Citation Nr: 21071963
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 16-28 225
DATE: December 1, 2021

ORDER

Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 due to medication administered by Department of Veterans Affairs (VA) medical professionals at a VA Medical Center (VAMC) is granted.

FINDING OF FACT

The most probative evidence reflects that the Veteran's death was due to Department of Veterans Affairs (VA) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.

CONCLUSION OF LAW

The criteria for DIC under 38 U.S.C. § 1151 have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 3.362.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1961 to August 1962. He died in July 2014; the Appellant is his surviving spouse.

In August 2019, the Appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge.

In November 2019, the Board remanded this case for additional development.

Entitlement to DIC Under 38 U.S.C. § 1151

A Veteran who suffers disability or death resulting from hospital care or medical or surgical treatment or examination provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability...were service-connected," if the additional disability was not the result of the Veteran's willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013).

To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b).

The causation element of § 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs "in a [VA] facility" resulting from VA's negligence. Viegas, supra. This includes "treatment-related incidents that occur in the physical premises controlled and maintained by the VA." Id. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1). Merely showing that a Veteran received care, treatment, or examination, and that the Veteran has additional disability, does not establish cause. Id. 

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 (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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 additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event need not 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. Id. 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).

Here, the Appellant, a nurse and CMA (certified medical assistant) claims the Veteran's death was caused by negligence in VA medical treatment prior to his death. Specifically, she contends the Veteran died due to a potassium pill (K-tab) that was lodged in this throat, when he was on high alert for aspiration, and needed to be watched anytime he drank, ate, or took medication. The Appellant testified the Veteran essentially choked to death on a K-tab and that VA was negligent for not properly supervising him in taking the pill, or administering potassium in another form. In this regard, she testified that the Veteran had been given powdered potassium on two occasions (4 days, and then 2 days) prior to his death, but not on the day of his death. See August 2019 hearing transcript.

VA hospitalization records show the Veteran was admitted to the Memphis VA Hospital (VAH) in April 2014; his diagnoses at admission included renal disease, gangrene, cellulitis, osteomyelitis of the great toe, hypertension, and diabetes mellitus. During his hospitalization he developed stage IV sacral decubitus ulcer. His prognosis was poor, and he received palliative care. A July 15, 2014, internal medicine attending note notes the Veteran was unable to swallow liquids without coughing. A feeding tube was to be placed the next day; potassium was to be monitored aggressively. 

The Veteran died in July 2014. On the day he died, VA nursing notes from 6:29 AM show the Veteran requested breathing treatment for his persistent cough. Worsened upper airway cough with sputum was noted. Nursing used suctioning. Respiratory therapy was given. At 11:20 AM, it was noted the Veteran had pulled his Flexiflo feeding tube and refused replacement. The nutritionist noted potassium was low. A noon RN Shift Assessment shows the Veteran was very lethargic, with small periods of confusion and agitation but responsive to voice commands. He had a very weak productive cough. There was a suction setup at his bedside for "high aspiration precautions." He swallowed pills "well but slowly." DNR (do not resuscitate status) was noted. At 4:00 PM, he was still responsive. At 5:30 PM, he was not responsive; he was very cyanotic, and no radial pulse was palpable. His death was certified by a physician at 5:37 PM.

The Veteran's autopsy report was associated with the claims file in February 2020. The report notes the Veteran died with a K-tab tablet in the lumen of the trachea, consistent with acute aspiration. Final anatomic diagnoses of the respiratory system included acute pneumonia with features of chronic aspiration bilateral, with scant polarizable material noted along with acute and granulomatous foreign body-type inflammation, histologic findings suggestive of chronic aspiration, and trachea with tablet discovered in lumen, consistent with acute aspiration. The Death Certificate recorded the Veteran's primary cause of death as respiratory arrest, due to severe sepsis, due to pneumonia.

Although the record contained VA medical opinions dated in June 2015 and May 2016, the Board found these opinions to be inadequate in the November 2019 remand. Specifically, the Board found that a new opinion should be obtained because neither VA provider had the autopsy report to consider in rendering an opinion.

In a May 2020 VA Medical Opinion Disability Benefits Questionnaire, the VA physician noted he had reviewed the claims file, including the autopsy report and the Appellant's contentions. The physician opined:

There are other co morbid conditions that have contributed to [the Veteran's] poor resistance to infection like poor nutrition and diabetes mellitus. The Veteran was provided with care under specialists that I believe proper care and skills were exercised based on their own specilizations [sic]. Veteran died of his chronic pulmonary condition that led to pneumonia and progressed to sepsis that is less likely due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in treating the Veteran at the VA hospital prior to his death in July 2014. The proximate cause of the Veteran's death was an event that was foreseeable as he is noted with the risk of aspiration as confirmed by rapid sequence swallowing function study dated 28 May 2014 and 03 June 2014. Aspiration may come silently and may cause aspiration pneumonia inspite [sic] of the precautionary measures. Aspiration does not only happen during intake of solid food or fluid but it may also come from the stomach and lodges in the respiratory system which is beyond the control of the health care provider.

2. Autopsy report dated 30 July 2014 confirms trachea with tablet discovered in lumen, consistent with acute aspiration. The report also confirms that Veteran has been noted with acute pneumonia with features of chronic aspiration, bilateral and scant polarizable material noted along with acute and granulomatous foreign body-type inflammation, histologic findings suggestive of chronic aspiration. The issue of aspiration has been chronic resulting to pneumonia and sepsis eventually death. The claimant stated that Veteran had been given powdered potassium 4 days, and then 2 days, prior to his death, but that on the day of his death, on dose of potassium was ordered for the Veteran. If indeed he was given for 6 consecutive days with potassium it was given thru NGT as it is to powderized prior to NGT feeding and I believe it is on a daily basis. Record dated 26 July 2014 patient was noted removed NG tube this AM therefore all tablet or capsule medications were given by mouth. RN note dated 26 July 2014 @ 12:00 noted [patient] swallows pills well, but very slowly on high aspiration precautions. RN note date: 26 July 2014 @ L2:00 @1600, upon rounds [patient] still respond to voice no acute distress, indicative that the Veteran was not in acute respiratory distress immediately after intake of pills resulting from the claimed aspiration of potassium tablet found in the lumen of the trachea. Aspiration does not only happen during intake of solid food or fluid but it may also come from the stomach and lodges in the respiratory system which is beyond the control of the health care provider. Therefore it is less likely than not that the Veteran died due to a pill lodged in his throat as a result of negligent VA hospital care.

In February 2021, a private medical opinion was submitted from Dr. JN, a physician retained by the Appellant's representative, who reviewed the Veteran's claims file, including the autopsy report and the Appellant's contentions, and opined:

The autopsy report confirms that a "tablet (with K-tab engraving)" was found in the [V]eteran's tracheal lumen, consistent with acute aspiration. Further, the autopsy report indicates that the immediate cause of death was respiratory failure secondary to aspiration pneumonia. Therefore, it is abundantly clear that the [V]eteran "choked to death" as contended by the [Appellant].

Consistent with the foregoing, in my opinion, it is equally likely as not that the veteran's death was proximately caused by negligence or an error in judgement on the part of the VA. The nursing notes indicate that the [V]eteran "is at a high risk for aspiration." When a patient is considered to be at a high risk for aspiration, he should be supervised at all times by the nursing staff when given oral medication. In this instance, the VA failed to properly supervise the [V]eteran taking his medication, even though they were aware that he was at high risk for aspiration. The failure to supervise the [V]eteran taking his medication started the chain of events which ultimately led to the [V]eteran's death. The failure to supervise the administration of the medicine was negligent on the part of the VA and caused the [V]eteran's death. 

In addition, to failing to properly supervise the [V]eteran after he was given the potassium (K-tab) tablet, I believe that the VA was further negligent. It is commonly known that potassium (K-tab) tablets are inherently large and difficult to swallow for any patient, let alone a patient who is at high risk for aspiration, such as the [V]eteran. Potassium supplementation is manufactured in different formats, including tablets, capsules, powder solution and oral solution. The VA could have given it in powder form and mixed it with food, or even cut the pill in half which would have made administration of the potassium (K-tab) safer for the [V]eteran buy (sic) reducing the risk for aspiration. Given that the [V]eteran was at high risk for aspiration, the VA was negligent by failing to administer the potassium (K-tab) to the [V]eteran in an easier to swallow format, such as powder or by cutting the pill. In reviewing the medical records, I was unable to find the order for the (K-tab) on the day of the [V]eteran's death. Therefore, it is my further opinion that it is equally likely as not that the VA was negligent in failing to administer the potassium supplementation in a form that would have been easier for the [V]eteran to swallow.

In rendering my opinion, I considered the fact that on the day of his death, specifically at 4:00 P.M., the [V]eteran was in no acute distress. Although the record is silent as to when the potassium (K-tab) tablet was administered, clearly the [V]eteran ingested the pill and aspirated on it. The [V]eteran's spouse indicated that she was not with him on the day of his death and therefore, she did not give him the pill, so it appears that the nursing staff administered the pill to the [V]eteran. Had qualified nursing personnel properly supervised the [V]eteran while his medication was administered, he or she could have acted to dislodge the pill and free the [V]eteran's airway, thereby preventing respiratory arrest and resulting death.

The Board finds that DIC for the cause of the Veteran's death is warranted. In this regard, the Board previously found the June 2015 and May 2016 opinions to be inadequate. In addition, Dr. JN explained that VA failed to properly respond to the Veteran's risk factors for aspiration when he was given a K-tab instead of otherwise available alternatives, including potassium in powder or oral solution form. Notably, suctioning and respiratory therapy were administered to the Veteran earlier that day. While the record does not show the time the K-tab was administered, the fact remains that autopsy revealed it was administered and ended up logged in the trachea, causing acute aspiration. Based on these findings, he concluded that VA was negligent in treating the Veteran and that such fault resulted in his death. While the May 2020 VA examiner disagreed with this conclusion, as noted above, the evidence as to this claim is at least in equipoise.

After resolving reasonable doubt in the Appellant's favor, as is required when the evidence is in equipoise, the Board finds that the Veteran's death resulted from VA's negligent care at the Memphis VAH in July 2014. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, DIC under the provisions of 38 U.S.C. § 1151 is warranted.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fletcher, Kathleen

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.