Citation Nr: 1330077 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-13 675 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to dependency and indemnity compensation (DIC) based on the Veteran's death pursuant to the provisions of 38 U.S.C.A.§ 1151. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The appellant and a witness ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to January 1967. He died in November 2007; the appellant is the Veteran's widow. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the RO. In September 2011, the Board requested a VHA medical opinion in connection with the appeal. Subsequently, the Board remanded the case in June 2012 for additional development of the record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's death is not shown to have been proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical care to him for the period of October 24 to November 3, 2007. 2. The Veteran's death was not caused by an event that was not reasonably foreseeable that was due to VA medical treatment. CONCLUSION OF LAW The criteria for the award of dependency and indemnity compensation (DIC) for the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 are not met. 38 U.S.C.A.§§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in January and April 2008 letters issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence was needed to substantiate her claim, as well as what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The Board notes that the January and April 2008 letters did not explain how disability evaluations and effective dates are assigned. However, as the instant claim denies a grant of service connection, no rating percentage or effective date will be assigned, and thus this notice deficiency is deemed moot. In sum, the January and April 2008 letters which meets Pelegrini's content of notice requirements also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the Veteran's VA and private treatment records, a September 2008 VA medical opinion and the October 2011 medical opinion received by the VA medical expert in response to the VHA medical opinion request. Further, the Board is aware that the issue was remanded by the Board in June 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). In pertinent part, that remand requested that the RO readjudicate the appeal following the receipt of the additional evidence of record in accordance with 38 C.F.R. §§ 19.31, 19.37. This development was completed in January 2013. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant was an active participant in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Additionally, the appellant was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, identified evidentiary deficit, and suggested the submission of additional evidence to support the appellant's claim. The VLJ also accepted submission of additional evidence with waiver of RO consideration. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. Laws and Regulations 38 U.S.C.A. § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in death or additional disability by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the death or additional disability 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 the proximate cause of death or additional disability was an event which was not reasonably foreseeable, compensation shall be awarded in the same manner as if such death or disability were service connected. The requirement to show that the proximate cause of the veteran's death or additional disability was fault on VA's part or an event which was not reasonably foreseeable was added by amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 and applies to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. As the appellant filed her claim well after October 1, 1997, the amendments to the law apply to this case. To establish causation, the evidence must show that VA hospital care or medical or surgical treatment resulted in the veteran's death or additional disability. Merely showing that a veteran received care or treatment and that he died or 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 or medical or surgical treatment proximately caused a veteran's death or additional disability, it must be shown that the VA hospital care or medical or surgical treatment caused the veteran's death or 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. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable during VA treatment 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The submitted medical certification shows that the immediate cause of the Veteran's death was that of pneumonia due to complications of hypertensive and atherosclerotic cardiovascular disease. The appellant maintains that her husband's death from pneumonia was the result of negligence on the part of VA. Specifically, she asserts that he was discharged from the hospital, three days prior to his death, in a condition that was not stable. The appellant asserts that the VA hospital was negligent for not checking the Veteran's vital signs, especially his pulse oximetry, prior to his being released, because, if they had, they would have known he was in respiratory distress. She further contends that VA failed to discharge him to home with the proper medical equipment, namely oxygen, and failed to follow-up with a home health care worker and a visit. The pertinent medical records show that the Veteran was hospitalized beginning on October 24, 2007, to November 3, 2007 with a primary diagnosis of extrapulmonary sarcoidosis involving the muscles, bone marrow, gut and nervous system with a secondary diagnosis of coronary artery disease, status post myocardial infarction with double coronary artery bypass surgery in 2004. On admission, the Veteran was noted to have a fever and chills. It was also noted that he had been diagnosed with sarcoid myopathy one year earlier and was experiencing progressive weakness of all muscle groups. He was noted to have been in the process of finishing a two week course of Doxycycline for a non-healing right lower extremity ulcer. During his hospital stay, the Veteran had worsening shortness of breath and a low oxygen saturation requirement. A Chest x-ray study showed a complete collapse of the left lung. A bronchoscopy showed a mucus plug partially occluding the left main stem of bronchus. This was suctioned out. Thereafter, the Veteran demonstrated marked improvement. A November 1, 2007, treatment note showed that he was to finish out a course of therapy for possible aspiration pneumonia with Augmentin. The health care provider indicated that he was going to require a better pulmonary toilet at home with an incentive spirometer. With respect to weakness and muscle pain, the Veteran was given steroids without improvement prior to discharge. The Discharge Summary indicated that the Veteran was discharged in stable condition to his home on November 3, 2007, in the company of the appellant. A follow-up appointment was scheduled on November 6, 2007. On November 5, 2007, while bathing him, the appellant reported that the Veteran became unresponsive. He was treated during transfer to the local hospital and underwent cardiopulmonary resuscitation for approximately 30 minutes. The Veteran subsequently expired. An autopsy was performed and the cause of death was listed as pneumonia with autopsy findings of interalveolar acute inflammation and edema, but no bronchial obstruction or pulmonary embolus. In a September 2008 statement, a VA physician noted that a review of the claims file showed that the Veteran had been hospitalized with a primary diagnosis of extrapulmonary sarcoidosis involving the muscles, bone marrow, gut and nervous system with a secondary diagnosis of coronary artery disease, status post myocardial infarction with double coronary artery bypass surgery in 2004. The physician also noted that there was a history of a CVA and that, at the time of his open heart surgery, the Veteran had had his mitral valve repaired. The physician added that, during hospitalization, the Veteran underwent a bronchoscopy with removal of a mucus plug and that, following that procedure, his symptoms improved and that, at the time of his discharge on November 3, 2007, he was stable. The physician noted that the autopsy findings showed interalveolar acute inflammation and edema, but no bronchial obstruction or pulmonary emboli. The Veteran also was noted to have had severe coronary artery disease with multiple vessels obstruction between 75 percent and 90 percent, although previous bypass grafts were patent. Additionally, the Veteran had secondary diagnoses of diabetes mellitus, anemia and sarcoidosis. The VA physician 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 in providing treatment, either during his hospitalization from October 24, 2007 to November 3, 2007 or in discharging the patient prematurely as claimed by the appellant. The VA physician explained that the Veteran's death was the result of an event that was not reasonably foreseeable and that, given the Veteran's significant medical history and comorbity, it was reasonable to assume that the event of cardiac arrest was not the result of negligence on the part of the treating VA physicians. The appellant and a nurse testified during an October 2010 hearing that the VA records showed the Veteran was not stable on the day of his discharge. She noted that the Veteran's oximetry was 92 percent and was abnormal. She further testified that, on the day before the Veteran was discharged, he had abnormal lung sounds. The appellant also testified that she observed the Veteran having trouble breathing prior to his discharge and argued with the nursing staff about releasing him. She indicated that a doctor signed the release despite her concerns and objections at that time. Subsequently, in September 2011, the Board requested an opinion from a VHA medical specialist as to whether the Veteran suffered from an injury or aggravation of an injury that, at least as likely as not, resulted in additional disability by reason of VA hospitalization or medical or surgical treatment and, if additional disability was found, whether the proximate cause of such additional disability at least as likely as not was due to carelessness, negligence, lack of proper skill, error in judgment or a similar instance of fault on VA's part in furnishing such treatment and whether the proximate cause of the additional disability was an event that was not reasonably foreseeable. The expert was advised that to establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing surgical treatment caused an additional disability, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). In the VHA medical reviewer's response, dated in October 2011, the pulmonologist documented his thorough review of the claims file, including the records of the Veteran's hospitalization from October 24, 2007 to November 3, 2007. The pulmonologist also noted the appellant's contention that the Veteran had died as the result of negligent care on the part of VA, specifically that the Veteran was still having significant breathing problems at the time he was discharged and needed oxygen at home that VA did not provide to him. The pulmonologist also noted the fact that a nurse testified at the October 2010 hearing that the Veteran's oxygen saturation on the day of discharge was abnormally low at 92 percent (implying that the Veteran needed continued oxygen therapy). However, the pulmonologist opined that there was ample documentation in the record that the Veteran received appropriate care during the period of hospitalization, that his medical condition improved following the treatment and that he was in a stable clinical state on the day of his discharge. To that end, the pulmonologist noted that a physical therapy note dated on November 2, 2007 reflected that the Veteran was having less pain and tolerated strengthening and range of motion exercises with ease. Additionally, the pulmonologist noted that two nursing notes dated on the morning of November 2, 2007 both recorded stable vital signs, unlabored respiratory effort and oxygen saturations of 95 percent on one occasion and 92 percent on a second, both obtained while the Veteran was breathing room air. The pulmonologist particularly observed that oxygen saturation of 89 percent or greater was considered to be adequate and that supplemental oxygen was not needed. The pulmonologist added that the testimony of the nurse at the recent hearing that an oxygen saturation level of 92 percent required oxygen therapy was not a true statement. The pulmonologist observed that the treatment notes on November 1, 2007, documented the clinical improvement and functional stability of the Veteran. The pulmonologist noted that the Veteran had pneumonia, even after treatment, but found that this was not surprising as it could take a month or two for complete radiographic and pathologic clearing of a bacterial pneumonia. The pulmonologist also noted that the autopsy report described severe arteriosclerotic heart disease and concluded that, given the circumstances of the Veteran's sudden death, the cause was almost certainly cardiac and not pulmonary. The pulmonologist finally opined that the Veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgment, or fault in treatment during hospitalization or in the decision to discharge him from the hospital. He repeated that the Veteran's death was almost certainly due to cardiac disease and that this was not surprising in light of his medical history. He stated that the Veteran's death was not reasonably foreseeable, but could not be attributed to any negligence on the part of the treating VA physicians. Given its review of the record, the Board finds that the claim for DIC benefits based on service connection for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 must be denied. Responding to a request for a VA medical expert opinion, in October 2011, the pulmonologist concluded that there was ample documentation in the record that the Veteran received appropriate care during the hospitalization resulting an improved medical condition and that he was in stable clinical state on the day of discharge from VA. The pulmonologist explained that the two nursing notes from the morning of November 2, 2007 both recorded stable vital signs, unlabored respiratory effort and oxygen saturations of 95 percent on one occasion and 92 percent on the second occasion, obtained when the Veteran was breathing room air. In this regard, the pulmonologist particularly pointed out that oxygen saturation of 89 percent or greater was considered adequate and did not require supplemental oxygen (finding that the nurse's testimony at the October 2010 hearing that oxygen saturation of 92 percent required oxygen therapy was an untrue statement). Further, the pulmonologist observed that the treatment notes on November 1, 2007, documented the clinical improvement and functional stability of the Veteran. Finally, the pulmonologist explained that, although the Veteran had developed pneumonia, even after treatment, given his history of severe arteriosclerotic heart disease and the circumstances of his sudden death, the cause was almost certainly cardiac and not pulmonary. Thus, the pulmonologist opined that the Veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgment , or fault in treatment during hospitalization or in the decision to discharge him from the hospital, and concluded that the Veteran's death was almost certainly due to cardiac disease, not surprising in light of his medical history. The Board notes that this opinion was based on a thorough review of the medical records, including the Veteran's history, and sound medical principles. Additionally, the September 2008 VA physician opinion confirms the opinion of the medical expert in October 2011 (the Veteran's death was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in providing treatment, either during his hospitalization from October 24, 2007 to November 3, 2007 or in discharging the patient prematurely as claimed by the appellant). Thus, the Board concludes that the Veteran's death was not caused by hospital care or treatment furnished to the Veteran by VA (i.e., the Veteran's death was not due to negligent treatment on the part of VA, to include being discharged from the hospital in an unstable condition). The Board is aware that, in finding that the Veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgment, or fault in treatment during hospitalization or in the decision to discharge him from the hospital, both VA physicians (in September 2008 and October 2011) found that the Veteran's death was not reasonably foreseeable. However, in reading the opinion in the context of the evidence of record, the examiner was not saying that the Veteran's death was proximately caused by hospital care or treatment furnished to the Veteran by VA. Because the Veteran's death was not caused by hospital care, medical or surgical treatment, or examination furnished by VA, a finding that the Veteran's death was not reasonably foreseeable is not pertinent in this case. . The only evidence of record supporting the appellant's claim are her general lay assertions including her hearing testimony as well as the testimony of the nurse at that proceeding. In this case, the Board finds that the Veteran and nurse are competent to describe the severity of the Veteran's symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including the lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (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")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). To the extent that the Board finds the appellant's own assertions and the testimony of the nurse at the October 2010 hearing describing the severity of the Veteran's symptoms are of limited probative value for the purpose of medically linking the cause of his death to medical care furnished to the Veteran by VA. Moreover, the Board finds that the opinion of the VA pulmonologist in the October 2011 report to be most probative for the purpose of deciding this appeal. To that end, the Board notes that abnormal oxygen saturation levels or other pulmonary manifestations requiring ongoing oxygen therapy were not noted at the time of the Veteran's discharge from VA in November 2007. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The VA pulmonologist is a medical professional who reviewed the claims file, considered the reported history and contentions of the appellant and used his medical expertise in reviewing the facts of this case in determining that the cause of the Veteran's death was not hospital care, medical or surgical treatment, or examination furnished to the Veteran by a VA employee or in a VA facility. In reaching this conclusion, the Board finds that the benefit-of-the-doubt doctrine does not apply. As the preponderance of the evidence is against the claim, the appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). ORDER Dependency and Indemnity compensation (DIC) for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs