Citation Nr: 1318182 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-07 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to Dependency and Indemnity Compensation benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1957 to November 1960. He passed away in March 2005, and the appellant is his surviving spouse. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2012, the appellant presented testimony at a hearing conducted at the RO before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims file. During the course of this appeal, the RO issued a May 2008 rating decision which denied entitlement to service connection for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1310. A timely notice of disagreement was not received, and this decision became final. See 38 U.S.C.A. § 7105. The appellant has since raised the issue of whether new and material evidence has been submitted to reopen this claim. As this issue has not been adjudicated by the RO, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. FINDING OF FACT The Veteran's death was not proximately caused by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in furnishing medical treatment to the Veteran; nor was such the result of an event which was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice should also address the rating criteria or effective date provisions that are pertinent to the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A June 2005 letter advised the appellant of the foregoing elements of the notice requirements concerning the Veteran's claim of entitlement to Dependency and Indemnity Compensation benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151. Accordingly, the RO effectively satisfied the notice requirements with respect to the issue on appeal. VA has assisted the appellant in obtaining all pertinent medical evidence and afforded the appellant the opportunity to give testimony before the Board. In addition, VA obtained a medical opinion from a VA examiner that had reviewed the Veteran's claims file in December 2007. This medical opinion is more than adequate, as it is predicated on a full reading of the claims file, and the VA examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. Given the complexity of the 38 U.S.C.A. § 1151 claim, VA also obtained an independent medical opinion in this case. Specifically, a medical opinion from a private physician was obtained in January 2013. This opinion was based upon a complete review of the Veteran's claims file, and included a supporting rationale from the reviewing physician. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 473. As such, VA has complied, to the extent required, with the duty-to-assist requirements. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)-(e). The appellant contends that VA is responsible for the Veteran's death in March 2005. Specifically, she contends that the Veteran developed an infection as a result of the medical care provided by VA, and that this condition in turn resulted in his death. Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997 were amended. See 69 Fed. Reg. 46,426 (Aug. 3, 2004). Those regulations implemented the provisions of 38 U.S.C.A. § 1151 and were codified at 38 C.F.R. § 3.361. With respect to claims filed on or after October 1, 1997, 38 U.S.C.A. §1151 provides, in pertinent part, that compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability was service connected. A disability is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and 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. To determine whether additional disability exists within the meaning of 38 U.S.C.A. § 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 program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. See 38 C.F.R. § 3.361(b) (2012). 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. See 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 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 additional disability or death is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 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 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 (see 38 C.F.R. § 3.361(c)) and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. See 38 C.F.R. § 3.361(d)(1). Finally, the determination of whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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. See 38 C.F.R. § 3.361(d)(2). The regulation further provides that, 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. See 38 C.F.R. § 3.361(d)(2). On November 24, 2004, the Veteran is shown to have underwent a cardiac catheterization procedure at the Nashville VA Medical Center (VAMC). Hospitalization records were silent as to any reported or observed operative complications. The Veteran was discharged on November 25, 2004. A few days later, the Veteran developed symptoms of bruising, swelling and pain in the right groin near the catheterization site and severe pain in the right foot, especially over the heel and great toe. The pain was intolerable, so he presented to a private hospital, which in turn sent him to the Nashville VAMC on December 3rd. The hospitalization report from the Nashville VAMC noted that the Veteran was admitted on December 3, 2005. At that time, the Veteran was found to have fever, groin pain, and discoloration of the right great toe. After several tests were completed, blood cultures were taken of the catheterization site and were returned as positive for Methicillin-sensitive Staphylococcus Aureus (MSSA). It was then suspected that the Veteran had endocarditis. The report noted that the Veteran was initially treated with Vancomycin, and was later transitioned to intravenous (IV) cefazolin when the infectious organism was identified as MSSA. Subsequent blood culture tests, performed in December 8th and 9th, were negative for MSSA. On December 13, 2005, the Veteran was discharged to home, still on IV cefazolin, the administration of which was to last several weeks. A January 10, 2005 treatment report noted that the Veteran was to discontinue his IV cefazolin. On February 21, 2005, the Veteran was admitted to the Nashville VAMC with complaints of chest pain. A cardiac catheterization was performed on February 23, 2005. No complications relating to this procedure were noted, and the report noted that the Veteran was recommended for medical management. He was discharged on February 24, 2005, with a follow-up appointment to be held in the heart failure clinic in one week. On February 28, 2005, the Veteran was admitted to the Murfreesboro VAMC with a one-week history of recurrent dizziness and accidental falling. The hospitalization summary noted that the Veteran had multiple comorbidities including hypertension, coronary artery disease, restless leg syndrome and chronic obstructive pulmonary disease (COPD). The Veteran presented with an episode of falling while walking around in his house, stating that his legs gave out under him without any prodromal symptoms. The appellant confirmed that changes were recently made to the Veteran's restless leg syndrome medications and that soon afterwards the falls started. Upon further testing, a working impression of carbon dioxide narcosis was made which may have accounted for the fall episodes. The Veteran was noted to have neutrophilic leukocytosis, which was believed to be due to IV steroids he was on. A chest x-ray revealed no infiltrate, and blood and urine cultures were both negative. The records further noted an episode of community acquired pneumonia during this time (in the clinical records, apart from the hospitalization summary). The Veteran subsequently responded to treatment with leukocytosis resolved, and hypercapnia improved. He was discharged on March 9, 2005. On March [redacted], 2005, the Veteran was admitted to a private hospital. The hospitalization report noted his history of having developed nausea and vomiting, increasing weakness, dry mouth and dark urine. It further noted that he had been discharged from the VA hospital on March 9, 2005 after being treated for pneumonia and COPD exacerbation with retention of CO2. Following a physical examination, the Veteran was transferred to the Intensive Care Unit. It was observed that the Veteran appeared to be in shock with hypotension which had not responded to IV fluids, despite an aggressive fluid resuscitation. Repeat lab data showed no significant improvement in renal function. Cultures did come back showing gram positive cocci in pairs and clusters. The specific identification of organism was not initially available. The cause of the Veteran's condition was identified as gram positive sepsis with multi-organ failure. The Veteran was also in a state of respiratory failure. A comfort level of care was provided, and the Veteran expired later that evening. Blood culture study results obtained the following day confirmed that the Veteran had MRSA. The Veteran's death certificate, dated in March 2005, noted that he passed away on March [redacted], 2005, at the age of 65. The report listed the immediate cause of death as multi-organ failure. It also listed Staphylococcus Aureus sepsis (MRSA), unknown source, as an underlying cause of death; and COPD as a condition contributing to death, but not resulting in the underlying cause. In June 2012, the appellant, the Veteran's widow, testified that just prior to the Veteran's March 9, 2005 discharge from the Murfreesboro VAMC, his VA treatment providers had informed her that the Veteran still had a septic condition, but told her that it was not any form of Staph infection. According to the Veteran's widow, the Veteran's treating VA physician did not speak with her as promised at the time of discharge for the purpose of explaining the Veteran's state of health. The appellant further alleged that the Veteran's 10-day period of hospitalization at the Murfreesboro VAMC was the source of his MRSA infection, and that it should have been diagnosed earlier while the Veteran was still at that facility, explaining that it was unlikely that the infection would have otherwise developed to such a severe level within just the one day after his VA hospital discharge. In December 2007, a VA medical opinion was obtained regarding the question of whether the Veteran's death was the result of faulty or negligent VA medical care. Following a review of the Veteran's claims file, the VA examiner opined that the Veteran's death was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part the VAMC. In support of this opinion, the VA examiner stated: Rationale: The Veteran died 3/[redacted]/2005 from MRSA sepsis with multi-organ failure. Blood cultures collected 3/[redacted]/2005 during that hospitalization grew Staph. Aureus that was resistant to oxacillin. This is also called Methicillin-resistant Staphylococcus Aureus or MRSA. The Veteran underwent cardiac catheterization with stent placement at the Nashville VAMC on 11/24/2004. There were no immediate complications following this procedure, however, on 11/30/2004 the Veteran developed right groin pain at the insertion site for the cardiac catheterization and pain and discolorization of the right great toe. He developed a fever and was admitted back to the VAMC on 12/3/2004. Blood cultures obtained on 12/3/2004 grew Methicillin-sensitive Staphylococcus Aureus, also called MSSA. The Veteran had a transesophageal echocardiogram that did not show any vegetation. Based on my review of this hospitalization, I feel it is most likely the Veteran developed endarteritis from the cardiac catheterization site. The Veteran was treated with appropriate antibiotics and on 12/8/2004 follow up blood cultures were normal. He was discharged home on 12/13/2004 with a PICC line and home health nursing to receive four more weeks of cefazolin 2GM IV Q8. This was completed on 1/10/2005. My review of his cardiac catheterization and the subsequent hospitalization in 12/2004 did not find any evidence of carelessness, negligence, lack of proper skill or error in judgment. The infection that followed the cardiac catheterization is a known potential complication of the procedure. He was treated appropriately following the finding of the infection and the Veteran appeared to have improved following treatment. The Veteran was admitted to the VA hospital 2/28/2005 after several falls and was also found to be hypercapnic and to have a left lower lobe pneumonia. His pneumonia was treated with azithromycin and the Veteran clinically improved with a resolution of his leukocytosis. He was discharged on 3/9/2005. Nursing note from 3/9/2005 documents a good IV site without signs of infection. Blood cultures obtained during this admission were negative. My review of this hospitalization did not find any evidence of carelessness, negligence, lack of proper skill or error in judgment. The Veteran was treated appropriately during this hospitalization and appeared to have improved following treatment. Unfortunately, the Veteran's symptoms quickly worsened following his discharge and he was admitted to Memorial Hospital in Chattanooga, Tennessee on 3/[redacted]/2005. Blood cultures from 3/[redacted]/2005 grew Staph. Aureus that was resistant to oxacillin. This is also called Methicillin-resistant Staphylococcus Aureus, or MRSA. The Veteran developed sepsis with multi-organ failure and died on 3/[redacted]/2005. The Staph. Aureus infection he had that resulted in his sepsis and death in 3/2005 is unlikely related to the Staph. Aureus infection the Veteran had during his hospitalization in 12/2004. The second Staph. Aureus infection occurred 2 months after completing appropriate treatment for the first Staph. Aureus infection. There were blood cultures during his treatment for the first Staph. Aureus infection on 12/8/2004 that were negative and there were negative blood cultures on 2/28/2005. Also the drug sensitivities of these two Staph. Aureus infections are different, one being MSSA and the other MRSA, which is also evidence that these infections were not related. In summary, my review of the Veteran's claims file did not find any evidence of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VAMC in Nashville. The Staph. Aureus infection that the Veteran had following his cardiac catheterization in 2004 is a known potential complication of the procedure. The complications were managed appropriately and the Staph. Aureus infection he had at that time (MSSA) was not related to the Staph. Aureus infection (MRSA) that he had in 3/2005 that resulted in his sepsis and death. He was also managed appropriately during his hospitalization from 2/28/05 to 3/9/05. Blood cultures were negative during that hospitalization. Appropriate care was done for his IV sites during that admission as was documented by the nursing note from 3/9/05. His admission to Memorial Hospital on 3/[redacted]/2005 also did identify the likely source of his infection. No obvious cellulitis from a previous IV site was documented. Given the complexity of the current claim, an independent medical opinion was obtained in January 2013. The private physician, J.S., M.D., Clinical Associate Professor of Infectious Disease, University of Wisconsin, noted that the Veteran's claims file had been reviewed. Following this review, Dr. S. opined: In summary, [the Veteran's] death was a foreseeable and a known, natural complication of frequent hospitalizations and invasive procedures which he required for his underlying medical conditions including heart disease and end stage lung disease. His initial MSSA infection in December of 2004 was appropriately and completely treated. He was treated appropriately and had no signs or symptoms of impending sepsis at the time of his discharge from the VAH on 3/9/05. He presented with severe sepsis from MRSA 3/11/05 and had an expected, fulminant course leading to his death but this was not secondary to "carelessness, negligence, lack of proper skill, lack of judgment or similar instance of fault on the part of VA". In support of this opinion, Dr. S. noted that endovascular infection with MSSA is a known and expected complication of catheterization procedure; and that the Veteran was subsequently cured of this infection by the treatment provided by VA as demonstrated by the multiple subsequent negative blood cultures. Dr. S. then noted that the Veteran's subsequent MRSA, which is a different from MSSA, likely gained access to his blood via a break in the skin, which may have been his IV site, his facial abrasions, or from any other skin break. Once in the Veteran's blood, however, it was only a matter of time until he became septic. At that point, even with optimal treatment, mortality rates are high. Dr. S. noted that sepsis from MRSA is common and deadly. Specifically, the physician indicated that many people die within hours in the setting of severe sepsis, and that this condition kills approximately 19,000 patients annually in American hospitals. Following a review of the evidence in this case, and the applicable laws and regulations, the preponderance of the evidence is against the appellant's claim for compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. The primary inquiry is whether the Veteran's death was caused by VA care, treatment, or examination and if so, whether the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, or an event not reasonably foreseeable. As noted above, to establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, it must be shown that the care, treatment, or examination caused the Veteran's death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. See 38 C.F.R. § 3.361(d)(1). The appellant contends that the Veteran developed an infection as a result of the VA medical care he received. The Board ultimately finds the appellant's statements and testimony in this regard to be competent. See Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). However, the appellant's statements and testimony are not competent evidence sufficient to establish that the proximate cause of the Veteran's death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, or an event not reasonably foreseeable. Accordingly, any such lay statements made by the appellant in this regard are entitled to limited, if any, probative value since she lacks any medical training. See 38 C.F.R. § 3.159(a)(1) (2012). Both the VA examiner in December 2007 and the private physician in January 2013 opined that the Veteran's death was not proximately caused by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in furnishing medical treatment to the Veteran; nor was such the result of an event which was not reasonably foreseeable. These opinions were rendered based upon a complete review of the Veteran's claims file, and both physicians provided supporting rationale for this conclusion. While there are no consent forms associated with the claims file, the appellant does not allege, nor does the record reflect, that the Veteran was ever treated without informed consent. Notably, however, consent may be express (i.e., given orally or in writing) or implied under the circumstances, as in emergency situations. 38 C.F.R. § 3.361(d)(1)(ii). As the Veteran is shown to have sought care which lead to his hospitalizations, consent may be implied. As such, there is no indication of record that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Regarding the issue of the foreseeability of death, the private physician in January 2013 concluded that the Veteran's death was a foreseeable and a known, natural complication of frequent hospitalizations and invasive procedures which he required for his underlying medical conditions including heart disease and end stage lung disease. The VA physician in December 2007 noted that an infection following a cardiac catheterization is a known potential complication of the procedure. Finally, the appellant has submitted a copy of an internet article from the Mayo Clinic which noted that risk factors for health care-associated MRSA include a current or recent hospitalization and invasive devises. While it is unfortunate, infection is certainly foreseeable. 38 U.S.C.A. § 1151 makes clear that compensation is awarded when VA care, treatment, or examination caused the Veteran's death and the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, or an event not reasonably foreseeable. As noted above, however, the competent, probative evidence of record does not show that VA care, treatment, or examination caused the Veteran's death. Therefore, any argument concerning the foreseeability of the Veteran's death is moot. Accordingly, the appellant's claim of entitlement to DIC benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 is not warranted, and the claim must be denied. As the preponderance of the competent and probative evidence is against the appellant's claim for entitlement to DIC benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151, the benefit-of-the-doubt doctrine is not applicable in this case. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). ORDER Entitlement to Dependency and Indemnity Compensation benefits for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs