Citation Nr: 21024287 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-35 490 DATE: April 22, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) for the cause of the Veteran's death under 38 U.S.C. § 1151 due to medical treatment received at the Department of Veteran's Affairs (VA) Medical Center in Memphis, Tennessee, from April 2007 to October 2007 is granted. FINDING OF FACT Resolving all doubt in the appellant's favor, the evidence is at least in equipoise concerning whether the Veteran's November 2007 demise from septicemia due to pancreatic cancer was the result of an event not reasonably foreseeable consequent to medical treatment received at the Department of Veteran's Affairs (VA) Medical Center in Memphis, Tennessee, from April 2007 to October 2007. CONCLUSION OF LAW The criteria for entitlement to DIC for the cause of the Veteran's death under 38 U.S.C. § 1151 have been met. 38 U.S.C. § § 1151; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from March 1957 to February 1966. The Veteran died in November 2007, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The appellant expressed timely disagreement with this determination, and the present appeal ensued. This appealed issue, and another, were previously before the Board in November 2015, when it was determined that a remand was necessary in order to ensure that VA fulfilled its duty to assist the appellant in substantiating her appeal. The Board’s remand directives and the subsequent actions of the AOJ will be discussed below. The appellant’s appeal has been returned to the Board for further appellate consideration. Issue no longer on appeal In the November 2015 remand, the Board also determined that the issue of entitlement to entitlement to an evaluation in excess of 40 percent for the Veteran’s low back disability for accrued benefits purposes was properly before the Board for the limited purposes of remanding it to ensure that the Veteran was provided a Statement of the Case (SOC) under the United States Court of Appeals for Veterans Claims’ (the Court’s) holding in Manlincon v. West, 12 Vet. App. 238 (1999). The appellant was issued an SOC in January 2020 which continued the denial of this issue; however, she did not file a substantive appeal in a timely manner. As such, that issue is no longer on appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997). 1. Entitlement to DIC for the cause of the Veteran's death under 38 U.S.C. § 1151 due to medical treatment received at the VAMC in Memphis, Tennessee, from April 2007 to October 2007 is granted DIC benefits shall be awarded for a qualifying death of a veteran in the same manner as if such death were service connected. 38 U.S.C. § § 1151. In order for a death to qualify for compensation under 38 U.S.C. § § 1151, the death must not have been the result of the veteran's willful misconduct and the death was caused by VA hospital care, medical or surgical treatment, or examination and the proximate cause of 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, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § § 1151(a). In order for death to be compensable under 38 U.S.C. § 1151, such must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 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). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA’s negligence. Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The proximate cause of the veteran’s death, 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). Regarding reasonable foreseeability, 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements – a veteran’s death must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Analysis As noted by the Board in the November 2015 remand, the appellant’s assertions in furtherance of her appeal have included several different theories of entitlement. These contentions are acknowledged; however, the Board’s analysis of the appellant’s appeal will focus on application of 38 U.S.C. § 1151 to the most pertinent facts, as doing so results in a favorable outcome for the appellant. The appellant’s appeal presents a complex matter, both legally and medically, that involves application of the unique legal framework of 38 U.S.C. § 1151, to include the concepts of negligence and foreseeability, to the Veteran’s significant disability picture during his final year. In light of the intricacies of the controlling laws and the involved medical matters presented in this case, the Board concludes that a recitation of pertinent facts would be helpful. By way of history, the AOJ established service connection for a low back disability (lumbar spondylosis with mild canal narrowing and disk bulging) in an October 2006 rating decision, and a 40 percent initial evaluation was assigned, effective from November 26, 2003. The Veteran developed worsening low back pain and febrile symptoms in early 2007, and testing completed at the Memphis VAMC showed osteomyelitis and discitis at L3-L4. On April 9, 2007, a peripherally inserted central catheter (PICC) was surgically placed at the Memphis VAMC for administration of antibiotic therapy (Vancomycin) for treatment of this disability. While VA treatment records reflect that the Veteran provided informed consent for this procedure, neither the completed informed consent forms nor the operative report for PICC line placement are associated with the Veteran’s file. The Veteran was soon discharged with instructions to start Vancomycin “through the [h]ome health agency.” The Veteran returned to the Memphis VAMC in May 2007, presenting with painless jaundice, elevated liver enzymes, and continued febrile symptoms. Testing revealed adenocarcinoma of the pancreas with vascular invasion and obstruction of the common bile duct, and VA medical professionals agreed on a treatment course of palliative chemotherapy delivered via a port-a-cath. However, port-a-cath implantation surgery could not be completed because, despite the Veteran’s 4-week antibiotic treatment regimen vie the PICC line, the Veteran’s continued low back infection and resulting fever endured. As such, the Vancomycin treatment was discontinued, and port-a-cath implantation surgery was delayed until July 5, 2007, to allow the Veteran’s febrile disorder to subside. Although the Veteran was admitted to the Memphis VAMC for completion of this procedure on July 5, 2007, further postponement due to the Veteran’s continued infection and fever was necessary. The Memphis VAMC then implanted a left subclavian port-a-cath for administration of palliative chemotherapy for treatment of pancreatic cancer, which had been deemed terminal; however, the record for review does not include the operative report or completed informed consent forms in connection with this procedure. It appears that this port-a-cath malfunctioned, as another procedure was completed on August 23, 2007, for removal of the “?leaky” left subclavian port-a-cath and placement of a French Vaxcel port-a-cath at the right internal jugular vein. Again, the record before the Board does not include completed informed consent forms in connection with this surgery. On October 28, 2007, the Veteran was admitted to the Memphis VAMC in shock from E. Coli sepsis with a documented possible source of infection being the port-a-cath placed in August 2007. The Veteran was in extremis and, in view of his terminal pancreatic cancer, withdrawal of care with comfort measures only was counseled and the family agreed. The Veteran died in early-November 2007, and his death certificate reflects that the immediate cause of death was septicemia as a consequence of pancreatic cancer. Later that month, the appellant filed the claim from which the present appeal stems. As alluded to above, during the lengthy pendency of the appeal, the appellant’s contentions have focused on whether the Veteran’s demise was caused by the infection associated with his service-connected low back disability or the aggressive prescription and administration of Vancomycin for treatment of such. Specifically, she asserted that the Veteran’s pancreatic cancer may have been caused by the prescribed antibiotic regimen. Unfortunately, VA opinions obtained by the AOJ in July 2014 and August 2016 do not support these assertions. Notwithstanding the above, the Board observes that there is medical evidence that supports entitlement to DIC for the cause of the Veteran's death under 38 U.S.C. § 1151 under a theory not set forth or pursued by the appellant. Particularly, the VA medical professional who provided the September 2016 opined that the Veteran’s fatal septicemia due to E. Coli infection was likely caused by the port-a-cath placed by VA in August 2007 for treatment of his terminal cancer. The clinician continued that such an infection is a known complication of port-a-cath placement, and the evidence did not show that the port-a-cath was not used appropriately or that the usual measured steps to prevent infection resulting from the procedure were not taken. While it appears that the September 2016 VA opinion is unfavorable to the appellant’s appeal, a closer reading of such in the context of the Veteran’s unique circumstances supports the notion that DIC for the cause of the Veteran's death under 38 U.S.C. § 1151 is warranted. Specifically, the VA medical professionals who implanted the port-a-cath in August 2017 were certainly aware of the Veteran’s significant comorbidities, including his terminal pancreatic cancer and continued period of infection and resulting fever from January 2007 to July 2007 in connection with osteomyelitis and discitis. With this in mind, the September 2016 VA opinion supports that the risk of the Veteran’s November 2007 death due to septicemia caused by an E. Coli infection was not a risk that a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 in completing the port-a-cath placement surgery in August 2007. Indeed, there is no evidence within the file that stands for the premise that the Veteran was informed, or that VA medical professionals considered, that the August 2007 port-a-cath placement surgery may result an E. Coli infection, septicemia, and/or death. In view of the above, there is no need to discuss the matters of VA’s carelessness, negligence, lack of proper skill, or error in judgment, regarding the Veteran’s death. Simply put, the most probative evidence reflects that the Veteran’s died as the result of an event not reasonably foreseeable consequent to August 2007 port-a-cath placement surgery performed at the Memphis VAMC. There is also no medical opinion that specifically rejects this conclusion. As such, DIC compensation benefits for the cause of the Veteran's death under 38 U.S.C. § 1151 due to medical treatment received at the VAMC in Memphis, Tennessee, is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.