Citation Nr: 1330672 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-08 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty in the United States Army from February 1957 to February 1959. He died in September 2007, and the appellant is his surviving spouse. This case originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 RO rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky that denied the appellant's claim for compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death, claimed to be due to VA medical treatment. In October 2010, a Travel Board hearing was held in Louisville before the undersigned who is the Veterans Law Judge making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102. A transcript of the hearing testimony is in the claims file. The Board in turn remanded the case to the RO for additional development in March 2013. The case has now been returned to the Board for appellate review. The record before the Board consists of the appellant's paper claims file and an electronic file known as Virtual VA. The Virtual VA file does contain pertinent material, namely VA treatment records (CAPRI records) dated between December 1999 and September 2007. The claims file also includes a compact disc which contains 2200 pages of VA medical treatment records dated in 2007. FINDINGS OF FACT 1. The Veteran incurred a left frontal hemorrhagic stroke on May 3, 2007; he was treated at private hospitals where he underwent a tracheotomy and developed pneumonia and a urinary tract infection (UTI). 2. The Veteran was transferred to a VA medical facility on May 29, 2007, and he died in that facility in September 2007. 3. The Veteran's diagnoses during the terminal hospitalization included respiratory failure on ventilator management; left frontal hemorrhagic infarct; status post cardiorespiratory arrest; diffuse encephalopathy; disuse atrophy of the right upper and lower extremities; Pseudomonas and Stenotrophomonas pneumonia; atrial fibrillation; hypertension; Clostridium difficile infection; Enterococcus faecalis bacteremia; anemia; malnutrition; Grade 1 sacral decubitus; artificial feeding via a percutaneous enterogastric (PEG) tube; hypernatremia of chronic disease; history of urinary tract infection with Enterococcus and Candida; contact dermatitis of the arms; and glaucoma. 4. The report from the September 2007 autopsy indicates that the Veteran's death was attributed to extensive metastatic disease, primarily from a poorly differentiated large cell carcinoma of the lung, but also from a synchronous adenocarcinoma of the sigmoid colon. 5. The Veteran's September 2007 death certificate lists his cause of death as sepsis syndrome with multi-organ failure due to multi-drug resistant Pseudomonas pneumonia due to hemorrhagic stroke due to metastatic colon cancer; encephalopathy and poor nutritional status were listed as other significant conditions that contributed to the Veteran's death but not resulting in the underlying causes of death. 6. No competent evidence of record establishes or suggests that treatment provided by VA on May 29, 2007, or thereafter, was indicative of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. 7. The Veteran's death was not caused by, or hastened by, the treatment he received in a VA facility between May 2007 and September 2007. CONCLUSION OF LAW The Veteran's death was not the result of additional disability resulting from disease or injury, or aggravation of an existing disease or injury, sustained as a result of VA training, hospitalization, medical or surgical treatment or examination rendered between May 2007 and September 2007. §§ 1151, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312, 3.358, 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. VA must notify the appellant of evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was notified of the information necessary to substantiate her 38 U.S.C.A. § 1151 claim by correspondence dated in May 2008, and April 2013. These documents informed the appellant of VA's duty to assist and what kinds of evidence VA would help obtain. In those letters, the RO informed the appellant about what was needed to establish entitlement to 38 U.S.C.A. § 1151 benefits. The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO advised the appellant of such information relating to effective dates in correspondence dated in April 2013. In addition, because the Board has denied the appellant's claim for benefits under 38 U.S.C.A. § 1151, such information is not applicable to this case. Even if the appellant was not provided with all of the required notice until after the RO had adjudicated the appellant's claim, the appellant was provided the content-complying notice to which she was entitled. Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). Consequently, the Board does not find that any late notice under the pertinent law requires remand to the RO. Nothing about the evidence or any response to any notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of 38 U.S.C.A. §§ 5102, 5103, and 5103A or the implementing regulations found at 38 C.F.R. § 3.159. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, VA obtained the Veteran's VA treatment records dated between 1999 and 2007, including the terminal hospitalization records dated between May 2007 and September 2007. On remand, VA sought to obtain the May 2007 private hospital records for the Veteran, but the appellant did not provide the signed consent forms (requested in the April 2013 VA letter) needed to get those records. In addition, the appellant was afforded a Travel Board hearing in October 2010. VA also obtained a medical opinion. The July 2013 medical opinion is adequate for adjudication purposes as the reviewing physician reviewed the evidence of record and issued a comprehensive opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The appellant was advised of the opinion and had the opportunity to respond. Thus, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and she was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available relevant treatment records that she wanted the RO to obtain for her that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave her notification of her rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed for benefits under 38 U.S.C.A. § 1151, as well as the assistance VA would provide. A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the March 2013 Board remand, additional VA medical records were obtained; however, the appellant did not provide signed consent forms needed to get the private medical records identified in the remand. In addition, a medical opinion was obtained. Therefore, substantial compliance has been achieved. In sum, the appellant was provided with notice as to the clinical evidence necessary to establish entitlement to 38 U.S.C.A. § 1151 benefits, as well as the assistance VA would provide. Proceeding with this case in its current procedural posture would not therefore inure to the appellant's prejudice. There is no duty to assist that was unmet and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The appellant's primary contention is that the Veteran developed various infections and was otherwise neglected by VA medical personnel during his May to September 2007 VA hospitalization and that the Veteran died as a result. She believes that the Veteran would have lived and recuperated from his stroke but for the medical mismanagement at the VA hospital; the alleged mismanagement included such occurrences as failure to use respiration monitors on the Veteran, lack of proper tracheostomy care for the Veteran and placing of the Veteran in unsanitary locations. In the alternative, the appellant argues that the Veteran died because of an overdose of pain medication that eventually caused his heart to stop beating. The appellant and her daughter advanced similar contentions during the October 2010 Travel Board hearing. The VA medical records from the Veteran's May to September 2007 hospitalization reflect that the Veteran had experienced a left frontal intracranial hemorrhage on May 3, 2007, and that he was intubated for airway protection by emergency personnel while being transported to a local hospital. He subsequently was transported from the local hospital to the Holston Valley Medical Center (HVMC) via ambulance. He was admitted to that private facility where he was placed on a ventilator. The Veteran was seen by specialists in neurosurgery, but he was not considered a surgical candidate. While at HVMC, the Veteran developed pneumonia and a UTI; he was treated with antibiotics. A tracheostomy tube was placed within a week of the Veteran's admission at HVMC to allow healing after the traumatic intubation of May 3rd. A PEG tube was placed at HVMC for tube feeding purposes and aspiration prevention. On May 29th, the Veteran was transferred to the VA Medical Intensive Care Unit (MICU) for further short term rehabilitation and for insurance issues; it was initially planned by the family to take the Veteran home after this. When the Veteran was admitted to the MICU, he required ventilator support at night but he did well without ventilator support during the day. He was given 60 % oxygen (O2) through the tracheostomy tube. His hospital stay in the MICU was complicated with bilateral ventilator-associated pneumonia; Pseudomonas and Stenotrophomonas were identified as the causative bacteria. A June 21, 2007 Infectious Diseases note states that the Veteran had a resolving polymicrobial pneumonia with previous sputum cultures growing multi-drug resistant Pseudomonas at an outside facility. The Veteran had to be placed back on the ventilator on June 12, 2007. He also developed intermittent hemoptysis. The Veteran had a pleural effusion that was too small to be tapped. He also developed a UTI with Enterococcus faecalis, and Candida as he had a Foley catheter. The Infectious Disease department was consulted and the Veteran was treated with various antibiotics and other medications. These were discontinued once the Veteran's blood cultures were negative and testing for Clostridium difficile remained negative. The Veteran was asymptomatic and then developed leucocytosis. Blood cultures grew Enterococcus faecalis and his stool was positive for Clostridium difficile. These were treated. The Veteran developed paroxysmal atrial fibrillation and received medication. He could not be anticoagulated because of his intracranial hemorrhage. The Veteran was tolerating tube feedings well through his PEG tube with occasional residuals. A CT scan of the Veteran's abdomen revealed the presence liver and renal lesions suspicious for metastasis. (The Veteran had a history of tubular adenoma with high grade dysplasia removed from rectum in March 2006). A June 24, 2007 note indicates that cancer was suspected. The Veteran had elevated liver function tests which normalized and an ultrasound of the abdomen indicated cholelithiasis. He had stools that were heme occult positive. The Veteran had multi-factorial anemia of chronic disease and received six units of packed red blood cells. He also had intermittent painless hematuria. A CT scan of the pelvis showed two small right renal lesions and failed to show a left kidney. A CT scan of the head showed a left frontal mass with surrounding vasogenic edema, and was suspicious for tumor versus abscess versus infarct, and a follow up MRI favored subacute infarct. The Veteran had a grade 1 sacral decubitus; he was provided with wound care for this. He also had contact dermatitis of the arms at the site of blood pressure cuff application. The records show that the Veteran was moved on several occasions based on medically noted improvements or deteriorations. He was placed in the MICU on admission to the hospital and was moved to a ward once he was off the ventilator. During this time, he was placed in a bed near the nurses' station with very close monitoring, a camera in the room, continuous telemetry and frequent respiratory management. While the Veteran was waiting for placement in a nursing home, he went into a code blue on July 24th. He had bradycardia and then asystole. After treatment, he was back into sinus rhythm. The code lasted for eight to ten minutes after it was called. Afterward, his neurological status was deteriorated. An echocardiogram done after the code did not reveal any vegetations or endocarditis. The Veteran's ejection fraction (EF) was 55%. The Veteran was provided with services from physical therapy, occupational therapy and speech therapy. A CT scan of the head was suggestive of metastatic disease rather than intracranial hemorrhage. A CT scan of the thorax showed evidence of metastasis in the liver. Electroencephalogram testing showed focal slowing in the left frontotemporal area superimposed with mild generalized slowing consistent with encephalopathy. Hematology/Oncology was consulted. That service also informed the appellant of the Veteran's poor prognosis and let her know that nothing aggressive could be done. The Veteran was felt to not be in a condition to undertake chemotherapy or other cancer treatment. During the month of September, the Veteran was intubated and on a ventilator. He was having leukocytosis that was progressively increasing and Infectious Disease staff were following the Veteran. His white blood cell count continued to increase despite broad coverage with antibiotics. His urine output was decreasing and his creatinine level was trending up. The Veteran was on tube feeds that had to be held for few days because there were some secretions from the trachesotomy; thereafter, the tube feeding was restarted at a lower rate and the Veteran tolerated it. In mid-September 2007, the Veteran became pulseless and was found to be in asystole. He was pronounced dead after failed attempts at resuscitation. As reflected by the VA hospital discharge summary, the Veteran's diagnoses during the terminal hospitalization included respiratory failure on ventilator management; left frontal hemorrhagic infarct; status post cardiorespiratory arrest; diffuse encephalopathy; disuse atrophy of the right upper and lower extremities; Pseudomonas and Stenotrophomonas pneumonia; atrial fibrillation; hypertension; Clostridium difficile infection; Enterococcus faecalis bacteremia; anemia; malnutrition; Grade 1 sacral decubitus; artificial feeding via a percutaneous enterogastric (PEG) tube; hypernatremia of chronic disease; history of urinary tract infection with Enterococcus and Candida; contact dermatitis of the arms; and glaucoma. The Veteran's September 2007 death certificate lists his cause of death as sepsis syndrome with multi-organ failure due to multi-drug resistant Pseudomonas pneumonia due to hemorrhagic stroke due to metastatic colon cancer. Encephalopathy and poor nutritional status were listed as other significant conditions that contributed to the Veteran's death but not resulting in the underlying causes of death. The appellant requested an autopsy of the Veteran. The autopsy was started within three hours of his death. The associated report states that the body was severely jaundiced. The estimated weight was 180 pounds. The Veteran's nutritional status was described as thin. There was atrophy of the right upper extremity. A tracheostomy and a gastric tube were in place. A subclavian line was present. A Foley was present in the urinary bladder. In the abdomen, 3,250 milliliters of yellow ascitic fluid were present. The sectioned lung parenchyma was remarkable for a round to oval, unencapsulated, but sharply demarcated, variegated mass in the right lower lobe centrallythat measured 2.0 x 1.5 x 1.5 centimeters (cm). Sections of the lungs had a markedly anaplastic large cell undifferentiated carcinoma of the right lower lobe. Immunohistochemistry was positive for CK7 and negative for CK20. Organizing and acute pneumonia with alveolar exudates that contained neutrophils were present. Other areas had balls of organizing alveolar fibrin, nonspecific alveolar fibrosis and emphysema with focal patches containing numerous intraalveolar pigmented "smokers" macrophages. The colon had a 4.0 x 3.0 cm circumferential exophytic tan mass in the sigmoid region, located approximately 25 cm from the anus. Sections of the colon contained a well-differentiated Grade 2 adenocarcinoma invading through the muscularis into the subserosal fat. The surface of the tumor was occupied by a distinct mass of undifferentiated large cell carcinoma that histologically resembled the lung tumor. The undifferentiated large cell component was positive for CK7 and negative for CK20. The adenocarcinoma component was positive for CK20 and negative for CK7. Both were thyroid transcription factor (TTF-1) negative. The adjacent mesenteric lymph nodes were infiltrated and enlarged by metastatic carcinoma. The liver was enlarged and weighed 4700 grams. The surface of the liver and parenchyma was remarkable for enumerable firm, pale tan nodules, measuring up to 5.0 cm. The liver was largely replaced by metastatic undifferentiated large cell carcinoma. There was also a smaller component of metastatic adenocarcinoma present within the liver. These findings were confirmed with CK7 and CK20 immunohistochemistry. The brain weighed 1300 grams. The hemispheres were symmetrical and the convolutions and sulci were normal. Coronal sections of the cerebrum revealed a sharply demarcated 3.0 x 2.5 cm soft cystic lesion filled with brown friable material in the white matter of the left frontal lobe. There was yellow-brown heme staining of a thin layer of surrounding brain tissue. Sections of the left frontal lobe contained a hemorrhagic infarct. No metastatic carcinoma was identified. The major autopsy findings were the large cell undifferentiated carcinoma of the lung with primary metastases to the liver and a synchronous adenocarcinoma of the sigmoid colon (collision tumor) with secondary metastases to mesenteric lymph nodes and liver. The Grade 2 adenocarcinoma of the sigmoid colon (25 cm from the anus) invaded through the muscularis and into the subserosal fat, and was also metastatic to mesenteric lymph nodes and liver. Minor autopsy findings included acute and organizing pneumonia, emphysema, bilateral pleural effusions, agenesis of the left kidney, cholelithiasis, benign nodular hyperplasia of the prostate, diverticulosis and thrombosed atherosclerotic aneurysms of small coronary arteries. As stated in the autopsy report, given the relatively high specificity of cytokeratin immunohistochemical staining patterns, the lung (CK7 positive/CK20 negative) and colon (CK7 negative/CK20 positive) carcinomas represented synchronous primary tumors. This conclusion was supported by the TTF-1 negativity of the adenocarcinoma, (confirming a colonic origin) since nearly 100% of primary lung adenocarcinomas are positive. Negative TTF-1 staining of the undifferentiated carcinoma is noncontributory since at least 30% of large cell carcinomas and 100% of squamous lung carcinomas are TTF-1 negative. The clinically occult large cell undifferentiated lung tumor metastasized to the sigmoid colon's well-differentiated adenocarcinoma, forming a collision tumor. Both tumors then had local lymph node metastasis and both metastasized to the liver. The greater bulk of hepatic tumor was from the lung, making this the more clinically significant lesion. The absence of residual tumor near the previously resected villous adenocarcinoma effectively ruled out a recurrence and implied that the adenocarcinoma in the sigmoid colon arose as a separate primary. The pathologist who performed the Veteran's autopsy attributed the Veteran's death to his extensive metastatic disease, primarily from a poorly differentiated large cell carcinoma of the lung, but also from a synchronous adenocarcinoma of the sigmoid colon. The Veteran's claims file, including CAPRI records, was reviewed by a VA physician in July 2013. The reviewing physician concluded that it was less likely than not (less than 50 percent probability) that the Veteran suffered additional disability or death resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospital care, medical or surgical treatment or exam furnished by the VA, proximately caused by carelessness, negligence, lack of proper skill, error in judgment or similar finding of fault or by an event not reasonably foreseeable. The reviewing physician found no evidence that the VA hospital provided negligent care to the Veteran. The doctor noted that the Veteran had suffered a hemorrhagic stroke which left him with hemiparesis and aphasia on May 3, 2007, and that he was initially stabilized at HVMC. At the time of his transfer to the VA hospital on May 29, 2007, the Veteran had a tracheostomy, PICC line, PEG tube and urinary catheter; the reviewing physician stated that these devices placed the Veteran at tremendous increased risk for infection, venous thrombosis and any number of other complications. The reviewing physician noted that many of the decisions relating to these devices had been made at the private hospital in May 2007, and that VA had to accept the Veteran with those devices. The reviewing physician stated that the VA hospital accepted a very sick Veteran to support during his recovery from a life-threatening hemorrhagic stroke. The reviewing physician further noted that the Veteran received aggressive treatment at a VA facility for presumptive and confirmed infections while recovering from a hemorrhagic stroke. The records show that the Veteran was moved on several occasions based on medically noted improvements or deteriorations. He was admitted to the MICU and was moved to a ward once he was off the ventilator. In July 2007, he arrested and was resuscitated. The reviewing physician stated that it can only be theorized, as was done by the MICU resident, that the Veteran possibly had some tracheal secretion with obstruction and developed bradycardia and asystole. However, the reviewing physician opined that there was nothing to suggest that the Veteran was inappropriately transferred out of the MICU. The reviewing physician stated that the Veteran's nutrition was challenging and that feeding him orally would have risked aspiration. Therefore, tube feedings were carried out and monitored. The reviewing physician stated that nothing in the Veteran's medical records suggested that he was over-medicated for pain with resultant cardiopulmonary arrest as claimed by the appellant. The reviewing physician stated that, at the time of his transfer to a VA facility, the Veteran had a tracheostomy, a peripherally inserted central catheter (PICC), a PEG tube and a urinary catheter; he required a ventilator at night; he had been treated for pulmonary and urinary tract infections; he had small pleural effusions; and he had residual hemiparesis and expressive aphasia from his stroke. What was not known was that he had metastatic cancer, but this was soon suspected based upon CT scans. However, there was no confirmation of these cancers until his autopsy. The reviewing physician further noted that the Veteran had two separate primary carcinomas - large cell of the lung, and adenocarcinoma of the sigmoid colon, both metastatic. The reviewing physician indicated that the VA hospital's plan on admission in May 2007 to wean the Veteran from the ventilator and transfer him to a rehabilitation facility or nursing home to continue his recovery from his hemorrhagic stroke was appropriate, but this was not able to be accomplished. The reviewing physician noted that VA was not just trying to overcome the residual effects of a hemorrhagic stroke, but also the debilitating impact of two underlying cancers. The reviewing physician opined that while it was always a losing battle, the VA hospital staff never stopped fighting for the Veteran. Title 38, United States Code § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the 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 additional disability was an event which was not reasonably foreseeable, compensation shall be awarded in the same manner as if such disability were service connected. Regulations found at 38 C.F.R. § 3.361 provide that to determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the Veteran's condition after such care, treatment, or examination is stopped or completed. VA considers each involved body part or system separately. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination, and that the Veteran has additional disability does not establish causation. 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 natural progress. The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 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 the Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and 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, medical or surgical treatment, or examination without the Veteran's, or in appropriate cases, the Veteran's representative's, informed consent. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each case 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. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The evidence of record does not contain any documentary evidence that establishes that improper treatment of the Veteran's health problems during his final hospitalization in a VA facility led to his demise. Review of the clinic evidence of record makes it clear that the Veteran arrived at the facility suffering from a number of serious and significant medical conditions, including the metastatic cancers listed on the death certificate and in the autopsy report as the primary cause of the Veteran's death. At the time of admission to the VA hospital, the Veteran also had had a hemorrhagic stroke and pneumonia and a UTI; the hemorrhagic stroke was listed on the death certificate as the cause of the multi-organ failure which in turn caused the multi-drug resistant Pseudomonas pneumonia. The death certificate also stated that the metastatic colon cancer was the cause of the hemorrhagic stroke. Furthermore, the Veteran also arrived at the VA hospital with a feeding tube which reflects a compromised nutritional status. While the Veteran did experience a number of events during his terminal hospitalization such as infections, cardiac arrest and possible obstructions from tracheal secretions, there is no competent medical evidence of record to establish that the Veteran developed the metastatic carcinomas that primarily led to his death in the VA hospital. The evidence shows that the Veteran was maintained in intensive care units, and transferred only after a medical determination was made that he had improved. The evidence shows that the Veteran was monitored and checked on every two hours, and that he was responded to in a timely manner when alarm(s) sounded. The evidence shows that the Veteran was placed back in an ICU setting when determined by medical staff that it was necessary. The VA treatment records fail to show neglect or malnutrition. The evidence shows that the Veteran was on a feeding tube, and that the tube was only removed for a few days, to remove secretions from the tracheostomy site, and that it was restarted as soon as the Veteran could tolerate. In summary, a review of the VA treatment records shows no evidence of neglect, malnutrition, or malpractice. Furthermore, based on the overwhelming nature of the Veteran's two cancers on top of the other serious conditions he had at the time of his admission to the VA hospital in May 2007, it was foreseeable that he would not survive. Prior to arriving at the VA facility, he had been found to not be a candidate for neurosurgery and when his cancer was found while he was in the VA hospital, he was determined to not be in a condition to undertake chemotherapy or other cancer treatment. The appellant was notified that nothing aggressive could be done for the Veteran; she was informed of the Veteran's poor prognosis prior to his death. In addition, there is no competent evidence to refute the VA medical opinion of record indicating that the care and treatment the Veteran received during his terminal VA hospitalization did not relate to the cause of the Veteran's death and that said care and treatment did not contribute substantially to the Veteran's death. The appellant contends that the Veteran would have recovered from his stroke but for the treatment he received at a VA facility during the last months of his life. The Board has considered the appellant's statements and those of her representative and her daughter. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, supra. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, cause of death is not the sort of question as to which a lay person can provide competent evidence as to etiology or diagnosis. See Robinson v. Shinseki, 557 F.3d 1355 (2009). The Board acknowledges the appellant's belief that the Veteran's death was due to some aspect of the VA medical care he received during his terminal hospitalization. However, the appellant has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the appellant received any special training or acquired any medical expertise in evaluating and determining causal connections for any medical condition. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The appellant is competent to provide statements as to matters within her observation and personal knowledge, such as the Veteran's symptoms and medical history. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that competent evidence is not required when the issue involves either the diagnosis or the etiology of a disability); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (listing situations in which lay evidence is competent and sufficient to establish the diagnosis of a condition); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge). However, unlike the Veteran's symptoms and medical history, whether there is a relationship between the Veteran's death and his medical treatment between May 2007 and September 2007 is a determination that is medical in nature because it cannot be made based on lay observation alone. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, such as the presence of varicose veins, but not with respect to determinations that are "medical in nature"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that unlike varicose veins, rheumatic fever is not a condition capable of lay diagnosis); Layno, 6 Vet. App. at 469-71 (noting that a veteran is competent to report difficulty breathing, but not to diagnose the condition as bronchial asthma). A person making a determination that is medical in nature must have the appropriate medical training or expertise in order for his opinion to be considered as competent evidence. See Layno, 6 Vet. App. at 469-70 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Because the appellant has not been shown to have such specialized training or expertise, her lay opinions as to whether there is a relationship between the Veteran's death and his VA medical treatment during his terminal hospitalization are not competent and therefore has no probative value. See Id. Thus, the Board cannot give decisive probative weight to the opinions of the appellant as to the etiology of the Veteran's death because she is not qualified to offer such opinions. Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. See Colantonio v. Shinseki, 606 F.3d 1378, 1382(Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278(Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. The Board finds that the medical evidence of record outweighs the appellant's statements. Based on the evidence of record, the Board finds that there was no additional disability due to VA treatment that was a significant factor in the events leading to the Veteran's death. As was noted previously, the Veteran was in a debilitated health status prior to the hospital admission, including from metastatic carcinoma of the lung and the colon, a hemorrhagic stroke and pulmonary and urinary tract infections. In addition, he arrived with a tracheostomy, a PICC line, a PEG tube and a urinary catheter and he required a ventilator. The fact that the Veteran deteriorated and developed cardiac arrest has not been shown to be due to any treatment he was afforded by VA. None of the conditions listed on the death certificate has been shown to be causally related to any aspect of the Veteran's treatment by VA at any point during the May to September 2007 hospitalization. There is no objective evidence of record that establishes that VA health care personnel failed to exercise the degree of care that would be expected of a reasonable health care provider. There is no objective evidence of record that any treatment provided by VA health care personnel, including the provision of pain medications, led to or aided and abetted the Veteran's death. There is no objective evidence of record that VA failed to timely diagnose or properly treat the metastatic cancer or that VA failed to properly treat any of the medical conditions that existed at the time of his May 2007 admission to the VA hospital or subsequently. Lastly, there is no objective evidence that the Veteran's death was not reasonably foreseeable as reflected by the evidence of record demonstrating that the appellant was told that the Veteran was not a candidate for chemotherapy or other cancer treatment and that she was informed that the Veteran had a poor prognosis. Thus, taking into consideration all the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. Because the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service, for which the Board is grateful. There also can be no doubt that the appellant is sincere in her belief that the Veteran's death was related to his terminal treatment in a VA hospital. However, while the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which the claimed benefit may be granted. Although the Board is sympathetic to the appellant's claim, it is without authority to grant her claim and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104(c). ORDER The appellant's claim for DIC benefits pursuant to 38 U.S.C.A. § 1151 is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs