Citation Nr: 1510832 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 10-13 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Hilts, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1944 to November 1945. He was the recipient of the Combat Infantryman Badge. The Veteran died in February 2009 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2015 correspondence, the appellant's representative made a motion to advance the case on the docket based on the age. In this regard, the record reflects that the appellant is over 75 years old. Therefore, the Board finds good cause to advance the case on the docket and the motion is granted. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2014). The Board notes that, while the appellant's representative submitted a Statement of Representative in Appeals Case in November 2010, prior to certification to the Board, her representative was not provided with an opportunity to submit an Informal Hearing Presentation prior to the Board's review of the case. However, the Board finds no prejudice to the appellant in proceeding with the issuance of this Remand because, following the completion of the requested development, her representative will be given an opportunity to submit additional argument prior to the case's return to the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). In the instant case, the Veteran's death certificate shows that he died in February 2009 due to respiratory failure, which he had for five days, due to (or as a consequence of) nosocomial pneumonia, which he had for a week, while he was hospitalized at Baptist Health Medical Center. The appellant contends that, as a result of having blood taken in January 2009 at the North Little Rock VA Medical Center, the Veteran developed swelling in the arm, which ultimately required surgery, and such caused or contributed to his death in February 2009. Therefore, she claims that service connection for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 is warranted. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Title 38, United States Code § 1151 provides compensation in situations in which a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death 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 or death was an event which was not reasonably foreseeable. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the 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 additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2). The record reflects that the Veteran was seen on January 16, 2009, at the VA Medical Center in North Little Rock and was doing well. Laboratory testing was ordered and he had blood drawn that day, as reflected by the blood test results noted in the record. He was seen on February 3, 2009, at which time it was noted that the Veteran was having cataracts surgery and his cardiologist wanted him on a Lovenox bridge since he was currently on warfarin due to aortic and mitral valve replacement. Records from Baptist Health Medical Center reflect that the Veteran was admitted on February 5, 2009 with a diagnosis of hematoma of the left upper extremity. The death summary reflects that the final diagnosis was hematoma of the left upper extremity, secondary to previous venipuncture on anticoagulants. At the time of admission, he had increased swelling and discoloration of the left upper arm. It was further noted that he had previous aortic and mitral valve replacements, chronic atrial fibrillation, and had been on long-term anticoagulation, recently changed from Coumadin to Lovenox in anticipation of upcoming cataract surgery. The physician noted that, as part of his preoperative screening, he had venous blood draws in the left antecubital area, which remained asymptomatic for about 2 weeks; however, one week prior to his hospitalization, he developed progressive swelling and pain in such area. Following examination and diagnostic testing, the Veteran was given a diagnosis of stenosis of the brachial artery. The physician noted that, following surgery to evacuate the hematoma, the Veteran had excellent pulses in the wrist, recovered, and did well for a couple of days. However, he was slow to mobilize and atelectasis was concerning. As such, pulmonary interventions were initiated. Ultimately, the Veteran became more short of breath and X-rays documented the development of probable bilateral pneumonia. He worsened, developed additional complications, and died on February [redacted], 2009. The physician determined that the cause of death was respiratory failure secondary to postoperative pneumonia with complication of multiorgan system failure. In May 2009, a VA medical opinion was obtained on this matter. At such time, the reviewing physician indicated that the Veteran's chart was reviewed. It was noted that the Veteran had blood drawn at the VA Hospital on January 16, 2009 in preparation for cataract surgery. Prothrombin time at that time was 27.8 with an INR of 2.6. The Veteran had replacement in the range of anticoagulation and that situation is from 2.0-3.0. There is no indication that the Veteran had a hematoma after the blood drawing but about two weeks later, around the first of February, he did have a development of a swelling in his arm that proved to be a hematoma. On February 5, 2009 he was hospitalized at a private hospital in North Little Rock with a hematoma which was compressed in the brachial artery. He had been taken off Coumadin three or four days earlier to that and started on Lovenox in preparation for his surgery. His prothrombin at the time at admission on February 5 of 1.5 INR and PTT was 35.9, both low levels of anticoagulation. On February 6, the hematoma was evacuated and a good pulse returned. On February 8, he was still in the Intensive Care Unit. At that time, his arm was said to be normal and his chest was clear. On February 9, he was noted to be weak and have rales and on February 10, he began having hemoptysis and subsequently developed bilateral pneumonia and respiratory failure and died on February [redacted] at the private facility of respiratory failure secondary to nosocomial pneumonia. The reviewing physician noted that the Veteran was elderly and with chronic heart disease and, therefore, a good candidate for postoperative and pneumonia. He was not excessively anticoagulated at any time as far as can be determined from the record. The VA phlebotomist could not have reasonably anticipated the development of a hematoma which did not become evident until 2 weeks after the venipuncture. There is no evidence that the Veteran returned to the VA or notified anyone at the VA of the development of the abnormality. He subsequently required surgery due to the hematoma and postoperatively he was slow to mobilize and then developed apparent stasis pneumonia and respiratory failure which led to his death. VA could not have reasonably anticipated the late development of a hematoma and was given no opportunity to correct that situation. It is possible that earlier mobilization of the Veteran after surgery would have prevented the pneumonia, but that is speculative. The reviewing physician concluded that he saw no evidence of carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA. The Board finds that an addendum opinion is necessary to decide this case. In this regard, the May 2009 VA examiner did not specifically address whether the venipuncture in January 2009, and any related aftermath, caused or contributed to the Veteran's death. Such an opinion is especially important in light of the fact that records from Baptist Health Medical Center reflect: a diagnosis of hematoma of the left upper extremity, secondary to previous venipuncture on anticoagulants; surgery to evacuate the hematoma; after surgery, while the Veteran did well initially, he was slow to mobilize and developed pneumonia; and the cause of death was determined to be respiratory failure secondary to postoperative pneumonia with complication of multiorgan system failure. Furthermore, while the examiner focused his opinion on whether the medical treatment provided in January 2009 involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, he did not fully address whether the additional disability, to include the Veteran's death, was an event not reasonably foreseeable by a reasonable healthcare provider. In this regard, he appears to suggest that VA could not have reasonably anticipated the late development of a hematoma, but he does not indicate whether such was an event not reasonably foreseeable by a reasonable healthcare provider. Therefore, a remand is necessary in order to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA physician who provided the May 2009 opinion. If the physician who provided the May 2009 opinion is unavailable, the record should be provided to an appropriate medical professional so as to render the requested opinion. The record, to include a copy of this Remand, must be made available to and by reviewed by the examiner. After a full review of the record, the examiner should offer an addendum report that answers the following: (A) Is it as least as likely as not (i.e., a probability of 50 percent or greater) that the venipuncture for a blood draw on January 16, 2009, caused his death? In this regard, the examiner should consider the fact that the records from Baptist Health Medical Center reflect: * A diagnosis of hematoma of the left upper extremity, secondary to previous venipuncture on anticoagulants * Surgery to evacuate the hematoma * After surgery, while the Veteran did well initially, he was slow to mobilize and developed pneumonia. * The cause of death was determined to be respiratory failure secondary to postoperative pneumonia with complication of multiorgan system failure. (B) If so, was the Veteran's death proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in performing the January 2009 venipuncture, OR was the proximate cause of the Veteran's death an event not reasonably foreseeable? With regard to the latter inquiry, the examiner is advised that 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 offering such opinion, the examiner should consider the May 2009 VA examiner's statement that VA could not have reasonably anticipated the late development of a hematoma. A complete rationale must be provided for each opinion offered. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).