Citation Nr: 21040524 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 10-42 091 DATE: July 5, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1151 is denied. FINDINGS OF FACT 1. The immediate cause of the Veteran's death was cardiac arrest which was due to cardiac arrythmias due to electrolyte imbalances due to end stage renal disease with end stage liver disease as an additional underlying cause of death. Moreover, the Veteran developed sepsis prior to his death which contributed to the respiratory and cardiac arrest that were the immediate cause of death. The principal (primary) and contributory causes of death were not service-connected and were not subject to service connection. 2. VA hospital care or medical or surgical treatment was not the cause in fact of the Veteran's death, the proximate cause of the Veteran's death was not 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, and the proximate cause of the Veteran's death was not an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. See 38 U.S.C. §§ 1110, 1131, and 1310; 38 C.F.R. §§ 3.303 and 3.312. 2. The criteria for entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to October 1964, and he died in February 1992. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from September 2009 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appellant testified before a Veterans Law Judge (VLJ) at a November 2015 Board Hearing. The record contains a transcript of that hearing. The Board informed the appellant that the VLJ who conducted that hearing is no longer employed with the Board, as he has retired, and advised her of her right to have another Board hearing or, instead, to have the above matters decided on the current record. See May 2021 Notice Letter. The appellant responded by indicating that she did not wish to appear at another Board hearing and requested that the Board decide her case on the evidence of record. See May 2021 Hearing Options Form. In a January 2016 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). 1. Entitlement to service connection for the cause of the Veteran's death The appellant claims that the Veteran's service-connected bronchial asthma with obstructive pulmonary ventilation contributed to cardiopulmonary symptoms during his final hospital stay and, ultimately, contributed to the respiratory and cardiac arrest that was the immediate cause of his death. See, e.g., April 2021 Appellant's Post-Remand Brief ("It is the widow's contention that the veteran's cause of death was pulmonary disease and therefore a cause of his service-connected disability."); April 2021 Appellant's Statement ("He never had bronchial asthma until entering the military. This is why he got [a] medical discharge. Page 8 Autopsy explain[s] the lung collapse, shortness of breath, [and] pulmonary disease [that] contribute[d] to [his] heart attack."); May 2019 Appellant's Statement ("Someone don't know their medical terminology. [Pages 2 and 8-11 of the autopsy report] stress pulmonary disease, respiratory, asthma, [and] bronchial disease. This [is] why page 11 [of the] autopsy [report] stress[es] respiratory and cardiac arrest . . . All that, I submit, [was] a contribut[ory] factor [that] cause[d the] heart attack, pulmonary disease, [and] sepsis."); November 2015 Board Hearing Tr. at 3 (outlining appellant's theory of service connection for cause of death, particularly including the assertion that the service-connected bronchial asthma with obstructive pulmonary ventilation was a contributory cause of death); see also February 1992 Death Certificate (indicating cardiac arrest as the immediate cause of death and as due to cardiac arrythmias due to electrolyte imbalances due to end stage renal disease with end stage liver disease as an additional underlying cause of death). Briefly, the appellant should understand that the January 2016 Board Decision was favorable in that the Board granted reopening of her claim of entitlement to service connection for cause of death. See, e.g., April 2021 Appellant's Statement (arguing that she "won the case" as decided by VLJ Braeuer); June 2020 Appellant's Statement (same); May 2019 Appellant's Statement ("The lawyer from the Board of Appeal[s] told [me that] I won [the] case 1151 entitle[ment] to service connect[ion] in Washington, D.C."). This meant only that the Board would consider the merits of the claim anew. However, as explicitly noted in that decision, the claim of entitlement to service connection was remanded to the agency of original jurisdiction (AOJ) (which in this case was the RO in Columbia, South Carolina) for further development and readjudication. Therefore, while the appellant "won" reopening of the claim, the Board has not, until now, addressed the merits of that reopened claim. The Board will now turn to the merits. The law provides DIC benefits for a spouse of a Veteran who dies from a service-connected disability. See 38 U.S.C. § 1310. A service-connected disability is one that was incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). The Veteran's death certificate and treatment records relating to his final illness indicate that the immediate cause of his death was cardiac arrest which was due to cardiac arrythmias due to electrolyte imbalances due to end stage renal disease with end stage liver disease as an additional underlying cause of death. See February 1992 Death Certificate. The treatment records relating to his final illness and the February 1992 Full Autopsy Report make clear that the Veteran developed sepsis (likely due to complications of his diabetes mellitus, hepatitis C, and related conditions such as renal disease, liver disease, dermal lesions, and amputation) which contributed to respiratory and cardiac arrest that were the immediate cause of death. Therefore, sepsis, renal disease, liver disease, diabetes, hepatitis C are all contributory causes of death. However, none of these conditions were service-connected and the appellant and her representative have not argued that any of these conditions should have been service-connected. Instead, as noted above, the appellant argues that because those conditions ultimately resulted in respiratory and cardiac arrest, the Board should find that his service-connected bronchial asthma with obstructive pulmonary ventilation was a contributory cause of death. See, e.g., April 2021 Appellant's Statement; May 2019 Appellant's Statement; November 2015 Board Hearing Tr. at 3. She has pointed to page 2 of the February 1992 Full Autopsy Report which indicates: "The patient did complain on multiple occasions of shortness of breath and chest pain but he had no evidence of myocardial infarction by EKG." She argues that this suggests that the Veteran experienced an asthma attack or that his asthma otherwise contributed to these symptoms which, she further argues, contributed to the respiratory and cardiac arrest that ultimately cased his death. See, e.g., June 2018 Appellant's Statement ("Page 2 explain[s] shortness of breath, wheezing [which is the] same as bronchial asthma and obstructive pulmonary ventilation"); July 2016 Appellant's Statement ("The narrative summary [documents] shallow of breathing [sic], wheezing, inopiratory [sic] and expiratory. At the present time, the patient having inter [illegible] asthmatic attack characterized by wheezing, shortness of breath."). While the Board acknowledges the plausibility of appellant's argument, neither she nor the Board are competent to make a medical determination as to whether the respiratory symptoms noted in the medical records were related to or manifestations of the service-connected bronchial asthma with obstructive pulmonary ventilation or, if so, whether those respiratory symptoms contributed to the respiratory and cardiac arrest which was the immediate cause of death. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (Board may not make independent medical assessments); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). The appellant, who lacks medical training, is not competent to opine on the cause of respiratory symptoms noted in the medical records or whether those symptoms and/or their underlying cause were a primary or contributing cause of death in this case. See, e.g., Jandreau, 492 F.3d at 1377. Therefore, in evaluating the Veteran's claims, the Board will rely on the competent medical evidence of record. The October 2017 VA examiner's opinion was that it was less likely than not that the Veteran's service-connected bronchial asthma with obstructive pulmonary ventilation caused the Veteran's death or substantially or materially contributed to the Veteran's cause of death. The examiner acknowledged that the autopsy report indicates the presence of mild lung disease including mild pneumonia, but opines that the Veteran had "other comorbidities which were much more significant including chronic renal failure requiring hemodialysis, uncontrolled long-standing diabetes mellitus with associated peripheral vascular disease resulting in bilateral lower extremity amputations and cerebrovascular disease." The examiner also noted that the Veteran had a history of ethanol abuse, pancreatitis and hepatitis C infection. The cause of death was sepsis leading to cardiopulmonary arrest. The examiner opined that "it is unlikely that his mild lung disease contributed to his death." The opinion is thorough, based on an accurate medical history, and contains persuasive reasoning linking the available medical facts and medical principles to his conclusion. The opinion is entitled to significant probative value against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). The September 2010 VA examiner opined that the Veteran's service-connected asthma did not cause or contribute to the Veteran's death. However, the January 2016 Board Decision found that the opinion was inadequate, so the Board assigns it no probative weight. The appellant and her representatives have not provided any competent opinions linking the Veteran's service-connected disability to his death, but instead rely on lay interpretations of the medical records which discuss respiratory symptoms and noted that the Veteran died of cardiopulmonary (respiratory and cardiac) arrest. Because the service-connected bronchial asthma with obstructive pulmonary ventilation affects his respiratory system, they reason that it must have contributed to the acute respiratory or cardiopulmonary event that was the immediate cause of the Veteran's death. The Board again acknowledges that while this connection appears plausible, on its face, from a lay person's perspective, it actually requires competent medical evidence to determine whether there was an actual connection. Simply because the Veteran was service-connected for a pulmonary condition and had respiratory symptoms, this does not mean that condition or those symptoms caused or contributed to his death. The greater weight of the medical evidence is against the claim. The only competent opinions of record indicate that the service-connected condition did not cause or contribute to the Veteran's death. The greater weight of the evidence is against the appellant's claim. Entitlement to service connection for the cause of the Veteran's death is denied. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1151 The appellant seeks entitlement to benefits under 38 U.S.C. § 1151 for the Veteran's death which was due in significant part to sepsis which the appellant alleges that he acquired during his admission to the hospital and incurred as a result of VA treatment. The preponderance of the evidence is against the claim and the appeal is denied. Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. 38 U.S.C. § 1151. A review of the record reveals that the appellant submitted the § 1151 claim via a May 2010 VA Form 21-4138 Statement in Support of Claim. Because the claim was filed after October 1, 1997, the claim must be adjudicated under only the current version of 38 U.S.C. § 1151, which requires a showing of fault on the part of VA. See 69 Fed. Reg. 46,426 (Aug. 3, 2004) (including the codification of 38 C.F.R. § 3.361 which applies to section 1151 claims filed on or after October 1, 1997, and revising 38 C.F.R. § 3.358 to state that the section only applied to claims filed before October 1, 1997). Under 38 U.S.C. § 1151, a disability is a qualifying additional disability, if the additional disability was not the result of the Veteran's willful misconduct, and was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (A) 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 (B) an event not reasonably foreseeable. Section 1151 contains two causation elements, the disability must not only have been caused by the hospital care or medical treatment but it must also be proximately caused by VA's fault. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013). In order for the appellant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran; the claim for compensation under 38 U.S.C. § 1151 must be denied. In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or 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). An additional disability or death caused by the Veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3). 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 or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). 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. 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. 38 C.F.R. § 3.361(d)(2). 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). The appellant's claim of entitlement to benefits under 38 C.F.R. § 1151 fails because the greater weight of the evidence is against finding that the first causation element is met. Specifically, the greater weight of the evidence is against finding that the Veteran's sepsis and subsequent death were caused by hospital care, medical or surgical treatment or examination at the Durham VAMC. The appellant has alleged that the most likely cause of the Veteran's infection was as a hospital-acquired infection. See, e.g., November 2015 Board Hearing (arguing that "an event unforeseen occurred" and "the event unforeseen was that . . . the . . . deceased veteran was . . . admitted to Durham VAMC [and] during his stay there he developed sepsis late in his hospital stay that was progressive"; also clarifying that "we're not saying negligence . . . we're not claiming . . . improper care" but instead are relying on "an event unforeseen"); August 2015 Appellant's Correspondence (setting forth her allegations in some detail, arguing that the autopsy report indicates "the patient developed sepsis late in the hospital stay[] that [was] progressive and responsible for cardiac arrest that occurred 3 months after the Admission and the day before the patient [died]. This has not been acknowledge[d] and been ignoring. This is a Bacteria that kill, this [is] very important. . . This is Negligence."); April 2021 Correspondence (attaching an internet article which, as highlighted by the claimant, indicates: "Usually, sepsis results from certain bacterial infections, often acquired in a hospital."). These lay allegations shape and inform the inquiry, but are not competent evidence regarding the factual issues of whether the sepsis was caused by hospital care, medical or surgical treatment or examination, whether the sepsis was the continuance or natural progress of one or more of the conditions for which the Veteran was admitted to the hospital, and whether sepsis was an unforeseeable event given the Veteran's medical condition at the time of admission. These questions all involve complex medical questions that require specialized medical education, training, and/or experience to evaluate and resolve. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377. Therefore, the Board assigns these lay opinions no probative weight, but has carefully considered the legal and factual arguments raised by the Veteran and her representatives. The Board also notes that the medical articles submitted by the appellant are too abstract to resolve the specific medical questions at issue here. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, although it is possible that a treatise might "discuss generic relationships with a degree of certainty" that would allow a finding of "plausible causality based upon objective facts"). Here, the medical article only noted that sepsis is "often" acquired in a hospital, which only provides information that the appellant's lay assertions are plausible, but does not provide any information regarding how likely this Veteran's sepsis was acquired as a result of the hospitalization as opposed to due to the continuation and/or natural progress of one or more of the Veteran's multiple medical conditions as suggested in the medical evidence. Compare April 2021 Correspondence (attaching an internet article stating: "Usually, sepsis results from certain bacterial infections, often acquired in a hospital.") with February 1992 Full Autopsy Report ("the source of the infection is presumed to be his various dermal ulcers, as no source of infection was positively identified. The patient did have a mild focal left lower lobe pneumonia, but it is questionable whether this was the source of his sepsis."). Therefore, the Board will consider the available medical evidence in light of the competent opinions of record. The appellant submitted a February 2003 Private Opinion Letter in which a physician stated, in full: "On behalf of [the appellant] I am writing a statement affirming that Diabetes is a well-known cause of heart disease and renal failure in the United States. Thank you. [signed Dr. K.H.]." To the extent this opinion has any relevance to the 38 U.S.C. § 1151 claim, it implies that the Veteran's death was related to the Veteran's diabetes and resultant heart disease and renal failure, which further implies that sepsis was a natural or expected progression of the underlying conditions and their usual complications. However, the opinion does not directly address any medical question directly relevant to the claim at issue, so the Board assigns it no probative value either for or against the section 1151 claim. The September 2010 VA examiner provided an opinion on the cause of the Veteran's death, as discussed above, but did not provide any medical opinions that relate to or address the medical questions pertinent to the 1151 claim. It warrants no probative value with respect to the 1151 claim. The October 2017 VA examiner's opinion addresses the issue of whether the Veteran's death was a result of VA medical care to include any failure to meet the standard of care in providing that care. The examiner concluded that it is less likely than not that the Veteran's death was a result of the VA care and treatment provided to the Veteran. The examiner explained that the Veteran's death was caused by sepsis leading to cardiopulmonary arrest and indicates, as the Board interprets his opinion, that nothing the VA did or did not do caused the sepsis. The examiner explicitly found that there was nothing in the autopsy report or hospital discharge summary which would indicate that the Veteran received any care that was inappropriate or negligent. He concluded that the "Veteran was a very ill individual who likely died as a result of his many comorbidities despite the efforts of the Durham VA hospital staff." The record otherwise fails to contain any competent opinions supporting the proposition that the hospital care, medical or surgical treatment provided to the Veteran by VA caused his additional disability, rather than that merely that the Veteran received care or treatment from VA and developed sepsis during that time. The appellant has not alleged, and the greater weight of the evidence is against finding, that VA failed to timely diagnose or properly treat the sepsis or any of the other conditions leading to the Veteran's death. See 38 C.F.R. § 3.361(c)(1) and (c)(2). Because the evidence is against finding that the first causation element of the appellant's claim has been met, see 38 C.F.R. § 3.361(c), the appellant's claim fails without consideration of whether the Veteran's development of sepsis while in the hospital was "an event not reasonably foreseeable." 38 C.F.R. § 3.361(d)(2) (framing the issue as: "Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable..." (emphasis added)); see also 38 C.F.R. § 3.361(c) (providing that section 1151 claims "must meet the causation requirements of this paragraph [38 C.F.R. § 3.316(c)] and paragraph (d)(1) and (d)(2) of this section" (emphasis added)). To reiterate, as explained above, there are two causation aspects of a section 1151 claim: causation in fact (i.e., whether care or treatment provided by VA caused the additional disability or death) and proximate causation (i.e., whether carelessness, negligence, etc., was the proximate cause OR whether the proximate cause was "an event not reasonably foreseeable"). The appellant's argument that the Veteran's development of sepsis was an "event unforeseen" does not address the key deficiency in proof in this case. It is true that a claimant may satisfy the proximate causation element of the claim by showing that the event causing additional disability or death was not reasonably foreseeable. However, where an unforeseeable event occurs merely coincident with VA care or treatment, the VA care or treatment is not the "cause in fact" of the additional disability or death and the 1151 claim fails as a matter of law. See, e.g., Loving v. Nicholson, 19 Vet. App. 96, 100 (2005) (holding that claimant's injury, which was sustained due to a falling ceiling grate during a VA medical examination, was coincidental with the receipt of VA treatment and, so, was not caused by the VA treatment); Mangham v. Shinseki, 23 Vet. App. 284, 288 (2009) (holding that a section 1151 claim failed as a matter of law because "the cause in fact of any injury that the claimant now suffers was the criminal action of a third party"). Here, there is the evidence is against finding that the Veteran's development of sepsis was caused by the VA care or treatment, rather than that it was a continuance, natural progress, or unfortunate complication of the Veteran's underlying disabilities. The appellant's claim fails because the greater weight of the evidence is against concluding that VA care or treatment was the cause in fact of the Veteran's death. As a separate, additional basis for denial, the Board also finds that the greater weight of the evidence is against concluding that the Veteran's infection was an unforeseeable event given his multiple comorbidities, including dermal ulcers that were evaluated and, because of which, his physicians prescribed prophylactic treatment with antibiotics. This conclusion is supported by multiple pieces of evidence. The Board assigns no probative weight to the internet article provided by the appellant, but notes that to the extent it is relevant, the Board interprets it as suggesting that hospital infections are a known risk of hospital stays. The Board assigns significant probative weight to the October 2017 VA examiner's opinion which indicates that the Veteran was "a very ill individual who likely died as a result of his many comorbidities" and, as the Board interprets the report, that the infection and general course of the Veteran's hospital stay was a likely outcome of his underlying conditions. The Board also assigns significant probative weight to the contemporaneous treatment records (to include the autopsy findings). See February 1992 Full Autopsy Report (summarizing treatment records and final illness as well as detailing the results of the autopsy). The Board relies most heavily on the treatment records which indicate that the medical staff evaluated the Veteran's dermal lesions and drainage from the right stump as possible sources of infection and, thereafter, initiated chronic suppressive antibiotics prior to the actual detection of any infection. This evidence strongly suggests that, not only was infection reasonably foreseeable, it was actually anticipated and the VA medical staff proactively attempted to prevent this foreseeable event. Because the sepsis was an event that was reasonably foreseeable, the appellant's section 1151 claim can only succeed if the evidence establishes (at least as likely as not) 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 or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). The October 2017 VA examiner provided a thorough and convincing opinion that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider. The appellant has not argued or submitted any evidence indicating that VA medical providers failed to exercise the degree of care that would be expected of a reasonable health care provider in preventing, timely detecting, and appropriately treating the sepsis or any of the Veteran's other health conditions. Moreover, there are no allegations nor any evidence that VA furnished the hospital care or medical or surgical treatment without the Veteran's consent. In summary, the section 1151 claim fails due to lack of adequate evidence to support two separate elements of the Veteran's claim. Specifically, although the Veteran died while in VA care, the greater weight of the evidence is against finding that VA care of treatment was the cause in fact of the sepsis or any other of the Veteran's conditions and is also against finding that VA care or treatment was the proximate cause (via either a showing of negligence, etc., or by showing an event not reasonably foreseeable) of the Veteran's additional disability or death. For all of the above reasons, the claim of entitlement to DIC pursuant to 38 U.S.C. § 1151 is denied. Duties to Notify and Assist The appellant has not raised any specific issues with the duty to notify or 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). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.