Citation Nr: 1334863 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-23 170 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death due to VA medical treatment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to April 1953. He was awarded a Korean Service Medal, Combat Infantryman's Badge, and Purple Heart. He died on May [redacted], 2008. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the RO that denied the appellant's claim for compensation benefits under 38 U.S.C.A. § 1151 for the cause of the Veteran's death as the result of VA treatment. The appellant testified before the undersigned Acting Veterans Law Judge at a videoconference hearing in April 2012. A copy of the hearing transcript is of record. In May 2013, VA requested a medical expert opinion as set forth in VHA Directive 2010-044 dated September 29, 2010, and pursuant to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097 (2000) (codified as amended at 38 U.S.C.A. § 5103A (West 2002)); 38 U.S.C.A. § 7109 (West 2002); and 38 C.F.R. § 20.901. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's immediate cause of death was sepsis due to left chest wall abscess due to end stage renal disease, chronic renal failure, malnutrition, and anoxic brain injury. 2. The Veteran's death due to as sepsis due to left chest wall abscess due to end stage renal disease, chronic renal failure, malnutrition, and anoxic brain injury was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing the hospital care and medical treatment, and was not proximately caused by an event that was not reasonably foreseeable. CONCLUSION OF LAW Dependency and Indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1151 for the Veteran's death due to sepsis due to left chest wall abscess due to end stage renal disease, chronic renal failure, malnutrition, and anoxic brain injury is not warranted. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, which involves a claim for compensation under 38 U.S.C.A. § 1151, element (3) would be a connection between VA hospitalization, medical, or surgical treatment, and an additional disability or death. In such a claim, the appellant should also be advised that the additional disability or death must be the 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 VA treatment. In addition, specifically in the context of a 38 U.S.C.A. § 1310 DIC claim, the Court held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The Board finds that the VCAA notice requirements have been satisfied in this case by a July 2010 letter issued prior to the initial adjudication of the claim. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. Specifically, the Board finds that all obtainable evidence identified by the appellant relative to the issue decided herein has been obtained and associated with the claim folder. The Veteran's VA hospital records for the treatment in question are associated with the claims file. A VA medical opinion was obtained in September 2010 and a VHA expert opinion was obtained in June 2013. The Board finds both opinions to be adequate for the purpose of determining the claim decided herein. The reports reflect that the physicians reviewed the claims folder and provided opinions with respect to the 38 C.F.R. 38 U.S.C.A. § 1151 claim. The opinions discuss and explain the pertinent findings. In addition, the opinions were not the Veteran's treating physicians and there is no indication that they were biased in favor of VA, lacked objectivity, or otherwise were unable to render a fair and impartial opinion. For these reasons, the Board concludes that the VA opinion dated in September 2010 and the June 2013 VHA opinion provide adequate bases for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Legal Criteria Dependency and indemnity compensation (DIC) is available under the provision of 38 U.S.C.A. § 1310(a) to a surviving spouse, children, and parents who can establish, among other things, that the veteran died from a service-connected disability. 38 U.S.C.A. §§ 1310, 1311. Compensation under 38 U.S.C.A. § 1151 is awarded in the same manner as if the death were service connected, but a claim for benefits under section 1151 is not based upon service connection. Thus, this claim must be supported by medical evidence of death that resulted from VA hospitalization or medical or surgical treatment, unrelated to the Veteran's military service. See Jimison v. West, 13 Vet. App. 75, 77-78 (1999). In pertinent part, 38 U.S.C.A. § 1151 (West 2002) provides for DIC compensation under Chapter 13 for a qualifying death of a veteran in the same manner as if such additional death was service-connected. A qualifying additional disability or death is one in which the disability or death was not the result of the Veteran's willful misconduct; and, the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability or death is the result of 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 was the result of an event not reasonably foreseeable. Id. In determining whether a veteran sustained 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 or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). 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). Death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). 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 death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of 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 is 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. As specified in 38 C.F.R. § 3.361(d)(2), 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. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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 Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a lay person is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The appellant in this matter is the Veteran's surviving spouse. She is seeking VA compensation benefits for the Veteran's death. She claims that VA was negligent in treating the Veteran during the VA hospitalization prior to his death. The Veteran was admitted to the Minneapolis VA medical center in May 2007 and he underwent a redosternotomy and mitral valve replacement due to mitral stenosis on August 30, 2007. An August 29, 2007 informed consent document is of record. He developed post operative complications including pneumonia, line infection, septic thrombophlebitis, and urinary tract infection. See the September 30, 2007 surgical critical care inpatient resident note. In October 2007, he began dialysis due to impaired kidney function. In October 8, 2007 he was assessed as having sepsis syndrome possibly secondary to aspiration versus bacteremia/endocarditis. The Veteran also had diagnoses of acute kidney injury on known stage 3 chronic kidney disease, hyperkalemia, hypotension, uremia, and ventilator dependent. It was noted that the acute kidney injury was likely due to acute tubular necrosis secondary to sepsis syndrome. An October 11, 2007 nursing note indicates that the Veteran had numerous areas of skin breakdown and the Veteran's arms were weeping. An October 12, 2007 wound care note indicates that the Veteran had a mid back pressure ulcer. An October 22, 2007 hospital record states that the Veteran had a positive blood culture with methicillin-susceptible Staphylococcus aureus. A November 28, 2007 cardiology note indicates that the Veteran appeared to have significant problems with nutrition and deconditioning which were likely contributing to his failure to improve; more aggressive rehabilitation through physical and occupational therapy was recommended. It was also noted that the Veteran's nutritional status should be monitored. A December 7, 2007 cardiothoracic surgery inpatient resident note states that the Veteran denied pain except in his back; the Veteran was more somnolent. The hospital record indicates that the Veteran had several problems including abdominal distension. It was noted that SICU wrote in a note that they wanted the Veteran "nothing by mouth" but orders to that effect were not given. The resident indicated that the feeding tubes should be stopped. It was noted that another problem was that the Veteran had somnolence. The resident noted that the Veteran was given two doses of olanzapine; this medication was discontinued. Additional problems were the stage 4 back ulcer, deconditioning, right great toe pain, and malnutrition. A December 21, 2007 hospital record indicates that the Veteran had more pain in the spine and he needed to be turned off the ulcer. A December 22, 2007 hospital record indicates that the Veteran had a stage 4 decubitus ulcer on his back. On January 5, 2008, the Veteran was started on cipro for the back ulcer. The Veteran was transferred to the medical ICU with relative hypotension and concerns for sepsis versus heart failure. A March 1, 2008 infectious disease consult report noted that there was a positive blood culture for enterococci but it was not clear if the Veteran had an enterococeal infection. The Veteran was started on ampicillin. A May 3, 2008 internal medicine inpatient resident progress note lists the Veteran's multiple debilitating medical conditions including heart failure, hypotension, status post tracheostomy after multiple episodes of respiratory failure now on trach dome oxygen, decubitus ulcer stage IV, and slow and gradually declining mental status with a baseline of just opening the eyes with verbal and sometimes tactile stimuli with slight tracking. A May [redacted], 2008 VA hospital record indicates that overnight, the Veteran developed an abscess in the left chest wall with drainage. It was noted that there was a good chance he had a serious infection and with his poor nutritional status and comorbid conditions, his prognosis was grave. The Veteran died on May [redacted], 2008. The appellant contends that the Veteran's death was caused by VA carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care to the Veteran during the hospitalization from May 2007 to May 2008. The appellant asserts that the Veteran entered the hospital as a functioning adult. She stated that he underwent a heart valve replacement. She stated that the surgery was very long because they closed the Veteran's chest, took an x-ray and noticed a problem, and they had to reopen and they found the chest tube that was misplaced. She indicated that the Veteran developed pneumonia and ended up having a tracheotomy and feeding tube which were not removed. The appellant stated that the Veteran contracted a number of infections, his kidneys stopped working, and he had to have dialysis. The appellant stated that the Veteran developed a sore on his back and they could not get this sore under control and it kept getting larger and developed into an abscess and in essence contributed to his death. The appellant argues that VA did not furnish a proper level of care to the Veteran. She contends that the VA care providers would disconnect the Veteran's feeding tube when the Veteran was on dialysis for 5 or 6 hours and they would forget to reconnect the feeding tube after dialysis. The appellant contends that when the feeding tube had to be replaced because it malfunctioned, it would take two or three days before it was replaced. The appellant believes the Veteran did not have sufficient nutrition. The appellant also asserted that the VA hospital was a teaching hospital and the teams changed so often that by the time they got all the tests done to form a plan of care, the team changed and they would start all over and nothing would get done. The appellant also asserted that there was a lack of sanitation with soiled dressing left on the bed or floor and she did not believe the health care providers properly sanitized their hands. A VA medical opinion was obtained in September 2010 as to whether VA was negligent, careless, or lacked the proper skill in the Veteran's care. The VA physician indicated that the treatment records from 2007 to the time of death were reviewed. The VA physician noted that the Veteran had a long and complicated history. He noted that the primary treating providers engaged consultation as appropriate and the family was engaged in the treatment decisions. The VA physician indicated that the Veteran had multiple body system impairment including but not limited to the respiratory system, renal system, cardio system, and the brain. The VA physician indicated that there was no deviation from the standard of care found in the treatment records with the possible exception of the formation of ducubiti. The VA physician stated that this condition was not a substantial contributor to the Veteran's death. The VA physician concluded that there was no evidence of fault or carelessness on behalf of the VA medical center treating providers leading up to the Veteran's eventual death. A VHA medical expert opinion was obtained in June 2013. The VA medical expert, Chief of the Internal Medicine Section of a VA medical facility, opined that it was not at least as likely as not (less than a 50 percent probability) that the Veteran's death was caused by the VA medical treatment from August 30, 2007 to May 2008. The VA expert indicated that a thorough review of the records to include records from the Veteran's hospitalization from May 2007 to May 2008 was conducted. The VA medical expert indicated that the review was to determine if the Veteran's death was the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault during the Veteran's VA hospitalization. The VA medical expert provided a background and noted that the Veteran was 78 years old when he died at a VA medical center in May 2008. The VA medical expert noted that the Veteran was admitted to the VAMC on August 30, 2008 for an elective mitral valve replacement (MVR) surgery. The Veteran remained hospitalized at VA for the succeeding 8 months and 11 days. According to the appellant, the Veteran entered the VAMC as a "functioning adult" and during the 8 month hospital stay, the Veteran experienced a misplaced chest tube following his MVR, infections, dialysis, pressure ulcers, malnutrition, lack of coordination between changes in service providers, and infections control deficiencies (e.g.: hand washing and proper disposal of contaminated dressings). The VA medical expert noted that the past medical history review showed that the Veteran underwent an aortic valve replacement in 2000 and a permanent pacemaker placement in 2000 and he had mitral valve stenosis in 2007 with MVR, chronic kidney insufficiency, myelodysplastic syndrome, sepsis, right heart failure, pneumonia (hospital acquired), pressure ulcers, and a do not resuscitate/do not intubate on April 13, 2008. After an extensive review of the Veteran's VAMC records from May 2007 to May 2008, the VA medical expert opined that it was not at least as likely as not (less than 50 percent probability) that the Veteran's death was caused by the VA medical treatment from August 30, 2007 to May 2008. The VA medical expert indicated that prior to being admitted in August 2007, the Veteran had a significant medical history of diseased aortic and mitral valves. The VA medical expert noted that the Veteran's VAMC discharge summary from November 2000 noted mild to moderate mitral stenosis (narrowing). It was noted that in the outside records dated in June 2006 for a hip fracture report; a follow-up was recommended for the Veteran's mitral valve condition. During the Veteran's pre-operative assessment of the planned MVR, the Veteran reported experiencing shortness of breath on exertion and the need to sleep in a recliner at night. The VA medical expert indicated that the VA records also show that the Veteran had chronic kidney disease and a blood disorder (myelodysplasia syndrome) noted in January and February 2007, and with the exception of the mitral valve disease which had become severe, the Veteran did have pre-existing medical conditions before he was admitted to the VAMC that would question the assertion that he was in the best health as a "functioning adult." The VA medical expert stated that because the Veteran's pre-existing medical conditions, coupled with a long protracted hospitalization in and out of the intensive care unit, his death was more than likely the result of factors beyond the control of any practitioners given in a similar scenario. The VA medical expert also opined that it was not at least as likely as not that the proximate cause of the Veteran's death was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event that was not reasonably foreseeable. The VA medical expert indicated that a thorough review of the VA records did not identify any adverse events from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. All of the notes by the VA resident physicians referenced where a supervising attending staff was consulted with regard to treatment decisions. The Veteran's hospitalization for 8 months was plagued with unanticipated setbacks in care. Despite what appeared to be from a review of the records as appropriate care for the Veteran, his death would not have been entirely unexpected. The VA medical expert noted that as early as December 2007, an ethics consult had been placed for consideration to not resuscitate the Veteran in the event a cardiac arrest. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of DIC benefits pursuant to 38 U.S.C.A. § 1151 for the cause of the Veteran's death. Although the Veteran was indeed under VA care at the time of his death in May 2008, the weight of the competent and credible evidence establishes that the Veteran's death was not caused by the VA medical treatment and the Veteran's death was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the Veteran medical care or due to an event not reasonably foreseeable. In a September 2010 VA medical opinion, a VA physician concluded that there was no evidence of fault or carelessness on behalf of the VA medical center treating providers leading up to the Veteran's eventual death. The VA physician noted that the Veteran had a long and complicated history and he had multiple body system impairment including but not limited to the respiratory system, renal system, cardio system, and the brain. The VA physician indicated that there was no deviation from the standard of care found in the treatment records with the possible exception of the formation of ducubiti and the VA physician stated that this condition was not a substantial contributor to the Veteran's death. The VA physician noted that the primary treating providers engaged consultation as appropriate and the family was engaged in the treatment decisions. The VA physician concluded that there was no evidence of fault or carelessness on behalf of the VA medical center treating providers leading up to the Veteran's eventual death. In the June 2013 VHA expert opinion, the VA medical expert also opined that it was not at least as likely as not that the proximate cause of the Veteran's death was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event that was not reasonably foreseeable. The VA medical expert indicated that a thorough review of the VA records did not identify any adverse events from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; all of the notes by the VA resident physicians referenced where a supervising attending staff was consulted with regard to treatment decisions; and the Veteran's hospitalization for 8 months was plagued with unanticipated setbacks in care. The VA medical expert noted that despite what appeared to be from a review of the records as appropriate care for the Veteran, his death would not have been entirely unexpected. The VA medical expert noted that as early as December 2007, an ethics consult had been placed for consideration to not resuscitate the Veteran in the event a cardiac arrest. The Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein. The Court in Madden held that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997). The Board finds the September 2010 VA medical opinion and the June 2013 VHA medical expert opinion to have great evidentiary weight as the opinions reflect a comprehensive and reasoned review of the entire evidentiary record. The VA physicians reviewed the claims folder including the VA hospitalizations records for the hospitalization from August 2007 to May 2008 and the Veteran's past medical history before rendering the medical opinions. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens, supra; see also Prejean; supra. The VA physicians provided the bases and rationale for the medical conclusions. Both VA physicians noted that the Veteran had a significant and complicated medical history prior to the hospitalization in question. Both VA physicians reviewed the medical treatment provided to the Veteran. The VA physicians noted that the Veteran's treating physicians engaged in consultation as appropriate and the supervising attending staff was consulted with regard to treatment decisions. Both VA physicians concluded that VA exercised the degree of care that would be expected of a reasonable health care provider. The VA medical expert concluded that the Veteran's death was not entirely unexpected and was not due to an event that was unforeseeable. The Board finds that the VA medical opinions are based on sufficient facts and data and have great probative value. See Nieves-Rodriguez; supra. The August 2007 informed consent for the MVR and redo sternotomy indicates that the risks, benefits, and alternatives to the procedure were discussed with the Veteran prior to the procedure. The informed consent indicates that the patient, the Veteran, understood the risks of the operation included but were not limited to arrhythmia, bleeding requiring reoperation or transfusion of the blood products, infection of the surgical site, end organ dysfunction or failure, prolonged hospitalization, heart attack, stroke, prolonged ventilation on a breathing machine, blood clots, pneumonia, heart block requiring a pacemaker, disability, cardiac arrest and the complications thereof, and death. The Veteran was informed that the risk of dying with the operation was approximately 33 percent. The informed consent indicates that the Veteran had decision making capacity and he signed the consent. The risks disclosed in the informed consent are risks that are reasonably foreseen. See 38 C.F.R. §§ 3.361(d)(2); 38 C.F.R. § 17.32 (2013). The appellant argues that VA did not furnish a proper level of care to the Veteran. She contends that the VA care providers would disconnect the Veteran's feeding tube when the Veteran was on dialysis for 5 or 6 hours and they would forget to reconnect the feeding tube after dialysis. The appellant contends that when the feeding tube had to be replaced because it malfunctioned, it would take two or three days before it was replaced. The appellant believes the Veteran did not have sufficient nutrition. The appellant also asserted that the VA hospital was a teaching hospital and the teams changed so often that by the time they got all the tests done to form a plan of care, the team changed and they would start all over and nothing would get done. The appellant also asserted that there was a lack of sanitation with soiled dressing left on the bed or floor and she did not believe the health care providers properly sanitized their hands. The appellant, as a lay person, is competent to describe observable and firsthand events. See Jandreau, 492 F.3d at 1377 n.4. The Board has considered the appellant's statements and her observations regarding the Veteran's care at VA. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the level of care provided by VA and whether the VA medical treatment amounted to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). A lay person is not competent to offer an opinion on complex medical questions. In the case at hand, the Board finds that the appellant does not possess the necessary medical expertise to competently opine that VA did not provide the proper level of care and this resulted in the Veteran's death. Therefore, while the Board has considered the appellant's lay assertions, it ultimately finds that they do not constitute competent evidence to show that VA was negligent in caring for the Veteran. The Board finds the June 2013 VHA opinion and the September 2010 VA medical opinion to be the most probative medical evidence of record and outweigh the lay statements made by the appellant concerning her observations of the Veteran's care at VA. As discussed above, the Board finds the June 2013 VHA opinion and the September 2010 VA medical opinion to have great probative weight because the opinions were rendered by physicians who have the requisite medical expertise, were based on a thorough and objective review of the claims folder including the Veteran's hospitalization records, and were based upon the Veteran's medical history including before and during the hospitalization in question. As discussed above, the VA physicians concluded that there was no carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. It is clear that the physicians reviewed the appellant's statements. The VA medical expert specifically addressed some of the appellant's arguments and he provided reasons as to why he differed from her conclusion. For these reasons, the Board finds the VHA opinion and the VA medical opinion to be both adequate and persuasive, and outweigh the statements made by the appellant. In closing, the Board acknowledges that the Veteran's death was a tragic loss, and the Board is extremely sympathetic to the appellant's case. Nevertheless, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against finding that the Veteran's death is a result of 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 was the result of an unforeseeable event. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to DIC benefits under 38 U.S.C. § 1151 must be denied. ORDER Dependency and indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1151 for the Veteran's death due to medical treatment by VA is denied. ____________________________________________ M. Tenner Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs