Citation Nr: 21074478
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 16-51 295
DATE: December 15, 2021

ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.

Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death is denied.

Entitlement to service-connected burial benefits is denied.

FINDINGS OF FACT

1. The Veteran did not suffer an in-service incident, illness, or injury which can be etiologically linked to the causes of her death.

2. There is no evidence or report that the Veteran's death was related to or caused by carelessness, negligence, lack of skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable in providing treatment, examination, or other care.

3. The preponderance of the evidence is against finding that the Veteran's fatal disabilities were caused by any VA hospital care or treatment.

CONCLUSIONS OF LAW

1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1131, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.303, 3.312.

2. The criteria for DIC benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361.

3. The criteria for service-connected burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-1713.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1977 to April 1978.  She died and the appellant is her surviving spouse. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision and a December 2015 administrative decision.

Historically, the issue of entitlement to service-connected burial benefits was not certified to the Board.  However, in September 2016, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC) addressing the issues of entitlement to service connection for the cause of the Veteran's death, DIC benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death, and DIC benefits pursuant to 38 U.S.C. § 1318.  In a separate September 2016 SOC, the AOJ addressed the issue of entitlement to service-connected burial benefits.  Following the receipt of the two separate SOCs, the appellant filed a timely October 2016 substantive appeal (VA Form 9), in which he indicated that he was appealing all the issues listed on the SOC. The Board took jurisdiction of the claims. In a December 2018 Board decision, the issue of DIC benefits pursuant to 38 U.S.C. § 1318 was denied, and the remaining issues were remanded for further development. 

In June 2020, these matters were again before the Board and remanded for further development.

In the December 2018 and June 2020 remands, the Board instructed the AOJ to obtain all of the Veteran's outstanding relevant treatment records (including records from Claremore Hospital and Hillcrest Hospital) and to obtain medical opinions as to whether the Veteran's service-connected posttraumatic stress disorder (PTSD) (including medications for PTSD), in-service upper respiratory infections (URIs), urinary tract infections (UTIs), and/or flu shot reaction were related to her causes of death, whether the Veteran's VA treatment caused her death and, if so, whether the proximate cause of her death was due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing medical care or an event not reasonably foreseeable.

Pursuant to the Board's remands, the appellant was asked to identify or submit any outstanding records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Claremore Hospital and Hillcrest Hospital) by way of a May 2019 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Moreover, appropriate VA medical opinions were most recently obtained in July and August 2020. As explained in more detail below, the Board finds the July and August 2020 opinions to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to service connection for the cause of the Veteran's death.

The appellant contends that the Veteran's service-connected PTSD medications caused or contributed to her death.  In the alternative, the appellant contends that the Veteran had an allergic reaction to an experimental flu shot during service that compromised her immune and respiratory systems, resulting in her development of pneumonia, which is listed as an immediate cause of her death. Further, the appellant contends that the Veteran's in-service URIs and UTIs caused or contributed to her death.

To establish service connection for the cause of the Veteran's death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to, the result of, or aggravated by a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c).

Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death is based on the same statutory and regulatory provisions that generally govern determinations of service connection. 38 U.S.C. § 1310(a).

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1131 ; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999).

In this case, the Veteran passed away in September 2015. Her death certificate lists the causes of death as bilateral pneumonia, kidney failure, and multiorgan failure. There were no other conditions listed as contributing to the Veteran's death. At the time of her death the Veteran was service-connected for PTSD, bilateral hearing loss, and tinnitus.

The Veteran's service treatment records reflect that she was treated for respiratory problems (including URIs and bronchitis) and UTIs on various occasions in service and was treated for a reaction to the flu vaccine. There is no evidence of any other complaints of or treatment for respiratory or kidney problems in her service treatment records and her February 1978 separation examination was normal other than for hearing loss due to a URI. The appellant has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology since service with regard to the Veteran's fatal pneumonia, kidney failure, or multi organ failure.

In response to the most recent Board remand in June 2020, VA medical opinions were obtained in July 2020 and August 2020. In July 2020, a VA psychologist reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's service-connected PTSD and/or medications used to treat her PTSD was a principal cause of death, or that it contributed substantially or materially or otherwise combined with other conditions to cause death, or aided/lent assistance to the production of death. The rationale provided was that PTSD is not anatomically, physiologically, or pathologically associated to the pathophysiology or etiology of bilateral pneumonia, kidney failure and multi-organ failure with contributing chronic obstructive pulmonary failure and diastolic CHF which led to death. PTSD has no mechanism to cause, chronically aggravate, or result in the development of any of the Veteran's fatal disabilities. Additionally, the psychologist noted that while the Veteran was admitted to a VA hospital following an accidental overdose of methocarbamol, gabapentin, and Seroquel, urinalysis revealed PCP, opiates, oxycodone, and benzodiazepines; and her condition was stable upon discharge. She passed away 4 weeks post-discharge.

In August 2020, a VA physician reviewed the Veteran's claims file and opined that  it was less likely than not that the Veteran's in-service URIs and/or UTIs were a principal cause of death or contributed substantially or materially or otherwise combined with other conditions to cause death, or aided/lent assistance to the production of death. The rationale provided was that the URIs and UTIs were appropriately treated and resolved, and played no role in the Veteran's death or acute toxic/metabolic encephalopathy secondary to prescribed and non-prescribed medications more than 37 years later. Additionally, the physician opined that it was less likely as not that the flu vaccine received while on active duty caused or materially contributed to the Veteran's death. The rationale provided was that medical literature does not support any reaction to flu vaccines other than arm soreness and mild fever.

The July and August 2020 opinions are based upon a review of medical literature and the Veteran's records, and consideration of her reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Thus, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The only evidence in favor of the appellant's contentions are his beliefs that the Veteran's death was caused by her in-service flu shot, in-service URIs and UTIs, and/or PTSD medications. The Board acknowledges these assertions and acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the question presented in this case (i.e., whether the Veteran's cause of death was related to service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there was a link between the Veteran's cause of death and service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. However, the appellant has not indicated that he has such experience. Therefore, any opinion of the appellant on the question of nexus is not competent in this instance.

In contrast, the medical professionals who provided the July 2020 and August 2020 opinions possess the medical training and knowledge to opine on matters of causation competently and credibly; and these opinions are congruent with the evidence of record and cited medical literature. See Bloom v. West, 12 Vet. App. 185, 187 (1999).

There is no other evidence that the Veteran's fatal pneumonia, kidney failure, or multi organ failure had their onset in service, were related to service, or were related to medications taken for her service-connected PTSD, and neither the appellant nor his representative have alluded to the existence of any such evidence. Under these circumstances, the Board must conclude that the record does not support a finding that a disability of service origin caused or contributed substantially or materially to the Veteran's death.

The Veteran had admirable service and made sacrifices for her country. However, the preponderance of the evidence is against a finding that there exists a nexus, or link, between the cause of her death and that service, and VA cannot grant the benefit sought. In reaching the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is not for application in this instance, and service connection for the cause of the Veteran's death is not warranted. See 38 U.S.C. §§ 1131, 1310, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.312.

2. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death.

The appellant contends that because the Veteran was improperly discharged from a VA facility after being diagnosed with pneumonia prior to her death, VA's negligence in discharging the Veteran caused or contributed to her death.

The version of 38 U.S.C. § 1151 applicable to claims filed on or after October 1, 1997 provides that compensation shall be awarded for a qualifying death of a veteran in the same manner as if such death were service-connected. 38 U.S.C. § 1151.

A death is a qualifying death if the death was not the result of a veteran's willful misconduct and (1) the death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701 (3)(A), and (2) the proximate cause of the death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. Id. 

The implementing regulation applicable to 1151 claims received on or after October 1, 1997 is 38 C.F.R. § 3.361, which provides that in order establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a 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 as explained in 38 C.F.R. § 3.361 (c) and that (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 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. 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. 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).

In response to the June 2020 Board remand, a VA medical opinion was obtained in August 2020. The physician opined that it was less likely as not that the Veteran's death was caused by or became worse as a result of VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, additional disability resulting from an event that could not have reasonably been foreseen by a reasonable healthcare provider, or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability. The rationale provided was that the VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. The physician noted that the Veteran was diagnosed with pneumonia at an outside facility and transferred to a VA medical facility. Additionally, the Veteran was diagnosed with acute toxic and metabolic encephalopathy due to accidental ingestion of prescribed and non-prescribed medications including benzodiazepines and PCP. The Veteran's records document appropriate treatment of pneumonia and acute toxic and metabolic encephalopathy. Appropriate consultation was made with appropriate specialists and the Veteran's condition improved. Following treatment, the Veteran showed to be doing well and desired discharge. The Veteran was discharged with appropriate follow up and home health care services. A review of the VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met.

The August 2020 opinion is based upon a review of the Veteran's records and consideration of her reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Thus, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 295.

To the extent that the appellant has argued fault on VA's behalf, the question presented in this case (i.e., whether the Veteran's fatal pneumonia, kidney failure, and/or multi organ failure was caused by failure to properly treat her disability) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n.4. An opinion as to whether there is a link between the Veteran's cause of death and her VA treatment is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The appellant has not indicated that he has such experience. Therefore, any opinion of the appellant on the question of nexus is not competent in this instance.

There is no other evidence of a relationship between the Veteran's fatal pneumonia, kidney failure, or multi organ failure and her VA hospital care or treatment, and neither the appellant nor his representative has alluded to the existence of any such evidence. Therefore, the preponderance of the evidence weighs against finding that the Veteran's VA hospital care or treatment resulted in her death and that her death was proximately caused by either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment, or an event not reasonably foreseeable. Accordingly, entitlement to DIC benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

3. Entitlement to service-connected burial benefits. 

As an initial matter, the appellant has already been awarded $300 for nonservice-connected burial benefits. See Notification Letter, October 2015. Additionally, the appellant has already been awarded $745 for cemetery/plot costs. As such, the appellant has already been awarded the statutory maximum amounts allowable for nonservice-connected burial benefits. See Notification Letter, December 2015.

In order to award service-connected burial benefits, service connection for the cause of the Veteran's death must be in effect. See 38 C.F.R. § 3.1700. A burial allowance may be advanced only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." at 38 C.F.R. § 3.1702 (b)(3). 

In this case, as explained above, service connection for the cause of the Veteran's death has not been awarded. As such, service-connected burial benefits may not be awarded. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran's burial. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and the Board is bound by the laws and regulations that apply to claims for VA benefits and it has no discretion in this regard. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.105. Those laws and regulations make clear that service connection for the cause of the Veteran's death must be in effect in order for service-connected burial benefits to be awarded. Although the Board is required to "render a decision which grants every benefit that can be supported in law," it regrets that there is no basis in law to grant service-connected burial benefits. As, on these facts, there is no legal basis to award service-connected burial benefits, the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

Brian J. Elwood

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Camille NeSmith, 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.