Citation Nr: 22015181 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-00 743 DATE: March 16, 2022 ORDER Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran died in December 2013 from subdural hemorrhage, blunt force injures to the head, a fall, and cardiac conduction defect. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The evidence shows that the Veteran's cardiac conduction defect and lack of timely treatment for the disorder were proximately caused by negligence, lack of skill, error in judgement, or similar instance of fault on the part of VA following an abnormal cardiac finding in April 2012. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for a cardiac conduction defect based on April 2012 VA findings have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. 2. A disability resulting from VA negligence, lack of skill, error in judgment, or similar instance of fault did cause or substantially or materially contribute to the Veteran's cause of death. 38 U.S.C. §§ 1101, 1151, 1310; 38 C.F.R. §§ 3.312, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1957 to February 1960. The Veteran died in December 2013. The Appellant is the Veteran's surviving spouse. The Appellant testified at a November 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for cause of death is granted. The Appellant asserts that negligent follow-up care by VA following April 2012 cardiac testing substantially or materially contributed to the Veteran's cause of death. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. 38 C.F.R. § 3.361. To establish causation, first, there must be evidence of additional disability or death. 38C.F.R. §3.361(c)(1). Second, 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. 38C.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. 38C.F.R. §3.361(c)(2). In order to constitute a qualifying additional disability, the proximate cause of the additional disability or death must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38C.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 proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused that 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. 38C.F.R. §3.361(d). Here, in an April 2012 VA treatment record, the Veteran was found to have sinus rhythm with sinus arrhythmia with first degree atrioventricular (AV) block. The VA treatment records are silent for any follow up care related to this cardiac finding. The evidence shows that at the time of the Veteran's October 2013 admission to emergency care, the medical providers assessed that the Veteran needed a pacemaker due to sinus bradycardia with extensive first degree AV block. The Veteran stated he had no prior knowledge of any prior heart disease. The medical providers were unable to provide the pacemaker due to the Veteran's medical instability. The Veteran passed away in December 2013. His treatment records from his final hospitalization document that his cause of death was subdural hematoma with severe brain injury that is a consequence of syncopal fall from probable cardiac conduction defect. The Veteran's death certificate states that his cause of death in December 2013 is subdural hemorrhage, blunt force injuries to the head, fall, and cardiac conduction defect. What remains to be established is that there was fault on the part of VA in the treatment provided (or that the additional disability is a consequence of treatment provided that was not reasonably foreseeable). Upon review of the record, the Board concludes that the evidence persuasively supports a finding that the Veteran's heart disorder causing death was proximately caused by VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. In an October 2016 VA medical opinion, the examiner opined that the VA's April 2012 finding of sinus arrhythmia with first degree AV block did not require follow up care. The examiner reasoned that the Veteran's cause of death of subdural hemorrhage, blunt force injuries to the head, and fall with no other contributory factors were not the result of negligence by VA as there is no current standard of care regarding long term follow up care, to include pacemaker placement, in an individual with first degree AV block with right bundle branch block. At the November 2021 Board hearing, the Appellant testified that in October 2013, when the Veteran sought treatment with emergency care, the Appellant was told the Veteran had a diagnosis of sinus rhythm with sinus arrythmia with first degree AV block. Board Hearing Transcript (T.) at 5. The Appellant stated that the Veteran complained of chest discomfort in April 2012. Id. At the November 2021 Board hearing, the Appellant's stepdaughter, a registered nurse, testified that the April 2012 cardiac findings were an indicator of a need for a cardiology referral. T. at 6. She stated that she worked in family practice where the Veteran was a patient, and the Veteran underwent cardiac testing. Id. She stated the cardiac testing was never requested by VA in April 2012 for comparisons to VA's findings. Id. Considering the foregoing, the Board finds that the requirements for substantiating a claim under 38 U.S.C. § 1151 are met. The October 2016 VA examiner opined that the Veteran's April 2012 sinus arrhythmia with first degree AV block did not require follow up care. The Board finds that this opinion is not competent or persuasive as the examiner did not explain or discuss how the April 2012 finding by VA is the same finding by the October 2013 emergency care providers showing a need for a pacemaker. The Board finds it persuasive that while the October 2013 emergency care providers made the same diagnosis as VA had made in April 2012, there was no follow up treatment by VA following that April 2012 testing, and the Veteran and his wife were unaware of any cardiac findings by VA in April 2012 at the time of the October 2013 emergency treatment and the Veteran's subsequent death. Further, the testimony of the Appellant's stepdaughter as a medical professional and as part of the Veteran's primary care providers is persuasive. Under governing law, the Board finds that the reasonable doubt is resolved in favor of the Appellant. The requirements for substantiating a claim for entitlement to compensation for the cause of the Veteran's death under 38 U.S.C. § 1151 for the Veteran's sinus arrhythmia with first degree AV block are met. The appeal in the matter is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, Associate 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.