Citation Nr: 18141720 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-16 314 DATE: October 11, 2018 ORDER Entitlement to service connection for cause of death of the Veteran, to include benefits pursuant to 38 U.S.C. § 1151, is denied. FINDINGS OF FACT The preponderance of probative evidence shows the cause of death of the Veteran is less likely than not the result of any aspect or service, a service connected disability, or treatment by a VA physician. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death of the Veteran, to include benefits pursuant to 38 U.S.C. § 1151, have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.102, 3.358. REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Entitlement to service connection for cause of death of the Veteran, to include benefits pursuant to 38 U.S.C. § 1151. Compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151. For purposes of 38 U.S.C. § 1151 a disability or death is a qualifying additional disability if the disability was not the result of the veteran’s willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) 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 (B) an event not reasonably foreseeable; or (2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by VA as part of an approved rehabilitation program under 38 U.S.C. Chapter 31, or (B) by participation in a program under 38 U.S.C. § 1718. 38 U.S.C. § 1151. The Appellant, through counsel, contends that a service-connected disability caused the Veteran’s death. Specifically, that hearing loss prevented the Veteran from hearing or understanding medical instructions to take probiotics with VA prescribed antibiotics, and that taking antibiotics without probiotics caused clostridium difficile colitis and led to the Veteran’s death. A Florida Certificate of Death indicated the immediate cause of death as clostridium difficile colitis, with underlying causes of tracheobronchitis treated with antibiotics, and chronic obstructive pulmonary disease (COPD). The attending physician reasoned the colitis was caused by antibiotics given for bronchitis, which was likely the result of COPD. The physician also reasoned that an underlying bone marrow process likely contributed to the cause of death. At the time of death, the Veteran was service connected for bilateral hearing loss, tinnitus, hemorrhoids, residuals of ringworm, and a bacterial infection of the right lower extremity. In August 2018, a VA doctor reviewed the Veteran’s medical records to determine the cause of death of the Veteran, and whether or not any service-connected disability contributed to the cause of death. The doctor opined that clostridium difficile colitis, tracheobronchitis, and COPD were not caused by any aspect of service. The doctor reasoned that the service medical records did not show complaints or treatment for the conditions that caused the Veteran’s death, there was no evidence of complaints or treatment for those conditions within one year of service, and the onset of those conditions was over 50 years after service. The doctor opined that clostridium difficile colitis, tracheobronchitis, and COPD were not caused or aggravated by a service-connected disability. The doctor reasoned that there is no medical literature to support the claim that hemorrhoids, dermatophytosis, erysipelas, tinnitus, or a hearing loss disability may cause or aggravate clostridium difficile colitis, tracheobronchitis, or COPD. Additionally, the doctor opined that COPD was caused by previous tobacco use, and tracheobronchitis was contracted as an outpatient which is what initiated care on June 24, 2009. The doctor opined that clostridium difficile colitis, tracheobronchitis, or COPD were not an additional disability caused by VA treatment, to include as a result of negligence by VA physicians in providing verbal instructions for probiotics. The doctor reasoned that there was no indication in the record that any VA physician verbally instructed the Veteran to take probiotics, and there was no medical certainty that probiotics would prevent clostridium difficile colitis. Although the examiner cited literature which stated that minimizing antibiotic and, in some circumstances, probiotics use may prevent an initial episode of clostridium difficile colitis, the examiner also cited literature which stated that the established risk factors included advanced age, hospitalization, and severe comorbid illness. The doctor reasoned that the Veteran had multiple significant risk factors for clostridium difficile colitis, to include advanced age, history of ischemic colitis, myelodysplasia, and diabetes. Additionally, the doctor reasoned that VA medical records showed that the Veteran called the pharmacy on June 26, 2009, with no communication or hearing issues indicated. Moreover, the doctor reasoned that the Veteran received hearing aids from the audiology clinic on the same day that antibiotics were prescribed, which indicates that the Veteran had some ability to hear on that day. The Board finds the doctor’s opinion to be competent, credible, and probative since the doctor is a licensed health care provider and was fully informed of the Veteran’s history. The doctor provided an articulated opinion supported by sufficient reasoning, which the Board finds is consistent with the evidence of record. The doctor noted there was no evidence which indicated the Veteran was verbally told to take probiotics, or that a probiotic prescription was necessary. The doctor cited evidence that indicated the presence of several risk factors, and that the Veteran could hear and communicate at the time. Additionally, hospital records near the time of death show the Veteran was treated with morphine for abdominal pain, despite the likely negative effects on clostridium difficile colitis, due to family wishes of palliation of symptoms. Moreover, the Appellant has provided no probative evidence to support the claim that a physician should have prescribed probiotics for the Veteran’s conditions, that the Veteran’s service-connected disabilities caused the conditions which lead to death, or that any VA medical treatment caused the death of the Veteran. The Board acknowledges that the Appellant has consistently asserted that the cause of death of the Veteran was caused by negligence in VA medical treatment. However, the Board finds that the lay statements relating to the medical cause of death of the Veteran, or the necessity of probiotic use for the Veteran’s conditions, are not competent. Additionally, the Appellant’s statements do not indicate consideration of the Veteran’s significant risk factors or the use of morphine to make the Veteran more comfortable. Although competent to identify the occurrence of observable symptomology, the Appellant as a layperson, is not competent to provide a medical opinion or speak to such complex matters such as necessary prescription medicine or the cause of death of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the doctor’s opinion is more persuasive because of the training and experience of the doctor. The appellant has not submitted any contrary competent medical opinions to support the assertion that the cause of death is related to service or VA treatment. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and thus entitlement to service connection for the cause of death of the Veteran is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel