Citation Nr: 21024174 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-44 179 DATE: April 22, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death, to include as due to herbicide exposure is denied. Entitlement to compensation under 38 U.S.C. § 1151 the death of the Veteran is denied. FINDINGS OF FACT 1. The Veteran died on September [REDACTED], 2005. The death certificate identifies the immediate cause of death as cardiopulmonary failure due to or as a likely consequence of metastatic colon cancer. The physician noted that one year had elapsed from the time the Veteran developed the cancer until his death. The autopsy report contains a finding of adenocarcinoma of the cecum that had metastasized. 2. The evidence of record demonstrates that the Veteran’s service-connected disabilities did not cause or materially contribute to his death, and that the causes of death listed on the Veteran’s death certificate were not incurred in or related to his active military service and may not be presumed to have been incurred therein. 3. The evidence of record does not support a finding that the Veteran sustained any additional residual disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in performing a procedure in November 2004 that did not yield a diagnosis of colon cancer at the time and the subsequent treatment for colon cancer that eventually resulted in a MRSA infection, or resulting from an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.311, 3.312 (2019). 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 the death of the Veteran have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.361, 3.1000 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1948 to July 1976 and received the Combat Action Ribbon. He was stationed in Vietnam from April 1965 to October 1965, and from March 1969 to January 1970. The Veteran died in September 2005, and the appellant is his widow. In November 2014, the appellant participated in a Decision Review Officer (DRO) hearing. A transcript of that hearing is of record. In October 2016, the appellant appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2018, May 2020, and November 2020, the Board remanded the appeal for evidentiary development. It has since been returned to the Board for further consideration. 1. Entitlement to service connection for the cause of the Veteran’s death, to include as due to herbicide exposure The appellant seeks entitlement to service connection for the cause of the Veteran’s death. At the time of the Veteran’s death, he was service-connected for status post cervical spine fixation with surgical fusion, to include cervical radiculopathy and left foot drop (60%); blindness, left eye (30%); bilateral hearing loss (20%); ligamentous instability, left knee (10%); hernioplasty, inguinal right (0%); and history of non-psychotic brain syndrome with brain trauma (0%). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). As noted above, the Veteran died in September 2005. The death certificate identifies the immediate cause of death as cardiopulmonary failure due to or as a likely consequence of metastatic colon cancer. The physician noted that one year had elapsed from the time the Veteran developed the cancer until his death. The autopsy report contains a finding of adenocarcinoma of the cecum that had metastasized. The record contains an opinion from July 2011. The examiner concluded that the Veteran did not have ischemic heart disease prior to his death. She noted that a 2002 myocardial perfusion scan was normal, and that post-operative chest pain was secondary to a rapid drop in hematocrit (blood volume). She acknowledged elevated troponin levels prior to the Veteran’s death, but explained that this was due to low perfusion and not to myocardial issues. She also acknowledged findings of atrial fibrillation, but noted that cardiac ultrasounds were normal and there were no other EKG findings. The examiner opined that it is less likely than not that the minimal to mild coronary atherosclerosis noted during the autopsy caused the cardiopulmonary arrest noted on the death certificate. Rather, his death was due to the colon cancer metastasizing, causing multiple organ failure, and shutting down the heart function. In addition, and pursuant to the Board’s August 2018 remand, an opinion on the etiology of the Veteran’s colon cancer was obtained in November 2019. The examiner determined that it is less likely than not that the Veteran’s colon cancer was related to his service, including potential herbicide exposure. The examiner stated that “there is no supporting evidence to make colon cancer a Vietnam/AO related disease” and pointed to the fact that it is not listed as being eligible for presumptive service connection. An addendum opinion was later arranged in June 2020. The examiner determined that it is less likely than not that the Veteran’s colon cancer was related to service, including potential in-service herbicide exposure. The examiner reasoned that the Veteran’s service treatment records are silent for any colon cancer or other similar condition and also noted that colon cancer is not among the cancers listed under the presumptive service connection associated with herbicide exposure. The Board affords the VA examiner opinions substantial probative value. After reviewing the Veteran’s electronic claims file and VA treatment, the July 2011 concluded that it is less likely than not that the minimal to mild coronary atherosclerosis noted during the autopsy caused the cardiopulmonary arrest noted on the death certificate. Instead it was explained that his death was due to the colon cancer metastasizing, causing multiple organ failure, and shutting down the heart function. Similarly, the November 2019 and June 2020 VA examiners opined that the Veteran’s colon cancer was less likely than not attributable to service. Importantly, they noted that the Veteran’s service records were silent as to colon cancer and reiterated that colon cancer is not eligible for presumptive service connection. The Board acknowledges that there is no opinion in the record to the contrary. Further, there is no indication that either condition onset within one year of his discharge from service. The Board observes the appellant’s contentions. However, she is not competent to independently render a medical diagnosis or opine as to the medical and legal issues in the instant appeal. In sum, the Veteran’s primary cause of death was cardiopulmonary failure due to or as a likely consequence of metastatic colon cancer. None of these conditions were service-connected at the time of the Veteran’s death, and the competent medical evidence of record does not indicate that they were incurred during or otherwise related to his active service or were the principal or contributory cause of death. Therefore, the claim for entitlement to service connection for the cause of the Veteran’s death must be denied and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. 2. Entitlement to compensation under 38 U.S.C. § 1151 for the death of the Veteran The appellant also seeks entitlement to compensation for the Veteran’s death pursuant to 38 U.S.C. § 1151. Essentially, she believes VA doctors failed to diagnose the Veteran’s colon cancer during a November 2004 colonoscopy, and that by the time he was diagnosed in July 2005 it had metastasized. Under 38 U.S.C. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. VA treatment records show that the Veteran underwent a colonoscopy in November 2004 after a positive fecal occult blood test and a 27-pound weight loss in six months. The record from that procedure indicates the scope was “inserted then advanced to the cecum.” Reportedly, no appreciable masses were found, and the biopsy of a diminutive sessile polyp showed no abnormalities. In May 2005, the Veteran’s condition began to deteriorate during several hospitalizations. In August 2005, he developed the MRSA infection. The Veteran then died in September 2005. Again, the death certificate identifies the immediate cause of death as cardiopulmonary failure due to or as a likely consequence of metastatic colon cancer. The physician noted that one year had elapsed from the time the Veteran developed the cancer until his death. The autopsy report contains a finding of adenocarcinoma of the cecum that had metastasized. Notably, during the October 2016 hearing, the appellant stated that she requested the films from the November 2004 colonoscopy and received a negative response. Pursuant to the Board’s August 2018 remand, the Agency of Original Jurisdiction (AOJ) apparently attempted to locate these films, which ultimately proved unsuccessful. In November 2018, the appellant was notified of the unavailability of these records and asked to submit additional information. Additional Board remands directed that further attempts to locate these records should be performed. In November 2020, the AOJ contacted the Audie Murphy VA Medical Center to request all films related to the 2004 colonoscopy. In December 2020, the Audie Murphy VA Medical Center responded to the request, stating that archived VA medical center records were searched, but no images were located. The appellant was then notified of this in January 2021. Ultimately, it seems that any further attempts to locate these films would be futile and the Board is left to consider the evidence of record. A medical opinion was later obtained in November 2019. The examiner determined that “it is more likely than not that the colon cancer leading to demise in 2005 was present at the time of the 11/2004 colonoscopy. The cancer was more likely than not-failed to be diagnosed at the initial colonoscopy.” The examiner also provided the following remarks: The contention that proximal colon cancers are missed on colonoscopies and why - is a hotly debated topic. The colon cancer more likely than not present at the time of the 11/2004 procedure (failure to diagnose therefore). There are more recent guidelines (in place after 2004) as to cecal intubation rate, photos of cecum, time of examination viewing and adenoma detection rate - all are a part of what current endoscopists are judged on. These guidelines would not have been in effect in 2004. It is impossible to assert whether the endoscopist exercised a reasonable degree of skill and care - without resorting to mere speculation. There is no objective evidence to support that skill/care guidelines were not adhered to. The examiner then cited to several medical studies and provided a discussion of the Veteran’s course of treatment and resulting MRSA infection. The examiner also provided the following statements: The veteran had profound multisystem organ failure (MSOF) with respiratory failure after surgery to attempt control of the cancer in 2005. Veteran never left the hospital from that index admission. MRSA was a part of this episode - it is secondary to nosocomial exposure in a compromised patient-which was the case here. The MRSA did occur while under VA care. Veterans post-operative was heroic and complete. The MRSA is not related to any defect in care-but rather considered as secondary to overwhelming multi-system organ failure. There is no evidence for any defect in care, skill, judgement or fault on the part of VA care that would have caused the MRSA. The colon cancer was not caused by VA care. The colon cancer was not diagnosed at the time of 11/2004 colonoscopy. This missed opportunity to treat the cancer (delay in diagnosis) led to the cancer being at a worsened stage when finally diagnosed in 4/2005. There is no objective way to determine whether this delay led to the demise of the veteran. The colon cancer was detected on index admission. The MRSA developed after surgical attempt to correct that condition. MRSA would be considered a potential event in any critically ill patient with MSOF. However, MSOF was the end-result of the heroic surgical attempts to control the cancer and was the cause of death. MRSA was an accompanying problem - but was not a majority cause of failure. I cannot respond to whether colon cancer is reasonably foreseeable. Pursuant to the Board’s May 2020 remand, an addendum opinion was provided in June 2020. The examiner provided the following responses to the below questions: Q: Is it at least as likely as not (50 percent or greater probability) that VA failed to diagnose the Veteran’s colon cancer in November 2004? The examiner should specifically address the autopsy finding of adenocarcinoma of the cecum and the colonoscopy report indicating that the scope was “inserted then advanced to the cecum. A: It is more likely than not that the colon cancer leading to demise in 2005 was present at the time of the 11/2004 colonoscopy. The cancer was more likely than not- failed to be diagnosed at the initial colonoscopy. A complete colonoscopy would have identified the cancer. It is my opinion that the colonoscopist was incorrect in the assertion that colonoscope was inserted to the cecum. This failure to recognize that the cecum was not entered represents the mechanism that led to the failure to diagnoses the cancer. The cancer WAS failed to diagnose in 2004. More likely than not that colon cancer was failed to be diagnosed in 2004. The advanced colon cancer was noted at 2005 autopsy. Q: Given the progression of the Veteran’s symptoms, is it as likely as not (50 percent or greater probability) that a physician exercising the degree of skill and care ordinarily required of the medical profession would reasonably have diagnosed the colon cancer earlier than 2005? A: While specific successful colonoscopy guidelines were not in place in 2004 - a complete colonoscopy would have diagnosed the cancer in my opinion. More likely than not that a complete colonoscopy - performed with skill would have diagnosed the cancer. Q: Was the MRSA infection an additional disability caused by VA treatment? A: Less likely than not. See above. Veterans post-operative was heroic and complete. The MRSA is not related to any defect in care - but rather considered as secondary to overwhelming multi-system organ failure. There is no evidence for any defect in care, skill, judgement or fault on the part of VA care that would have caused the MRSA. This additional disability was not caused by VA care. Q: Was the Veteran’s colon cancer or MRSA 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 or medical or surgical treatment? A: The colon cancer was not diagnosed at the time of initial 2004 VA care. This represents a similar instance in fault in failure to diagnose. See above for rationale. The MRSA was a sequelae of the heroic VA care after diagnosis IN 2005. It is more likely than not secondary to intrinsic patient factors and less likely than not due to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. See above for rationale. Q: Was the proximate cause of the Veteran’s colon cancer or MRSA an event not reasonably foreseeable? A: The finding of a cancer in this instance could have been foreseen. The MRSA event in a critically ill patient could have been foreseen. Pursuant to the Board’s November 2020 remand, an additional opinion was provided in February 2021. The examiner provided the following statement: Review of the medical record shows the veteran underwent colonoscopy in 2004, the exam was complete and followed the standard of care for 2004. While the standard of care has changed since 2004, the VAMC followed all accepted protocols and standard of care at the time. Review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, the standard of care was met in this case. It is less as likely as not metastatic colon cancer was caused by or became worse as a result of the 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. Per VA policy, an event is considered “not reasonably foreseeable” if it is not the type of risk that would be disclosed as part of the informed consent procedures shown in 38 C.F.R. § 17.32 (2019). Notably, the VA examiners have explained that the standards for a colonoscopy in 2004 were much different than from those in the present, and while in retrospect, the colon cancer could have been foreseen, at the time it was conducted, it was medically appropriate and standard. Likewise, the MRSA could have been foreseen, but was the result of heroic care to save a critically ill patient. The Board affords the VA examiner opinions substantial probative value. After reviewing the Veteran’s electronic claims file and VA treatment, the examiners found no evidence of carelessness, negligence, lack of proper skill, or error in judgement by the VA for the Veteran’s development of colon cancer and subsequent MRSA infection. Here, the examiners have opined that the claimed disability of colon cancer and resulting MRSA infection were not caused by and did not become worse as a result of the VA treatment at issue, the additional disabilities did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the attending VA personnel, and/or failure on part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress, and the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. Importantly, the examiners have tended to state that the November 2004 colonoscopy was performed to the standard of care that was appropriate at the time and guidelines have since improved in light of new technology. In other words, a present-day colonoscopy would likely have resulted in identifying the Veteran’s colon cancer at an earlier stage. However, a review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols at the time were followed and timely consults were obtained, so the standard of care was met in this case. Likewise, the resulting MRSA infection developed after heroic attempts to improve the Veteran’s colon cancer, which ultimately resulted in the Veteran’s dire health situation and untimely death. Also, it has been stated that the MRSA infection may have been due to intrinsic patient factors and was not the fault of VA medical personnel. Simply put, the VA examiners have found no deviation from standard of care in effect at the time while performing the Veteran’s 2004 colonoscopy, which did not yield a diagnosis of colon cancer immediately. Instead, the colon cancer was discovered in 2005 and the treatment later resulted in a MRSA infection, and the Veteran ultimately died from additional complications including cardiopulmonary failure due to or as a likely consequence of metastatic colon cancer. The Board emphasizes that there are no contrary opinions of record. The Board observes the appellant’s assertions. However, she is not competent to independently render a medical diagnosis or opine as to any potential carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Accordingly, the preponderance of the evidence of record, to include the examination reports and treatment described above, is against a finding that carelessness, negligence, lack of proper skill, or error in judgment on the part of VA caused additional disability. In addition, the preponderance of the evidence of record is against a finding that an event not reasonably foreseeable caused additional disability. Therefore, the claim for entitlement to compensation for the Veteran’s death pursuant to 38 U.S.C. § 1151 must be denied and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.