Citation Nr: 21022108 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-27 466A DATE: April 14, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate reflects that he died in August 2009 and lists pulmonary embolism as an immediate cause of death and morbid obesity as a significant condition contributing to death but not related to the immediate cause of death. 2. At the time of his death, the Veteran was service connected for left wrist ganglion cyst and allergic rhinitis. There is no evidence of record reflecting that any of the disabilities that resulted in the Veteran’s death were in any related to his service. 3. The Veteran’s death was not the 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 his medical care in August 2009, nor does the evidence show that any additional disability was the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW Service connection for cause of death under 38 U.S.C. § 1151 is not warranted. See 38 U.S.C. §§ 101 (24), 1101, 1131, 1151, 1310, 5107(b) (West. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.312, 3.361 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to November 1993. He died in August 2009. The appellant is his surviving spouse. The issue of reopening a claim for death pension benefits was filed by the Appellant in March 2016. This claim is still pending before the Regional Office (RO) and has not yet been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the RO for appropriate action. 38 C.F.R. § 19.9 (b) (2019). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant filed a claim in November 2009 alleging that VA medical staff were negligent in allowing the Veteran to use the bathroom unattended following a thoracotomy and decortication procedure and that the fall he subsequently sustained contributed to his death. A VA medical opinion was obtained to assess this theory. However, at a January 2017 Board hearing, the appellant, through her representative, also raised the question of whether the VA medical staff were negligent in performing the thoracotomy and decortication procedure on the Veteran in light of his morbid obesity, hypertension, and diabetes mellitus, and that this surgical procedure ultimately contributed to the Veteran’s death. Accordingly, in June 2017 the Board remanded the appeal to the RO to obtain any informed consent forms signed by the Veteran prior to his surgical procedure and an addendum medical opinion to address the pertinent questions relevant to the inquiry under 38 U.S.C. § 1151. The consent form was ultimately obtained and associated with the claims file. Moreover, the Board also finds that the RO substantially complied with the June 2017 remand instruction to obtain an addendum medical opinion regarding the appellant’s theory that VA was negligent in performing the thoracotomy and decortication procedure. The Board notes that the instructions provided for the claims file to be returned to the VA examiner who issued the July 2011 medical opinion regarding the Veteran’s fall, or to another appropriate VA medical professional if the prior examiner was not available. The record shows that the RO requested the addendum medical opinion from the VA examiner who issued the July 2011 medical opinion regarding the Veteran’s fall, but that she requested that she be recused from offering an opinion regarding negligence in performing the thoracotomy and decortication procedure on grounds that she still worked closely with certain medical providers who were involved in the Veteran’s medical treatment which could create a perception of bias. See August 2018 VA email. In response, the RO obtained a new medical opinion from a separate VA facility that had no involvement with the Veteran’s treatment or care so that the medical opinion would be considered fair and without bias. See id. The RO obtained the new opinion in March 2019. The Board finds that recusal by the author of the July 2011 opinion to avoid any perception of bias was proper and caused that provider to be unavailable to offer the requested addendum opinion. Thus, the Board finds that the RO substantially complied with the remand instructions relating to obtaining the medical opinion. Moreover, the Board notes that the June 2011 VA examiner’s request to be recused from rendering an additional opinion related to compensation under 38 U.S.C. § 1151 in no way renders the June 2011 inadequate or insufficient in any way as far as the theories of entitlement that the opinion addressed. The examiner simply indicated that further opinion related to compensation under 38 U.S.C. § 1151 would not be appropriate for her to offer under the circumstances. Neither the appellant nor her representative has raised any issues with regard to the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Additionally, the appellant has not alleged any deficiency with her January 2017 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the appellant has not raised that issue before the Board. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). To establish a right to compensation for a present disability, a Veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the appellant is claiming entitlement to service connection for the cause of the Veteran’s death, to include under consideration of 38 U.S.C. § 1151. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. At the time of his death, the Veteran was service connected for left wrist ganglion cyst and allergic rhinitis. The appellant does not contend that any of the conditions that caused the Veteran’s death were related to his military service or that his service-connected conditions in any way caused or contributed to his death, and there is no medical evidence suggesting such theories are viable. Instead, the appellant contends that the Veteran’s death was due to complications resulting from improper medical treatment at a VA facility. The Veteran’s death certificate lists pulmonary embolism as an immediate cause of death and morbid obesity as a significant condition contributing to death but not related to the immediate cause of death. The claims folder contains no medical evidence indicating that any other disability caused or contributed to the Veteran's death. In pertinent part, section 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service- connected. A qualifying additional disability is one in which the disability was not the result of the Veteran's willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of 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 was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151. 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 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, medical or surgical treatment, or examination 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. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32. 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 informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). At the January 2017 hearing, the appellant asserted that post-operative care at the Atlanta VA hospital following an August 21, 2009, surgical procedure resulted in the Veteran’s death. She reported that he was in a clinical coma from the time he came out of surgery through August 22, 2009. She reported he was taken out of his coma on August 22, 2009. At around 6:30 or 7:00 in the morning on August 23, 2009, she received a call from the hospital informing her that the Veteran had taken a turn for the worse. She was informed that he woke up to use the commode and then he went into cardiac arrest. She said initially that she was told that the nurse was right there in the room with him when this happened. The appellant reported, however, that his medical records reflect that the nurse noticed him on the floor and 4 people picked him up and put him back on the commode, at which time he was not responsive. The appellant questioned how it was possible for 4 people to carry a 390-pound man and put him back on the commode without first noticing he was unresponsive. The appellant asserted that the fact that the medical records indicate that the nurse “noticed” the Veteran on the floor implies that she was not present with him during the fall. She asserted that she felt, given the seriousness of his surgery and the fact that he was in the intensive care unit (ICU), it was strange that he would even be allowed to get up and use the toilet unattended. Essentially, the appellant asserted that the Veteran was improperly attended by the medical staff at the VA hospital at that point in the morning when he got up and went to use the restroom. It was also asserted at the January 2017 hearing that the surgery the Veteran underwent should not even be performed on someone that is morbidly obese and has a history of cardiac disease. She reported that he had a chest x-ray 3 weeks prior to the surgery, which showed that the cardiac silhouette was partially obscured but appeared to remain within normal limits and size and stable. However, his autopsy noted marked cardiomegaly. The appellant asserts that this surgical procedure was not appropriate for the Veteran, given the state of his health, and that other treatment options should have been attempted first, such as a course of antibiotics. She essentially asserts that the surgery somehow then caused his death. In an August 21, 2009, VA thoracic surgery brief operative note, it was noted that the Veteran underwent a left thoracotomy and decortication. In an August 23, 2009, VA addendum record, the registered nurse noted that the patient “assisted to commode per his request.” The patient was witnessed on the floor and assisted back to the commode with 4-person assistance. The Veteran became unresponsive and ACLs protocols were initiated. A separate August 23, 2009, VA addendum record from the staff physician revealed that the Veteran sustained a cardiopulmonary arrest prior to 7 am that day. It was noted that the Veteran had been alert, oxygenation well, and in no distress. He arose to go to the commode and suddenly collapsed. It was noted that the CT surgical resident was present, established an airway and initiated ACLS protocol for a PRES arrest. The Veteran was unable to be resuscitated and was pronounced dead. The clinical picture was consistent with a massive pulmonary embolus or myocardial infarction. The Board notes that multiple VA medical opinions have been obtained on this matter, to include opinions from July 2011 and March 2019. All opinions have been considered thoroughly in the evaluation of this claim. With regard to granting service connection on a direct basis, the Board notes that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). As noted above, the Veteran’s death certificate reflects that his death is related to a pulmonary embolism and morbid obesity. These were not service-connected disabilities. Currently, there is no medical or lay evidence linking either of the diseases or disabilities that caused or contributed to the Veteran’s death to his military service or to a service-connected disability. Without such evidence, service connection cannot be granted for cause of the Veteran’s death on a direct basis. With regard to the appellant’s assertions regarding entitlement under 38 U.S.C. § 1151, as noted above, in order for a claim pursuant to 38 U.S.C. § 1151 to be granted, it must be definitively determined that an additional disability occurred as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. Pursuant to 38 C.F.R. § 3.361, this can be shown by establishing that VA treatment proximately caused additional disability, and that (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, medical or surgical treatment, or examination without the Veteran's informed consent. Upon review of the medical evidence of record, the Board finds the preponderance of the evidence is against finding that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s informed consent. Firstly, the Board notes that records reflect that the Veteran completed a valid consent prior to his August 2009 surgery. Specifically, the claims file contains a Consent for Treatment/Procedure form signed by the Veteran on August 21, 2009, at 7:02 am to undergo decortication of the lung. This form notified the Veteran that alternatives to this procedure may include medical therapy (such as antibiotics), lytic therapy (drugs placed in chest tubes to breakdown the fibrous peel), or watchful waiting. Secondly, with regard to whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider, the Board notes that the March 2019 VA examiner specifically noted that there is no indication in the operative report of any unusual difficulty or untoward events. In fact, given the widespread extent of the pleural peel and the Veteran’s morbid obesity, the operative report gives the impression of a very smooth procedure. The intra-operative and immediate post-operative result was excellent. The examiner noted that there is no hint at any surgical misadventures. The Board finds the claims file contains no medical evidence to the contrary. Moreover, the appellant’s assertions are not based on the premise that that VA failed to exercise the degree of care that would be expected of a reasonable health care provider on conducting the surgery itself. Instead, the appellant’s contentions center around the assertion that the Veteran was improperly attended by the medical staff at the VA hospital following his surgery and the assertion that the surgery ultimately resulted in the Veteran’s death because he was not a candidate for this surgery in the first instance due to his pre-existing health problems at the time of the surgery. With respect to the appellant’s assertion that the VA medical staff were negligent in performing the thoracotomy and decortication procedure on the Veteran in light of his morbid obesity, hypertension, and diabetes mellitus, and that this surgical procedure ultimately contributed to the Veteran’s death, the Board finds that this assertion is not supported by the evidence of record. Specifically, in the March 2019 VA opinion, the examiner concluded that there was no such negligence. The Veteran had a very serious pleuro-pulmonary condition, for which the sole therapy was decortication as was performed. Decortication would be the consensus plan of action, and virtually the universal decision, among experienced pulmonologists and thoracic surgeons. The Veteran’s hypertension and diabetes were clearly risk factors for any surgical procedure, and those risk factors were explicitly recognized by evaluation anesthesia and surgical staff. The examiner noted that the Veteran, by virtue of his obesity, posed a considerably higher operative risk but few if any thoracic surgeons would have declined to perform the decortication due to his risk factors, individually or in combination. The decortication was strongly indicated, and the risk factors were not disqualifying. The Veteran’s widow has implied that additional antibiotic therapy could have obviated the decortication. Such is not the case. Decortication was the only realistic therapeutic opinion, and the increased operative and per-operative risk was justifiable. The Board finds there is no medical evidence to the contrary. With respect to the appellant’s assertions that the medical staff at the VA hospital were negligent in allowing the Veteran to use the bathroom unattended following a thoracotomy and decortication procedure and that the fall he subsequently sustained contributed to his death, the Board finds that this assertion is not supported by the evidence of record. The Board acknowledges the appellant’s assertions that the Veteran should not have been allowed to go to the bathroom by himself at that point in his surgical recovery, that a nurse was not watching him closely enough or watching at all prior to the fall, and that he should have been examined before being picked up and placed back on the toilet. In this regard, the Board has thoroughly reviewed the records from August 23, 2009, surrounding his fall. The August 23, 2009, addendum note from the registered nurse specifically states “[p] assisted to commode per his request.” She witnessed him on the floor and was assisted back to the commode with four-person assistance. In a separate note that same day, the surgery resident noted that the patient collapsed after getting off the commode. In a note from the staff physician, it was noted that the Veteran had been alert, oxygenation well, and in no distress. He arose to go to the commode and suddenly collapsed. It was noted that the clinical picture is consistent with a massive pulmonary embolus or myocardial infarction. Upon review of the available medical evidence surrounding that event, there is no indication that the Veteran’s health was in a state that would have precluded him for using a toilet at his own request or that walking to the bathroom resulted in his death in any way. It was specifically noted that he was assisted to the bathroom. It was also specifically noted that the clinical picture was consistent with a massive pulmonary embolus or myocardial infarction. This finding was confirmed in the July 2011 VA opinion, in which, based on a review of all pertinent medical history, the examiner noted that the Veteran had risk factors for cardiovascular disease, including diabetes, hypertension, and morbid obesity. It is less likely than not that the Veteran’s fall was due to the fact that he was inappropriately unattended while on the commode. The Veteran’s fall did not cause his fatal myocardial infarction. He was not found to have pulmonary emboli in the autopsy final report. The Veteran’s cardiovascular risks contributed to his death. The autopsy confirmed chronic changes in the cardiovascular system, which would have increased his risk for sudden death form ischemic cardiovascular disease. There is no medical evidence to contrary. The Board has considered the appellant’s assertion and theories involving the cause and contributing factors to the Veteran’s death. However, the appellant is not competent to determine the cause or contributing factors to the Veteran’s death, as there is no evidence that she has any medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Board has considered the appellant's assertions and is sympathetic to the appellant, the probative evidence of record does not reflect any evidence of fault on the part of VA. The claims file contains an informed consent form from the Veteran, and there were no indications of inappropriate treatment, inadequate treatment, or substandard treatment noted in the VA records concerning this Veteran’s care and treatment. The greater weight of the competent evidence is against finding that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Therefore, as the most probative evidence of record does not relate the Veteran’s death, directly or indirectly, to his active duty service or to any fault on the part of the VA health care providers who provided his medical care, the Board finds that service connection is not warranted for the Veteran’s cause of death, to include as under 38 U.S.C. § 1151. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.