Citation Nr: 1531895 Decision Date: 07/27/15 Archive Date: 08/05/15 DOCKET NO. 12-35 018 ) 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: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant; Appellant's Daughters ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1948 to February 1949 and from March 1955 to April 1973. He died in July 1998, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In January 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. The Board remanded this case for further development in February 2015. The Agency of Original Jurisdiction (AOJ) completed all requested development, but continued the denial of benefits sought on appeal. As such, this matter is properly returned to the Board for appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The weight of the evidence of record is against a finding that the Veteran's death was caused by a failure on VA's part to timely diagnose and treat the Veteran's fatal infection. CONCLUSION OF LAW The criteria for establishing entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2014); VAOPGCPREC 05-01 (February 5, 2001). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the context of a claim for dependency and indemnity compensation (DIC) benefits, which includes a claim for service connection for the cause of the Veteran's death, 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 or her 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 (2007). The Board finds that VA has satisfied its duty to notify under the VCAA. In this regard, a January 2012 letter, sent prior to the initial unfavorable decision issued in May 2012, advised the appellant of the evidence and information necessary to substantiate her claim for DIC benefits based on 38 U.S.C.A. § 1151, as well as her and VA's respective responsibilities in obtaining such evidence and information. This letter also explained the information and evidence used by VA to determine an effective date should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA treatment records from the VA Medical Center (VAMC) in Huntington, West Virginia, regarding the medical services in question have been obtained and considered. The appellant has not identified any additional relevant and outstanding records that have not been requested or obtained. VA also satisfied its duty to obtain a medical opinion. In February 2012, VA referred the Veteran's file for an opinion to address whether his VA treating physicians failed to exercise the degree of care that would be expected of a reasonable health care provider and whether any failure of the Veteran's VA treating physicians proximately caused the complications that ultimately led to the Veteran's death. The subsequent March 2012 report is adequate as the VA examiner reviewed the Veteran's pertinent medical history, discussed the critical sequence of events, provided a factual predicate for his analysis, and thoroughly explained the reasoning behind his conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Therefore, VA has no obligation to obtain further medical examinations or opinions in connection with this claim. As stated in the Introduction, the claim was remanded in February 2015. The AOJ substantially completed all development ordered by the Board, and adjudication may proceed. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 2 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As instructed by the Board, the AOJ associated the January 2015 hearing transcript and the Veteran's VA treatment records from the Huntington VAMC with the claims file. As previously noted, the appellant was provided an opportunity to set forth her contentions during a hearing before the undersigned in January 2015. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned specifically noted the issue on appeal, clarified the appellant's assertions when necessary, and clarified the evidence needed to substantiate the claim. Finally, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating her claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria For claims filed after October 1, 1997, such as this one, DIC shall be awarded for a qualifying veteran's death if the death was not the result of the veteran's willful misconduct and the death was caused by hospital care or medical treatment furnished by the VA and the proximate cause of the death was 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 an event not reasonably foreseeable. See 38 U.S.C.A. § 1151. Thus, section 1151 contains two causation elements; the disability must not only have caused by the hospital care or medical treatment but it must also be proximately caused by VA's fault. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's death. Merely showing that a veteran received care, treatment, or examination and that the veteran died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2014). As in this case, when compensation is claimed for the continuance or natural progress of a disease or injury for which the care or treatment was furnished (i.e., a claim of a failure to timely diagnose and properly treat a disease), the care, treatment, or examination furnished by VA cannot be said to have caused additional disability or death 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); see also VAOPGCPREC 05-01 ("Disability or death due to a preexisting condition may be viewed as occurring as a result of the VA treatment or examination only if a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment which probably would have avoided the resulting disability or death."). The Court has recognized the "difficulty in assessing the element of causation in cases involving an omission, such as a failure to diagnosis, versus those based on a commission, or an affirmative act, that leads to clearly identifiable injuries." Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009) aff'd Roberson v. Shinseki, 607 F.3d 809 (2010). In a claim based on an alleged failure to diagnose, "a claimant cannot demonstrate an injury unless it is shown that VA should have diagnosed the condition in question. Upon successfully demonstrating an injury or aggravation, a claimant must then prove that the injury or aggravation - the failure to diagnose - resulted in additional disability or death." Id. at 364-65. In other words, in order to prove a claim under 38 U.S.C.A. § 1151 for failure to diagnose, the evidence must show: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Roberson v. Shinseki, 607 F.3d 809, 817 (2010)(upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01; see also 38 C.F.R. § 19.5 (stating that the Board is bound by precedent opinions of the VA's General Counsel). The Board acknowledges that these elements were delineated by VA's General Counsel as part of the version of 38 U.S.C.A. § 1151 effective for claims filed prior to October 1, 1997. However, despite the fact that the law in effect at such time did not contain a "fault" requirement, as it now does, the courts have determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law. Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010), aff'g 22 Vet. App. 358 (2009). As such, there has been no real change in the standard for these claims concerning a failure to diagnose and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as the present appeal. Factual Background VA treatment records show that the Veteran was seen by his primary care provider on June 29, 1998, complaining of fever, headaches, chills, and diarrhea. Vital signs were recorded and blood tests were performed. After examination, the assessment was mild upper respiratory infection, stable, probable viral infection; stable COPD; and rule out carotid stenosis. The Veteran was scheduled for a follow-up ultrasound and was discharged. On July 3, 1998, the Veteran returned to the Huntington VAMC complaining of a two-week history of nausea and vomiting and abdominal pain in the epigastric region. He also complained of melanotic stools, night sweats, and decreased urine output. The Veteran was admitted to rule out gastroenteritis. Numerous tests were performed, including a CBC, blood culture, chest x-rays, differential count, urinalysis, parasite examination, fecal leukocytes, stool culture, and abdominal x-rays. On July 4, 1998, the attending physician noted: "68 yo man with admission for c/o N,V for 2 weeks. Pt has had loose black bowel movements for 2-3 months but has been taking PeptoBismol. PH GERD, COPD, BPH, and UTI's. Pt afebrile. Abdomen without rebound or guarding but perhaps mild soreness to deep palpation. Bowel sounds nl. Stool heme neg presently. Plan: get urinalysis and C&S as UTI could explain symptoms. Check stools for O&P, C&S, WBC, and C. diff. Plan BE and UGI if clear explanation for presentation not found on the cultures. If recurrent UTI, consider Urologic input." On July 5, 1998, the Veteran was noted as being "the same not worse not better." The Veteran had no diarrhea, but did have a fever. The physician questioned whether a parasitic infection may be the cause of the Veteran's diarrhea. Also on July 5, 1998, the Veteran reported a reddened and sore area on the right side of his chest. On July 6, 1998, the Veteran's temperature increased, and he vomited a "coffee ground material." The physician tried to aspirate fluid from the right side, but nothing was obtained. A chest CT was ordered and the Veteran was started on IV antibiotics. The chest CT showed "a large collection of apparently blood in mediastinum, pleura, and right chest wall." The attending physician opined that the Veteran may have a ruptured esophagus with hemothorax and chest wall involvement. The attending physician also indicated a suspicion "that the symptoms over the 2 weeks prior to admission may been the first intermittent indicators of an underlying process which now has become manifest." The plan was surgery input for management and diagnosis of this development. The surgery consult was completed, and the surgeon's note indicated a likely hemothorax and a plan to place a chest tube to drain the fluid from the right chest cavity. A note dated 14:29 on June 6, 1968, records an episode of respiratory arrest. The veteran was ventilated and transferred to ICU. A note from the same date indicates that the veteran had become hypotensive. A chest tube was placed with recovery of straw-colored fluid. The veteran then became unresponsive and expired within a short period of time. The Veteran's death certificate listed the immediate cause of death as esophageal rupture. An autopsy, performed after the date of the death certificate, showed that the Veteran had A Streptococcus growing from his blood. He also had evidence of necrotizing cellulitis on his right chest wall, both fascia and pectoral muscles. There was no evidence of an esophageal tear or rupture of the mediastinitis. In March 2012, a VHA opinion was obtained. The VA physician reviewed the claims file and provided a detailed summary of the Veteran's course of treatment from June 29, 1998 to July 6, 1998. The VA physician opined that "[i]t is obvious that the veteran died of overwhelming group A streptococcal infection associated with necrotizing fasciitis of the chest wall discovered at autopsy." He indicated that he was very familiar with necrotizing fasciitis and that he has been involved in medical treatment and legal proceedings involving this infection. He reported that the presentation of necrotizing fasciitis "is highly insidious and difficult to diagnose" and that it can easily "masquerade as a simple viral infection until it manifests as it did" in the Veteran's case on July 5, 1998. The examiner explained that "given the rapid nature of invasive soft tissue streptococcal group A necrotizing infections, one would not expect signs of that disease to be present on [June 29, 1998]." Nonetheless, the examiner indicated that treatment records showed that VA treatment providers took adequate measures to look for possible serious underlying disease during the primary care visit on June 29. The examiner noted that the cardinal signs of serious underlying infection include fever, tachycardia, and hypotension and that none of these were present. Additionally, the examiner noted that all necessary tests for infection were done, including a white blood cell count and tests for abnormalities in electrolytes and hydration, and that these tests were normal. Nor was there any mention of tense edema, disproportionate pain, blisters/bullae, crepitus, or subcutaneous gas which would constitute necrotizing fasciitis. Similarly, the examiner explained the diagnostic procedures undertaken during the Veteran's hospital admission on July 3, 1998, which demonstrated due diligence on the part of the VA physicians. The examiner noted that blood cultures taken on July 3, 1998, were negative for streptococcus and "given the known catastrophic and rapid course of invasive group A streptococcal infections, [this] provide[s] strong evidence that the disease had not manifested at that point." The examiner also noted that a chest x-ray, which would be considered part of a workup for occult infection, was performed and showed minimal findings. When contrasted with the chest x-ray reports of July 6, 1998, which showed severe involvement, "the rapid, fulminant course of the invasive streptococcus is [again] demonstrated." Regarding the diagnosis of a ruptured esophagus, the examiner explained that this was not a misdiagnosis, but rather "a statement of a differential diagnostic possibility requiring further evaluation," which appears to have been a reasonable consideration. The examiner summarized his rationale as follows: In summary, the [V]eteran contracted a relatively rare but extremely toxic infection known to have a very high mortality rate even in the setting of fully optimal care. The physicians not only exercised due diligence, but appeared to meet the standard of care in every respect. There is little doubt that, even had the [V]eteran's physicians known his full condition on his admission to the hospital, that any treatment would not have altered the eventual course. The examiner cannot identify any failure on the part of the VA to timely diagnose and/or properly treat the [V]eteran's disabilities which then allowed the disabilities to continue to progress and result in death, nor to identify any manner in which the [V]eteran's death was due to or a result of VA treatment, nor to identify evidence that the death resulted from carelessness, negligence, lack or skill or similar incidence of fault on the part of the attending VA personnel. With regard to whether the death resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider, the examiner answered as follows: This question is asked in a context which seems to imply that the inability to foresee the event is associated with culpability on the part of the physicians. The event - the [V]eteran's necrotizing fasciitis - was in fact an event not at all foreseeable on the 6/29/1998 clinic visit and almost certainly not foreseeable on admission to the hospital. This would imply that due diligence relative to the [V]eteran's presenting symptoms was applied, and that the inability to be able to reasonably foresee the eventual demise occurred despite the application of reasonable practices performed by reasonable and prudent physicians. At the January 2015 hearing, the appellant and her daughters asserted that the Veteran's death could have been avoided if he had been properly diagnosed and treated when he was admitted to the Huntington VAMC. They reported that when the Veteran was initially seen at the Huntington VAMC with similar symptoms, the doctors did not run any tests, and merely told him he had the flu and sent him home with aspirin. They testified that when his symptoms did not improve, they took him back to the hospital, where he was seen in the emergency room. They testified that one of the emergency room doctors did not want to admit him, but that another emergency room doctor decided to admit him because of his dehydration. They also indicated their belief that the Veteran was given no treatment or tests, other than IV fluids, throughout the holiday weekend. They stated that they "felt like [the doctors] did not follow through with any steps of finding out what the cause of his pain or illness was." One of the daughters, who was in nursing school during the Veteran's hospitalization, testified that the Veteran was not "putting out fluids," and that when she mentioned that to the treatment providers, they would not listen to her. Analysis As noted above, the present case concerns a claim of a failure to treat or diagnose a disability. Disability or death due to a preexisting condition may be viewed as occurring as a result of the VA treatment or examination only if a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment which probably would have avoided the resulting disability or death. VAOPGCPREC 05-01. Therefore, the pertinent questions in this case are whether a physician exercising a reasonable degree of skill and care ordinarily required of a medical professional would have diagnosed the and treated the Veteran's condition, and whether the Veteran's death would have been avoided had the proper treatment and diagnosis been rendered. See 38 C.F.R. § 3.361(c)(2); Roberson v. Shinseki, 607 F.3d 809, 817 (2010); VAOPGCPREC 05-01. Evaluating the evidence in light of the applicable legal criteria reflects that VA medical professionals acted with reasonable skill and care in treating the Veteran and fails to reflect that VA physicians should have diagnosed and rendered treatment for streptococcal infection associated with necrotizing fasciitis at an earlier time. In the present case, the Board finds the March 2012 VA opinion to be highly persuasive to the issue at hand. See Owens v. Brown, 7 Vet. App. 429 (1995)(holding that it is the Board's responsibility to evaluate the credibility and weight to be given to the evidence of record). The examiner reviewed the entire record, including the appellant's lay statements, considered the Veteran's history, provided answers responsive to the questions posed, and provided a rationale for the opinions rendered. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board notes that the VA opinion was phrased in terms of whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or whether the Veteran's death was due to an event not reasonably foreseeable -- the legal criteria to establish causation in a regular 38 U.S.C.A. § 1151 claim. Compare 38 U.S.C.A. § 1151 (outlining the elements for a claim of direct causation) with VAOPGCPREC 05-01 (discussing the elements in a failure to diagnose claim). Nonetheless, the detailed opinion of the examiner provides the answer to the question as to whether a reasonable physician should have diagnosed and rendered treatment for the Veteran's condition. Indeed, in discussing whether VA acted with carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault and whether the Veteran's necrotizing fasciitis was an event not reasonably foreseeable, the examiner discussed whether VA exercised the degree of care that would be expected of a reasonable health care provider. See e.g. 38 C.F.R. § 3.361 (d)(1). The examiner explained that in light of negative objective findings from lab tests and x-ray reports, VA acted appropriately and reasonably in its care of the Veteran and that due diligence relative to the Veteran's presenting symptoms, which made an infection of the type the Veteran developed not reasonably foreseeable, was applied by VA physicians. The Board acknowledges the appellant's assertions that the aforementioned finding that the Veteran's infection was an event not reasonably foreseeable supports granting her claim. However, in the instant case, the threshold question is whether VA treatment actually caused the Veteran's death. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013); VAOPGCPREC 05-01. In the absence of death proximately caused by VA medical treatment, the matters of VA fault or (un)foreseeability are of no consequence. Moreover, as noted above, the VA examiner discussed whether the Veteran's fatal infection was a reasonably foreseeable event in the context of whether a reasonable health care provider should have diagnosed the infection, rather than whether the infection was an unforeseeable risk of the treatment provided by VA. Absent a finding that VA treatment caused the Veteran's death, the question of whether the Veteran's death was caused by an unforeseen risk of that treatment is moot. The Board has also considered the appellant's statements that VA was negligent in providing care. The appellant, however, is not competent to provide an opinion as to whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault. Any such opinion would involve analysis of clinical testing, including CT scans, X-rays, blood tests, and ultrasounds, as well as an understanding of the standard of care that would be expected of a reasonable health care provider. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In expressing an opinion as to cause and negligence, the appellant is not reporting readily apparent symptoms, nor is she reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See Jandreau, 492 F.3d at 1377. Furthermore, the appellant has not demonstrated that she has knowledge of the acceptable medical practices in diagnosing and treating infectious diseases such that her statements would be competent, nor has she indicated that the failure in the standard of care was such that it would be readily apparent to a layperson (e.g., amputating the wrong extremity). See OGCPREC 05-01 (noting that generally, determinations as to whether a physician's diagnosis, treatment, or procedures for arriving at a diagnosis or course of treatment conform to ordinary standards of medical care generally present matters outside the ordinary knowledge of laypersons and therefore must be shown by medical evidence). Furthermore, even assuming that VA should have diagnosed the Veteran's infection earlier, the evidence fails to reflect that the Veteran's death would have been avoided had proper diagnosis and treatment been provided. The March 2012 VA examiner specifically opined regarding whether an earlier diagnosis would have changed the course of the Veteran's disease process, concluding that "[t]here is little doubt that, even had the [V]eteran's physicians known his full condition on his admission to the hospital, that any treatment would not have altered the eventual course." VA's General Counsel has explained that "if the disability would not have been prevented in any event, the physician's failure to diagnose or treat the preexisting condition cannot be viewed as the cause of the disability." VAOPGCPREC 05-01. Thus, "absent a basis for concluding that the disability or death probably would have been avoided by proper diagnosis and treatment, it would be wholly speculative to conclude that VA treatment was the cause of the disability or death." Id. As with the standard of care, the VA examiner's opinion is the most probative medical evidence on this point, and the appellant is not competent to render a medical opinion regarding the likely outcome of earlier diagnosis or treatment of this complex and serious medical condition. Jandreau, 492 F.3d at 1377. The Board notes that one of the appellant's daughters testified as to her belief that VA was negligent in diagnosing and treating the Veteran's infection, and that the Veteran's death could have been avoided if he had been properly diagnosed and treated. She also testified that she was a nursing student during the Veteran's hospitalization. This background must be taken into account when evaluating her opinions. See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Nevertheless, in evaluating the probative value of her medical statements, the Board may look at factors such as the individual knowledge and skill in analyzing the medical data. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (holding that a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment). Here, there is no evidence that she has the specialized medical expertise needed to render a professional opinion as to the issues that are the subject of this appeal. Moreover, she provided no rationale to support her opinion that the Veteran's death was hastened by the care administered by VA. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 -04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, and assuming arguendo that the daughter's professional background as a nursing student renders her competent to provide an opinion as to the relationship between the Veteran's death and his VA administered care or treatment, it is being afforded little, if any, probative weight. Accordingly, the most probative evidence in this case is the March 2012 VA opinion, which reflects that VA acted with reasonable care and due diligence in treating the Veteran. Because the evidence of record is against a finding that VA physicians did not exercise the degree of skill and care ordinarily required in diagnosing and treating the Veteran or that the Veteran's death would have been avoided had a proper diagnosis or treatment been made, proximate causation is not established. See 38 C.F.R. § 3.361(c)(2); VAOPGCPREC 05-01. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful and that the appellant is sincere in her belief that the Veteran's death was caused by his treatment by VA. While the Board is sympathetic to the appellant's contentions, in the final analysis, the Board concludes that the appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim for compensation under the provisions of 38 U.S.C.A. § 1151, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs