Citation Nr: 21011276 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-34 958 DATE: March 1, 2021 ORDER Entitlement to service connection for the cause of death (COD) under 38 U.S.C. § 1151 is denied. FINDING OF FACT The Veteran’s death from metastatic pancreatic cancer in December 2011 was not due to a failure of the attending VA personnel’s duty to follow the appropriate standard of care; VA treatment did not cause or contribute to the Veteran’s disability leading to death and further, this event was reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 have not been met for cause of the Veteran’s death. 38 U.S.C. §§ 1151, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1963 to September 1974. He served in Thailand from 1967 to 1968. He died in December 2011. See 01/12/2012 Death Certificate. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 9, 2015 adjudication letter by a Department of Veterans Affairs (VA) Regional Office (RO) which notified the appellant that new and material evidence had not been received to reopen a previously denied claim for cause of the Veteran’s death. The appellant filed a notice of disagreement (NOD) in May 2015 in which she specified that she wished to include compensation under 38 U.S.C. § 1151(1151claim) as part of her appeal. A statement of the case (SOC) was issued in May 2016, which clarified the appeal issues to include service connection for cause of the Veteran’s death and the 1151 claim. A substantive appeal was received in June 2016 thereby perfecting this appeal. Appellant testified before the undersigned at a hearing held in June 2019. The Board reopened the 1151 claim and remanded this matter in November 2019 in a decision which also disposed of another issue on appeal when it declined to reopen a previously denied claim for service connection for cause of the veteran’s death. The requested development has been completed and this matter is returned to the Board for further consideration. 1. COD under 38 U.S.C. § 1151 is denied. The appellant alleges entitlement to VA compensation for the cause of the Veteran’s death under 38C.F.R. §1151. In her initial claim for 1151 benefits filed in February 2013, she asserted that the Veteran’s treating VA physician told her and the Veteran that he did not believe that a small spot on the Veteran’s adrenal gland was cancer. Further, she asserted, she asked if a biopsy would be performed on the spot, and the doctor stated that it would not. During the next 6 months, the Veteran’s doctor told the appellant and Veteran that his laboratory results looked good. Then, in November 2011, they were told that a scan showed the Veteran to have Stage 4 cancer, and he died within a month. The appellant asserted that the Veteran’s VA providers did not read his laboratory reports properly, and that his cancer was misdiagnosed, thereby leading to an earlier death. See 02/22/2013 VA 21-4138; 04/08/2013 VA 21-4138. Subsequently, when reopening a previously denied claim (denied in a May 2013 rating decision), she submitted a June 2014 correspondence and her sworn testimony at the June 2019 Board hearing. The June 2014 correspondence presents a slightly different view of the appellant’s assertions. The appellant asserted that she and the Veteran were not told about the pancreatic mass that was detected in March 2009 until June 2009, when a urologist informed them. She wondered how long it would have been before they were told but for the urologist. She again explained that she asked the Veteran’s doctor if he was going to do a biopsy on the spot revealed by the June 2011 scan, and he said no because he did not believe it was a recurrence of the cancer. At the June 2019 Board hearing, in addition to what she included in the June 2014 correspondence, the appellant testified that after the October 2011 CT scan revealed a malignancy she asked if surgery would be performed, and she was told that she would be contacted by the Veteran’s doctor, but there was no further contact. Then, after the Veteran was taken to the emergency room on two occasions, they learned he had Stage IV cancer. The appellant testified further that she had previously worked in the medical field, and that she seriously doubted that the Veteran’s liver enzymes were normal during the period between June 2011 and October 2011. See 06/28/2019 Hearing Transcript. When a claimant incurs additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if that additional disability or death were service-connected. 38 U.S.C. § 1151 ; 38 C.F.R. § 3.358 (a). A veteran may be awarded compensation for an additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished to 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), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151 ; 38 C.F.R. § 3.361 (c), (d)(1), (d)(2). A claimant may succeed on a § 1151 (VA negligence) claim on the basis that VA made a negligent referral to a private provider only if the additional disability that was proximately caused by the private provider (in this case, the Veteran’s loss of vision) was an event not reasonably foreseeable. Ollis v. Shulkin, 857 F.3d 1338, 1346 (2017); see 38 U.S.C. § 1151 (a)(1)(B). The Veteran died on December [REDACTED], 2011. The Death Certificate notes that the Veteran died of cancer of the pancreas, adrenal gland, and bone. The approximate interval to death from the pancreatic cancer was 2009 and the interval to death from the cancers of the adrenal gland and bone was from 2011. VA and private treatment records disclose that the Veteran was originally diagnosed with pancreatic cancer in June 2009 after workup in May 2009 for health problems including frequent falls, changes in speech, and dysphagia resulted in CT findings of an indeterminate 3.3 cm soft tissue mass in the region of the pancreatic tail and splenic hilum. Biopsy in June 2009 confirmed adenocarcinoma of the tail of the pancreas that would require splenectomy and distal pancreectomy. In July 2009, the Veteran underwent a distal pancreatectomy, splenectomy and partial gastrectomy to treat his pancreatic cancer. He was noted to have done well since undergoing this surgery, as noted in a December 2009 followup report noting some intermittent pain symptoms and multiple chronic complaints. However, he was eating well, maintaining his weight, and had not developed significant abdominal pain symptoms. On his first scan since the surgery he was noted to have a 3 cm. mass in the surgical bed that was either post change or recurrent tumor. He was not clinically jaundiced, and he was in no distress. On abdominal examination, his abdomen was soft and well-healed with no evidence of palpable organomegaly. The physician reviewed his computed tomography scan findings with him and his wife and had a discussion regarding the risk of this being recurrent disease and its management should it be recurrent. Since this was the first scan after surgery, it could also be a postsurgical change. After a discussion regarding immediate PET CT and biopsy versus repeat scan in four months, plans included a repeated scan four months, and should this mass have increased in size they would arrange for a biopsy and further management at that time. Records dated in November 2010 showed the Veteran had follow up with a neurological consult for issues with increasing falls and disequilibrium, and a history of atypical parkinsonism, polyneuropathy, and recent encapsulated pancreatic tumor removal, and stable tumor size in the recent abdomen CT scan. In June 2011, the Veteran was noted to have a history of pancreatic cancer with distal pancreatectomy in 2009, with an incidental finding on CT which included a nodule on the left adrenal. Given his history of malignancy, general surgery consult submitted for their review. In July 2011 the Veteran was followed up in neurology for atypical parkinsonism with neurological symptoms including postural instability, backward falls, and orthostatic hypotension, and a history of pancreatic tumor status post removal in 07-02-09 without chemotherapy. In a July 2011 surgery appointment note, the Veteran was seen for an enlarging nodule involving the left adrenal gland which was indeterminate. The findings from the June 2011 CT were reviewed with an impression of 1. enlarging abdominal aortic aneurysm. 2. Nodule in the tail of the pancreas that is decreased in size compared to prior study however it is indeterminate 3. An enlarging nodule involving the left adrenal gland, which was also indeterminate however worrisome given this patient’s history of malignancy. 4. The left upper quadrant showed some fat and soft tissue density and stranding with associated punctate calcifications which is most consistent with mesenteric infarcts... In August 2011 the Veteran was seen for symptoms of urinary urgency and frequency, a tumor was found on the left adrenal gland. On September 26, 2011 the Veteran was seen for pain in the abdomen for a couple of weeks. The pain worsened a few days earlier, prompting this visit. He denied eating anything unusual that could cause this. He was worried that it could be cancer that is spreading to his stomach when he had surgery for pancreatic cancer the stomach was also involved. He was not eating well; he had not moved bowels in 2 days, and he was nauseous. Liver function tests and other available chemistry were normal. On October 14, 2011, the Veteran’s wife and respite social worker contacted VA with concerns about the Veteran having problems urinating, not eating well, having constipation and abdominal pain. He had expressed to his wife his belief that his cancer had spread. He was found to be not a candidate for respite care until he became more stable. It was noted that an abdominal CT was scheduled for October 31, but with all his health issues including with difficulty urinating and severe abdominal pain at times, he needed to go to the emergency department (ED) to be checked out where he could have a “stat” CT done at that time. The Veteran expressed that he might go to the ED because he wants to be admitted to hospital to find out what’s wrong with him. However, he was not shown to have gone to the ED until October 31, 2011, when he was brought by his wife for weakness of his lower extremities and history of recurrent falls. He denied any changes in medications but stated in the past 4 weeks he felt weaker, lacked an appetite, had night sweats, lethargy and a progressively worsened low lumbar pain like dullness aggravated by movements, improved with rest. He underwent a CT of the chest, abdomen and pelvis which in pertinent part disclosed an enlarging lesion involving the left adrenal gland, which measured 2.4 x 2.4 centimeters and demonstrated low attenuation and no significant enhancement and a nodule in the pancreatic tail smaller in size which continued to be calcified with a similar finding in the left upper quadrant mesenteric with increasing calcification with such findings consistent with fat necrosis. The Veteran was diagnosed with 1. AKI due to dehydration, 2. Severe dehydration with orthostatic changes 3. Enlarged left adrenal gland adenoma suspicious of metastasis 4.Suspected recurrent pancreatic cancer with findings noted to include nodule in the pancreatic tail and nodule of the left upper quadrant mesenteric. He was admitted to the hospital for further workup of possible recurrence of pancreatic cancer, severe dehydration, deconditioning & post fall. A November 21, 2011 biopsy of the left adrenal gland was positive for malignant cells; favoring metastatic adenocarcinoma of pancreatic primary. On December 1, 2011, the Veteran was seen for a diagnosis of pancreatic cancer 2009 S/P Whipple 11/11, with recurrent adenocarcinoma in the kidney favors pancreatic origin. His complaints included severe pain, fatigue, anxiety and insomnia. He had been a former physician’s assistant and understood his situation very well. It seemed that he had made up his mid on palliative care before seeing this doctor. On assessment the Veteran refused adamantly any form of chemotherapy. He was only interested in palliative symptomatic pain and insomnia management as the chemotherapy was not of curative nature. He was not interested in prolonging his life with the cancer and would rather spend his days in peace. The physician discussed with his family that it was a 6 months median survival time with this disease with the statistics of the chemotherapy in prolonging noted to usually be months. The patient had a very poor performance status and he made up his mind not to take any chemo, so the examiner gave him pain medications and Ambien and referred him to palliative care. The palliative care consult from the same date noted that the Veteran understood his situation very well, did not want chemo and had opted for no further treatment for his cancer. The rest of the treatment notes prior to his death on December [REDACTED], 2011 addressed palliative/hospice care. The examiner in a May 2013 VA C&P Examination reviewed the claims file and the appellant’s assertions. Although the appellant surviving spouse contended that the Veteran’s cause of death was unexpected, the Veteran was noted to state he had 6 months of normal lab and blood work taken and on the 7th month he was diagnosed with Stage IV cancer and died within 30 days. The Veteran’s medical records showed that the pancreatic cancer was initially diagnosed via biopsy in June 2009, and that the neoplasm of the adrenal gland and bone were diagnosed in 2011. The reviewer opined that this information reviewed reflects that the doctors had been following these cancers. Further, the laboratory evaluation was fairly normal throughout the last 6 weeks of the Veteran’s life. Hence, the reviewer opined that there was no negligence, carelessness, lack of proper skill, or error in judgment by the Veteran’s VA providers. This opinion was deemed inadequate by the Board in its remand, noting that the medical credentials of the VA examiner were not clear, and the rationale was incomplete, requiring another examination. The report of a May 2016 VA examination, although addressing the cause of the Veteran’s death, did not address the 1151 claim and is not relevant for purposes of this appeal. The report of a June 2020 VA examination opinion from a VA staff physician, addressed the November 2019 BVA remand’s request to provide opinions whether the treatment the Veteran received in connection with his pancreatic cancer with metastases to bone and adrenal gland represented a failure of the attending VA personnel’s duty to follow the appropriate standard of care, and if so, whether it caused or contributed to the Veteran’s disability and/or cause of death. After review of the medical records in the claims file, the examiner provided an opinion that the treatment the Veteran received in connection with his adenocarcinoma of the pancreas (pancreatic cancer) with metastases to bone and adrenal gland did not represent a failure of the attending VA personnel’s duty to follow the appropriate standard of care, and did not cause or contribute to the Veteran’s disability and/or cause of death. In the rationale, the examiner pointed out that the prognosis of adenocarcinoma of the pancreas from time of diagnosis until demise is very poor. The median survival for untreated advanced pancreatic cancer is about 3.5 months; with good treatment this increases to about 8 to 20 months. The five year survival rate for pancreatic adenocarcinoma, even with good treatment, is around 8%. Only about 15% of individuals with pancreatic cancer are eligible for surgery on diagnosis; for most, the cancer will be too far advanced for surgery. The examiner noted that the Veteran was fortunate in that he had been receiving 6 month CT angiograms of his abdomen, for the followup of an abdominal aortic aneurysm, which allowed the cancer, and its later metastases, to be diagnosed at a relatively early stage.) The Veteran lived for 24 months after his diagnosis with pancreatic cancer and after the diagnosis of the recurrence of his pancreatic cancer he declined chemotherapy in favor of living out the rest of his life at home. This opinion was supported by a comprehensive review and recitation of the pertinent medical evidence from April 2009 through his date of death in December 2011. A September 2020 addendum VA examination opinion from the same examiner clarified whether the proximate cause of the Veteran’s death from pancreatic, adrenal gland, and bone cancer was an event not reasonably foreseeable. To this question, the examiner replied that, given that the Veteran had metastatic pancreatic cancer, his death was certainly reasonably foreseeable. Indeed, that was why the Veteran declined heroic measures; (that choice being the proximate cause of the Veteran’s death from metastatic pancreatic cancer.) He made that decision because at best, heroic measures would have given him a few months longer, but with a much poorer quality of life. The Veteran’s death was not precipitated by the actions or inactions of the treating medical facility, as decisions as to end-of-life care are matters very much under the purview of the patient. In this case, the Board finds that there is no proximate cause between VA medical care following the diagnosis of pancreatic cancer that was surgically treated in July 2009 and the metastatic recurrence shown on CT June 2011 and confirmed by biopsy in July 2011, culminating in the Veteran’s death in December 2012. In fact, the weight of the evidence is against finding that VA treatment during the interval between the July 2009 surgery and recurrence treated in 2011 caused any additional disability to begin with. In this regard, the Board finds most probative the unfavorable medical opinions from the VA examiner, who provided the June 2020 VA medical opinion and September 2020 addendum, which was accompanied by an adequate rationale finding that the treatment the Veteran received in connection with his adenocarcinoma of the pancreas (pancreatic cancer) with metastases to bone and adrenal gland did not represent a failure of the attending VA personnel’s duty to follow the appropriate standard of care, and did not cause or contribute to the Veteran’s disability and/or cause of death. This opinion was accompanied by comprehensive review of the claims folder, and a thorough discussion of the poor prognosis rates of pancreatic cancer. With respect to foreseeability, which the appellant’s brief of December 2020 alleged was not addressed, in the September 2020 addendum, the examiner pointed out that the Veteran’s death was reasonably foreseeable given the diagnosis of metastatic pancreatic cancer and also noted the Veteran’s choice to not treat the disease with heroic. None of the medical evidence of record tends to support a finding that the Veteran’s death was the result of an event that was not reasonably foreseeable. (Continued on the next page)   The appellant has forwarded arguments and lay statements and testimony alleging that the 2011 metastatic recurrence of the cancer and even the original diagnosis in 2009 were not made early enough, essentially stating that diagnostic tests and lab results were not properly interpreted by medical professionals. Although the appellant has indicated she has some medical knowledge, her arguments are outweighed by the opinions from the VA examiner in the June 2020 opinion and September 2020 addendum, where the examiner is a physician. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Of note, the VA examiner discussed at length the findings from the diagnostic tests and lab results, and in fact suggested that the original diagnosis of the cancer in 2009 and its recurrence in 2011 were in fact discovered earlier than would be expected due to routine followup abdominal CT scans to address another chronic issue of abdominal aortic aneurysm. The examiner further explained that the type of the Veteran’s carcinoma tended to have a very poor survivability even with aggressive treatment. For these reasons, the Board finds that the weight of the evidence is against the appellant’s claim for compensation for cause of the Veteran’s death under the provisions of 38 U.S.C. § 1151. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.