Citation Nr: 1815102	
Decision Date: 03/12/18    Archive Date: 03/19/18

DOCKET NO. 13-27 946	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1151 (2012) for cause of Veteran's death due to treatment by the Department of Veteran Affairs (VA).

2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person for accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney at Law



ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1957 to December 1960. The Veteran died in September 2011. The appellant is his surviving spouse.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

In November 2015 and most recently in September 2017, the Board remanded the claims for further development. There was substantial compliance with the Board's remand directives to decide the claims on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999).


FINDINGS OF FACT

1. The Veteran was treated at the VA Medical Center (VAMC) in Oklahoma City, Oklahoma on February 22, 2008, when a possible malignant process was noted.

2. The Veteran died on September [REDACTED], 2011, and his immediate cause of death was probable metastatic cancer with mass in chest.

3. VA's medical treatment and care of the Veteran was not rendered with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.

4. The Veteran was not in receipt of service connection for any disability upon which SMC on basis of the need for regular aid and attendance for accrued benefits purposes could be based.


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1151, 1310, 1311, 1318, 5107 (2012); 38 C.F.R. §§ 3.102, 3.154, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312, 3.361 (2017).

2. The criteria for special monthly compensation benefits based on the need for aid and attendance, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1114, 1502, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dependency and Indemnity Compensation (DIC), Generally

A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a).

The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b).

There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected disability was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such disability affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

In determining whether VA compensation is warranted for a DIC claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in, which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's death certificate reflects that he died in September 2011 and that the immediate cause of death was probable metastatic cancer with mass in chest. At the time of Veteran's death, he was not in receipt of service connection for any disabilities; therefore, the Board must consider whether the immediate cause of death was etiologically related to the Veteran's military service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Metastatic cancer (as a malignant tumor), is a chronic disease listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See 38 U.S.C. § 1101; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 

DIC under 38 U.S.C. § 1151

The appellant asserts that she is entitled to DIC benefits under the provisions of 38 U.S.C. § 1151 due to the negligence of VA hospital. Specifically, in a December 2012 statement and a January 2013 notice of disagreement, she contended that VA doctors suspected cancer as far back as 2008 but did not investigate the matter further and subsequently the Veteran died of metastatic cancer in his chest three years later. The appellant made similar contentions in a December 2017 substantive appeal (VA Form 9) and a November 2017 statement. The appellant does not directly contend that the Veteran's metastatic cancer was incurred in or otherwise related to service.

Under the provisions of 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability, which is not the result of a veteran's own willful misconduct or failure to follow instructions, disability compensation may be awarded for a "qualifying additional disability" in the same manner as if the additional disability was service connected. See 38 C.F.R. § 3.361.

If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of a veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(a).

To determine whether an additional disability was caused by medical treatment, VA compares a veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination, and that a veteran has an additional disability does not establish cause. 

Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c).

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). 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." Roberson, 22 Vet. App. at 364-65.

In other words, in order to prove a claim under 38 U.S.C. § 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 appellant asserts that VA doctors suspected cancer in 2008 but failed to act on it which caused the Veteran to die of metastatic cancer in September 2011. In February 2008, the Veteran was seen at VA rheumatology clinic. The VA medical record reflects that labs performed revealed extremely elevated erythrocyte sedimentation (SED) rate of 96. The medical professional noted that no previous elevation was that high and was unsure if this was indicative of malignant process or other inflammatory issues. She also noted that further evaluation was necessary including indicating that she would ask the Veteran's primary care physician to repeat SED rate test that week, a lumbar spine film for evaluation of compression or lesion/mass, and repeat basic metabolic panel (BMP) for potassium (K) level as it was low and plan for repletion for 5 days. The primary care physician instructed a BMP, SED rate, and lumbar spine films to be ordered.

A hematology/oncology evaluation was performed in May 2008 for further evaluation of anemia. The medical record shows that a urine protein electrophoresis (UPEP) was performed and was unremarkable. An iron panel was "not very remarkable and retic count was normal. Vitamin B12 was under 500 but there was no macrocytosis. Homocysteine, lactate dehydrogenase (LDH), and thyroid-stimulating hormone (TSH) levels were normal. The medical professional indicated that no other abnormalities were seen in the blood work. The Veteran reported that he smoked for 40 years and had quit 8 years prior.

A June 2008 VA medical record reflects a follow up hematology/oncology follow-up visit. Esophagogastroduodenoscopy and colonoscopy were performed on June 2, 2008 and were unremarkable. The medical professional noted that the Veteran continued to smoke a few cigarettes a day after his initial hematology/oncology consultation documented that he had quit smoking. A history of melanoma of the skin without recurrence was also noted. The medical professional stated that additional work up on the Veteran was not necessary. 

A September 4, 2011 private medical record reflects that a computed tomography (CT) scan of the chest revealed that metastatic disease was favored to explain mediastinal and left hilar enlarged lymph nodes, tiny micronodules within the lung fields and numerous lytic fractures. The admitting diagnosis were of severe hypercalcemia secondary to dehydration, mental status change, colitis, benign prostatic hyperplasia (BPH), gastroesophageal reflux disease (GERD). Based on CT results non-lung primary cancer was suspected and the family elected comfort measures. The Veteran died on September [REDACTED], 2011.

A VA medical opinion regarding the cause of the Veteran's death and VA treatment was provided in August 2013. The VA examiner indicated that based on the available medical records, to a reasonable degree of medical certainty, it is less likely as not (less than 50 percent probability) that the Veteran's care received at the VA Medical Center contributed to the Veteran's cause of death. Further, the examiner opined that the treatment the Veteran received in connection with care was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing care, medical or surgical treatment, or examination. She added that the VA Medical Center did not fail to exercise the degree of care that would be expected of a reasonable healthcare provider. 

The VA examiner provided the rationale that an aggressive work up and search for an occult malignancy was performed in 2008 but was non-revealing for any clear evidence of malignancy. She elaborated that the Veteran had an appropriate search for a possible malignancy at the time in view of any an elevated SED rate (which is a nonspecific lab) and absent other signs/symptoms of malignancy. The SED rate continued to decrease over time and there is no evidence in the medical records to support that VA providers were negligent. The examiner cited to the VA treatment records from February 2008, May 2008, and June 2008; and private medical records from September 2011, as discussed above. 

The medical evidence detailed above does not support the appellant's assertion that VA medical professionals were negligent in their failure to act upon a finding of a possible malignant process. The timeline of events reveal that a thorough work up was performed by VA with unremarkable results in the months following the finding of a possible malignant process. A VA examiner in September 2013 indicated that there was no evidence in the medical records to support that VA providers were negligent. Further, the examiner indicated that an aggressive work up and appropriate search for an occult malignancy was performed in 2008 but was non-revealing for any clear evidence of malignancy. It should be noted that the appellant does not provide any additional medical evidence or opinions to the contrary and in support of her contentions. 

The evidence of record does not reflect that the Veteran's death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. Particularly, the preponderance of the evidence does not support a finding that a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment upon a finding of a possible malignant process in February 2008 by VA.

In summary, the Board finds that the preponderance of the evidence is against a finding that treatment by VA, including failure to treat or diagnose, did not cause or contribute substantially or materially to the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


SMC Based on Aid and Attendance, For Accrued Benefits Purposes

Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 

The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352(a). 

In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. at 224. The regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350.

Prior to his death, in July 2011, the Veteran sought special monthly compensation (SMC) based on the need for the aid and attendance of another or housebound status. Although the Veteran had pending claims for entitlement to service connection at the time of his death, those claims have since been denied and have not been appealed. These denied accrued claims are final. Therefore, because the record shows that the Veteran is not in receipt of service-connection for any disability, there are no possible accrued benefits that could be paid to the appellant. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998).

In sum, the appellant has no legal basis for entitlement to aid and attendance for accrued benefits purposes because the Veteran is not in receipt of service-connection for any disability that the appellant's accrued benefits claim could be based. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. 

As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430(1994).


ORDER

Entitlement to DIC under the provisions of 38 U.S.C. § 1151 for cause of Veteran's death due to treatment by VA, is denied.

Special monthly compensation based on regular aid and attendance of another person for accrued benefits purposes is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs