Citation Nr: 1328469 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-06 292 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran, who died in 2008, served on active duty from April 1965 to January 1967. The appellant is his surviving spouse. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the RO. FINDINGS OF FACT 1. In mid-2008, the Veteran was hospitalized by VA for a below-the-knee amputation of his left lower extremity, due to his service-connected peripheral neuropathy associated with Charcot's foot. 2. During his VA hospitalization, the Veteran died as a result of asphyxia due to airway occlusion caused by aspiration of a food bolus. 3. The fatal asphyxia due to airway occlusion was not caused by the Veteran's VA hospital care or medical or surgical treatment. CONCLUSION OF LAW The criteria have not been met for DIC pursuant to 38 U.S.C.A. § 1151. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether VA has met its statutory duty to assist the appellant in the development of her claim for VA DIC. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. Shortly after the Veteran's death, VA received the claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA informed the appellant her of the criteria for the establishment of DIC. VA notified her of the information and evidence necessary to substantiate and complete her claim, including the evidence to be provided by her, and notice of the evidence VA would attempt to obtain. In claims for DIC, the content of the duty to assist notice letter depends upon the information provided in the claimant's application. That is, the notice letter should be "tailored" and must respond to the particulars of the application submitted. Hupp v. Nicholson, 21 Vet. App. 342 (2007). 38 U.S.C.A. § 5103(a). The notice letters of August and September 2008 were sufficiently tailored to the essential issue of this matter: whether the Veteran died as a result of VA negligence during a VA hospitalization. Although these letters did not specify the disorders which were service-connected at the time of the Veteran's death, it cannot be doubted that the appellant was aware of this information because the appellant through her representative noted the disorders in a February 2010 statement. She was sent notices of the evidence to substantiate a claim for DIC both on the basis of service connection for the cause of the Veteran's death and to substantiate a claim for DIC pursuant to 38 U.S.C.A. § 1151. Moreover, during the course of the appeal, she and her representative demonstrated a familiarity with the criteria for DIC in several pieces of correspondence. In the April 2009 Notice of Disagreement, the January 2010 Substantive Appeal, and in a July 2013 statement, the appellant and her representative showed familiarity with the criteria for DIC and the evidence necessary to substantiate her claim, and in July 2013, the representative argued VA's negligence during the hospitalization. The purpose of the notice was therefore served. Following the notice to the appellant, VA fulfilled its duty to assist her in obtaining identified and available evidence necessary to substantiate her claim. VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his treatment by or through private health care providers from January 2003 through January 2007; records reflecting the Veteran's VA treatment from January 2003 through June 2008; and copies of the Veteran's death certificates completed on June 21, 2008 and June 23, 2008. During the course of the appeal VA also offered the appellant an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, she has declined that offer. With respect to VA's duty to assist the appellant in the development of her DIC claim, the Board has considered the possibility of obtaining a medical opinion to determine if the Veteran's death was caused by VA hospital care or medical or surgical treatment. 38 U.S.C. § 5103A(a). In this case, however, there is no evidence supporting the theory of causation which would trigger the need for a VA medical opinion to assist in determining the outcome of the appeal. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In sum, the appellant has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support her claim; and there is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas- Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). DIC may be awarded to a Veteran's surviving spouse, children, or parents for death resulting from a service- connected or compensable disability. 38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312 . Generally, where a veteran suffers an injury as a result of hospitalization or medical or surgical treatment or examination under any law administered by VA, and such injury results in the death of the veteran, DIC shall be awarded in the same manner as if the veteran's death was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361 . A death for which VA compensation may be paid qualifies if it was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA and the proximate cause of the disability was either (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 . In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) . 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) . 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 or medical or surgical treatment caused the Veteran's additional disability or death; 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. 38 C.F.R. § 3.361(d)(1) . 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. 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) . A death certificate was completed by T. C., M.D. Dr. C. reported that the Veteran's death was caused by cardiopulmonary arrest due to aspiration. Other significant conditions contributing to death but not resulting in the underlying cause were diabetes mellitus and osteomyelitis. Dr. C. noted that the medical examiner had not been contacted. An associate medical examiner completed a second death certificate showing that the Veteran's death had been accidental and caused by asphyxia due to airway occlusion from aspiration of a food bolus. That document was certified under seal as a true transcript of the death record as recorded in the Medical Examiner's Office and it will be regarded by the Board as the true copy of the Veteran's death certificate. At the time of the Veteran's death, a 100 percent schedular rating was in effect for the following disabilities: peripheral neuropathy of the right lower extremity, evaluated as 60 percent disabling; peripheral neuropathy of the left lower extremity with Charcot's foot, evaluated as 60 percent disabling; coronary artery disease, evaluated as 30 percent disabling; peripheral vascular disease of the right lower extremity, evaluated as 20 percent disabling; peripheral vascular disease of the left lower extremity, evaluated as 20 percent disabling; diabetes mellitus with hypertension, evaluated as 20 percent disabling; and erectile dysfunction, evaluated as noncompensable. The appellant does not contend, and the evidence does not show, that any of the Veteran's service-connected disabilities contributed substantially or materially to cause the Veteran's death. Although the death certificate completed showed that the service-connected diabetes mellitus was a significant condition contributing to death, it was noted that it did not result in the underlying cause, asphyxia. Moreover, that death certificate is not the official record of the Veteran's death. The official record makes no mention of a service-connected disorder as contributing to the Veteran's death. Rather, the appellant maintains that VA was negligent in its care for the Veteran by allowing him to choke on his food causing the fatal asphyxia. She states that the Veteran had never had a previous episode of choking on food and that he should have been monitored more closes in the days following the below knee amputation of the Veteran's left lower extremity. She also contends that his hospital bed had been placed at too low an angle to permit him to eat properly. In addition, she states that his medication caused him to experience a dry mouth but that he had not been provided with adequate liquid during his meal. She reports that this also contributed to his inability to swallow properly. Therefore, she maintains that the Veteran's fatal choking episode was the result of improper medical care and that VA is responsible for his death. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim. Accordingly, the appeal will be denied. A review of the evidence discloses that in mid- 2008, the Veteran was hospitalized by VA for amputation the left lower extremity. The surgery took place and his immediate post- operative course was uncomplicated. Two days after surgery, the Veteran was found in cardiopulmonary arrest with large amounts of food blocking his airway. As a result, he sustained an anoxic brain injury and was unresponsive until his death several days later. That event was unforeseen, as the Veteran's medical history was negative for any evidence of difficulty swallowing or choking episodes. Moreover, there was no evidence that it was the result of the VA hospital care or medical or surgical treatment. There was no evidence that the Veteran's hospital bed had placed the Veteran at such an angle that he had been unable to eat properly. In addition, there was no evidence that he was not hydrated at the time of the meal or that he did not have the necessary amount of liquids available with his meal. In the several days after his surgery, he had been on a regular diabetic diet and had, generally, eaten approximately 75 percent of his meals. There is no evidence on file that he would not have been expected to do so on the evening of May 25. While the Veteran's death occurred during the Veteran's VA hospital treatment for a service-connected disability, there is no competent evidence that it is in any way related to that treatment. Absent such a relationship, the appellant does not meet the criteria for DIC pursuant to 38 U.S.C.A. § 1151. Accordingly, the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). CONTINUED ON NEXT PAGE ORDER Entitlement to DIC pursuant to 38 U.S.C.A. § 1151 is denied. ____________________________________________ VITO A CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs