Citation Nr: 21039929 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-55 448 DATE: July 1, 2021 ORDER Entitlement to compensation for the Veteran's cause of death, to include compensation pursuant 38 U.S.C. § 1151, is denied. FINDING OF FACT 1. The Veteran's death is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or the result of an event that was not reasonably foreseeable. 2. The Veteran's cause of death is not etiologically related to service, and his service-connected disabilities did not contribute substantially or materially to cause death. CONCLUSION OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. 2. The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who served honorably on active duty from February 1953 to February 1957, died in October 2016. The appellant is the Veteran's surviving spouse. The appellant testified at a Board hearing in February 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service connection for cause of death The Board will first address the issue of entitlement to compensation for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1151. A veteran who suffers disability or death resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability or death in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability or death. Second, the additional disability or death must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). In order for additional disability or death to be compensable under 38 U.S.C. § 1151, the additional disability or death 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 has an additional disability or 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, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). 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)(2); 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, medical or surgical treatment, or examination 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. 38 C.F.R. § 3.361(d). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic procedure or course of treatment. 38 C.F.R. § 17.32 (c). Regarding reasonable foreseeability, 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 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C. §5107; 38C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant contends that the death of the Veteran was as a result of a negligent surgical procedure that he received by the VA medical center (VAMC) in Salem, Virginia. She asserts that VA surgery on May 10, 2016, failed to remove a tumor from the Veteran's colon resulting in an anastomotic leak that caused the Veteran to become septic and require a second surgery three days later. This led to a protracted hospitalization complicated by renal failure, methicillin-resistant Staphylococcus aureus (MRSA) tracheitis status post-tracheostomy, respiratory failure and ultimately the Veteran's death from sepsis. The Veteran's death certificate reflects that he died on October [REDACTED], 2016 as a result of severe septic shock, MRSA tracheitis with acute respiratory failure and acute renal failure, secondary to severe septic shock. Adenocarcinoma, chronic obstructive pulmonary disease (COPD) and type II diabetes mellitus, were listed as contributing significantly to the Veteran's death. A March 2016 colonoscopy showed a tumor that occupied 75 to 99 percent of the circumference of the ascending colon. While pathology was inconclusive for malignancy, there was high grade dysplasia. Accordingly, it was determined that it should be treated as malignant and surgery was recommended. A review of the May 10, 2016 pre-operative note shows that the Veteran received prior notification of the risks, benefits, alternatives, and procedures pertaining to his situation. It was noted that the Veteran, who at the time was 82 years old, had an unresectable right-sided colon polyp with high-grade dysplasia. The Veteran was determined to be a high-risk candidate given his comorbid conditions. He was evaluated by cardiology and was optimized. A CT scan showed no metastatic disease. He was offered a laparoscopic assisted right hemicolectomy, and was informed that there was a high likelihood of open surgery. The Veteran demonstrated understanding of the risks, benefits and alternatives and decided to proceed with surgery. Informed consent was obtained and the Veteran was provided an opportunity to ask any questions. On May 10, 2016, the Veteran underwent laparoscopic assisted right hemicolectomy with primary ileocolic anastomosis, for removal of unresectable right sided colon polyp with high grade dysplasia. No complications were noted during the procedure. Pathology returned no findings of a tumor. On May 13, 2016, the Veteran was seen after he developed progressive abdominal distention and pain. Given his recent surgery with anastomosis and the unresected tumor that was believed to be near obstructing, it was felt that he likely had an anastomotic leak with inter bowel sepsis. After obtaining informed consent the Veteran underwent emergent exploratory laparotomy with resection of his ileocolic anastomoses and ileostomy. A mass was found in the mid transverse colon, approximately 10 inches away from anastomosis. A transverse tumor was removed. It was noted as adenocarcinoma. There was no metastasis. Post-surgery, he was hospitalized for respiratory failure with recurrent klebsiella and pseudomonal pneumonia, as well as candida's and klebsiella with urinary tract infection and acute kidney failure requiring hemodialysis. In August 2016, his renal failure resolved and dialysis was stopped. He required a tracheostomy after having difficulty being weaned from a ventilator. The Veteran was moved to a community living center for therapy. On October 27th, after the Veteran removed his tracheostomy, he developed a fever and productive cough. He continued to decline and when he went into respiratory distress, he was moved to intensive care unit. He became increasingly septic and ultimately expired after aggressive attempts to treat his infection with antibiotics. A VA medical opinion was obtained in June 2017. Following a review of the claims file and the medical literature, the examiner, a gastroenterologist, opined that it was less likely as not that the Veteran's surgeries, treatment or care for colon cancer from the VAMCs contributed to the Veteran's death. The examiner noted that the Veteran expired on October [REDACTED], 2016 from septic shock, a complication of an anastomotic leak from an ileocolonic anastomosis and right hemicolectomy performed to resect a cecal carcinoma. She acknowledged that at the time of the procedure, the Veteran, who was 82 years old, was categorized as a moderate risk for surgery due to concomitant medical conditions including obesity, diabetes mellitus, obstructive sleep apnea and coronary artery disease status post-stent placement, atrial fibrillation and pacemaker placement. He underwent right hemicolectomy and ileocolonic anastomosis on May 10, 2016. 72 hours later, he went into septic shock and was immediately taken to the operating room for an infected leaking anastomosis. His course from then went downhill complicated by renal failure, MRSA tracheitis status post-tracheostomy, respiratory failure and ultimately death from sepsis which culminated a five month hospitalization. The examiner reported that review of the medical literature showed that the overall morbidity of colonic anastomoses was anywhere from 19 to 39 percent in some series. Surgical series were quick to point out that point out that once an anastomotic leak occurred, the complication rate increased significantly. Factors that contributed to post-operative complications, including anastomotic leaks, advanced age and increased operative risk, both which were present for the Veteran. The examiner determined that there was no delay in diagnosis. The leak was noted within 72 hours of the initial surgery and acted upon immediately. Additionally, there was no evidence that care provided during the subsequent very lengthy admission contributed to his ultimate demise. Initially, the Board notes that the first requirement of § 1151, evidence of an additional disability or death, is satisfied as here there is uncontested evidence of the Veteran's death. However, merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died (that the surgery caused a problem, as surgeries sometimes do even when negligence is not involved) is not enough. There must be (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. Here, the Board finds that service connection for the cause of the Veteran's death is not warranted based on failure to give informed consent. See 38 C.F.R. § 3.361 (d)(1). Neither the Veteran or the appellant made assertions that he was not properly informed or failed to give consent for the May 2016 surgical procedures. Additionally, the informed consent as noted in the records shows that the Veteran was advised of potential risks, benefits, alternatives, and procedures pertaining to his situation. As noted by the VA examiner, colonic anastomoses is a known risk of hemicolectomy, particularly where the individual has other comorbidities as the Veteran had. Based on the foregoing, the Board finds that the development of anastomotic leak as due to the May 10, 2016 surgical procedure, was reasonably foreseeable, and adequate informed consent (a related question of foreseeability) for the operation had been properly obtained. 38 C.F.R. § 3.361 (d)(2). The Board also finds that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the May 2016 surgical procedures, and that the standard of care was followed. In the June 2017 opinion, the VA examiner opined that it was less likely as not that the Veteran's surgeries, treatment or care for colon cancer from the VA contributed to the Veteran's death. The examiner explained that colonic anastomoses was a well-known complication of hemicolectomy and the Veteran's advanced age and increased operative risks precipitated post-operative complications, including anastomotic leaks. The examiner determined that there was no delay in diagnosis, appropriateness or timeliness of treatment. The leak was noted and acted upon immediately. Additionally, there was no evidence that care provided during the Veteran's hospitalization contributed to his ultimate demise. The Board notes that the June 2017 medical opinion was rendered following a review of the Veteran's VA medical records. It was also accompanied by a fully explained and well-reasoned rationale. The Board therefore finds that the medical opinion of the June 2017 VA examiner is entitled to substantial probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Significantly, there is no competent medical evidence of record that contradicts the examiner's opinion. The Board has considered the statements of the appellant asserting that the Veteran's fatal sepsis was due to negligence on the part of VA because the May 10th that right hemicolectomy failed to remove a tumor that caused an anastomotic leak resulting in the fatal sepsis. However, the evidence weighs against the appellant's contention. There is no evidence to support a finding of negligence on the part of VA when it performed the May 10th surgical procedure. It is notable that the operative report noted no complications during the procedure. Additionally, prior to surgery treatment notes show that the Veteran's tumor was determined to be unresectable and therefore it could not be completely removed through surgery. As a lay person, the appellant is not competent to render medical opinions, specifically, when clinical findings contemporaneous with the surgical procedure and post-op care do not support such contentions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Although the appellant is certainly capable of describing the history in this case as well as what she witnessed following the May 10, 2016 surgery, her statements cannot sufficiently and persuasively serve to address questions of causation between VA care (what should or should not have been done) and the development of sepsis due to an anastomotic leak post-right hemicolectomy 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). As such, the criteria for entitlement to compensation under 38 U.S.C. § 1151 have not been met. The Board has carefully reviewed the record in depth, but has been unable to identify a basis upon which benefits under 38 U.S.C. § 1151 are warranted. The overwhelming weight of the evidence of record is against the claim that the foreseeable additional disability of anastomotic leak caused by surgical treatment provided by VA in May 2016, was not due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. 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. Next, the Board will address the theory that the Veteran's colon cancer, which eventually led to his death, was incurred as a result of his service. At the February 2021 hearing, the appellant testified that she believed that the Veteran's colon cancer and ultimate death was also caused by his exposure to jet engine fuel during service. A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The Veteran's DD-214 confirms he served as an aircraft engine mechanic. Accordingly, he was likely exposed to jet fuel, solvents, and other industrial chemicals during service, as such assertions are consistent with the circumstances of his service. The service treatment records, to include the January 1957 service separation examination, are negative for any diagnosis of or treatment for a tumor or colon cancer, and such a disability did not manifest until more than five decades after service, thus service connection cannot be granted on a presumptive basis. 38 C.F.R. § 3.309(a). The appellant has not asserted and the evidence does not establish onset of this disability during service or within a year thereafter. Rather, the appellant has asserted that his cancer, which had its onset in approximately 2016, is the result of his in-service exposure to jet engine fuel more than one-half century ago. Review of the Veteran's post service VA treatment records do not show that the Veteran's causes of death, including colon cancer, are related to his military service. Concerning the appellant's contention that the Veteran's exposure to jet engine fuel contributed substantially or materially to the cause of death, the weight of the evidence is against the claim. While the Board conceded that the Veteran likely had exposure to jet engine fuel and other chemicals as an aircraft mechanic, there is no indication that said exposure is in any way related to the cause of the Veteran's fatal condition, and no competent medical evidence that etiologically links the Veteran's cause of death to service, to include any exposure therein. During the Veteran's lifetime, service connection was in effect for bilateral hearing loss, tinnitus, residuals of a right elbow fracture and hemorrhoids. There is nothing in the record to show that the Veteran's service-connected disabilities contributed substantially or materially to cause death. Accordingly, the Board finds that the weight of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. The Board notes that a VA opinion has not been obtained addressing the appellant's claim; however, a VA opinion is not necessary with respect to this claim as there is no suggestion that the Veteran's fatal disease may be associated with service. Again, there is no competent evidence of a malignant tumor in service or within one year following discharge from a period of active duty service. Moreover, there is no competent and probative evidence to show that the Veteran's fatal diseases had onset during or contemporaneous with service and no competent and probative evidence that the colon cancer is related to his service, to include exposure to jet engine fuel, or a service connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Service and post-service medical evidence only provides evidence against this claim, indicating a problem that began many years after service with no connection to service more than fifty years ago. As previously noted, the appellant is not competent to state that the Veteran's colon cancer was caused by service, or was related to any aspect of his service, to include exposure to jet engine fuel. She has not demonstrated that she has medical training or experience sufficient to render her opinion competent. Jandreau, 492 F.3d at 1377. The clear evidence is against this claim, clearly indicating the cause of death was not service related. In view of this information, there is no reasonable possibility that any additional assistance would aid in substantiating the claim. Even assuming that the Veteran's exposure to jet engine fuel, there is no competent medical evidence that associates the Veteran's fatal condition with said exposure. See 38 U.S.C. § 5103A (a); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Thus, the preponderance of the evidence is against the claim as the evidence does not show that a disability incurred in service caused or materially contributed to his death or that the causes are otherwise related to service. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 3.102. Accordingly, service connection for the cause of the Veteran's death is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.