Citation Nr: 21011070 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-40 198 DATE: February 26, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC), to include service connection for cause of the Veteran’s death and entitlement to benefits under the provisions of 38 U.S.C. § 1151 (2012), is denied. FINDINGS OF FACT 1. The Veteran’s immediate cause of death was respiratory failure, which onset was two days prior to his death, and which was due to or a consequence of chronic obstructive pulmonary disease (COPD), which onset was 10 years prior to his death, with other significant conditions contributing to death but not resulting in the underlying cause of acute kidney failure requiring hemodialysis. 2. The Veteran’s service-connected degenerative joint disease (DJD) of the right shoulder, mechanical low back strain degenerative disc disease (DDD), right foot enthesopathy in postero-upper calcaneus, bilateral hearing loss, and tinnitus did not cause or contribute substantially or materially to his death, nor did an in-service disease or injury cause or contribute substantially or materially to the Veteran’s death. 3. The Veteran developed additional disabilities of respiratory failure, COPD, and acute kidney failure that was caused by or became worse as a result of medical treatment at a VA facility. 4. The preponderance of the evidence is against a finding that the Veteran sustained the additional disabilities of respiratory failure, COPD, and acute kidney failure as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment from May 30, 2013 to June 6, 2013. 5. Although the Veteran’s treatment at the Omaha, Nebraska, VA Medical Center (OVAMC) contributed to his death, there was reasonable diligence and preparation, including any diagnostic tests or examinations typically performed for a patient admitted into the hospital with similar conditions as the Veteran during the OVAMC treatment from May 30, 2013 to June 6, 2013, as such of a medical professional exercising the degree of skill and care ordinarily required of the medical profession. 6. The Veteran’s additional disabilities, worsening symptoms, and ultimately his death following OVAMC treatment was due to an event reasonably foreseeable as a consequence of hemodialysis treatment, as expressly documented within the consent form signed by the Veteran in June 2013. CONCLUSION OF LAW The criteria for entitlement to DIC, to include service connection for cause of the Veteran’s death and entitlement to benefits under the provisions of 38 U.S.C. § 1151 (2012), have not been met. 38 U.S.C. §§ 1310, 1311, 1151, 5107; 38 C.F.R. §§ 3.154, 3.312, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1948 to April 1952. VA is grateful for his service to this country. The Veteran died in June 2013. The appellant is his surviving spouse. In July 2018, the appellant provided testimony in a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This case was previously before the Board in September 2018 and August 2020, at which times the Board remanded the claim for further development. Specifically, the Board remanded the matter in August 2020 for an addendum VA medical opinion, which was associated with the claims file in September 2020. There was substantial compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Service Connection for the Cause of the Veteran’s Death In the January 2021 informal hearing presentation, the appellant’s representative contended that entitlement to service connection for the cause of the Veteran’s death should be granted along with entitlement DIC benefits for a surviving spouse 38 U.S.C. § 1318. The representative noted that the Veteran’s five service-connected disabilities had a combined disability rating of 80 percent, and that he was granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to his death. Contrary to the contentions of the appellant’s representative in the January 2021 informal hearing presentation, the appellant testified during the July 2018 Board hearing that she does not contend that she is entitled to DIC benefits under the provisions of 38 U.S.C. § 1318. As noted in the Board’s September 2018 remand, she had not perfected this particular claim to the Board. She acknowledged during the hearing, and as is shown by the record, the Veteran was not continuously rated totally disabled for the 10 years immediately preceding his death; he was not rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than 10 years after separation from service; and, he was not a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). Thus, the Board shall not consider entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 further below. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive DIC benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a [claimant] must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board recognizes that VA did not obtain a medical opinion in connection with the current claim to determine if the cause of the Veteran’s death was related to active service. In determining whether a medical opinion is warranted in a claim for DIC, VA must determine if such opinion is “necessary to substantiate the claim” or whether, instead, “no reasonable possibility exists that such assistance would aid in substantiating the claim.” DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2009); 38 U.S.C. § 5103A(a). The Veteran’s death certificate shows that he died in June 2013. The Veteran’s immediate cause of death was respiratory failure, which onset was two days prior to his death, and which was due to or a consequence of COPD, which onset was 10 years prior to his death. The death certificate further notes that the acute kidney failure requiring hemodialysis contributed to the death but did not result in the underlying cause. At the time of the Veteran’s death, he was service connected for DJD of the right shoulder, mechanical low back strain DDD, right foot enthesopathy in postero-upper calcaneus, bilateral hearing loss, and tinnitus. The combined disability rating for these disabilities was 80 percent; however, the Veteran was also awarded a TDIU rating since September 18, 2006. The record does not suggest, and the appellant has not asserted, that the Veteran’s service-connected disabilities caused or contributed substantially or materially to his death. In fact, the appellant and her representative testified during the July 2018 Board hearing that they were not contending that the Veteran died of any service-connected disability. Furthermore, the Board notes that the appellant has not asserted, and the record does not suggest, that any incident of the Veteran’s active duty caused or substantially contributed to his death. Specifically, the service treatment records do not document any treatment or diagnoses of respiratory failure, COPD, or acute kidney failure. In fact, the claims file does not contain any lay or medical evidence showing a causal relationship between the immediate or underlying causes of the Veteran’s death and his active duty, from which the Veteran was separated more than 60 years prior to his death. For these reasons, the Board finds that there is “no reasonable possibility” that obtaining an opinion regarding the cause of the Veteran’s death or the asserted etiological relationship between the Veteran’s death and active service “would aid in substantiating the claim.” See DeLaRosa, 515 F.3d at 1322, and Wood, 520 F.3d at 1348. Therefore, as the preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death, the benefit of the doubt doctrine does not apply, and the appellant’s claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to DIC Under the Provisions of 38 U.S.C. § 1151 Nonetheless, the appellant’s main contention is entitlement to compensation under 38 C.F.R. § 1151 for the Veteran’s death due to negligent treatment by VA from May 30, 2013, to June 6, 2013, at the OVAMC. Specifically, the appellant reported that arrangements were made for the Veteran to be transferred from Howard County Hospital in St. Paul, Nebraska, to the intensive care unit (ICU) at OVAMC; however, instead, he was taken to 6 East Tower (6E) upon transfer. The appellant asserts that the Veteran was not treated with the proper procedures in a timely manner at OVAMC. See July 2018 hearing transcript. The appellant also submitted a letter from a nurse and a letter from a private doctor in July 2018 discussing the standard of medical care exercised during the Veteran’s treatment at OVAMC from May 30, 2013, to June 6, 2013, which the Board shall discuss below. Under the provisions of 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability, which is not the result of a veteran’s own willful misconduct or failure to follow instructions, disability compensation may be awarded for a “qualifying additional disability” in the same manner as if the additional disability was service connected. See 38 C.F.R. § 3.361. If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of a veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by medical treatment, VA compares a veteran’s condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination, and that a veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a veteran’s additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran’s informed consent. See 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or 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 § 17.32 of this chapter. See 38 C.F.R. § 3.361(d)(2). VA regulations define “informed consent” as follows: Informed consent is the process by which the practitioner discloses to and discusses appropriate information with a patient so that the patient may make a voluntary choice about whether to accept the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. The practitioner may delegate to other trained personnel responsibility for providing the patient with clinical information needed for the patient to make a fully informed consent decision but must personally verify with the patient that the patient has been appropriately informed and voluntarily consents to the treatment or procedure. See 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the medical record. See 38 C.F.R. § 17.32(d). Pursuant to 38 U.S.C. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; see Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010). The record shows that on May 30, 2013, the Veteran presented to the emergency room at Howard County Medical Center (Hospital) with complaints of shortness of breath and chest pain. Following treatment, listed as “oxygen breathing treatment, and IV fluids,” on the Omaha VA Patient Transfer Form by the Howard County Hospital medical professionals, with a diagnosis of “acute exacerbation of atrial fibrillation, hypoxia, and acute renal failure,” plans were made for transfer and further care with VA in Omaha. The physician’s assistant, J.S., indicated that she spoke to Dr. N[] at OVAMC, who accepted transfer of the Veteran. She also noted that she indicated [to VA] that the Veteran would need further care regarding his atrial fibrillation, renal failure, and other conditions. Lastly, J.S. noted that the Veteran would be transferred to the VAMC and going to the ICU under the care of Dr. V[], a report was given, and the Veteran was transferred. VA medical records include a May 30, 2013, non-VA care hospital notification note time stamped 10:21. VA medical records show that upon receipt of the notification, the Veteran was determined eligible for VA payment up to the point of stability or transfer and emergency room (ER) authorization was entered, 6E-tele bed was reserved, and information was sent by facsimile to the ER physician for review, awaiting decision. The Veteran was accepted to transfer at 12:12. A record time stamped 13:00 reflects that the Veteran would now be accepted to the ICU, a bed was reserved, the nurse hand off was changed, Admitting Officers of the Day (AODs) had been informed of the change, and this had been discussed with Dr. N[]. A 14:20 record reflects that ICU had talked with medicine after receiving more information from the transferring facility, that the Veteran would be transferring to 6E-tele upon admission to the OVAMC, and that he would receive a medicine team upon arrival, ICU charge nurse would report to 6E-tele and AODs had been notified. VA medical records indicate that the Veteran arrived to OVAMC on May 30, 2013, at 16:20. After initial treatments, June 3, 2013, VA medical records show that VA medical professionals found the Veteran would need several rounds of hemodialysis treatment prior to discharge. The record shows that the Veteran signed an informed consent for hemodialysis treatment on June 3, 2013. Specifically, this consent form described the process of hemodialysis, the potential benefits of the treatment/procedure, and alternatives to the treatment/procedure. Furthermore, the document listed the known risks and side effects of hemodialysis. The known risks of this treatment included, but were not limited to: air bubbles entering the bloodstream; allergic reaction to the solution used to sterilize the dialyzer; bleeding; damage, blockage, or sudden closure of blood vessels; dangerously high blood pressure; diabetes; difficulty with absorption of nutrition; fever; heart attack; heart rhythm disturbances; increased sensitivity to cold; leg pain or cramping; malnutrition; risk of transmission of viruses such as hepatitis, HIV, and others, as well as other infections due to bacteria or parasites; sepsis; and, death. The document shows that the medical practitioner obtaining the consent signed the document at 2:02pm on June 3, 2013. The document also shows that the Veteran signed this document at 2:05pm on the same date. The document states that by signing, the Veteran was attesting to the following: someone had explained this treatment/procedure and what it was for; someone had explained how this treatment/procedure could help him, and things that could go wrong; someone had told him about other treatments or procedures that might be done instead, and what would happen if he had no treatment/procedure; someone had answered all of his questions; he knew that he may refuse or change his mind about having this treatment/procedure and that if he refused or changed his mind, he would not lose his health care or any other VA benefits; he had been offered the opportunity to read the consent form; and, he chose to have this treatment/procedure. A June 4, 2013, VA medical record, time stamped 10:58, indicates that the Veteran was inpatient on 6E and Dr. S requested a placement of a perm cath for hemodialysis treatment due to acute renal failure and that the Veteran had been NPO (nothing by mouth) since 12 midnight. A June 4, 2013, VA dialysis inpatient note, time stamped 19:08, reflects that the Veteran had been dialyzed for two hours at bedside. A June 4, 2013, note time stamped 20:50 shows that the Veteran had been very anxious, confused, and agitated since hemodialysis treatment. A laboratory finding returned that showed acidosis and the physician noted if the Veteran was stable to improved, it was likely to have him remain on the floor as hemodialysis treatment will likely solve acidosis; however, if his pH decreased and carbon dioxide (CO2) increased, he would likely be transferred to step-down for bipap at that time. A June 5, 2013, VA physician transfer note, time stamped at 00:10, indicates that the Veteran was being transferred from a ward with telemetry to a step-down with a diagnosis of hypercarbic respiratory failure. VA medical records from June 5, 2013, show that the Veteran arrived to the floor at approximately 01:00 and was transferred to bed and bipap was applied. The Veteran’s family was brought in from the waiting room to talk with the doctor and at approximately 03:00, the family requested stopping mask and ending care. A June 5, 2013, VA physician transfer note shows that the Veteran transferred from the initial location of step-down to an ending location of a ward without telemetry. Subsequently, the Veteran was transferred initially to 7E, but the appellant was very upset and requested the Veteran not be on 7E because he had previously been on the floor and was unhappy. VA medical records dated June 6, 2013, show that the Veteran arrived to 6E as a transfer from ICU around 18:30 and was unresponsive but did moan when he was in pain. He received morphine and lorazepam dosage intervals per family request and expired at 01:35. VA records further note the Veteran’s cause of death as respiratory failure and that he had several advance chronic illnesses that contributed to his death. An autopsy was not requested because the family did not want one. The Veteran’s death certificate lists the immediate cause of death as “respiratory failure” due to as a consequence of “chronic obstructive pulmonary disease” with other significant conditions contributing to death but not resulting in the underlying cause of “acute kidney failure requiring hemodialysis.” As indicated above, the issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 requires a multifactor and complex analysis in its adjudication. Following the Board’s September 2018 remand instructions, in December 2019, VA sought a medical opinion (contracted Disability Benefits Questionnaire (DBQ)) on the issue. The examiner found that it was less likely than not that the Veteran’s death was caused by or was 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, or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner stated that the Veteran was hypotensive and with worsening renal failure, fluid resuscitation is the gold standard for this condition. Further, he added that while the Veteran did become slightly fluid overloaded, it was not uncommon in this setting and was appropriately treated. He explained that due to the Veteran’s lung condition, the medications of prednisone and Levaquin (an antibiotic) were warranted. However, as noted in the Board’s August 2020 remand, this examiner did not address the July 2018 letters from the nurse and private doctor proffered by the appellant. Specifically, the nurse, K.J., stated that though she could not speak to a change of outcome, she believed that the actions the VA nurses chose to take could have resulted in different care provided with earlier notification of how critically ill the Veteran was. It was her opinion that the nursing staff at OVAMC failed to be the Veteran’s advocate by documenting incorrectly, not recognizing changes correctly, and neglecting to help him get the procedures that he required to be completed in a timely manner. This included the Veteran’s transfer to 6E instead of the ICU upon arrival at VA from Howard County Community Hospital, which the appellant believes was pertinent to the Veteran’s care. See July 2018 hearing transcript. In her letter, K.J. detailed inadequate documentation, which she concluded lead to delays in interventions, multiple conditions that were not treated, multiple hospital acquired problems, and delays in treatment. Likewise, in the July 2018 letter written by the private doctor, Dr. D.S., who wrote that VA’s decisions to increase oxygen delivery rate and to bolus with intravenous fluids were very unwise, as it caused CO2 retention and acidosis, and the increase fluid resulted in volume overload that eventually could only be resolved by hemodialysis. He detailed procedures that he believed VA should have performed upon the Veteran’s arrival to OVAMC and specifically found that it was “very disappointing” that neither prednisone nor terazosin were recognized as two contributors to the fluid overload. Based on the opinions and statements by Dr. D.S. and nurse K.J., as well as the fact that the December 2019 VA examiner did not address the opinions and findings from these individuals, the Board again remanded the claim on appeal for an addendum medical opinion. After reviewing the lay and medical evidence of record, in a September 2020 addendum VA medical opinion, an examiner determined that the Veteran’s respiratory failure, COPD, and acute kidney failure were caused by or otherwise became worse as a result of the VA treatment at issue. The examiner explained that the Veteran had multiple chronic medical conditions documented prior to his hospitalization at the Hospital on May 30, 2013, including chronic kidney disease (CKD), oxygen dependent COPD, and paroxysmal atrial fibrillation. His hospitalization was precipitated by an exacerbation of his COPD with rapid atrial fibrillation and acute superimposed on chronic kidney disease. The examiner noted that given the severity of the Veteran’s acute medical illness superimposed on his chronic morbidities, the planned transfer to the ICU at the VAMC was appropriate. His management would have been best accommodated in the ICU setting, where close monitoring and attention to changes in the Veteran’s status would be standard of care. However, the Veteran’s initial admission to 6E rather than the ICU was not associated with any immediate adverse consequences. In fact, his condition remained stable during the first five days of hospitalization. His status deteriorated following institution of hemodialysis on June 4, 2013. The examiner noted that the Veteran developed progressive respiratory failure with respiratory acidosis and acute deterioration in mental status. The examiner stated that this sequence of events could potentially have been prevented with closer monitoring in an ICU setting following the Veteran’s first hemodialysis, especially with regard to administration of supplemental oxygen, although there was no reason to anticipate such a downtown in the Veteran’s course. Therefore, the examiner concluded that the Veteran’s respiratory failure, COPD, and acute kidney failure was caused by or became worse as a result of the VA treatment. However, this examiner determined that the Veteran’s additional disabilities of respiratory failure, COPD, and acute kidney failure did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner noted that the July 2018 letter from nurse K.J. stated that there was poor communication and documentation by nursing staff. The examiner noted that his review of the medical records did not confirm such an assertion. The examiner explained that the Veteran’s acute deterioration following institution of hemodialysis was unanticipated, and that in retrospect, he would best have been monitored in the ICU setting following initiation of hemodialysis. This would have enabled the vigilance and associated rapid changes in management that were required when he abruptly deteriorated. However, the examiner determined that the Veteran’s acute deterioration was an unforeseeable event. The Veteran’s initial admission to a non-ICU setting (contrary to the original transfer plans) was not accompanied by any adverse consequences during the first five days of hospitalization. The examiner disagreed with the letter from Dr. D.S. regarding disappointing administration of prednisone and terazosin. The examiner explained that prednisone was indicated to manage the Veteran’s exacerbation of COPD, and that administration of this medication was standard of care. While administration of terazosin was not necessary in the setting of the Veteran’s indwelling foley catheter, the examiner explained that there is not a significant risk of associated volume overload associated with administration of terazosin. This examiner also determined that the Veteran’s treatment at OVAMC contributed to his disability and death. The examiner explained that the Veteran’s management at the OVAMC was appropriate with regard to close monitoring of his volume status, initiation of hemodialysis, management of his atrial fibrillation, administration of antibiotic therapy and prednisone, as well as supplemental oxygen. The examiner noted that the Veteran suffered acute deterioration in respiratory status and mental status following initiation of hemodialysis, which led to his death. The examiner explained that while the exact reason for the Veteran’s acute deterioration was not clear, his treatment received at the OVAMC contributed to his disability and death. However, the Board notes that this examiner did not discuss the known risks of hemodialysis noted in the June 3, 2013, informed consent, which expressly states that death is a known risk of this procedure. In fact, this examiner did not discuss the June 3, 2013, informed consent at all in the September 2020 VA addendum opinion. This examiner also determined that there was reasonable diligence and preparation including any diagnostic tests or examinations typically performed for a patient admitted into the hospital with similar conditions as the Veteran during the OVAMC treatment from May 30, 2013, to June 6, 2013, as such of a medical professional exercising the degree of skill and care ordinarily required of the medical profession. The examiner noted that the Veteran’s management at this VAMC was totally appropriate with regard to treatment, testing, and examinations, and that his acute deterioration following institution of hemodialysis was unanticipated. The examiner explained that the Veteran was admitted to 6E instead of his planned admission to the ICU, but, as noted above, this change in plan was not associated with any adverse consequences during the first five days of hospitalization, during which time the Veteran remained stable. The examiner opined that the Veteran’s management at the OVAMC was totally appropriate with regards to treatment, testing, and examinations. The examiner reiterated that the Veteran’s acute deterioration following initiation of hemodialysis was unanticipated, as he had remained stable throughout his hospitalization prior to that time. The examiner next determined that the treatment offered to the Veteran by the OVAMC medical staff between May 30, 2013, and June 6, 2013, was performed exercising the degree of skill and care ordinarily required of the medical profession. The examiner noted that although the July 2018 letter from nurse K.J. stated that there was inadequate documentation and communication within nursing staff, his review of the medical records found no indication of this is the Veteran’s case. The examiner explained that the nursing records are detailed and indicate appropriate monitoring of the patient, as well as appropriate documentation. The examiner concluded that physician management was appropriate, and was carried out with skill and diligence. The examiner again disagreed with the letter from Dr. D.S. regarding disappointing administration of prednisone and terazosin. The examiner reiterated that prednisone was indicated to manage the Veteran’s exacerbation of COPD, and is standard of care. Any associated risk of volume overload was low and outweighed by potential benefit. The examiner again explained that while administration of terazosin was not necessary in the setting of the Veteran’s indwelling foley catheter, there is not a significant risk of associated volume overload associated with administration of terazosin. The examiner further opined that a medical professional, exercising the degree of skill and care ordinarily required of the medical profession, reasonably would not have provided different treatment or administered examinations and/or testing earlier based on the Veteran’s condition. Failure to do so delayed diagnosis or treatment that would have prevented additional disability, worsening symptoms, and/or ultimately the Veteran’s death following OVAMC treatment. The examiner explained that the Veteran’s respiratory depression and progressive respiratory failure with associated deterioration in mental status occurred following institution of hemodialysis. This outcome was unforeseeable and unanticipated. The examiner further noted that institution of hemodialysis was appropriate, as was the treatment and administration of testing and examinations throughout the Veteran’s hospitalization. The examiner again noted stated that the Veteran’s admittance to 6E instead of the ICU upon his arrival at OVAMC did not negatively impact the Veteran’s hospital course as he remained stable during the first five days of hospitalization until his unanticipated deterioration following initiation of hemodialysis. The examiner again reiterated that even though the letter from nurse K.J. states that there was inadequate documentation and communication within nursing staff, the examiner’s review of the medical records did not find such to be the case since the nursing records are detailed and indicate appropriate monitoring of the patient as well as appropriate documentation. The examiner again disagreed with Dr. D.S.’s finding regarding disappointing administration of prednisone and terazosin and provided the same rationale as is noted above. Ultimately, this examiner determined that the evidence of record and sound medical principles show that an additional disability, worsening symptoms, and ultimately the Veterans death following OVAMC treatment was due to an event not reasonably foreseeable. The Veteran’s course remained stable throughout his hospitalization. The examiner noted that in fact, the institution of hemodialysis was made in anticipation of hospital discharge and outpatient management of the Veteran’s renal failure, which was acute and superimposed on the chronic kidney injury. The examiner found that the Veteran’s abrupt deterioration following his first hemodialysis session was unanticipated and not reasonably foreseeable. As noted above, the examiner did not discuss or consider the June 3, 2013, informed consent document, which expressly listed death as a known risk of hemodialysis treatment, in making this determination that the Veteran’s deterioration and death following such treatment was an unanticipated and not reasonably foreseeable. The Board finds that the June 2013 informed consent form is probative evidence that death was foreseeable. In the January 2021 written brief presentation, the appellant’s representative acknowledged VA’s finding that the Veteran’s abrupt deterioration following his first hemodialysis session was unanticipated and not reasonably foreseeable. The representative contended, however, that any patient’s response and/or reaction to an initial medical procedure should be carefully and closely monitored in order to allow time for an adequate intervention in case of a life threatening development. The representative asserted that VA failed to provide the high level of care the Veteran’s deteriorating health situation required. In light of the aforementioned evidence, the Board finds that although the Veteran developed additional disabilities of respiratory failure, COPD, and acute kidney failure that were caused by or became worse as a result of medical treatment at OVAMC from May 30, 2013, to June 6, 2013, the preponderance of the evidence is against a finding that these disabilities resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. Likewise, although his treatment at OVAMC contributed to his death, there was reasonable diligence and preparation typically performed for a patient admitted into the hospital with similar conditions as the Veteran as such of a medical professional exercising the degree of skill and care ordinarily required of the medical profession. The Board has considered the statements from the appellant, including during the hearing testimony, and the January 2021 contentions from her representative, as well as the findings and opinions noted in the July 2018 letters from Dr. D.S. and nurse K.J. However, it determines that the September 2020 VA examiner’s opinions are entitled to significant probative weight because the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the Board finds this examiner’s findings and opinions to be probative evidence because of his expertise, training, education, proper support and rationale, and thorough review and analysis of the Veteran’s medical records, including the letters from Dr. D.S. and nurse K.J. Contrary to the September 2020 VA examiner’s finding, the Board determines that the evidence shows that the additional disabilities, worsening symptoms, and ultimately the Veterans death following OVAMC treatment was due to an event that was reasonably foreseeable. Specifically, the September 2020 VA examiner determined that the Veteran’s abrupt deterioration following his first hemodialysis session was unanticipated and not reasonably foreseeable. However, the record includes an informed consent document, signed by the Veteran on June 3, 2013, at 2:05pm, which expressly lists death as a known risk of hemodialysis treatment. As noted above, the September 2020 VA examiner did not address this document when making his conclusion. Thus, the preponderance of the evidence is against a finding that treatment at OVAMC, to include the administration of hemodialysis treatment on June 4, 2013, was the proximate cause of his death. See 38 U.S.C. § 1151; 38 C.F.R. §§ 3.361(a), 17.32. While the Board acknowledges the appellant’s contention that the Veteran’s death was due to actions or inaction by VA staff at the OVAMC during the Veteran’s hospitalization from May 30, 2013, to June 6, 2013, and thus, DIC is warranted, the evidence, including the September 2020 addendum VA medical opinion and the June 3, 2013, informed consent, is against this contention. Therefore, as the preponderance of the evidence is against the claim for entitlement to DIC, to include service connection for cause of the Veteran’s death, and entitlement to benefits under the provisions of 38 U.S.C. § 1151 (2012), the benefit of the doubt doctrine does not apply, and the appellant’s claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The Board is sympathetic to the appellant’s loss and would like to reiterate that VA is grateful for the service he provided to this country. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.