Citation Nr: 21073429 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-43 893 DATE: December 8, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in July 2011, and the death certificate lists acute renal failure and overwhelming sepsis as the causes of his death. 2. The probative evidence weighs against a finding 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 the Department of Veterans Affairs (VA) in furnishing the hospital care, to include medical and surgical treatment, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for DIC under 38 U.S.C. § 1151 for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.361 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1951 to July 1955 and from October 1955 to August 1957. The Veteran died in July 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant requested, and was scheduled for hearing before a Veterans Law Judge in October 2021. However, the appellant failed to appear for this hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2020). Laws and Regulations Compensation under section 1151 "shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected," 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 or medical or surgical treatment resulted in the Veteran's death. Merely showing that a Veteran received care or treatment and that the Veteran died does not establish causation. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of injury for which the care or 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance 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 or medical or surgical treatment caused the Veteran's death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's representative's informed consent. 38 C.F.R. § 3.361 (d)(1). 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. 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). 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. 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 healthcare provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(2). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2020). Factual Background and Analysis The appellant contends that the Veteran's death resulted from his treatment at the Gainesville VA Medical Center (VAMC). Specifically, the appellant noted that the Veteran underwent resections of his and large small intestines for his Crohn's disease at the VAMC. The appellant claims that on the Veteran's fourth postoperative day, he was diagnosed with intraabdominal bleeding which resulted in a laparotomy and surgical control of bleeding. Post-surgery, he developed pneumonia and generalized sepsis but finally expired as a result of the sepsis. The appellant noted that the doctor who performed the procedure informed her that he had "nicked a blood vessel" which caused pseudomonas which shut down his kidneys and other organs which resulted in the Veteran's death. A June 2, 2011 pre-operative note noted that the Veteran was fully aware of the indications, risks and benefits of the planned procedure. A June 2, 2011 signed informed consent noted that the Veteran consented to the procedure of a laparotomy with possible biopsy and interventions. A June 2, 2011 treatment note indicated that the Veteran was doing well with no major events. A June 7, 2011 pre-operative note noted that the Veteran was fully aware of the indications, risks and benefits of the planned procedure for the abdominal distress. VA obtained a medical opinion in October 2015. The examiner noted that the Veteran had resections of the small and large intestines at the Gainesville VAMC on June 3, 2011. It was noted that on the fourth day after his operation, the Veteran was diagnosed with intraabdominal bleeding, taken to the operating room and underwent a laparotomy and surgical control of bleeding. The Veteran also had chronic lymphocytic leukemia which resulted in a low immune system. After this surgery, he developed pneumonia and general sepsis. He had every therapeutic treatment that was possible but finally expired as a result of complications from the sepsis. VA obtained a VA medical addendum opinion in March 2016. The VA examiner reviewed the Veteran's claims file and relevant private and VA treatment records in order to provide an opinion regarding the DIC pursuant to a Section 1151 claim. The examiner noted that after a review of the materials presented, it was his opinion that the Veteran's postoperative bleeding and expected postoperative occurrences were expected postoperative complications and were not the direct result of any negligent or mismanagement by the medical team. The examiner opined that the Veteran's death on July 8, 2011 was not caused by or the result of the care the Veteran received at the Gainesville VAMC. Based on review of the competent and credible evidence, entitlement to DIC compensation under section 1151 is not warranted. The Veteran's death is not shown to have been caused by VA medical treatment or hospital care and it is not shown to have been proximately caused by an instance of fault by VA. As noted above, entitlement to DIC compensation under section 1151, requires two causation elements to be met - the veteran's death must be "caused by" VA hospital care or medical treatment and it must be "proximately caused" by VA's "fault" or an unforeseen event. 38 U.S.C.§ 1151 (a)(1)(A), (B); see Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013); see Ollis v. Shulkin, 857 F.3d 1338, 1341 (Fed. Cir. 2017). VA "fault" is established when VA medical care or treatment caused disability or death and VA either "failed to exercise the degree of care that would be expected of a reasonable health care provider" or furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361 (d)(1)(i), (ii) (2020). In this case, review of the competent and credible evidence, fails to establish that the Veteran's death was caused by VA medical treatment or hospital care and proximately due to an instance of fault by VA. The Veteran's July 2011 death certificate noted that his immediate cause of death was acute renal failure and overwhelming sepsis. Other than the appellant's contentions, there is no competent medical evidence establishing that the Veteran's fatal conditions were caused by the VA medical care he received in 2011, or that his death was proximately due VA's carelessness, negligence, lack of proper skill, or any other instance of fault. Notably, in a November 2021 Written Brief, the appellant's representative argued that the October 2015 and March 2016 VA opinions were inadequate to decide the claim. The appellant's representative specifically noted that the VA examiner was not shown to have any experience, expertise, training or competence in commenting on gastrointestinal disorders as the examiner's specialty was not indicated. However, the Board notes that the report of the October 2015 and March 2016 reports reflect that the examiner reviewed the Veteran's past medical history and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examiner again specifically addressed the evidence available when determining that the Veteran's postoperative bleeding and expected postoperative occurrences were expected postoperative complications and were not the direct result of any negligent or mismanagement by the medical team. Thus, the Board finds that the October 2015 and March 2016 VA examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also affords the VA examiner's October 2015 and March 2016 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. In forming the opinion, the VA examiner again specifically noted the Veteran's postoperative bleeding and expected postoperative occurrences were expected postoperative complications. None of the competent medical evidence of record refutes these conclusions, and the appellant has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner's October 2015 and March 2016 opinions to be persuasive. As a result, the Board finds that the evidence does not demonstrate that the Veteran's death was caused by VA hospital care or medical treatment and it was not "proximately caused" by VA's "fault" or an unforeseen event. The Board has considered the appellant's, her representative's contentions with respect to the Veteran's death as they are competent to describe observable sequences of certain events, but they are not competent to provide an opinion as to whether the Veteran's death was proximately due to VA treatment, or whether the VA medical personnel demonstrated carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault. An opinion regarding the cause of death of the Veteran's falls outside the realm of common knowledge of a lay person, that is, the opinion cannot be based on mere personal observation, which comes through sensory perception. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Such opinions require medical expertise and clinical training. Id. Neither the appellant, her representative nor the Veteran's friend identified themselves as medical professionals or having medical training, education or expertise. Thus, to the extent their statements are proffered to establish causation, the Board is unable to assign any probative value to such. In the absence of competent medical evidence to establish that the Veteran's death was proximately caused by an instance of fault by VA during the course of medical care, DIC compensation under 38 U.S.C. § 1151 is not warranted. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the competent evidence is against this claim. Accordingly, the benefit of the doubt doctrine is not for application. See Gilbert, supra. While the Board is sympathetic to the appellant for the loss of her husband, and is grateful for his honorable military service, the legal requirements for DIC compensation under 38 U.S.C. § 1151 are not met and the claim is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.