Citation Nr: 1317012 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 05-25 655 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from June 1941 to December 1945. The Veteran died in December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held in July 2006 before a Veterans Law Judge (VLJ) who is unavailable to participate in the present decision. The appellant was provided an additional hearing before the undersigned Veterans Law Judge in April 2011. Copies of the transcripts of those hearings are of record. The Board remanded the issue on appeal for additional development in March 2007, June 2010, July 2011, and December 2012. The case was subsequently returned to the Board. 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. The Veteran died in December 2003; the immediate cause of death was multi-organ failure, due to or as a consequence of hypotension, due to or as a consequence of gastrointestinal bleed. 2. The Veteran's VA treatment in October and November 2003 is not shown to have been the proximate cause of his death and there is no evidence of any unforeseeable consequence or showing of additional disability as the result of carelessness, negligence, lack of proper skill, error of judgment or similar instance of fault on the part of VA in providing care which caused or substantially and materially contributed to the Veteran's death. CONCLUSION OF LAW The criteria for establishing entitlement to DIC under 38 U.S.C.A. § 1151 are not met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all elements of a claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), so that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, a VCAA notice letter was sent to the appellant in January 2004, prior to the RO's June 2004 initial adjudication of her claim for DIC under 38 U.S.C.A. § 1151. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The letter informed her of the evidence required to substantiate this claim and of her and VA's respective responsibilities in obtaining this supporting evidence. And she was later advised of the "downstream" disability rating and effective date elements of this claim in an April 2007 letter. The Board acknowledges that the appellant did not receive the April 2007 notice letter until well after the initial rating decision on appeal was issued; however, various supplemental statements of the case (SSOCs), most recently in March 2013, have readjudicated the matter after the appellant and her representative responded and further development was completed. Consequently, she is not prejudiced by any technical notice deficiency, including in timing, that may have occurred earlier in the process. Prickett, supra. As the pleading party attacking the agency's decision, the appellant, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in timing or content and that the error is unduly prejudicial, meaning outcome determinative of her claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA also fulfilled its duty to assist the appellant by obtaining all relevant evidence in support of this claim that is obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO and Appeals Management Center (AMC) have obtained the Veteran's voluminous VA treatment records (including from his 2003 VA hospitalizations), private treatment records, and relevant lay statements. As well, several VA medical opinions were obtained in May 2004, December 2009, and June 2012 concerning this claim. The Board finds that there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (An appellant is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Concerning this, the Board directed that the RO/AMC obtain the relevant VA hospital records, and this has been done. In its July 2011 and December 2012 remands the Board noted that VA medical records indicated that during the Veteran's hospitalization at the Marion, Illinois, VA Medical Center (VAMC) from November 25, 2003, to November 26, 2003, paper records may have been created due to computer problems. A note dated November 25, 2003, stated that "[a] paper record contingency plan was in place for the medical record between the hours of NOV 25, 2003@07:30 and NOV 25, 2003@14:00." The remand instructions included that appropriate action should be taken to obtain all pertinent VA treatment records possibly created and maintained in a non-electronic VA records management system during the period from November 25, 2003, to November 28, 2003. In January 2013, the AMC obtained a copy of a paper record of nursing notes at the Marion VAMC covering the date range from November 25, 2003 through December 1, 2003. There are handwritten nursing notes only in the column for November 25, 2003. Computerized medical records dated from November 25 to 28, 2003 are also of record. The Board also notes that in correspondence dated in July 2012 the appellant reported that the Marion VAMC had settled a federal tort claim "to a patient at VAMC Marion" and that the Veteran's VA physician had recently been "cited under the Professional Regulatory Board for failure to provide proper records." The appellant, however, has identified no existing evidence pertinent to her claim or whether the actions to which she has referred actually involved the Veteran's VA treatment. The Board finds that in the absence of such evidence no further action as to this matter is required. In prior remands, the Board also directed that VA medical opinions be obtained, and VA medical opinions were obtained in May 2004, December 2009, and June 2012. Although the appellant's representative contended in April 2013 that the June 2012 medical opinion contained uncertainty regarding the cause of the Veteran's bowel problems and that therefore an "outside" medical opinion should be obtained, the Board disagrees. The Board finds that finds that the June 2012 medical opinion is adequate as it was responsive to the questions posed in the July 2011 remand, was based on a review of the claims file and medical evidence, and that the reports of the several VA medical opinions, in addition to the other extensive medical evidence of record, provide the necessary evidence to adjudicate this appeal. Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and that appellate review may proceed without prejudicing the Veteran. The Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the April 2011 Board hearing. II. Law, Regulations, and Factual Background The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the appellant's claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the appellant claims that the Veteran's death in December 2003 was the result of VA negligence, and that she is entitled to DIC under § 1151 as a result. She contends, in essence, that VA erred in failing to treat a gastrointestinal (GI) bleed or in transferring him prematurely to the Pinckneyville Community Hospital on November 28, 2003. She has also contended that his October 30, 2003 VA colonoscopy caused internal injury and bleeding. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, DIC shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. For claims filed on or after October 1, 1997, as in this case, the appellant must show that the VA treatment in question resulted in additional disability or death, and that the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b) (2012). VA considers each involved body part or system separately. Id. To establish causation, the evidence must show that the 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) (2012). Merely showing that a Veteran received care, treatment, or examination, and that the Veteran has additional disability or death, does not establish cause. Id. Hospital care, medical or surgical treatment, or examination cannot cause the continuation 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) (2012). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (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, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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) (2012). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(1) (2012). Minor deviations from the requirements of § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Id. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b), as in emergency situations. Id. Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2) (2012). 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. Id. 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). VA medical records dated prior to the hospitalizations in late 2003 reflect treatment for longstanding Parkinson's disease and Alzheimer's dementia. VA treatment records show the Veteran was hospitalized at the Marion, Illinois, VAMC from October 30, 2003 to November 7, 2003, and from November 18, 2003 to November 28, 2003. He had an intervening hospitalization at Pinckneyville Community Hospital. During the first VA hospitalization, from October 30, 2003 to November 7, 2003, the Veteran was admitted because of abdominal pain and distention, without nausea or vomiting. On admission, it was thought that he had partial bowel obstruction caused by volvulus or adynamic ileus. A gastrografin enema showed possible obstruction. He underwent a colonoscopy on October 30, 2003, and his colon was decompressed. An October 30, 2003 preoperative teaching note completed by a nurse reflects that the Veteran was disoriented and unable to comprehend the teaching. The file contains an Informed Consent GI dated on October 30, 2003, which indicates that the colonoscopy procedure was discussed with the Veteran or surrogate on October 30, 2003. His mental status was confused. The indications for the procedure were a markedly dilated large bowel with some respiratory embarrassment, rule out volvulus, rule out left colon obstruction, rule out pseudo obstruction. Moderate sedation would be given. The following risks were discussed: pulmonary complications, cardiovascular/cerebrovascular complications, bleeding, perforation, infection. Consent was obtained. The appellant has testified that she recalled signing this consent. See July 2006 Board hearing transcript at page 3; April 2011 Board hearing transcript at page 36. An operative report dated on October 31, 2003 reflects that a colonoscopy and decompression were performed on October 30, 2003. Following decompression of the colon, the Veteran had a marked improvement in the distention. His abdomen was much softer and he had significant relief. His breathing also improved significantly. The postoperative diagnosis was a markedly distended colon, with no obstructive lesion noted to the descending colon, rule out some degree of volvulus sigmoid, probable Ogilvie syndrome. A gastroenterology diagnostic intervention procedure note reflects that the Veteran's condition was stable, and he tolerated the colonoscopy well without complications. A follow-up note dated on October 31, 2003 reflects that the Veteran was afebrile and passing liquid stools. His abdomen was almost flat, soft, and non-tender, with bowel sounds present. He was comfortable and denied abdominal pain. A VA discharge summary reflects that the Veteran was discharged on November 7, 2003. It was noted that his abdomen was much softer after decompression, and he was given antibiotics and intravenous (IV) fluids. He was initially NPO (nothing by mouth), then he was given a puree diet, and he was eating satisfactorily and having bowel movements. Because he had dementia and Parkinson's disease, he was discharged to a nursing home for physical rehabilitation. The discharge diagnoses were abdominal distention with abdominal pain, and possible adynamic ileus and partial obstruction which resolved, hypokalemia, resolved, dehydration, resolved, leukocytosis, resolved, dementia and Parkinson's, history of degenerative joint disease, dementia, Parkinson's, hypertension, and transient ischemic attack. His condition on discharge was listed as stable for his age and multiple medical problems. The prognosis was guarded. He was released to Pinckneyville Skilled Nursing Facility on November 7, 2003. Private medical records from Pinckneyville Community Hospital/Skilled Nursing Facility reflect that the Veteran was transferred there from the Marion VAMC in November 2003. A November 17, 2003 history and physical notes that the Veteran had a significant history of Parkinson's disease, dementia, and a history of cerebrovascular accident who was being transferred from the skilled care unit because of intermittent fevers and decreased level of consciousness. He had recently been transferred there from VA due to colonic obstruction status post bowel decompression or endoscopic decompression. He had been relatively stable until that day. On examination, his blood pressure was 90/50. The diagnostic impression was intermittent fevers, and the differential diagnosis was aspiration pneumonia versus hospital-acquired pneumonia. He had a significant history of GERD disease and was prone to aspiration, history of Parkinson's disease and dementia, and history of large bowel obstruction secondary to impacted feces status post decompression at VA. A discharge summary was completed by R.P., MD, who indicated that on November 18, 2003, the Veteran developed an episode of "hypertension" [apparently a typographic error, as the term "hypotension" was used later in the same document regarding this event], with a systolic blood pressure of 70. A nasogastric (NG) tube was inserted on the morning of November 18, 2003 for GI compression. He started to manifest bright red drainage per NG tube. Dr. P. noted that on discharge, the Veteran was awake and nonresponsive, and looked acutely ill. He had an NG tube in place, draining bright red blood per NG tube. His blood pressure was 90/40, and his pulse was tachycardic. Respirations were slightly tachypneic. The diagnostic impression was hypotension with blood per NG tube with an acute drop in his hemoglobin. The possible source was upper GI bleeding. He was transferred back to the Marion VA Medical Center on November 18, 2003. VA medical records from Marion VAMC reflect that the Veteran was hospitalized there from November 18, 2003 to November 28, 2003. A M.D. triage notes that the diagnostic impression upon admission on November 18 was severe GI bleeding with hypotension and anemia, and severe colonic obstruction with marked distention of colon. A history and physical dated on November 18, 2003 reflects that the Veteran had been transferred there for further evaluation and management of GI bleeding and hypotension. He was admitted to the intensive care unit (ICU) in critical condition. He was given transfusions. On November 19, 2003, he was noted to be doing better. A esophagogastro-duodenoscopy (EGD) was done on November 21, 2003, and the postoperative diagnosis was diffuse gastritis, old blood in the stomach, and no active bleeding. The file contains an Informed Consent GI dated on November 20, 2003, which indicates that the EGD procedure was discussed with the Veteran or surrogate on November 20, 2003. The Veteran was confused. The indications for the procedure were upper GI bleed. The surrogate was advised of the following risks: pulmonary complications, cardiovascular/cerebrovascular complications, bleeding, perforation, and infection. The surrogate consented to the procedure. A November 22, 2003 attending inpatient note reflects that the admitting diagnosis of GI bleed/hypotension/anemia was improving. It was noted that hemoglobin/hematocrit was stable, and hypotension was resolved. A November 23, 2003 note reflects that he passed a moderate amount of black tarry pasty stool. His abdomen was soft, round, and non-tender. Bowel sounds were active in all four quadrants, and there was no evidence of abdominal pain. A November 24, 2003 social worker's note reflects that she met with the Veteran and his wife at his bedside, and discussed with his wife his planned return to Pinckneyville SNF. The Veteran was pleasant and talkative although his conversation was irrelevant to the topic. The social worker called Pinckneyville and spoke with J., who stated that she was not sure where they would put him or if Dr. P. would take him back. She sent information regarding the Veteran's hospitalization and current status to Pinckneyville by facsimile. A phone call was received from J. stating that the Veteran had been accepted for readmission. Transfer was planned when he was medically stable. A November 26, 2003 nursing note reflects that the Veteran was alert and responsive, incontinent of bowels with black stools. An M.D. inpatient progress note dated on November 26, 2003 reflects that the Veteran had been admitted to the ICU with intestinal obstruction, resolved with decompression, GI bleed and anemia: esophagogastro-duodenoscopy (EGD) showed diffuse gastritis, no active bleeding, hypotension: probably secondary to GI bleed - resolved, sepsis: MS changes, hypotension and leukocytosis on admission, all improved. Discharge to nursing facility was planned for November 28, 2003. A November 26, 2003, acute care flowsheet from a register nurse, included the admitting diagnosis of gastrointestinal bleed hypotension (as did most of the nursing notes). His blood pressure was 143/69 at that time. His abdomen was soft with active bowel sounds, he had no complaints of pain or discomfort. A November 26, 2003 social worker's note reflects that she spoke with J. at the nursing facility (Pinckneyville), and that Dr. P. was hesitant to take the Veteran back due to recent transfusion and not enough time to stabilize hemoglobin. The social worker informed J. that the Veteran had not had a transfusion since November 21, 2003. J. stated that she was told that the Veteran had a transfusion the previous day, but the Veteran's VA nurse stated that a transfusion had not been done yesterday. J. stated that Dr. P. wanted to wait until Friday to review the labs again as he did not feel comfortable with the Veteran returning until his hemoglobin had been stable for a longer period of time. A November 27, 2003 nursing note reflects that the Veteran slept most of the day, and had a poor appetite. He refused his dinner and was agitated, trying to get out of bed. He was then seated in a chair, and had no complaints. An M.D. inpatient progress note dated on November 27, 2003 reflects that the Veteran's problems were status post intestinal obstruction, upper and lower GI bleeding, acute renal failure (improved), fungal bladder infection, Parkinson's disease, and fever. On examination, his blood pressure was 138/67, and temperature was 98.1. He was awake and noncommunicative. He was pale and malnourished. His abdomen was soft and non-distended, with positive bowel sounds. He was described as stable. The doctor indicated that the Veteran might need NG tube feedings and extended rehabilitation. A November 28, 2003 nursing note reflects that the Veteran had loose tarry stools times four. A November 28, 2003 nursing discharge note reflects that the Veteran was alert and oriented times one to person. He was noted to be pocketing food in his cheek; much prompting was required for eating. He was incontinent of bowel, and a Foley catheter was patent and draining without difficulty. The VA discharge summary was completed on December 17, 2003, regarding the November 18 to 28, 2003 hospital admission. The discharge diagnoses were upper gastrointestinal bleed, with gastritis, resolved, Parkinson's disease, fungal urinary tract infection, and hypertension. It was noted that the Veteran was transfused on November 22, and had no further evidence of GI bleed. His hematocrit and hemoglobin remained stable. He had good urinary output by November 22. On November 24 he was alert and oriented, sitting in bed, and the NG tube was out. He was transferred to the Pinckneyville Community Hospital/Skilled Nursing Facility on November 28, 2003. Private medical records from Pinckneyville Community Hospital/Skilled Nursing Facility from the Veteran's terminal hospitalization reflect that he had recently been discharged from the VAMC after he was managed for an episode of hemorrhagic gastritis. On admission on November 28, 2003, Dr. P. indicated a diagnostic impression of hemorrhagic gastritis, stable for now. He noted that the Veteran was awake and alert, and just finished eating dinner. He looked comfortable and was not on oxygen. His abdomen was flat, soft and non-tender. He was described as relatively doing well until the early morning of December 1, 2003, when he had several episodes of loose bloody stools followed by an acute development of hypotension with a blood pressure of 50/26 and gradual abdominal distension. He was noted to be hypotensive, accompanied by an altered sensorium and a distended abdomen. A consultation was done with the Marion VAMC for a possible transfer of the Veteran to an ICU, but because of the unavailability of beds, he was admitted to acute care for stabilization. On admission, he was given a diagnosis of abdominal distension and hypotension secondary to a possible GI bleed. An NG tube was inserted, and a rectal tube was inserted to try to decompress the bowels, as an obstructive series showed a markedly distended large bowel. Later that day, he showed evidence of hypotension, and was given intravenous fluid, but began to deteriorate. In a progress note dated that evening, Dr. P. suspected an ischemic bowel as the primary problem, and said he was slowly going to multi-organ failure. In the Pinckneyville Community Hospital discharge summary, Dr. P. stated that because of the gradual development of mottled cyanosis and gradual increase in his CK, ischemic bowel was suspected as the primary problem. His blood pressure remained low, and he became tachycardic, and died early the next day. The Veteran's death certificate reflects that he died in early December 2003 at Pinckneyville Community Hospital, where he was an inpatient. The immediate cause of death was multi-organ failure, due to or as a consequence of hypotension, due to or as a consequence of gastrointestinal bleed. No other causes of death were listed. An autopsy was not performed. In a February 2004 letter, R.O.P., M.D., the Veteran's physician at Pinckneyville Community Hospital, stated that he had reservations about accepting the Veteran as a transfer on the day before Thanksgiving because he was still having a moderate amount of black, tarry, pasty stool. He again expressed his concerns on the day after Thanksgiving because according to the VA medical records he was still having episodes of loose tarry stools, despite the transferring physician's assurance that there had been no more episodes of gastrointestinal bleeding. VA medical opinions from D.M., D.O., a VA physician, were obtained in May 2004 and December 2009. In May 2004, the examiner indicated that he had reviewed the Veteran's medical records and stated that essentially they are the records of an elderly gentleman with a history of Parkinson's disease, dementia, very likely Alzheimer's and previous CVAs. Apparently on October 30, 2003, he was having some lower abdominal pain and back pain, and his abdomen was distended. At that time his wife stated that his abdomen had been like that since the day before. He was seen in GI consultation, was found to have a distended bowel, and underwent hydration with IV fluids, nasogastric (NG) tube suctioning and was considered for possible surgery, but the obstruction was resolved by the NG tube. Gastric suctioning returned coffee-ground fluids consistent with upper GI bleeding and apparently he was very anemic and was transfused. He was stabilized and sent to a nursing home for long-term care. He summarized the private medical records from Pinckneyville. He was stabilized and transferred back to Marion VAMC and found to have an upper GI bleed secondary to hemorrhagic gastritis. He was transferred back to the skilled care unit on November 28, 2003 in stable condition. Apparently he developed loose bloody stools again on December 1, 2003 and was transferred back to Pinckneyville where he was treated with IV fluids and transfusion. The VA physician stated that the Veteran was an elderly gentleman with multiorgan failure, hemorrhagic gastritis which certainly led to hypotension, and ischemic bowel disease which was made worse by his hypotension due to his bleeding. The physician stated that he saw nothing in the medical records that would indicate improper treatment of the Veteran at the Marion VA Medical Center. He said that his treatment was perfectly appropriate, and his physical examinations indicated nothing inappropriate, and it appears he received good care. In his opinion it was less likely than not that his death was caused by any treatment or physical examination that he received at the Marion VAMC. At her July 2006 Board hearing, the appellant asserted that the October 2003 VA colonoscopy caused a rupture, and that the Veteran lost his energy afterward. She essentially stated that the Veteran should not have been transferred to Pinckneyville Community Hospital, and that each time they transferred him it caused bleeding and ultimately resulted in his death. In a December 2009 VA medical opinion, the same VA physician who gave the May 2004 opinion stated that he reviewed the Veteran's voluminous claims file including numerous hospital records from the Marion VAMC and the Pinckneyville Community Hospital, the death certificate, and the Board hearing transcript. He summarized the Veteran's relevant medical history as follows. In late October 2003, the Veteran presented with low abdominal and back pain, and his abdomen was hard. On admission, his abdomen was distended and tender. An enema was attempted, but failed. He then underwent a colonoscopy for evaluation and decompression; there were no complications and he tolerated the procedure well. This allowed for decompression of his colon. According to the note, the abdominal distention became markedly less and softer with significant relief to the patient. His breathing also improved significantly as a result. He opined that there was no indication of any complications from the colonoscopy procedure, and observed that the Veteran's hemoglobin and hematocrit during that hospitalization remained normal to near-normal. He indicated that the Veteran was apparently in stable condition at the time of his transfer to Pinckneyville Community Hospital on November 7, 2003. At Pinckneyville Community Hospital, ten days later, he developed an upper GI bleed and an episode of hypotension and tachycardia. He was transferred back to the Marion VAMC, where he was hospitalized from November 18, 2003 through November 28, 2003, during which time he received multiple transfusions. During that admission an upper endoscopy was performed revealing diffuse gastritis with old blood in the stomach and no active bleeding. The Veteran was apparently hemodynamically stable with no further bleeding and his hematocrit level was stable at discharge. He was transferred back to Pinckneyville Community Hospital. According to the note by R.P., he was doing relatively well in the skilled care unit until early in the morning of December 1, 2003, when he had several episodes of loose bloody stools early in the morning followed by an acute development of hypotension. A call was put out to the Marion VAMC for possible transfer back to the ICU, but there were no beds available, so he was cared for at the Pinckneyville Community Hospital. Attempts were made to decompress his bowel, he again became hypotensive, and aggressive treatment with IV fluids was undertaken. He began developing generalized cyanosis, his CK (creatine kinase) rose to above 1000, he had apneic spells, and intubation was considered because the Veteran's wife wanted full code status up to that point. However, apparently she changed her mind, and the Veteran died early on December [redacted], 2003 due to multiorgan failure. It was felt that his increased total CK was most likely secondary to ischemic bowel. This was more likely than not due to his hypovolemia/hypotension, as well as the fact that in order to try to maintain some blood pressure, dopamine was started in an effort to resuscitate the Veteran. This might have caused some bowel ischemia in its pharmacologic attempt to divert blood to the heart, lungs, and brain. The VA doctor opined that based upon a review of the total medical evidence of record, it was his opinion that there was nothing in the records to indicate improper treatment, negligence, etcetera at the Marion VAMC that resulted in the Veteran's death at the private facility in Pinckneyville. In a January 2010 written statement, the appellant contended that the Veteran was not stabilized from a GI bleed enough to be transferred to Pinckneyville Community Hospital on November 28, 2003. She also asserted that Dr. P., at Pinckneyville, was concerned about whether the Veteran was stable enough to be transferred to his hospital on November 28, 2003. She essentially contended that since the VA medical records of the VA hospitalization ending on November 28, 2003 were not drafted until weeks after the fact, they may not be accurate. At her April 2011 Board hearing, the appellant reiterated many of her assertions. She said that Dr. P. told her that the Veteran should not have been transferred to Pinckneyville by the VAMC. In a June 2012 VA medical opinion, a different VA physician, a gastroenterologist, indicated that he had reviewed the Veteran's claims file, including VA medical records and private medical records from Pinckneyville Community Hospital. He referred to the detailed chronology of events summarized in prior medical opinions. He discussed several medical findings in the medical records which he found significant. Specifically, the Veteran was admitted to Marion VAMC on October 30, 2003 with lower abdominal pain and distention, and low back pain. He received prompt surgical consultation. He indicated that the VA doctor addressed the possibility of volvulus, reviewed X-ray studies including a barium enema that he ordered, and correctly proceeded with colonoscopy. Within three hours of the initial consultation the Veteran underwent a barium enema and a diagnostic/therapeutic colonoscopy with evidence of decompression. There were no immediate complications from colonoscopy and none of the subsequent clinical events can be considered delayed complications related to the procedure. During the remainder of this hospitalization, the recorded physical examinations did not suggest a recurrence of bowel obstruction or adynamic ileus. However, it should be noted that a KUB requested on November 2003 was interpreted as demonstrating "considerable gaseous distention of colonic loops." There is no reference in the medical record referring to these results. The Veteran was treated with stool softeners and laxatives with unclear results throughout his stay. The issue of volvulus and the dangers of surgical treatment were discussed with the patient and his wife. The VA physician opined that the decision not to proceed was appropriate given the patient's age, co-morbidities, and the absence of a definitive diagnosis of volvulus. At the time of transfer to Pinckneyville on November 7, 2003, the Veteran was stable with no overt signs of bowel obstruction. He received physical therapy at Pinckneyville Skilled Nursing (PSN), where he resided from November 7, 2003 to November 17, 2003 when he was transferred to Pinckneyville Community Hospital (PCH). During his stay it was clear that he had reduced food intake by mouth, and few bowel movements despite receiving milk of magnesia and stool softeners. Although these suggest slow transit, ileus, or obstruction, the event that precipitated transfer to PCH and subsequent transfer to Marion VAMC the next day was an acute upper GI bleed. He was appropriately managed at both PCH and Marion VAMC for this diagnosis. At the time of admission, bowel obstruction was also suspected based on the history and physical examination, and he was treated with NG decompression. Although bowel obstruction was not specifically addressed with imaging studies, the recorded physical examinations were not consistent with bowel obstruction during the subsequent hospital days including the last recorded examination on November 27, 2003. At the time of transfer back to PSN on November 28, 2003, his blood counts had been stable with no evidence to suggest ongoing bleeding or an acute abdomen. Early on December 1, the Veteran had hematochezia and became hypotensive. Transfer back to Marion VAMC was precluded due to the unavailability of ICU beds, so the Veteran was transferred back to PCH. He developed multisystem failure and expired despite the administration of pressors and antibiotics. Bowel obstruction possibly related to a volvulus is one of several possible explanations for his acute decompensation. However, there is no direct evidence to support a specific etiology. The VA gastroenterologist indicated that the November 26, 2003 note by a VA nurse referred to a working admission problem list, or in other words, GI bleeding and hypotension were two of the Veteran's problems at admission to that inpatient stay. He said that the then-current state of those problems was best addressed in the preceding note by an M.D., to the effect that an EGD showed diffuse gastritis with no active bleeding, and that with respect to hypotension, this was probably secondary to GI bleed, and was resolved. He opined that the evidence did not indicate a definitive cause of death. However, it was clear that the death was not caused by care or surgical treatments received at Marion VAMC, or for that matter at PCH. It was possible that recurrent bowel obstruction possibly from a volvulus was the precipitating factor leading to his acute deterioration. However, this diagnosis was thoroughly evaluated during the October 30, 2003 Marion VAMC hospital admission. Recurrence cannot be predicted, nor were there any means to prevent recurrence given the Veteran's co-morbidities which made him a poor surgical candidate. Furthermore, based on the available data there is no definitive evidence that the patient actually had a volvulus during any of the admissions. An adynamic ileus with bowel distention, which would not have been amenable to surgical intervention, is an equally plausible explanation for the bowel findings. Thus, he did not believe that the evidence demonstrates that the Veteran's death was caused by VA hospital care or surgical treatment, nor was it the result of a failure to timely diagnose and properly treat a disease or injury. III. Analysis In developing this claim for DIC under § 1151, VA has obtained multiple medical opinions, including two opinions provided by the same doctor in May 2004 and December 2009, and most recently by a VA gastroenterologist in June 2012, and has obtained and reviewed the extensive VA and private medical records of the hospitalizations from October 2003 to early December 2003. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of all of the evidence of record and for the reasons and bases discussed below, the Board finds that the preponderance of the competent and probative evidence tends to refute the appellant's claim that VA treatment caused or contributed to cause the Veteran's death. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability or death; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. First, the Board notes that the evidence clearly demonstrates that the Veteran died in a private facility, three days after he was transferred there from the Marion VAMC. The appellant essentially asserts that the prior VA hospitalization and treatment, and/or the transfer to Pinckneyville Community Hospital, resulted in his subsequent death. While claims file review is not required for a medical opinion to have probative value, it must be clear from the record that the opinion provider was aware of any pertinent facts relevant to determining the etiology of a disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (finding that the relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion). The claims file contains three VA medical opinions (by two doctors) which reflect that the consulting physicians reviewed the Veteran's claims file, discussed relevant medical findings in the extensive medical records, gave consideration to the arguments presented by the appellant, and provided a detailed explanation of the rationale for the opinions. In each opinion, the VA physicians found that the Veteran's death was not the result of VA hospitalization, treatment, or procedures, including the October 30, 2003 colonosopy. These opinions are deemed by the Board to be competent, credible, and of high probative value, and they weigh heavily against the appellant's claim. The appellant has not presented or identified any medical evidence refuting the VA examiners' unfavorable conclusions, other than Dr. P.'s concerns prior to the transfer that he was not stable. However, Dr. P.'s admission notes dated on November 28, 2003 reflect that he found him to be stable upon examination. He also described him as doing relatively well until December 1, 2003. Despite the appellant's contentions regarding alleged internal bleeding caused by the October 30, 2003 colonoscopy, the competent medical evidence reflects that there were no complications from this procedure, and in fact, his condition was improved after the procedure, with reduced abdominal distention and pain, and improved breathing. The appellant has asserted that the Veteran's condition steadily worsened after his October 30, 2003 colonoscopy. The appellant is certainly competent, even as a layman, to comment on matters within the perception of her five senses, such as her observations of the Veteran's physical condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, with respect to her contention that there was a rupture and internal bleeding due to the October 30, 2003 colonoscopy, the Board notes that these assertions are simply not verified by the contemporaneous medical records. Moreover, VA doctors (including a gastroenterologist) with relevant expertise found that good medical judgment was used and there were no complications from the procedure. The Board finds that the statements by the appellant in this regard are not competent or credible. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Her lay testimony concerning this has to be both competent and credible to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Moreover, the ultimate probative value of her lay testimony is not determined in a vacuum or isolation, rather, in relation to the other relevant evidence in the file, including the pertinent medical evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Even assuming that the Veteran's death were the result of VA treatment during his final VA hospitalization or his alleged premature transfer to Pinckneyville Community Hospital, to substantiate the appellant's claim for DIC under 38 U.S.C.A. § 1151, the evidence must also show that some element of fault on the part of VA was the proximate cause of the Veteran's death, or that his death was due to an event not reasonably foreseeable. There is no indication in the competent evidence of record that VA fault (carelessness, negligence, lack of proper skill, error in judgment, et. al.) was in any way a factor in causing the Veteran's death. Similarly, the VA examiners have opined that the VA treatment was appropriate. These opinions were based on review of the complete record and the appellant has presented no evidence to the contrary. The standard of medical care provided is essentially a medical question, and, because she is a layperson, the appellant's own opinion that there may have been some fault on the part of VA is not competent evidence in the matter. As to whether the Veteran's death resulted from an event not reasonably foreseeable, it is noteworthy initially that there is no evidence in the record that the VA treatment alleged to have contributed to cause the Veteran's death was without his wife's informed consent. Finally, the weight of the competent evidence does not show that the Veteran's death was caused by VA hospitalization or treatment and that the disability resulted from an event not reasonably foreseeable. In summary, the preponderance of the evidence is against a finding that the Veteran's death following VA treatment was the result of fault on the part of VA, or was the result of an unforeseen event due to VA treatment. The criteria for establishing entitlement to DIC under 38 U.S.C.A. § 1151 are not met, and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to DIC under 38 U.S.C.A. § 1151 is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs