Citation Nr: 21009710 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-16 314 DATE: February 23, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death, including entitlement to dependency and indemnity income (DIC) pursuant to 38 U.S.C. § 1151, is denied FINDING OF FACT 1. The Veteran's certificate of death lists the immediate cause of death as clostridium difficile colitis (C. diff) secondary to tracheobronchitis treated with antibiotics and chronic obstructive pulmonary disease (COPD), with polycythemia vera and myelodysplastic syndrome listed as other significant conditions contributing to death. 2. The preponderance of probative evidence shows that the Veteran's death was not caused by service, a service-connected disability, or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for service connection for the cause of death, including entitlement to DIC pursuant to 38 U.S.C. § 1151, have not been met. 38 U.S.C. §§ 1110, 1112, 1151, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1948 to March 1952. The Veteran died on July [REDACTED] 2009. The Appellant seeks surviving spouse benefits. In July 2020, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for the cause of the Veteran's death, including entitlement to dependency and indemnity income (DIC) pursuant to 38 U.S.C. § 1151 Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or is etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. DIC under 38 U.S.C. § 1151 shall be awarded for a qualifying death of a veteran in the same manner as if such death were service-connected. For purposes of 38 U.S.C. § 1151, a qualifying death is one that is not the result of the 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 VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A) of this title, and 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; or (2) the death was proximately caused (A) by the provision of training and rehabilitation services by VA as part of an approved rehabilitation program under 38 U.S.C. Chapter 31, or (B) by participation in a program under 38 U.S.C. § 1718. 38 U.S.C. § 1151. The Appellant asserts DIC benefits are warranted because C. diff, tracheobronchitis, and COPD are related to service. Alternatively, the Appellant asserts that DIC benefits are warranted pursuant to 38 U.S.C. § 1151. In a June 2011 statement, the Appellant, through counsel, argued that VA “proximately caused the [V]eteran’s death because the doctors and staff at the VA medical center were careless, neglectful, and lacked proper skill as evidenced by their failure to prescribe the [V]eteran probiotics, along with the antibiotic, Ciprofloxacin.” A February and March 2009 list of medications shows that the Veteran was taking 45 medications. Of those, 44 of the medications were listed as “VA medications” which included 325 milligrams of aspirin, protection briefs, folic acid, and a multivitamin. The Veteran also took “non-VA acidophilus c pectin.” There is no evidence that the Veteran was taking an antibiotic in February and March 2009. In June 2009, the Veteran reported to urgent care complaining of a cough for three days. The record shows that Amoxicillin and Prednisone were prescribed. A July 2, 2009, nursing triage note shows that the Veteran reported four to five days of lower quadrant pain, two days of tarry stool, and a month of mucous-like stool which worsened after taking antibiotics. On July [REDACTED], 2009, C. diff was diagnosed, and medication was started. Eight days later, the Veteran passed away. A July [REDACTED], 2009 final hospitalization record shows that the cause of death was C. diff colitis as a consequence of the antibiotics given for bronchitis which likely occurred as a result of COPD. In a September 2009 letter, the Veteran’s doctor stated that the Appellant “claim[ed] that [the Veteran] was verbally instructed to take a probiotic/acidophilus along with the prescribed antibiotic Ciprofloxacin…. [The Veteran] did not understand or did not hear these instructions. Additionally, these instructions were not giving in writing…. [A]fter no improvement in his condition, [the Veteran] was admitted to the [hospital] at which time C-diff (Clostridium difficile) was contracted. Since [the Veteran] more than likely did not hear the instructions to take the probiotics that he needed, it is as likely as not to be the cause of or contributed to the cause of his death.” In May 2010 a VA medical examiner stated that there was no objective evidence in the record that the Veteran was advised to take a probiotic or acidophilus. The examiner explained that review of the medical literature did not support a definite benefit in taking probiotic or acidophilus to prevent clostridium difficile colitis. During the March 2015 Board hearing, the Appellant testified that the Veteran was hard of hearing and the she usually accompanied the Veteran to doctors’ appointments. She testified that she did not accompany the Veteran to a June 24, 2009, urgent care appointment. She testified that in August 2009, the Veteran’s hematologist explained to her that the Veteran had been put on an antibiotic in June 2009 but “he was not instructed to take any probiotic with it…they should have told him to take this probiotic.” The Appellant also testified that while the Veteran was hospitalized, she was told by hospital staff that the Veteran had colitis and that had he taken or been instructed to take probiotics, colitis “may never have happened.” In August 2018, a VA examiner stated that there was no absolute medical certainty that probiotics would have prevented C. diff. The examiner stated that another review of the file showed an “absence of evidence that pro-biotics were recommended at all therefore the [V]eteran’s hearing [was] not an issue…the [V]eteran had multiple significant risk factors for clostridium difficile colitis.” In November 2020 a VA examiner opined that C. diff, tracheal bronchitis, and COPD were not the result of service. The examiner opined that tracheal bronchitis and COPD were more likely than not due to a 50 pack per year smoking history as there was no evidence of complaints of or treatments for the disabilities while in service and for many years after separation from service. The examiner stated that the most likely cause of C. diff colitis was treatment with antibiotics for the respiratory conditions. There was no evidence of C. diff arising in service “as it presents with fulminant diarrhea, often melanotic or frankly hemorrhagic, it would not have been missed or have gone unreported. [C diff] is an urgent medical condition, often becoming emergent. Therefore, it is less likely than not that the [V]eteran's pseudomembranous colitis had its nexus in service or is due to events in service.” The examiner noted the Appellant’s contention that the Veteran’s death was caused by “lack of proper care by the VA, including not prescribing probiotics.” The examiner explained that “probiotics ha[d] not been established as a preventive or curative measure, with respect to C. diff, for patients on antibiotics… There [was] no established benefit for probiotics proven in the widely accepted, peer-reviewed literature. The [V]eteran reported a six-day history of melanotic diarrhea prior to admission on 7/2/10. The [V]eteran ha[d] multiple significant underlying medical conditions including a history of bowel stricture and subsequent ischemic colitis. This, along with age, polycythemia vera/myeloblastic dystrophy, diabetes and severe pulmonary disease placed the [V]eteran at extreme risk for contracting the condition, and severe complications once diagnosed. The [V]eteran was started on appropriate medical care, including coverage for suspected C. diff. Two different antibiotics used specifically to treat the condition were used once laboratory confirmation was obtained…. The [V]eteran's delay in presenting for medical care, along with his underlying conditions, more likely than not, was a key factor in his ultimate death. There [was] no evidence of deviation from the standard of care by the VA, either prior to or during his hospitalization. In summary, there is no evidence of deviation from the standard of care in prevention of the condition or treating the condition. Given the [V]eteran's comorbidities, expedient care at the time of onset six days prior to admission was critical. This delay by the [V]eteran likely determined the outcome. It is unlikely that written instructions would have included probiotics in 2009, or at all. The theory [was] not yet proven. It is more likely than not they would have little impact, as the antibiotics would have, more likely than not, neutralized the probiotics themselves…. To be clear, there [was] no definitive preventive against pseudomembranous colitis for patients taking antibiotics.” In a September 2020 statement, the Appellant and representative argued that service-connected “hearing loss prevented the Veteran from hearing or understanding medical instruction to take probiotics with Veterans Affairs prescribed antibiotic, and that taking antibiotics without probiotics caused clostridium difficile colitis, and led to the [V]eteran’s death.” Alternatively, the Appellant and her representative stated that “Clostridium difficile colitis was an iatrogenic disease; that…was caused by the failure of the staff at [VA] to take proper sanitary precautions; and, that the…infection could have been prevented…by combining the administration of probiotics with the [V]eteran's prescribed antibiotics." In a January 2021 statement, the Appellant’s representative stated that the September 2020 VA examiner’s “statements in regard to probiotics… are simply untrue and not supported by the medical literature.” The Board finds that the preponderance of the evidence is against a finding of entitlement to service connection for cause of death, including entitlement to DIC pursuant to 38 U.S.C. § 1151. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board 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 a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence shows that the Veteran developed C diff secondary to tracheobronchitis treated with antibiotics and COPD which led to his death. The disabilities were not service-connected, nor does any competent medical evidence of record demonstrate that they were caused by any incident of service or were related to service. The Board finds the September 2020 VA opinion regarding direct service connection competent, credible, and probative as the examiner is a licensed medical provider, who reviewed the claims file, considered the Veteran’s history, and provided a thorough rationale. No doctor has opined that C diff, tracheobronchitis, and COPD were the result of service. The examiner’s opinion is more probative than the Appellant’s lay opinion because the Appellant is not shown to possess the medical training, knowledge, or expertise to determine the etiology of C. diff, tracheobronchitis, or COPD. Therefore, service connection for cause of death is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds no causal connection between the Veteran's death and any hospital care, medical or surgical treatment, or examination furnished by VA. The Board finds that the VA medical opinions, taken as a whole, are competent, credible, and highly probative because the examiners reviewed the claims file, considered the Veteran's medical history, discussed the Appellant’s contentions, and offered opinions which were supported by the evidence of record, general medical knowledge, and medical research and literature. Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008). The Board assigns the November 2020 opinion great probative weight. The probative value of medical opinions is based on each of the physician's knowledge and skill in analyzing the data. VA examiners found that there was no evidence showing that the Veteran had been prescribed or told to take a probiotic during a June 2009 urgent care visit. The finding is supported by the contemporaneous medical evidence of record which includes a June 24, 2009, report in which the treating doctor stated that a course of antibiotics and steroids would be given; and a July 2, 2009, list of medications showing that Amoxicillin and Prednisone were prescribed on June 24, 2009. The Board notes that the medical records include VA prescribed medications such as aspirin, which could be obtained over the counter, and non-VA medications. The Board finds that if probiotics had been prescribed, in writing or verbally, it would have been noted by the treating physician and added to the list of medications. Moreover, VA examiners found that probiotics had not been shown to prevent C. diff; prescribing probiotics with an antibiotic was not the standard of care; and the Veteran’s underlying medical conditions, age, delay in seeking medical care was a key factor in the Veteran’s death, not the lack of probiotics. The finding is supported by treatise evidence provided by the examiners. The Board acknowledges the September 2009 opinion submitted by the Appellant, and finds the opinion is of little probative value. The doctor’s opinion was based on the Appellant’s reports that the Veteran was verbally instructed to take a probiotic. However, the Board notes that the Appellant testified under oath that she was not present with the Veteran at the June 2009 appointment. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458 (1993). The Board notes that despite the September 2009 letter and the June 2011 assertions, the Appellant testified that the same doctor told her that Veteran “was not instructed to take any probiotic.” The Board also finds the September 2009 findings conclusory as the doctor did not offer a rationale for the conclusion that probiotics would have prevented C. diff or that the C diff was contracted at the time the Veteran was admitted to the hospital. The conclusory findings are of little probative value considering other competent and complete medical opinions to the contrary. Because of the conclusory opinions, which were based in part on the Appellant’s unsupported statements, the September 2009 opinion is of less probative than the VA examiners’ opinions. The Appellant and her representative, argue that the hospital did not begin treating C. diff in a timely manner and the sanitary conditions of the hospital caused C. diff. The Board finds that the assertions are not supported by the evidence of record. The evidence shows that the Veteran complained of abdominal pain for one week prior to admission to the hospital; at the time of the July 2, 2009, hospital admission, C. diff was suspected; and on July 3, 2009, C. diff was diagnosed by CT scan and treatment was started. Moreover, after a review of the record, the November 2020 VA examiner opined that there was no evidence of deviation from the standard of care by the VA, either prior to or during hospitalization. The examiner stated that the Veteran’s underlying medical conditions, including a history of bowel stricture and subsequent ischemic colitis, along with age placed the veteran at extreme risk for contracting the C. diff, and severe complications once diagnosed. The veteran was started on appropriate medical care, including coverage for suspected C. diff. Two different antibiotics were used specifically to treat the condition once laboratory confirmation was obtained. The Veteran's delay in presenting for medical care, along with his underlying conditions, more likely than not, was a key factor in his ultimate death. The Appellant has not submitted any competent medical evidence or medical opinion to the contrary. The Appellant has provided no probative evidence to support the claim that C. diff is related to service or that the Veteran’s death was caused by negligence in VA medical treatment or an event not reasonably foreseeable. The Appellant as a layperson, is not competent to provide a medical opinion regarding cause of death of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The more probative evidence shows that the cause of death is not related to service or any fault of VA treatment or event not reasonably foreseeable. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.