Citation Nr: 21001689 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-47 168 DATE: January 11, 2021 ORDER Dependency and indemnity compensation (DIC) for the Veteran’s death under the provisions of 38 U.S.C. § 1151 is denied. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran’s death was not proximately caused by carelessness, negligence, lack of skill, error in judgment, or similar instance of fault in the course of VA treatment or examination, nor by an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to DIC under the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1966 to June 1968, to include service in Vietnam. He died in February 2012. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. This case was previously before the Board in June 2018 and May 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. Entitlement to DIC for the Veteran’s death under the provisions of 38 U.S.C. § 1151. The appellant seeks DIC benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran’s death. The appellant asserts that the Veteran’s death was the result of inadequate VA medical care. Specifically, she contends that VA did not offer the opportunity for a lung transplant, which the Veteran’s private insurance and Barnes-Jewish Hospital provided. See September 2017 Statement in Support of Claim. Title 38 U.S.C. § 1151 provides, in pertinent part, that a Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if 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), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether additional disability exists within the meaning of 38 U.S.C. § 1151, the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination 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). 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). Additional disability caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). 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). 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 additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that 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). The determination of whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). After a review of the record, the Board finds that the weight of the evidence is against the appellant’s claim for DIC under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death. Turning to the factual background relevant to this case, the Veteran’s medical treatment records show that he was treated for respiratory conditions at least as early as 1999. Records show that the Veteran was diagnosed with bronchiolitis obliterans organizing pneumonia (BOOP) in April 1999. Chronic obstructive pulmonary disease (COPD) was noted in March 2002. In August 2008, the Veteran reported to physicians at the Tulsa VA Outpatient Clinic that his private pulmonologist has started a workup for a lung transplantation. The record reflects that in June 2009, the Veteran underwent a left lung transplant at Barnes-Jewish Hospital in St. Louis, Missouri, a private facility. The medical evidence reflects that he tolerated the procedure well. A December 2009 St. Francis Health System treatment record notes that Veteran underwent a left lung transplant in June 2009 due to COPD and BOOP. The record notes that his breathing was not optimal, but significantly better than before the transplant. In a June 2010 VA treatment record, the Veteran reported concerns about lung transplant rejection. He reported that he had had three hospital readmissions after the transplant, the last being in October 2009. An August 2010 treatment record notes that the Veteran had been having problems with rejection. The record indicates he was given anti-rejection drugs and was doing reasonably well or was at least stable at that time. A July 2011 Pulmonary Medicine Associates record notes that the Veteran was status post lung transplant and chronic rejection. However, it was noted that he was improved overall. September 2011 St. Francis Health System treatment records document that the Veteran’s chronic rejection had improved. In an October 2011 Pulmonary Medicine Associates record, the treating physician noted a diagnosis of chronic rejection, severe obstruction, with recent pneumonia. In a January 2012 Pulmonary Medicine Associates record, it was documented that the Veteran had a lung transplant with chronic rejection with a recurrence of obstructive lung disease. The treating physician noted that the Veteran would continue his current medications and return to the clinic in six months. The Veteran died in February 2012. His death certificate lists the immediate cause of his death as rejection of a transplanted lung. No other underlying or contributing causes were identified. A VA medical opinion was obtained in August 2020. After reviewing the record, the examiner opined that the Veteran’s death was less likely than not proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on VA’s part in furnishing treatment to the Veteran. The examiner indicated that the lung transplant was not a referral from VA, but was the choice of the Veteran and the providing hospital. The examiner further opined that VA did not offer a lung transplant due to the risks relative to the Veteran’s age and health conditions at the time. As such, the examiner noted that conservative treatment was deemed more appropriate for the Veteran’s condition. The examiner noted that the rejected lung transplant was not part of VA care. Moreover, the examiner stated there was no failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability. The examiner noted that the records (specifically a September 2003 record) showed that the COPD was noted, and treatment was provided. The Board finds that DIC for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1151 is not warranted. The record does not support the conclusion that VA hospital care, medical or surgical treatment, or examination resulted in the Veteran’s death. Neither does it support the conclusion that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the course of Veteran's VA treatment caused or contributed to his death. Furthermore, as noted above, the left lung transplant surgery was performed at a private non-VA facility, without VA referral, and that any potential additional disabilities resulting therefrom are not compensable under 38 U.S.C. § 1151. The August 2020 VA examiner provided a persuasive explanation to support his conclusion that the Veteran's death was not caused by any type of fault in VA's care or treatment. It is based on objective findings as shown in the record, with a full and accurate factual premise, and a rationale for the opinion was provided. The Board finds that the August 2020 VA opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There are no contrary medical opinions of record. The only evidence provided by the appellant in support of her claim are her own statements asserting improper care on the part of VA. While the appellant is competent to report what she observed about the Veteran’s health, she is not shown to have the specialized training necessary to offer a competent opinion on such a complex matter as the cause of the Veteran’s death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, as the appellant is not competent to render an opinion as to whether the proper standard of care was provided to the Veteran, the Board affords her statements no probative weight. While the Board is grateful for the Veteran’s service, and sympathetic to the circumstances of his death, the preponderance of the evidence is against an award of DIC benefits under 38 U.S.C. § 1151. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of this issue must be denied. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded. Although the Board regrets the additional delay, further development of this issue is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (2011). The May 2020 Board remand asked the AOJ to obtain a VA medical opinion as to whether it was at least as likely as not that any respiratory disability present prior to the Veteran’s death caused or contributed substantially or materially to the Veteran’s death, had its clinical onset in service, or was otherwise related to service, including his conceded in-service exposure to herbicide agents and/or his military occupational specialty as a welder. Specifically, the examiner was to consider the Veteran’s diagnosed respiratory disabilities of BOOP, pulmonary fibrosis, and emphysema. The examiner was also to consider and discuss the private medical opinion from the Veteran’s treating physician, submitted in July 2018,which states that it is possible that Agent Orange may have in some part either caused and/or contributed to the Veteran’s COPD. The AOJ obtained a VA medical opinion in June 2020. In response to the Board’s remand instructions, the examiner opined that it was less likely than not that the Veteran’s BOOP and chronic interstitial lung disease with pulmonary fibrosis caused or contributed substantially or materially to the veteran’s death, had its clinical onset in service, or was otherwise related to service, including his conceded in-service exposure to herbicide agents and/or his military occupational specialty as a welder. The Board finds that an addendum opinion is needed. To that end, the Board acknowledges that the June 2020 examiner provided an opinion in regard to the Veteran’s BOOP and chronic interstitial lung disease with pulmonary fibrosis. However, the May 2020 remand specifically instructed the examiner to consider emphysema as well. The examiner noted the diagnosis of emphysema multiple times in the summary of the medical record; however, he provided no explicit etiological opinion therefor. Also, as it relates to herbicide exposure, the examiner stated that “no records are found that states that this condition is due to exposure to herbicides.” In coming to this conclusion, the examiner did not discuss the medical significance of a July 2018 private opinion which indicated that Agent Orange may have caused or contributed to the Veteran’s respiratory disability. As such, additional development is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); also see Stegall, 11 Vet. App. 268. This matter is REMANDED for the following action: 1. Obtain an addendum opinion from the June 2020 examiner regarding the cause of the Veteran’s death. The examiner should review the record. The examiner must opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any respiratory disability present prior to the Veteran’s death that caused or contributed substantially or materially to his death, specifically COPD and emphysema, had its clinical onset in service, or was otherwise related to service, including his conceded in-service exposure to herbicide agents and/or his military occupational specialty as a welder. In so doing, the examiner should consider and discuss the medical significance, if any, of the private medical opinion from the Veteran’s treating physician, submitted in July 2018,which states that it is possible that Agent Orange may have in some part either caused and/or contributed to the Veteran’s COPD; and any medical literature deemed appropriate. If the June 2020 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.