Citation Nr: 1800420 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 09-09 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active service from November 1958 to August 1963. He died in May 2006. The Appellant in this matter is the Veteran's surviving spouse. This matter was last before the Board of Veterans' Appeals (Board) in July 2014, on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge in May 2012; a transcript is of record. While the claim was in remand status in July 2014, the paper claims file was lost. The Appellant was subsequently informed that the RO was in the process of rebuilding the file and was asked to provide any pertinent evidence in her possession. She submitted many records in response, to include several procedural documents, and the file has been rebuilt, to the extent possible. FINDING OF FACT The probative evidence weighs against a finding that the proximate cause of the Veteran's 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, to include medical and surgical treatment, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that actions requested in the prior remands have been undertaken. In this regard, appropriate efforts were made to obtain a copy of all signed consent forms, to specifically include those pertinent to the surgery performed, and for all procedures conducted, during the Veteran's May 2006 hospitalization. In addition, medical opinions were obtained and, subsequent to the loss of the claims file, all appropriate actions were taken to advise the Appellant of the loss and rebuild the file to the extent possible. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Although the Appellant and her representative have contended that there was undue delay in this case, the Board notes that additional time was required for the development requested in the prior remands and in order to rebuild the claims file. Neither the Appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Appellant has filed a claim for DIC pursuant to 38 U.S.C. § 1151. She contends that VA negligence in furnishing the Veteran with hospital care and medical treatment during his final illness and in the last days of his life caused or contributed to his death. The Appellant specifically contends that a VA physician erred in performing lung surgery on the Veteran when such surgery was contraindicated following the discovery of the presence of lung infection (mucormycosis) and/or unavailability of posacanozole in an immunocompromised patient. She asserts that the surgery was performed despite the recommendation of a different treating physician to delay the surgery until a time upon which the Veteran's infection had resolved. The Appellant contends that the Veteran developed sepsis as a result of his lung surgery, which led to the rapid deterioration of his condition and ultimately his death due to cardiopulmonary arrest-sepsis. 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. § 1151. To establish 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). 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. 38 C.F.R. § 3.361 (c)(2). 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 death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's death and VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or 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. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran's death was an event not reasonably foreseeable is, in each claim, to be determined based on what a reasonable healthcare provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361 (d)(2). Medical opinions were obtained by VA in August 2007, July 2012, April 2015, and April 2017. The Board specifically sought the April 2015 opinion -from an appropriate VA medical professional with knowledge of infectious diseases who did not work at either VA facility from which the Veteran received treatment prior to his death- after determining that neither the August 2007 nor the July 2012 opinion was accompanied by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The April 2015 infectious disease specialist was asked: whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider by proceeding with the Veteran's lung surgery following the discovery of the presence of lung infection (mucormycosis) and/or unavailability of posacanozole in an immunocompromised patient; and whether any of the Veteran's post-surgical problems (including infection, mucormycosis, kidney problems, sepsis, hypoxemia, respiratory failure, and ultimate death) were the result of an event not reasonably foreseeable (whether a reasonable health care provider would have considered these results an ordinary risk of treatment). The April 2015 examiner reported that a chart review had been conducted and noted that the Veteran had a right lung transplant for severe chronic obstructive pulmonary disease (COPD) in 1997 with subsequent transplant care at/from the Madison VAMC. The examiner explained that surgery -specifically wedge resection- was planned as treatment for the Veteran's lung condition, but initially was delayed for a pancreas lesion workup and pulmonary function tests (PFTs). Although the pancreas lesion was, after testing, determined to be chronic pancreatitis, surgery was delayed in February 2006 due to poor PFT results. In May 2006, the Veteran was finally cleared for surgery, but, immediately prior to the scheduled surgery, intraoperative bronchoscopy showed thick secretions in the right lung. Physicians again delayed the surgery, the secretions were cultured and, as a result of the culture findings, the Veteran was started on treatment for community-acquired pneumonia. Treatment notes reflect that he was not symptomatic from the pneumonia, but received treatment for pneumonia until May 12, 2006, when he proceeded for his rescheduled surgery. Postoperatively, the Veteran was continued on the pneumonia treatment as well as other medications, but, on May 16, 2006, the evidence indicated that the Veteran was confused, hypoxic, hypotensive, and his creatinine had increased. Surgery notes reflect that he was intubated and sedated, with increased right opacity on chest x-ray. Treatment notes reflect that bronchoscopy showed relatively few secretions, but additional medications were started to cover the possibility of bacterial sepsis. Antibiotics were continued, but, on May 19, he had a pneumothorax requiring chest tube and atrial fibrillation. He worsened the next day and, after discussion with wife, life support was withdrawn and he died. The April 2015 examiner noted that autopsy showed a severe acute bilateral pneumonia with necrosis in the left lung, but no organisms were identified upon autopsy of the lungs. The examiner also noted that the Veteran had severe bullous emphysema, diffuse alveolar damage, and a mildly turbid right pleural effusion. Based upon review of the treatment records, the examiner opined that the care of the Veteran, in regard to his infectious disease issues during his terminal hospitalization, was within standard of care, and that all decisions regarding infectious disease treatments had been made in a reasonable and timely manner. In April 2017, VA obtained an addendum opinion from the April 2015 examiner, who then addressed the positive evidence of mucormycosis (lung infection) prior to the May 12, 2006, surgery and post-surgical evidence of mucormycosis in bacterial plates rather than fungal cultures. Specifically, although explaining that pre-surgical evidence of mucormycosis was only circumstantial and post-surgical evidence called into question whether mucormycosis was present, the examiner opined that treatment providers proceeded as they should have by treating the Veteran with antifungals given his immunosuppressive state and susceptibility to fungal pneumonias. The examiner noted that the presence of mucormycosis is defined by biopsy specimen with fungal elements, and no biopsy was performed during the May 5, 2006, bronchoscopy. However, the examiner also explained that proceeding with cultures, rather than biopsy, was understandable as biopsy carries additional risk and it was not foreseeable that the Veteran would grow an organism in which biopsy was needed to prove disease. The examiner addressed the mucormycosis that appeared from bacterial plates in this case, but noted again that bronchial cultures do not - unlike stain or culture from biopsied tissue - prove disease. The examiner provided an opinion that medication was appropriately prescribed to the Veteran before and after his surgery in order to address the possibility of infection. The examiner also noted that, prior to surgery, on May 9, preoperative bronchoscopy showed that secretions in the lung were "mild" and "improved" and, according to the information available in the medical record, the Veteran was stable and afebrile between the May 5 bronchoscopy and the May 12 surgery. Although the medical evidence reflects that treating physicians considered, but did not prescribe, a drug - Posaconazole - that may have assisted the Veteran, the examiner explained that: the drug was not FDA-approved at the time; waiting for it to become commercially available was not possible; trying to obtain the drug on a 'compassionate use' basis would have, in this case, exposed the Veteran to higher risk of treatment failure; and Ambisome (which was prescribed to the Veteran) was, at the time of surgery, and remains today, the treatment of choice for mucormycosis. In specific regard to the Appellant's assertions as a nurse that it was inappropriate to proceed with the surgery due to the infection, the examiner also explained that, as the purpose of the surgery was to remove a cancerous tumor before it became un-resectable, waiting to perform the surgery in an attempt to decrease peri-operative risk would have increased the Veteran's risk of dying from his cancer. After explaining these competing risks, the examiner opined that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider by proceeding with the Veteran's lung surgery following the discovery of the presence of lung infection and/or unavailability of Posaconazole. The examiner acknowledged that the Veteran's renal failure was most likely caused by Ambisome, but, when addressing whether any of the Veteran's post-surgical problems (mucormycosis, kidney problems, sepsis, hypoxemia, respiratory failure, and ultimate death) were the result of an event not reasonably foreseeable (to include whether a reasonable health care provider would have considered these results an ordinary risk of treatment), he concluded that: there was insufficient evidence to say that the Veteran had mucormycosis; kidney problems are a known complication of Ambisome treatment; sepsis, and the lung injury and death that often accompany it, are known risks of lobectomy. Essentially, the examiner provided an opinion that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider by proceeding with the Veteran's lung surgery following the discovery of the presence of lung infection (mucormycosis) and/or unavailability of Posaconazole in an immunocompromised patient; and that none of the Veteran's post-surgical problems, to include his ultimate death, were the result of an event not reasonably foreseeable. The opinion provided by the examiner in April 2017 is the most probative opinion of record and its details stand uncontroverted in the record. While the Board acknowledges that Appellant is a nurse and therefore has some specialized training, she testified that she is a practical nurse and provided no indication that she has any experience in infectious disease. Given the foregoing, the Board affords greater probative value to the opinion provided by the examiner, who is a physician in infectious disease. Since the probative evidence weighs against a finding that the proximate cause of the Veteran's 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, to include medical and surgical treatment, or an event not reasonably foreseeable, the claim for entitlement to DIC under 38 U.S.C. § 1151 is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. ORDER DIC under 38 U.S.C. § 1151 is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs