Citation Nr: 18140089 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 08-06 014 DATE: October 2, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151, claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing hospitalization and medical care in February 2006, is granted. FINDINGS OF FACT 1. The Veteran was admitted to the VA Hospital on February 1, 2006, because of abdominal pain; a surgery note stated that the Veteran was transferred to the hospital for a possible small bowel obstruction. 2. During his hospitalization, on February 4, 2006, the Veteran died of cardiopulmonary failure, small bowel obstruction, and acute renal failure. 3. It is at least as likely as not that VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, proximately caused the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to DIC under 38 U.S.C. § 1151, claimed as due to VA lack of proper care/negligence in providing hospitalization and medical care in February 2006, have been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1950 to November 1952. He died in February 2006. The appellant is his surviving spouse. This matter comes before the Board on appeal from a December 2006 Regional Office (RO) rating decision. In January 2012 and September 2018, the appellant testified at hearings before the undersigned Veterans Law Judge. This claim was previously denied by the Board in a March 2014 decision that the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The parties subsequently filed a Joint Motion for Remand in January 2015, which was granted by Court Order. The Board again denied the claim in December 2015, and the appellant again appealed. In January 2018, the Court issued a Memorandum Decision that vacated the Board denial and remanded the matter for further adjudication. Entitlement to DIC under 38 U.S.C. § 1151, claimed as due to VA lack of proper care/negligence in providing hospitalization and medical care in February 2006, is granted. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In order to establish entitlement to compensation under 38 U.S.C. § 1151, there must be (1) evidence of additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, and (2) (a) a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA; or (b) evidence of an event not reasonably foreseeable. The March 2014 and December 2015 Board decisions denied this claim based on a determination that VA treatment was not the proximate cause of the Veteran’s death. These denials were based in part on a May 2013 VA medical opinion, as well as on independent medical expert opinions dated in October 2013, April 2015, and June 2015, that opined that the Veteran’s death was not due to or the result of a failure to properly administer his anti-seizure medication while he was hospitalized at the Kerrville and Audie Murphy VA Medical Centers (VAMCs) in February 2006. Since the December 2015 Board decision, two new May 2018 medical opinions have been added to the record. Rather than focusing on the role that the Veteran’s anti-seizure medications may have played in his death, these opinions focus on the role that the Veteran’s small bowel obstruction played in his death. The first May 2018 opinion, from Dr. C.J.S., opines that the Veteran’s “VA ‘treatment’ was wholly inadequate and inappropriate, causing [the Veteran’s] death.” It specifically reads that the Veteran: had a very predictable outcome caused by the VA’s failure to properly manage his Small Bowel Obstruction and its associated sequelae. Based on his history and findings, the appropriate and proper therapy for [the Veteran] was surgery to relieve his SBO after a short period of conservative therapy with fluid resuscitation and preparation for surgery. The second May 2018 opinion, from Dr. J.A.S., determined that it is at least as likely as not that VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, proximately caused the Veteran’s death. He opined that the Veteran’s “death was due to the failure of the VA to exercise that degree of care that would be expected of a reasonable health care provider with respect to treating his small bowel obstruction.” These opinions are highly probative, as they were authored by physicians who possess the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). They are based on review of the record and provide highly detailed rationales that include a discussion of pertinent medical principles and the facts of the appellant’s case. In short, the Board finds that entitlement to DIC under 38 U.S.C. § 1151, claimed as due to VA lack of proper care/negligence in providing hospitalization and medical care in February 2006, is warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel