Citation Nr: 1307702	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  07-14 324	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death.  

REPRESENTATION

Appellant represented by:	Janet L. Kellogg, Attorney

WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel





INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.  

The Veteran served on active duty from February 1945 to February 1946.  The Veteran died in July 2002, and the Appellant is his surviving spouse.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2004 of a Department of Veterans Affairs (VA) Regional Office.

In August 2004, the Appellant appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the file.  

In July 2005, the Board remanded the claim for additional development to comply with Manlincon v. West, 12 Vet. App. 238 (1999).  VA issued a statement of the case in March 2007 and a supplemental statement of the case in March 2008.  

In December 2009, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901(d), the Board requested an advisory medical opinion from a physician who is not employed by VA (an independent medical expert or IME).  In June 2010, the Board provided the Appellant and her representative a copy of the opinion and afforded the Appellant the opportunity to submit additional argument and evidence.  The Appellant's representative submitted additional argument in July 2010.  

In July 2011 and in April 2012, the Board remanded the claim for further development.  No further action to ensure compliance with the Board's remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998). 



FINDING OF FACT

The Veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, and VA medical treatment was not the proximate cause of the Veteran's death.


CONCLUSION OF LAW

The criteria for dependency and indemnity compensation benefits under 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1151, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.361 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  





Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- and post- adjudication VCAA notice by letters, dated in January 2003, January 2004, March 2004, and June 2007.  The notice included the type of evidence to substantiate the claim under 38 U.S.C.A. § 1151, namely, evidence of additional disability the result of VA surgical or medical treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar incidence of fault on the part of the VA, or that the additional disability was the result of an event that was not reasonably foreseeable. 

The Appellant was notified that VA would obtain VA records and that she could submit other records not in the custody of a Federal agency, such as private medical records or with her authorization VA would obtain any non-Federal records on her behalf. 

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); 

Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim, except for the provisions for the effective date of a claim and for the degree of disability assignable). 

To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in October 2012.  Mayfield v. Nicholson, 499 F.3d 1317, 1323   (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

To the extent that the VCAA notice pertaining to the provisions for the effective date of a claim and for the degree of disability assignable was not provided, the VCAA notice was deficient. As the claim is denied, no effective date or disability rating is assignable by operation of law. Therefore, the limited content error in the VCAA notice as to the downstream elements of a claim, as seen here, does not affect the essential fairness of the adjudication of the claim and the omission of content is nonprejudicial.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained VA records and private medical records.  

In March 2010, the Board obtained advisory medical opinion from a physician who is not employed by VA (an independent medical expert or IME).  




As the IME opinion contains a history, a review of the significant facts of the case, analysis, and rationale to support the conclusions reached in the opinion, the opinion is e adequate as the Board can rely on the opinion to make a fully informed decision on the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  

Under 38 U.S.C.A. § 5705, records created as part of the VA medical quality-assurance program are confidential and access is limited.  Under VAOPGCPREC 1-2011, the VA General Counsel held that VA's duty to assist requires agencies of original jurisdiction and the Board to request access to any quality-assurance records relevant to a claim. 

In August 2012, the Program Analyst for the Clinical Quality Management Office at the VA Healthcare System in Bonham, Texas, stated that quality-assurance records were not found.  The RO notified the Appellant in the statement of the case in October 2012.  

As the Appellant has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. 







REASONS AND BASES FOR FINDING AND CONCLUSION

Cause of death under 38 U.S.C.A. § 1151 may be granted if the death was caused by VA treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or the additional disability was not reasonably foreseeable.

Under 38 C.F.R. § 3.361(c), a claim based on death due to VA medical treatment requires actual causation.  To establish causation, the evidence must show that the VA treatment resulted in the Veteran's death.

Under 38 C.F.R. § 3.361(d), to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment, it must be shown that the treatment caused the additional disability; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider.

Whether the proximate cause of death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent.  38 C.F.R. § 3.361(d).





Evidence

The Veteran died on July [redacted], 2002.  The death certificate lists the immediate cause of death as acute coronary insufficiency.  No other condition was listed.  

The Appellant makes two contentions supporting her claim: first, that the Veteran was prescribed an incorrect medication in December 2000 that weakened his heart and other organs; and second, that the Veteran should have been admitted to a VA hospital on July [redacted], 2002, they day before his death.

As to the first argument, the evidence shows that in December 2000, a VA pharmacy supplied the Veteran with an incorrect medication.  The Veteran was given a diabetic medication, even though he did not suffer from diabetes.  The Veteran took the medicine for three days.  On the morning of December 24, the Appellant tried to wake the Veteran, but was unable to do so.  She called an ambulance, and the Veteran taken to the Texoma Medical Center.  He was diagnosed with acute hypoglycemia secondary to taking glyburide, the medication that VA had inadvertently supplied to him.  After he improved, he was transferred to the VA.  He was then released the next day.  

In letters to VA describing this incident, the Appellant argues that the Veteran's death was caused in part by his taking the wrong medication.  In June 2003, the Appellant's representative stated that the Appellant was told by a physician that taking the medication would injure the Veteran's heart and kidneys.  The Appellant stated that the Veteran's health deteriorated after the incident.  

The evidence does not support her contention.  The Board obtained an IME to determine whether the incorrect medication led to the Veteran's death.  




In March 2010, the IME, a cardiologist, stated that the evidence did not show that the Veteran experienced a chronic cardiovascular disability associated with glyburide-induced acute hypoglycemia that occurred in December 2000.  The IME stated that the evidence also showed that the Veteran's renal function did not change significantly as a result of his taking the incorrect medication.

The evidence does not show that the incorrect medication in December 2000 led to the Veteran's death in July 2002.  The incident did not directly or proximately cause the Veteran's death.  

As to the second argument, the Appellant states that, the day before his death, she brought the Veteran to see his VA primary care physician in an attempt to get him admitted to a VA hospital.  She states that the VA doctor who examined the Veteran released him to go home, despite the fact that he fell before and after the appointment.  

VA records show that the Veteran was seen by VA on July [redacted], 2002, the day before his death.  An ambulatory care note from that day states that the Veteran complained of increased shortness of breath.  He was described as alert, well oriented, and cooperative.  His lungs were clear to auscultation with moderate air rhythm.  His heart had an irregular rhythm with no murmur.  An addendum from Dr. T.V.L described the Veteran as comfortable at rest in his wheelchair.  He had no significant dyspnea.  He noted that the Veteran had an irregular heart rhythm, and stated that the Veteran most likely had mild congestive heart failure.  Dr. T.V.L. released the Veteran with advice to take antibiotics and his current medication.  Dr. T.V.L. did not recommend admitting the Veteran as an inpatient.  




The IME concluded that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider and that there was no error in judgment that would not have been made by a reasonable health care provider under the circumstances presented.  The IME stated that it was a quite common clinical practice to attempt treat a patient with mild congestive heart failure as an outpatient and that the Veteran's vital signs were stable on the day he was seen by VA.   The IME stated that the Veteran's presentation did not warrant an inpatient evaluation.  

The Board finds that the opinion of the IME accounts for the significant facts of the case to reach the conclusion submitted in the opinion, and the opinion is persuasive evidence against the claim. 

As VA medical treatment was not the proximate cause of the Veteran's death, the Board need not reach the question of whether the Veteran's death was not an event that was reasonably unforeseeable. 

To the extent the Appellant's statements are offered as a lay opinion on the question of fault on the part of VA, a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.) 


The Appellant's opinion, as a lay person, is limited to inferences that are rationally based on her perception and do not require specialized education, training, or experience.  Here, the question of fault on the part of VA providing medical treatment is not a simple medical condition that can be determined by the Appellant based on inferences gained by her own personal knowledge, that is, perceived through the use of her senses, without specialized education, training, or experience. And it is not argued or shown that the Appellant is otherwise qualified through specialized education, training, or experience to offer an opinion on the question of fault on the part of VA.  

For these reasons, the Board rejects the Appellant's lay statements and opinion as competent evidence to substantiate the claim. 

In summary, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of prove does not apply. 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied.  



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs