aspergillus was a relatively rare infection, there would have been no reason to suspect it at the time of the Veteran's initial hospital admission and it was only discovered after additional investigations that were undertaken due to his failure to improve. Therefore, it was the pulmonologist's opinion that the Veteran received appropriate medical care during his treatment at VA and his Aspergillus infection was not something that could have been reasonably foreseen. Finally, Dr. Monroe found that the Veteran's death would not be considered an ordinary risk of treatment provided, if the Aspergillus infection had been caught early. Thus, it is reasonable to deduce that a reasonable health care provider would not have considered the Aspergillus infection as a result of the Veteran's hospital treatment to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). There is no informed consent of record for the bronchoscope (although a reasonable person would arguably have agreed to the procedure given the Veteran's circumstances). Thus, the Board cannot determine with any certainty whether Aspergillus infection would have been noted as a possible risk factor for this procedure. However, given that there is no indication that the risk of Aspergillus infection was mentioned to the Veteran as a possible risk associated with his hospital care, this would not likely be a risk of the type that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Therefore, the evidence shows that the VA hospital care from September 2007 to October 2007 led to the Veteran's Aspergillus infection, which caused his death; and the Aspergillus infection was an event not reasonably foreseeable. In light of the above, VA compensation under 38 U.S.C.A. § 1151 for the Veteran's death is warranted. ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death is granted. Entitlement to service connection for the cause of the Veteran's death is dismissed as moot. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs