Citation Nr: 21015590 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-41 968 DATE: March 17, 2021 ORDER The claim of entitlement to dependency and indemnity compensation (DIC) pursuant to the provisions of 38U.S.C. §1151, for the cause of the Veteran’s death, is denied. FINDING OF FACT There is no competent and probative evidence that the proximate cause of the Veteran’s death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, to include medical and surgical treatment, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1967 to August 1979, including service in the Republic of Vietnam. He died in May 2014. The appellant is the Veteran’s widow. This appeal before the Board of Veterans’ Appeals (Board) arose from a July 2015 rating decision in which the St. Paul Pension Management Center at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, inter alia, denied entitlement to DIC under 38 U.S.C. § 1151. The appellant timely perfected an appeal of the claim. In November 2018, the appellant and her daughter testified during a Board videoconference hearing before a Veterans Law Judge (VLJ). A hearing transcript is of record. However, the VLJ who conducted the November 2018 Board hearing is no longer employed by the Board. In January 2021, the appellant was sent a letter notifying her that the VLJ who presided over the November 2018 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter noted that the appellant had 30 days from the date of the letter to respond or the Board will assume that she did not want another hearing and proceed accordingly. The Veteran did not respond to the January 2021 letter. This matter was previously remanded by the Board in March 2020. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1151 Eligibility Under certain circumstances, VA provides compensation for a qualifying death of a veteran resulting from VA medical treatment in the same manner as if such death were service-connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the death must not be the result of the Veteran’s willful misconduct, and such death must be caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151 (a). For a claimant to be entitled to compensation when death of a veteran is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the death must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the Veteran’s death. Merely showing that a Veteran received care, treatment or examination and that the Veteran died does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuation or natural progress. 38 C.F.R. § 3.361 (c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s death and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a veteran’s death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Further, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. The claim of entitlement to DIC pursuant to the provisions of 38 U.S.C. §1151, for the cause of the Veteran’s death The appellant asserts that she is entitled to DIC pursuant to 38 U.S.C. § 1151 for the cause of the Veteran’s death. She contends that his death was the result of improper care provided to the Veteran at the Portland VA Medical Center (VAMC), where he was treated with trans-arterial chemoembolization (TACE) for liver cancer, in preparation for a liver transplant. The appellant also stated she was later told by the Veteran’s treating clinicians that he may not qualify for a liver transplant due to his breathing difficulties, which were the same or improved from the time prior to when he began chemotherapy. Additionally, the appellant contends that the Veteran would not have contracted an Escherichia coli (E. coli) infection but for his chemotherapy treatment, and that his infection would have been caught sooner if not for his reaction to the chemotherapy treatment masking the E. coli symptoms. The appellant further argues that the E. coli infection was contracted at the Portland VAMC, where the Veteran received his chemotherapy. The Veteran’s death certificate indicates that his cause of death was multiorgan failure, due to sepsis, due to E. coli bacteremia. Review of the medical evidence of record indicates that the Veteran began the process toward a liver transplant in October 2013. A November 2013 report noted that he was found to have hypoxia, and that his oxygen numbers were worsening for a while. He also began undergoing chemoembolization in November 2013. The evidence indicates that chemoembolization was last administered on May 6, 2014. The Veteran was noted to have positive blood culture for E. coli on May 11, 2014, just prior to his death. As discussed in the March 2020 remand, the Board found that the June 2015 VA medical opinions were inadequate to adjudicate the claim. Therefore, new VA medical opinions were obtained in September 2020. The September 2020 VA examiner confirmed in his report that the Veteran’s medical records were reviewed. The examiner opined that it is at least as likely as not that the Veteran’s TACE treatment for his liver cancer resulted in, and/or contributed to or caused the Veteran’s death. He explained that the temporal sequence between the Veteran’s last TACE treatment, and his hospitalization three days later with hypoxemic respiratory failure, E. coli infection, sepsis with septic shock, and multisystem organ failure that led to his death was at least as likely as not due to treatment at the VAMC. The examiner stated that liver abscess, most commonly due to E. coli, is a rare reported complication of TACE. Therefore, the examiner determined it was at least as likely as not that the treatment the Veteran received resulted in, and/or contributed to or caused the Veteran’s death. However, although the TACE treatment contributed to or caused the Veteran’s death, the examiner opined that it was less likely than not that the Veteran’s death was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care, medical or surgical treatment, or examination, including as a result of alleged improper administration of chemoembolization treatment. In support of his opinion, the examiner explained that the rationale for treating the Veteran’s liver cancer with TACE, the technical aspects of TACE administration, and the post-procedure were all well considered, carried out with skill, and appropriate. He stated TACE is commonly employed in many transplant centers in order to limit the amount of viable tumor at the time of transplantation to help bridge the prolonged waiting period for a donor organ, and to improve selection for transplantation. Additionally, the examiner stated that the treatment-related mortality rates from TACE are generally less than one percent. He stated the Veteran had no absolute contraindications to TACE, but noted that two relative contraindications included the Veteran’s aspartate aminotransferase (AST) test being greater than 100 in April 2014, and his hypoxemia which was possibly due to hepatopulmonary syndrome. However, due to the Veteran’s end stage liver disease, his prognosis for long term survival was poor without liver transplantation, and, therefore, the risk benefit ratio favored treatment with TACE. The examiner also opined that it is less likely as not that the Veteran contracted E. coli at the Portland VAMC, and that symptoms of E. coli were masked by the residual effects of the chemotherapy treatment. The examiner stated that the Veteran’s E. coli infection was at least as likely as not derived from his endogenous bacterial flora, and was less likely than not contracted at the Portland VAMC. He explained that humans are colonized with E. coli, and procedures such as TACE can lead to disruption of a normal symbiotic relationship between the bacteria and the patient, resulting in bacteremia and abscess formation. Due to having end stage liver disease, which is associated with immune compromise, the examiner stated the Veteran was more susceptible to such an infection. Additionally, the examiner concluded that the medical records do not support the statement that symptoms of E. coli were masked by residual effects of TACE. He explained that the Veteran’s presentation with septic shock three days after the chemoembolization suggests there was little time for masking of symptoms due to E.coli infection, and the earlier presence of bacteremia following the procedure would not be masked by the TACE procedure itself, but rather by the Veteran’s underlying liver disease. Next, the examiner opined that it is less likely than not that the Veteran’s death was proximately caused by an event not reasonably foreseeable. He stated that the risk of infection, including bacteremia, sepsis, liver abscess, and interstitial pneumonia following TACE, is remarkably low, and is the subject of case reports in the medical literature. The examiner explained that the incidence of death following TACE from all causes is less than one percent, and the risk of infection is so low that it would not be a significant consideration or a reasonably foreseeable event following TACE. He determined that given the exceedingly low risk of infection, and in particular, severe or life-threatening infection, which was not a reasonably foreseeable event or outcome, the apparent absence of the noted risk in the specific informed consent is within the realm of usual medical practice. The examiner explained that the omission of discussing the risk of life-threatening infection is not an indication of carelessness or negligence. Lastly, the examiner stated that there was no failure on the part of VA to timely diagnose and/or properly treat the Veteran that allowed his conditions to continue to progress. The examiner explained that medical records document excellent medical care throughout the Veteran’s course, and that his end stage liver disease and associated complications were managed in a timely and appropriate fashion. Further, the examiner stated that the Veteran’s terminal hospitalization reflects prompt recognition and treatment of an irreversible septic process associated with multiple system failure. He concluded that there is no indication of failure in any aspect of the Veteran’s care on the part of VA to timely diagnose and/or properly treat the Veteran. The Board has carefully reviewed the record, but has been unable to identify a basis upon which benefits under 38 U.S.C. § 1151 are warranted. Although the appellant is certainly competent to describe what she observed first-hand, her statements cannot sufficiently and persuasively serve to address questions of causation between VA care and entitlement to DIC pursuant to the provisions of 38 U.S.C. § 1151, because these are complex medical questions beyond the purview of lay knowledge. See, Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, the Board affords significant probative weight to the September 2020 VA examination report. The examiner reviewed the Veteran’s medical records, and provided detailed rationale in support of every requested opinion. The examiner determined that the treatment provided by VA did not proximately cause the Veteran’s death due to either 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or 2) an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appellant’s claim of entitlement to DIC compensation under 38 U.S.C. § 1151 is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.