Citation Nr: 20051114 Decision Date: 07/31/20 Archive Date: 07/31/20 DOCKET NO. 15-00 718A DATE: July 31, 2020 ORDER Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C. § 1151 are denied. REMANDED Service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT There is no competent and probative evidence 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 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1965 to September 1967. He died in April 2014 and appellant is his surviving spouse. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board in May 2018 and December 2018. 1. DIC benefits pursuant to 38 U.S.C. § 1151 The appellant seeks DIC benefits for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1151. In the February 2015 substantive appeal, appellant asserted that the Veteran was admitted to a VA medical center (VAMC) for soft-cell sarcoma of the colon; that the VAMC performed a colostomy-stoma; that as a result of the procedure, the site became infected resulting in sepsis, which the VAMC was unable to control; and that the Veteran died as a result of the sepsis that was secondary to the procedure for sarcoma/colon cancer. 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). The medical evidence in this case consists of VA and private treatment records. As an initial matter, the Board notes that none of this evidence indicates that the Veteran was ever diagnosed with a sarcoma of the colon. Rather, the evidence indicates that the Veteran was treated for rectal and colon cancer at a private medical facility, specifically, Fox Chase Cancer Center, prior to his 2001 marriage to the appellant. More specifically, a biopsy of the Veteran’s rectum taken in August 1997 showed high grade dysplasia and intramucosal adenocarcinoma, grade 2. He was treated by preoperative chemoradiotherapy and underwent low anterior resection/colectomy of the rectum and sigmoid colon on December 23, 1997, followed by 5-FU/leucovorin and radiation therapy. The corresponding December 1997 pathology report of the rectum and sigmoid colon showed invasive moderately differentiated adenocarcinoma of the rectum; that the tumor had invaded through the entire thickness of the bowel wall into perirectal soft tissue; that the tumor showed treatment effect; that lymphatic invasion was present; that there was metastatic adenocarcinoma in one out of four perirectal lymph nodes; microfocus of perineural invasion present in the perirectal soft tissue; negative proximal, distal and circumferential margins; and tubular adenoma of the sigmoid colon. The Veteran was seen on several occasions at Fox Chase Cancer Center in 1998 and 1999 after completing his postoperative chemotherapy with complaints of frequent bowel movements, which were thought to represent malabsorption secondary to radiation of the small bowel and radiation enteritis/enterocolitis. A colonoscopy was performed on September 10, 1999, during which a perirectal mass was biopsied and histologically shown to be an adenocarcinoma. The September 1999 pathology report included a final diagnosis of intermediate grade adenocarcinoma of the anal canal; there was no evidence of disease in the distal duodenum and mucosa was normal in the GE junction, gastric antrum, cecum and sigmoid. On October 19, 1999, the Veteran underwent exploratory laparotomy and abdominoperineal resection with colostomy creation after. He received follow up care privately until just shortly before his death, without evidence of sepsis as a result of the 1999 colostomy/stoma in either the private or VA treatment records. A January 2006 biopsy conducted at Fox Chase Cancer Center of mucosal nodule on colostomy showed granulation tissue polyp but no evidence of malignancy. The Veteran was seen during a drop-in visit at Fox Chase Cancer Center in December 2012 because of recent onset of worsening abdominal pain with gas and bloating and diarrhea with intermittent bleeding around the stoma. Physical examination revealed a colostomy bag in the left lower quadrant that was functioning normally with semi-formed stool in the bag. The stoma itself was pink and healthy appearing, although there was a slight amount of bright red blood at the attachment of the ostomy bag without visible brisk bleeding. There was more significant parastomal herniation compared to prior exams. The attending physician discussed with the Veteran the low index of suspicion for recurrent carcinoma as a cause of his symptom complex but noted the parastomal hernia seemed to be much more impressive on examination and may be contributing to symptomatology. It was also noted the Veteran was overdue on colonoscopy, as the last one had been performed in January 2006. The Veteran was next seen at Fox Chase Cancer Center in February 2014. It was noted he had not been seen since December 2012 and that at that time, he was advised to update CT scans and colonoscopy and to consider gastroenterology evaluation at Fox Chase. It was also noted the Veteran failed to keep a scheduled appointment on March 7, 2013, and that his wife had left a message on March 21, 2013, that he had been admitted to the VAMC in West Philadelphia on March 18, 2013, with a “melt down” of his depression. The Veteran was given a follow-up appointment on March 28, 2013, but Fox Chase did not hear from him until his wife called to make the February 2014 appointment. During the February 2014 treatment, the Veteran reported pain to his right abdomen at the site of his parastomal hernia; his ostomy was functioning well. Physical examination revealed a left lower quadrant colostomy that appeared to be healthy and functional. There was tenderness at the parastomal hernia around the colostomy but no masses or hepatosplenomegaly. The impression was chronic abdominal pain secondary to parastomal hernia and residual tissue damage from abdominal peritoneal resection for rectal carcinoma. VA records corroborate that the Veteran was admitted to the VAMC on March 19, 2013, with complaint of dysphagia, urinary frequency, weight loss and depression accompanied by a detailed suicide plan. He was transferred to psych on March 22, 2013. During inpatient psychiatric treatment, the Veteran underwent a gastroenterology consult in July 2013, during which it was noted a March 2013 PET/CT scan showed multiple axillary/inguinal nodes and mesenteric lymph nodes with minimal or mild FDG uptake, not characteristic for metastatic colon cancer, but cannot rule out non-FDG-avid malignancy. The examining physician reported that per history and examination, the Veteran appeared to be constipated as he was on very constipating medications without adequate bowel regiment for opiod-induced constipation. There was little concern that area may coincide with area of FDG pelvic update in the left pelvis, but the examiner felt this was unlikely as palpation over the left aspect of the left lower quadrant was not deep enough to reach the level of the ureter/retroperitoneal and hard stool was felt; the Veteran had also been gaining weight over the last few months. It was noted the Veteran was due for his surveillance colonoscopy. The Veteran underwent a colonoscopy during the VA admission on July 25, 2013, which showed normal remaining colon status post abdominoperineal resection; normal stoma; hard stool ball in the colostomy bag. The impression was abdominal pain likely related to severe constipation and inadequate bowel regimen. He was discharged on September 15, 2013, and mental health intake was conducted on October 17, 2013. He received mental health treatment from VA until April 1, 2014, when a VA record indicates that the Veteran reported he would be going into respite for one week while his wife saw family in Chicago. The Veteran died a week later. Records from the non-VA facility at which the Veteran died on April [REDACTED], 2014, reveal that he was transported to the emergency department and admitted for further evaluation after he became less responsive and was found to be cold and bradycardic at the Meadow Lakes nursing home the day before. Paramedics were called and the Veteran had decreased responsiveness upon their arrival and was hypothermic and in supraventricular tachycardia. He was admitted to the non-VA facility on April [REDACTED], 2014, with very severe bradycardia, unresponsiveness, hypothermia, supraventricular tachycardia, severe metabolic acidosis, and severe lactic acidosis. The Veteran was also in acute renal failure and the picture was concerning for severe intraabdominal sepsis. The Veteran’s stepdaughter, who was the director of the Meadow Lakes nursing home where the Veteran had been for respite care only while his wife was in Chicago, reported that he had been well oriented the day before admission. The Veteran died less than 24 hours after admission and his family declined an autopsy. The death certificate indicates that the immediate cause of death was septic shock with multi organ failure due to or a consequence of probable intraabdominal sepsis; colon cancer and atrial fibrillation were significant conditions contributing to death but not resulting in the underlying cause. The interval between the onset of the septic shock and probable intraabdominal sepsis was reported as a few days. Upon review of the record, the Board finds that the preponderance of the competent and probative evidence is against a finding that the Veteran’s 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. The appellant has hinged her claim on an assertion that the Veteran underwent a surgical procedure at a VA medical center because of colon cancer, specifically the performance of a “colostomy-stoma,” and that as a result of the procedure, the site became infected resulting in sepsis, which the VAMC was unable to control, resulting in the Veteran’s death. No specific dates have been provided by the appellant, but the medical evidence of record indicates that the procedure during which a colostomy was placed occurred at a private, not VA facility, in October 1999. The Board acknowledges that the Veteran dies from septic shock due to probable intraabdominal sepsis; however, his death occurred approximately 15 years after the October 1999 non-VA procedure and there is no indication that the Veteran was furnished hospital care or medical treatment by VA prior to his death in conjunction with his gastrointestinal functioning, to include treatment related to the stoma or colostomy or colon cancer, or that he was being treated by VA for sepsis. Rather, the Veteran was last seen at VA on April 1, 2014, for mental health treatment and there is no indication that he underwent any surgical procedures during his last VA admission between March and September in 2013. Moreover, while private treatment records indicate that he was found to have parastomal hernia in 2012 and 2014, there was no indication of sepsis at the stoma. The only reference to sepsis was made in the April [REDACTED], 2014, admission records, when intraabdominal sepsis was suspected based on the clinical picture. The Veteran was receiving respite care at a private nursing home, not a VA facility, in the week prior to his death. In sum, the Veteran died at a private facility approximately 15 years after the “colostomy-stoma” procedure cited by appellant to have been performed by VA, but which was actually performed at a private facility, and the preponderance of the competent and probative evidence indicates he was not being treated by VA for sepsis as a result of this or any other procedure prior to his death. While the appellant believes that the Veteran died as a result of sepsis following VA treatment, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d at 1376-77. Since there is no probative evidence 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. REASONS FOR REMAND 1. Service connection for the cause of the Veteran’s death is remanded. Since colon cancer is listed on the death certificate as a significant condition contributing to the Veteran’s death and appellant has asserted that the Veteran’s colon cancer is the result of his exposure to herbicide agents during service, remand is needed to obtain an opinion as to whether the Veteran had colon cancer or residuals thereof at the time of his death, since the record indicates that his colon cancer was detected and treated in the late 1990s without recurrence up until January 2013, and as to whether any colon cancer was etiologically related to the Veteran’s presumed exposure to herbicides while serving in the Republic of Vietnam. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The matter is REMANDED for the following action: 1. Send the claims file to an oncologist or, if unavailable, another appropriate expert. Following review of the claims file, the oncologist or other expert is asked to provide an opinion as to whether the Veteran had colon cancer or residuals thereof at the time of his death and, if so, whether it is at least as likely as not (50 percent probability or greater) any colon cancer was etiologically related to the Veteran’s presumed exposure to herbicides. The oncologist should explain why or why not. M. D. Bruce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.