Citation Nr: 21014263 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-12 182 DATE: March 11, 2021 ORDER Entitlement to accrued benefits is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C. § 1151 for the death of the Veteran is denied. FINDINGS OF FACT 1. The July 2009 rating decision became final and the Veteran did not have any additional pending claims at the time of his death. 2. The Veteran died in January 2010; his death certificate lists septic shock as the cause of death with cirrhosis (end stage liver disease) and alcohol abuse as underlying causes to death. 3. The Veteran’s death was not due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on VA’s part in furnishing medical treatment; nor was it the result of an event not reasonably foreseeable or malpractice. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5101, 5107, 5121; 38 C.F.R. §§ 3.6, 3.102, 3.151, 3.1000. 2. The criteria for entitlement to DIC under 38 U.S.C. § 1151 for cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to May 1971. He died in January 2010. The appellant is the Veteran’s widow. These matters were previously before the Board of Veterans’ Appeals (Board) in December 2016 and were remanded for further development, which has been completed. In the December 2016 decision, the Board denied entitlement to accrued benefits, finding no pending claim at the time of the Veteran’s death. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2017 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s decision on the basis that the Veteran’s claim seeking to reopen a claim of entitlement to service connection for a low back disability remained pending at the time of his death. The JMPR further directed the Board to consider the merits of the pending claim of whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for a low back disability for accrued benefits and/or substitution purposes. In a September 2018 Board decision, the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability was remanded. A Statement to the Case (SOC) was issued in October 2018 denying the claim for service connection for chronic low back strain because the evidence submitted was not new and material. The appellant did not file a formal appeal within 60 days of the October 2018 SOC and therefore the July 2009 rating decision became final. 1. Entitlement to accrued benefits. The appellant contends that she is entitled to accrued benefits for the Veteran’s low back disability that would have accrued before his death. Prior to his death, the Veteran filed a request to reopen his claim of entitlement to service connection for a low back disorder. As stated above, the October 2018 SOC determined that the claim for service connection for a low back disability remained denied because the evidence submitted was not new and material. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). For entitlement to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); Taylor v. Nicholson, 21 Vet. App. 126, 128-29 (2007). The application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). The Veteran did have a pending claims for a low back disability at the time of his death. However, the appellant did not file a formal appeal following the October 2018 SOC, and the denial of the decision that new and material evidence was not submitted for the claim of entitlement to service connection for a low back disability became final. Based upon the evidence of record, the Board finds there were no additional pending claims at the time of the Veteran’s death. Therefore, the claim for entitlement to accrued benefits is denied. 2. Entitlement to DIC for the Veteran’s death pursuant to the provisions of 38 U.S.C. § 1151. Compensation under 38 U.S.C. § 1151 is granted for additional disability or death if the additional disability or death was not the result of willful misconduct, the actual cause of the additional disability or death was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable. 38 U.S.C. § 1151 (a); 38 C.F.R. §§ 3.361 (b-d). First, there must be evidence of additional disability. The existence of additional disability is determined by comparing the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination that forms the basis of the claim for compensation to the Veteran’s condition after the care, treatment, or examination has ended. 38 C.F.R. § 3.361 (b). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). The mere fact that the Veteran received care, treatment, or examination and has an additional disability or died does not establish actual causation. Evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Id. In Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013), the Court held that § 1151 does not require a veteran’s injury to be “directly” caused by the “actual provision” of medical care by VA personnel, but rather requires only “causal connection,” which includes injuries that occur in a VA facility as a result of VA’s negligence. VA hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of the disease or injury for which it 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). If, however, the additional disability or death was caused by the Veteran’s failure to follow properly given medical instructions, then the additional disability or death was not caused by VA hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be 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 that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). 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 was the proximate cause of a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 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 foreseen or disclosed about the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(2). Prior to his death in January 2010, the Veteran was not in receipt of service connection for any disability. The appellant argues that DIC benefits should be awarded in this case under the provisions of 38 U.S.C. § 1151 because the Madison VAMC erred in their assessment of the Veteran’s immediate medical condition. See VA Form 21-534. The Veteran was in stable condition by the end of the day on Wednesday, January 12, 2010 where he remained stable for two more days until his transfer to VAMC Madison on the evening of January 15, 2010. Soon after arriving to VAMC Madison, the Veteran was put on a ventilator. On January 17, 2010, the Veteran died. The appellant believes the Madison VAMC erred in their assessment of the Veteran’s immediate medical condition because the Veteran had been stable two days prior to arriving to the VA. See id. Furthermore, the appellant believes this led to an interruption of critical treatment with a delay of life saving measures that significantly contributed to the Veteran’s death. Id. In September 2020, a VA examiner reviewed the Veteran’s medical records and opined that it was less likely than not that the Veteran’s death resulted from VA medical care. In reaching their rationale, the examiner described the Veteran’s condition. The Veteran was transferred to the Madison VAMC from St. Anthony’s Rockford Hospital to be placed on rehabilitation. At that time, the Veteran had end stage liver disease due to Laennec’s cirrhosis with portal hypertension, esophageal varices, ascites, hepatic encephalopathy, and history of radiofrequency ablation for hepatocellular carcinoma, with ongoing alcohol use. He was presented to St. Anthony’s with nausea, vomiting, confusion, weakness, loss of balance, and falling. At the time of the Veteran’s transfer to Madison VAMC, he was alert and conversant with evidence of hepatic encephalopathy. Shortly after his admission to Madison VAMC and on his second hospital day, the Veteran developed evidence of sepsis with fever and rigors, hypotension, tachypnea, hypoxemia, and deterioration of his mental status. The examiner stated his deteriorating status was promptly recognized and he was transferred to the critical care until where he received proper and timely medical attention including intubation, mechanical ventilation, pressor support, sedation, comfort measures, empiric antibiotics, and volume resuscitation with IV fluids. The Veteran’s status worsened, and he failed to improve with appropriate therapy. The decision was made to discontinue ventilator and pressor support in conjunction with family. Shortly after the withdrawal of treatment, the Veteran expired. The September 2020 examiner opined that the Veteran’s change in mental status led to his hospitalization at St. Anthony’s Hospital prior to his transfer to the Madison VAMC. Furthermore, the examiner opined that the transfer at least as likely as not reflected the incipient stages of sepsis that manifested following his admission to the Madison VAMC. The Veteran’s end stage liver disease, as well as his other recently managed medical conditions within the prior 6 months, including biliary disease requiring ERCP with sphincterotomy, and his genitourinary issues, not only placed him at risk for bacterial infection, but also markedly impaired his ability to compensate for infection. Cirrhosis, portal hypertension, and ascites are well known to increase susceptibility to infection, and to decompensation in the setting of infection. Consequently, there is no indication whatsoever that the Veteran’s care at the Madison VAMC was responsible for the Veteran’s deterioration or demise. Furthermore, the examiner opined that the Veteran’s death did not result from VA medical care. See September 2020 VA Examination. It is less likely than not that the death of the Veteran was due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA. The Veteran received prompt and appropriate medical management for his sepsis syndrome and his sepsis was recognized immediately. The examiner also opined that it is less likely than not that the death of the Veteran was due to an event not reasonably foreseeable. At the time of the Veteran’s admission to the Madison VAMC, the Veteran’s chronic medical regimen (with which he was non-noncompliant prior to admission) was re-instituted. See id. Although the Veteran was at an increased risk for infection, there was no suggestion of an active infection at the time of his admission to the hospital in Rockford or the Madison VAMC, and institution of prophylactic antibiotics would have been inappropriate. The examiner noted it is reasonable to theorize that the Veteran’s presentation with altered mental status was due to subclinical infection, as this is a common precipitant of mental status changes in cirrhotic claimants. However, the fact that the Veteran was actively using alcohol and not complying with his prescribed treatment for hepatic encephalopathy, were reasonable explanations for his confusion. Therefore, it is less likely than not that the Veteran’s death was due to an event not reasonably foreseeable. Id. Additionally, the examiner opined that it is less likely than not that the claimed disability of cause of death due to malpractice was caused by or became worse as a result of the VA treatment at issue. Furthermore, it is less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to progress. The Veteran received prompt and appropriate medical management for his sepsis syndrome. Id. His sepsis was recognized immediately, and his management was timely and appropriate, including transfer to the critical care unit, intubation, mechanical ventilation, pressor support, sedation, comfort measures, empiric antibiotics, and volume resuscitation with IV fluids. The Veteran’s end stage liver disease was associated with minimal physiologic reserve, and his failure to respond to therapy and his ultimate demise were due to his underlying liver disease, not to improper medical care or malpractice. There is absolutely no indication of malpractice in this case. Id. The appellant contends that the Veteran was considered to be in stable condition upon arrival at the VA medical center and was found to be in septic shock shortly thereafter. The examiner addressed this contention in the September 2020 VA examination. When the Veteran was admitted to Madison VAMC, he was reportedly in stable condition. However, while he was medically stable, he also had clear evidence of uncontrolled hepatic encephalopathy. He was conversant, but slow to respond to questions. He had dysarthria and trouble expressing himself. Neurologic examination revealed dysdiadochokinesis and asterixis. This was despite re-institution of his medical regimen, to which he had been non-adherent prior to his admission to St. Anthony’s Hospital. Therefore, it is at least as likely as not that his persistent hepatic encephalopathy was an indication of an underlying condition such as subclinical infection, metabolic disturbance, or alcohol withdrawal syndrome. Furthermore, appropriate observation and measures were taken to determine whether any of these conditions were present. The fact that the Veteran developed full-blown sepsis on his second hospital day at the Madison VAMC does not indicate that the VA was responsible for his decompensation. Rather, it is at least as likely as not that the infectious process that was responsible for his mental status deterioration finally became overtly and clinically manifest. There is no evidence that the Veteran’s worsening medical condition was the result of improper treatment at the Madison VAMC. His deterioration was due to the unfolding of the process that led to his initial mental status change and need for hospitalization in the first place. It is at least as likely as not that the same course of events would have ensued if the Veteran had remained hospitalized at St. Anthony’s Hospital. The Board has considered the appellant’s contentions with respect to the Veteran’s death. The appellant is competent to describe observable symptomatology and the sequences of certain events, but she is not competent to provide an opinion as to whether the Veteran’s death was proximately due to VA treatment, or whether the Madison VAMC medical personnel demonstrated carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault. An opinion regarding the cause of death of the Veteran’s falls outside the realm of common knowledge of a lay person, that is, the opinion cannot be based on mere personal observation, which comes through sensory perception. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Such opinions must be made by persons with medical expertise and clinical training. Id. The appellant has not been shown to possess the requisite medical training or credentials needed to link the Veteran’s cause of death with VA treatment. She was accorded the opportunity to furnish medical opinions in support of her claim but has not done so. See 38 U.S.C. § 5107 (a) (it is a claimant’s responsibility to support a claim for VA benefits). The Board finds the September 2020 VA medical opinion to be of great probative value, as it was based upon a review of medical records, including a discussion of relevant facts, and providing an informed rationale while addressing the record. The Board cannot, unfortunately, ignore such significant evidence against this claim. For the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the appellant’s claim for DIC under the provisions of 38 U.S.C. § 1151. Her claim is accordingly denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.