Citation Nr: 1319322 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-03 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to May 1955 and from March 1957 to March 1960. He died in September 2005, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Appellant provided testimony at a hearing before an Acting Veterans Law Judge (AVLJ) in August 2007. However, the AVLJ who conducted that hearing is no longer active with the Board. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the Board member who conducted a hearing. 38 C.F.R. § 20.707. Accordingly, the Appellant was sent correspondence in May 2012 informing her of this fact, as well as her right to a new hearing. She responded that she wanted a new hearing, and subsequently testified before the undersigned VLJ in November 2012. Transcripts from both hearings are of record. This case was previously before the Board in June 2009, August 2012, and February 2013, at which time it was remanded for further development. In pertinent part, the Board directed that VA medical records be obtained regarding treatment the Veteran received at the Gainesville VA Medical Center (VAMC) from August to September 2005; and competent medical opinions be promulgated regarding this case. Additional VA medical records were associated with the claims folder, and additional VA medical opinions were promulgated in August 2010 and May 2013. The case was also remanded to comply with the Appellant's request for a new hearing, which as noted in the preceding paragraph was accomplished in November 2012. All other development directed by the Board's prior remands in this case appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See 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). FINDINGS OF FACT 1. The Veteran's death certificate shows that he died at the Gainesville VAMC in September 2005. The immediate cause of death, as listed on the death certificate, was multi system organ failure, with liver failure and appendicitis listed as underlying causes. No autopsy was performed. 2. The preponderance of the competent evidence of record is against a finding that the cause of the Veteran's death was due carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or lack thereof; nor was it due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for DIC pursuant to 38 U.S.C.A. § 1151 are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Appellant was sent pre-adjudication notice via a letter dated in February 2006, which is clearly prior to the April 2006 rating decision that is the subject of this appeal. She was also sent additional notification via a July 2006 letter, followed by readjudication of the appeal by the December 2006 Statement of the Case (SOC) which "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters informed the Appellant of what was necessary to substantiate her current appellate claim, what information and evidence she must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine an effective date. The Board also notes that the Appellant has actively participated in the processing of this case, and the statements submitted in support of her claim, to include from her accredited representative, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate this claim and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Appellant has had the opportunity to present evidence and argument in support of her claim, to include at the August 2007 and November 2012 Board hearings. Nothing indicates she has identified the existence of any relevant evidence that has not been obtained or requested. With respect to the aforementioned hearings, the Court held 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 explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the respective hearings, the August 2007 AVLJ and the undersigned VLJ both accurately noted the current appellate issue and asked questions to clarify the Appellant's contentions. Additionally, the Appellant, through her testimony and other statements of record, demonstrated that she had actual knowledge of the elements necessary to substantiate this claim. 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 either the August 2007 or November 2012 Board hearing. As such, the Board finds that no further action pursuant to Bryant is necessary, and the appellant is not prejudiced by a decision being rendered at this time. The Board further notes that competent medical opinions were obtained in March 2006 (with an August 2010 addendum) and May 2013 which addressed the Appellant's contentions regarding the cause of the Veteran's death. As these opinions were based upon an accurate understanding of the Veteran's medical history and the circumstances surrounding his unfortunate death based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No prejudice is demonstrated with respect to these medical opinions. Accordingly, the Board finds that this development is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis The Veteran's death certificate shows that he died at the Gainesville VAMC in September 2005. The immediate cause of death, as listed on the death certificate, was multi system organ failure, with liver failure and appendicitis listed as underlying causes. No autopsy was performed. The Appellant contends that a delay in providing services and mistreatment at the Gainesville VAMC in August 2005 "contributed to the Veteran's death." She also alleges that had the Veteran been scheduled for surgery sooner he might have lived. She argues that the unexplained approximately three and one-half hour delay between the time the Veteran was transferred to the operating room and the start of the surgery had a negative impact on the outcome of his treatment. In an October 2005 statement, the Veteran's sister, a retired physician, noted that there was a 12-hour delay between when the Veteran was diagnosed with appendicitis and when he underwent surgery and opined that this delay in care was responsible for the inability of the Veteran to recover. Thereafter, in a November 2010 statement, the Veteran's sister indicated that the Appellant recalls the Veteran visiting his primary care physician at the VAMC in Gainesville a few days prior to his presentation to the emergency room in August 2005. She stated that the Veteran complained of abdominal pain at that time, but was diagnosed with gastroenteritis and scheduled for a gastrointestinal clinic visit a week later. The Veteran's sister indicated that she and the Appellant could not obtain copies of those records. She stated that if the symptoms and examination findings were consistent with an appendicitis and had been properly diagnosed, the Veteran's appendix rupture and subsequent organ failure would not have occurred. Under the current provisions of 38 U.S.C.A. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2012). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2012). In March 2006, a VA physician provided an opinion that it was less likely than not that the Veteran's death was due to carelessness, negligence, lack of proper care or error in judgment or similar fault on the part of VA. The examiner noted the Veteran's significant past medical history of coronary artery disease with two vessel coronary artery bypass graft and heart valve replacement, chronic obstructive pulmonary disease, and history of alcohol abuse with abnormal liver function tests. Thereafter, the examiner provided a narrative of the events: On August 19, 2005, the Appellant called the VA telephone triage number to report that the Veteran was experiencing a high temperature and abdominal pain, and in response was told to take him to the emergency room (ER). The Veteran arrived at the Gainesville VA ER at 15:45 and was evaluated by a triage nurse shortly thereafter. Following additional testing, the Veteran went for a CT scan at 19:15, the results of which indicated the presence of appendicitis. The Veteran subsequently underwent an appendectomy, with the operation beginning at 00:50 on August 20 and ending at 01:40. The Veteran did well in the immediate postoperative period, but on approximately postoperative day two he began to experience atrial fibrillation, respiratory distress, and deteriorating mental status. He was then transferred back to the ICU where he required intubation for respiratory failure. He suffered a stormy course over the next several weeks with several prominent issues. The family elected a DNR (do not resuscitate) status for the Veteran and he expired on September [redacted], 2005. The March 2006 VA physician also noted that in an October 2005 letter, a family member described a comment made by an unnamed staff member in the ER created a perception of lack of concern about the Veteran's condtion. In addition, the family member claimed that there was "at least a 12 hour delay" in surgery, problems with the availability of a surgeon, and expressed a belief that this delay resulted in the Veteran's eventual demise. The VA physician noted that documentation showed the Veteran did not arrive in the ER until 15:45; at that time his temperature was mildly elevated and other vital signs were stable; an appropriate diagnostic workup was immediately initiated; appropriate tests were ordered, performed, interpreted, and acted upon within reasonable time frames; appropriate consultation was ordered and performed in the ER within reasonable time frames; and in less than 6 hours from initial presentation, the appropriate workup (including abdominal CT requiring oral contrast ingestion) had been ordered/completed, appropriate consultation was ordered/completed; preoperative anesthesia evaluation ordered and completed; and the Veteran was en route to the operating room by 21:30. In the VA physician's opinion, this represented good care delivered in a timely fashion; there was no delay, carelessness, negligence, lack of proper skill, or judgmental errors in the care provided in the ER. The March 2006 VA physician did acknowledge that the operative note indicated the surgical procedure began at 50 minutes after midnight; which was more than 3 hours after the Veteran left the ER. However, the records did not contain a clear cut delineation of what transpired during this interval; whether or not there was a problem with surgical staff unavailability or whether or not there was a planned or unplanned delay in the surgery. Regardless, the operation was completed without apparent incident or complication, and the Veteran did well in the immediate postoperative period. Further, the postoperative surgical and anesthesia notes did not indicate any serious or unexpected problems during the surgery or in the immediate postoperative period. In an August 2010 addendum, the March 2006 VA physician indicated that the Veteran's records had been reviewed (which would have included additional VA medical records associated with the claims folder per the Board's remand). The VA physician opined that the Veteran's death was less likely as not (less than 50/50 probability) caused by or a result of VA hospitalization, or VA medical or surgical treatment. In support of this opinion, the VA physician noted that the claims folder was reviewed; and that medical documentation did not demonstrate Veteran's death was caused by VA hospitalization, or VA medical or surgical treatment. In May 2013, a different VA physician noted that a review of the Veteran's treatment records indicated he was seen in July 2005 for complaints of fatigue and weakness off and on for weeks, sleeping all the time, poor appetite and upset stomach. The Veteran was scheduled for a return visit in August 2005, and on the date of that planned return visit is when the Appellant called expressing concern with the Veteran's fever, etc., and was directed to take the Veteran to the ER for evaluation of abdominal pain/fever. The November 2010 statement from the Veteran's sister was also summarized. VA treatment records from July through August 2005 were detailed in the body of this report. It was the VA physician's opinion that when the Veteran was seen by Primary Care on August 11, 2005, prior to his ER visit later that month, there was no indication from the documentation, including the Veteran's spouse's telephone call, and the physician's evaluation and Veteran's obtained history to suggest the Veteran was experiencing abdominal pain. Further, it was stated that when the Veteran presented to the ER later that month, the Veteran's symptoms and examination findings were consistent with appendicitis and he was promptly and appropriately diagnosed and taken to the operating room, where it was found that the Veteran's appendix had ruptured, and which led, despite appropriate care from the VAMC, to his eventual death from organ failure. Moreover, the VA physician stated that he could find no evidence of the Veteran's death being the direct result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment, or not a reasonably expected result or complication of the VA care or treatment. The VA physician also cited to relevant notations in the record in support of this opinion. The VA physician further cited to medical literature to note that the overall mortality rate for appendicitis was less than 1 percent, but it increased to 3 percent if the appendix is ruptured and approached 15 percent in the elderly. In this case, the VA physicians who promulgated the March 2006 (with August 2010 addendum) and May 2013 opinions, as well as the Veteran's sister, are identified as physicians and are presumably competent to render a medical opinion. The VA physicians were familiar with the Veteran's medical history and circumstances surrounding his death from review of his VA claims folder. The Board does not doubt that the Veteran's sister was also familiar with her brother's health and the circumstances surrounding his death. However, it does not appear that she had the benefit of actually reviewing the treatment records for the period leading up to his August 2005 hospitalization, or the subsequent hospitalization records. As such, it appears the VA physicians were more familiar with the nature of the Veteran's overall medical condition in the period surrounding his death. The Board further notes that the VA physicians' opinions concluding that there was no carelessness, negligence, lack of proper skill, or error in judgment on VA's part in the Veteran's death, nor was it due to an event not reasonably foreseeable, is supported by stated rationale with reference to relevant evidence in the record. These opinions are not expressed in equivocal or speculative language. Moreover, they specifically address the contentions of the Veteran's sister on this matter. The Board must also note that its own review of VA treatment records on file does not indicate any reference to the Veteran complaining of abdominal pain in the weeks leading up to August 2005 when the Appellant's phone call lead to his going to the ER and the subsequent surgery. Although the Appellant may recall the Veteran having such complaints prior to that time, as noted in the November 2010 statement from the Veteran's sister, the VA treatment records themselves do not indicate such complaints were actually conveyed to VA prior to the Appellant phone call. Further, as detailed above by the March 2006 VA physician, the record does not reflect there was a 12 hour delay from the time the Veteran was diagnosed with appendicitis and when he underwent surgery. In other words, it appears that the statements from the Veteran's sister are based upon some inaccurate factual premises. No other basis for finding fault on the part of VA regarding the cause of the Veteran's death has otherwise been alleged by the Veteran's sister or any other competent medical care provider. For these reasons, the Board finds that the opinions of the March 2006 and May 2013 VA physicians' are persuasive, and entitled to more probative weight than the opinions provided by the Veteran's sister. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the cause of the Veteran's death was due carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or lack thereof; nor was it due to an event not reasonably foreseeable. Therefore, DIC is not warranted under 38 U.S.C.A. § 1151. In making this determination, the Board does not doubt the sincerity of the Appellant's contentions. However, the question of whether the Veteran received appropriate medical treatment for the complaints/symptoms he experienced in 2005 which ultimately resulted in his death involves complex medical issues, which the Board finds requires competent medical evidence to resolve. Here, nothing on file shows that the Appellant has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, her contentions as to the relationship between his VA treatment and his death do not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). For these reasons, the Board must find that the preponderance of the evidence is against the Appellant's DIC claim pursuant to the provisions of 38 U.S.C.A. § 1151, and it must be denied. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Entitlement to DIC pursuant to 38 U.S.C.A. § 1151 is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs