Citation Nr: 20008239 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-32 037A DATE: January 30, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1151 is denied. FINDINGS OF FACT 1. At the time of his death, the Veteran was not service-connected for any disabilities. 2. The Veteran died in June 2011, and his death certificate list causes of death as brain herniation, respiratory arrest, and cardiac arrest. 3. The Veteran’s death was caused by complications of a blood transfusion. 4. Transfusion related acute lung injury (TRALI) is a known complication of blood transfusions and is a reasonably foreseeable event. 5. The Veteran’s death was not due to negligence lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, to include a failure to obtain informed consent before the blood transfusion and the proper standard of care was followed. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death pursuant to 1151 have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1151, 1310, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312, 3.361 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the Army from November 1962 to October 1965. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veteran Affairs (VA) Pension Management Center. The appeal has been transferred to the Regional Office (RO) in Louisville, Kentucky. The Veteran died in June 2011. The appellant is the Veteran’s surviving spouse. In November 2017, the appellant presented testimony at a video hearing before the undersigned Veterans Law Judge. This issue was previously before the Board in March 2018, October 2019, and November 2019 when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. This appeal has been advanced on the docket. 38U.S.C. §7107 (2012); 38C.F.R. §20.900(c) (2019). Duties to Notify and Assist Neither the appellant nor her representative has raised any 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 a duty to assist argument). The Board finds that there has been substantial compliance with the prior in March 2018, October 2019, and November 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case was remanded in March 2018 for an addendum medical opinion and VA treatment records. An addendum medical opinion was completed in November 2018. The case was remanded in October 2019 to comply with the March 2018 remand directives. Specifically, to add the informed consent that was referenced in the November 2018 VA opinion. The informed consent was added to the claims file in October 2019. In November 2019, the case was remanded for a supplemental statement of the case (SSOC) and to give the appellant an opportunity to respond. The RO issued a November 2019 SSOC. Accordingly, the Board finds there has been substantial compliance with the prior Board remand directives. Service Connection for the Cause of the Veteran’s death In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability was incurred in or aggravated by active service; and was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or must be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The standards and criteria for determining whether or not a disability from which a Veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service-connected generally, i.e., while the Veteran is still alive. 38 U.S.C. § 1310. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). In a September 2012 statement, the appellant alleged entitlement to service connection for the Veteran’s cause of death based on herbicide agent exposure. The appellant stated the Veteran’s cardiac arrest was related to ischemic heart disease. First, the Board has considered direct service connection for the Veteran’s cause of death. The Board finds that there was not an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) did not indicate treatment or complaints of symptoms related to brain herniation, cardiac arrest, or respiratory arrest. In her June 2013 notice of disagreement (NOD) the appellant alleged the Veteran was exposed to chemicals during a hernia repair surgery. Additionally, the appellant stated a spinal procaine was administered to the Veteran and caused heart problems. A review of the STRs showed the Veteran had hernia surgery in February 1965. The surgical report indicated a hernia repair using spinal Pontocaine not spinal Procaine. The Board finds the appellant is not competent to give statements regarding the nature of the Veteran’s treatment in-service. The appellant has no firsthand knowledge of the Veteran’s treatment in-service. Additionally, there are no statements from the Veteran regarding difficulties related to his heart in conjunction with his hernia repair surgery. Accordingly, entitlement to service connection for the Veteran’s cause of death on a direct basis is not warranted. Second, the Board has considered service connection based on herbicide agent exposure. The Veteran’s DD214 and service personnel records (SPRs) did not show any foreign or sea service. Additionally, there are no statements from the Veteran indicating exposure to herbicide agents. Accordingly, the Board finds there is no evidence to indicate the Veteran served in Vietnam, the offshore waters of Vietnam, or was otherwise exposed to herbicide agent in-service. During the November 2017 Board hearing, appellant contends that the Veteran, died as a result of a blood transfusion received at the VA Medical Center in Lexington, Kentucky. Additionally, the appellant contends there was no informed consent for the blood transfusions. According to the Veteran’s death certificate, he died on June [REDACTED], 2011. The immediate cause of death was brain herniation as a result of respiratory and cardiac arrest. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran’s own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. 38 U.S.C. § 1151 (2014). In determining whether additional disability exists, VA compares the veteran's physical condition immediately prior to the hospital care or medical treatment upon which the claim for benefits is based with the physical condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the VA medical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38C.F.R. § 3.361 (d)(2). The standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a “reasonable health care provider” would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362, 368-69 (2013). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, his or her representative’s informed consent. 38 C.F.R. § 3.361(d)(1); VAOPGCPREC 5-01. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2019). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361 (d)(1). By way of history, the Veteran underwent a lung transplant in July 2010. The appellant and her representative testified before the Board in November 2017 that the Veteran was called and notified by the VA hospital that his hemoglobin level was 7.9 and therefore was instructed to go to the emergency room. He was admitted to the VA Medical Center and then he was transferred to the University of Kentucky Hospital, which is connected to the VA Medical Center facility. The appellant stated the Veteran would not have consented to the blood transfusion if he knew there was a possibility of death. Overall, the appellant contends that the Veteran’s death was directly due to the fault of VA and the carelessness, negligence, and lack of proper skill of the VA staff in administering the blood transfusion. The appellant testified that prior to the Veteran’s death he was not in distress but “his normal self with the breathing because of the lung transplant.” He was not weak, fainting, or having difficulty breathing and to her knowledge, he was not chronically anemic. In April 2015, a VA examiner opined that although the Veteran’s death was the result of the blood transfusion, the exact nature of the causation was unclear. The VA examiner stated that the “possibilities appear to include such things as volume overload, transfusion reaction and TRALI (transfusion related acute lung injury). Therefore, the Veteran did suffer additional permanent disability or increased disability attributable to VA medical care.” However, based on his review of the evidence of record, the VA examiner concluded there was “no evidence of carelessness, negligence, lack of proper skill, error in judgment or a similar finding of fault on the part of the VA was identified in the records.” Specifically, the VA examiner stated, “the Veteran received two units of packed red blood cells over a period of about 7 hours. This would not constitute an excessive amount of fluid.” The appellant and her representative point to discrepancies between the treatment records from the VA Medical Center and the University of Kentucky which suggest the VA examiner relied on an inaccurate timeline. The appellant and her representative stated that the Veteran was at the VA Medical Hospital for less than six hours, and therefore, the Veteran could not have received two units of blood in approximately 7 hours. In addition, they refer to medical articles suggesting that Veteran was not at risk for death by waiting for the transfusion as he was not in critical condition and therefore, other treatment would have been possible. The Board requested an addendum opinion in March 2018 to specifically address the appellant’s contentions. In November 2018 a VA examiner thoroughly outlined the Veteran’s medical records and provided an addendum opinion. The examiner opined it was more likely than not the blood transfusions the Veteran received in June 2011 led to his death. The examiner based this opinion on a review of the evidence, relevant medical literature, and accepted medical principals. The examiner explained the Veteran developed respiratory distress immediately following VA blood transfusions. The Veteran developed cardiopulmonary arrest soon after and subsequently died. The examiner confirmed it was more likely than not the Veteran’s death was due to TRALI. The examiner explained that TRALI is a rare complication of blood transfusion. The examiner noted the hallmark of this condition is the abrupt onset of respiratory distress. The examiner noted a June 2011 VA nursing note indicated at 1320 the Veteran was doing well and ready to go home. A subsequent nursing note at 1330 reported the Veteran with respiratory distress. The examiner addressed the appellant’s contentions regarding the accuracy of the timeline. The Board notes the VA examiner fully outlined the Veteran’s course of care based on VA treatment and private treatment records. The examiner stated the medical records clearly and unmistakably document that Veteran was a patient in the Lexington VA Medical Center in June 2011. The examiner specifically noted chest x-ray reports with time- stamps, documented vital signs, procedures, and multiple physicians interacting with the Veteran. The examiner noted the appellant’s representative regarding the timeline is incorrect. Additionally, the examiner speculate that it was possible the private treatment documentation was started prior to the Veteran’s arrival at the private hospital. The examiner noted healthcare personnel will start their notes upon notification that a patient will be arriving but before the arrival has occurred. The examiner addressed the June 2011 informed consent. The appellant has regularly asserted the Veteran did not sign an informed consent. The November 2018 VA examiner noted informed consent contained verbiage that included, “…rare but more serious complications may occur such as allergic reactions, heart failure due to fluid overload, acute pulmonary edema (fluid leaking into the lungs), shock, or death.” The Board notes the June 2011 informed consent was signed by the Veteran and a VA treatment provider. The November 2018 VA examiner addressed the medical literature submitted by the appellant and her representative. The examiner explained that because medical guidelines change over time, the specific details are not directly applicable to medical decisions made in 2011. The submitted guideline does, however, emphasize the common transfusion guideline theme that decisions to transfuse should be based on an individual patient’s situation and not a hard and fast laboratory test result: “Patients must be evaluated individually to determine the proper transfusion therapy…Transfusion decisions should be based on careful clinical assessment as well as hemoglobin levels.” The examiner noted current transfusion guidelines from 2018 continue to direct physicians to transfuse based on an individual patient’s status: “The guidelines also emphasize that the decision to transfuse should not be based only on hemoglobin level but should incorporate individual patient characteristics and symptoms. Clinical judgment is critical in the decision to transfuse; therefore, transfusing red blood cell count above or below the specified hemoglobin threshold may be dictated by the clinical context.” The examiner stated that when facing a patient with a low blood count, the treating physician must make the decision if transfusion in that patient is warranted. The examiner noted factors that would favor transfusion include: 1) evidence to suggest possible recent bleeding: this might be determined by a decreased hemoglobin level compared to the preceding level; 2) patient risk of further subsequent lowering of the blood count from bleeding; 3) and subjective overall assessment of the patient’s “physiologic reserve” (the degree to which the patient could tolerate physiologic stress). For the Veteran’s specific case the examiner noted and opined of several different instances. First, the Veteran’s June 2011 hemoglobin level of 7.9 was significantly decreased from his baseline preceding level on January 2011 of 9.9. The examiner opined a 2.0 drop in hemoglobin level is considered medically significant and the Veteran’s hemoglobin level was actively dropping as evidenced by a subsequent June 2011 hemoglobin of 7.3. Second, the Veteran was taking chronic blood thinner medication putting him at risk for subsequent blood loss. Lastly, the Veteran had little physiologic reserve because medical issues included: 1) chronic supplemental oxygen therapy, 2) prior lung blood clot, 3) prior lung transplant with remaining native lung that was diseased from pulmonary fibrosis and emphysema, 4) required multiple transplant antirejection medication, 5)heart arrhythmia, and 6) June 2011 VA treatment noted recent fall, recent increased shortness of breath, recent pneumonia, and recent bleeding. The examiner concluded that the VA treatment providers felt the benefits of transfusion outweighed any risks in the Veteran’s case. Last, the examiner opined it was less likely than not that the Veteran’s death was the result of negligence or other fault on the part of the VA. The examiner determined death was reasonably foreseeable as a known consequence of transfusion and steps were reasonably taken to prevent such death. The examiner explained: 1) the transfusion was indicated for reasons noted, 2) the Veteran was transfused with blood formulated to reduce the risk of TRALI, 3) the Veteran was transfused with two units of blood at a rate of about three hours per unit and that was a reasonable and typical rate of infusion, and 4) medical records indicated the Veteran’s respiratory distress was rapidly recognized and he was treated with typical and appropriate resuscitation efforts. The examiner agreed with the April 2015 VA examination finding that, “In summary, no evidence of carelessness, negligence, lack of proper skill, error in judgment or a similar finding of fall on the part of the VA was identified in the records.” The Board affords significant probative weight to the November 2018 VA examination opinion. First, the examiner indicated a thorough review of the Veteran’s medical history. Second, the examiners review of the medical evidence was consistent with the information contained in the Veteran’s claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). Third, the examiner specifically addressed all of the appellant’s contentions regarding the standard of the Veteran’s care and timeline. Lastly, the examiner cited medical literature used in reaching the opinion provided. The Board notes the November 2018 VA opinion is consistent with the April 2015 but takes great care and provide detail to address and explain the appellant’s contentions. Accordingly, the Board finds the November 2018 opinion is highly probative. Based on the November 2018 VA opinion, the Board finds 1) the Veteran’s death was caused by complications of a blood transfusion, 2) TRALI is a known complication of blood transfusions and is a reasonably foreseeable event, and 3) the Veteran’s death was not due to negligence lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, to include a failure to obtain informed consent before the blood transfusion and the proper standard of care was followed. This means that while there is causation there i In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.