Citation Nr: 22011997 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-18 546A DATE: March 2, 2022 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 is denied. FINDING OF FACT The weight of the evidence reflects that the Veteran's death was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for the Veteran's death have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1942 to December 1945. The Veteran died in April 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to DIC under 38 U.S.C. § 1151 is denied. A qualifying death of a veteran will be awarded in the same manner as if such death were service-connected. 38 U.S.C. § 1151. A death is qualifying if the death 1) was not the result of the Veteran's willful misconduct and the death was caused by hospital care, medical or surgical treatment; or examination furnished to the Veteran under any law administered by VA, and 2) the proximate cause of the disability 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. Id. To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's death. Merely showing that a Veteran received care or treatment and that the Veteran has died 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). 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 1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 2) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361 (d). The appellant contends that the Veteran's death due to rectal cancer was the result of the VA's failure to provide treatment for the Veteran's rectal cancer, as well as the VA's neglect in scheduling a surgical procedure related to the condition. For the following reasons, entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the Veteran's death is not warranted. VA treatment records reflect that the Veteran underwent a colonoscopy in January 2008, at which time he was diagnosed to have adenocarcinoma of the rectum. A treatment record dated February 28, 2008 noted that a treatment provider thoroughly discussed the biopsy results with the Veteran, but that he refused to accept that he had a cancer diagnosis. A March 2009 VA treatment record documented the Veteran's statement that the VA was trying to harm him with medication and surgery. In August 2010, the Veteran was hospitalized for gout. A pastoral care record dated August 22, 2010 noted that the Veteran stated that he had previously refused care for his diagnosed rectal cancer and did not believe he had such a diagnosis. The record indicates that he treated his cancer at home with homeopathic medications. A September 3, 2010 VA treatment record noted that the Veteran declined treatment for his diagnosed rectal cancer, to include chemotherapy, radiation, and surgical resection. The record reflects that the Veteran requested to be discharged from the VA hospital in September 2010, despite advice from treatment providers regarding a six-month prognosis for his rectal cancer. Treatment records further indicate that the Veteran and his family were informed of the medical risks and logistical concerns related to the Veteran's discharge, but that they chose to depart prior to a full discussion of palliative care options. In a September 2014 letter, Dr. M.E. noted that the Veteran met with VA primary care providers, surgical consultants, and palliative care representatives following his cancer diagnosis. However, he repeatedly refused surgical treatment for this condition and ultimately elected non-surgical palliative care. A November 2014 VA physician found that a review of the medical record showed no evidence to suggest or support that VA providers were negligent in the care and treatment of the Veteran prior to his death. The opinion noted that the Veteran was informed of his diagnosis of rectal cancer and that medical providers offered evaluation and treatment options on multiple occasions, but that he declined treatment for this condition. Additionally, medical records indicated that the Veteran had a long history of noncompliance with prescribed medication and follow-up medical care, as well as a distrust of physicians and their treatment recommendations. The VA physician found that there was no evidence that the Veteran had an underlying mental defect that prevented him from making rational decisions or that he lacked any decision-making capacity. As such, there was no objective evidence that the lack of treatment for rectal cancer was due to negligence on the part of the VA treatment providers, but was due to the Veteran's clear refusal of treatment. As the VA physician explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion on these questions is entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the Board acknowledges the appellant's belief that the VA caused the Veteran's death, it finds that this belief is outweighed by the November 2014 medical opinion. While laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). As a layperson, it is not shown that the appellant possesses the medical expertise to provide such an opinion. Thus, the appellant is not competent to opine on the question of whether the Veteran's death was caused by VA medical care or that VA fault or an event not reasonably foreseeable was the proximate cause of his death. Moreover, there is no other competent opinion on this question. The Board notes that the appellant submitted several internet articles related to rectal cancer and problems with VA medical care. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence, especially when combined with an opinion of a medical professional. Sacks v. West, 11 Vet. App. 314, 317 (1998); see also 38 C.F.R. § 3.159 (a)(1). However, generic information in a medical journal or treatise is normally too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999); see also Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence must "not simply provide speculative generic statements not relevant to the Veteran's claim."). In this case, the submitted evidence is general in nature and has not been specifically related to the Veteran's death. Thus, the Board affords this evidence little probative weight. (Continued on the next page) For the foregoing reasons, the evidence reflects that the Veteran's death was not caused by VA medical care, or that the proximate cause of such death was either due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. As such, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the appellant's claim for entitlement to DIC under 38 U.S.C. § 1151 is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.