Citation Nr: 22015247 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-37 275 DATE: March 16, 2022 ORDER Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 is granted. FINDINGS OF FACT 1. The Veteran died in January 2013, and his death certificate lists the immediate cause of death as emphysema. 2. The Veteran's Department of Veterans Affairs (VA) primary care provider failed to diagnose and/or treat his preexisting chronic obstructive pulmonary disease (COPD), and a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment. 3. The Veteran's death probably would have been avoided at least for a period of time if proper diagnosis and treatment had been rendered. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for entitlement to DIC under 38 U.S.C. § 1151 have been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.361; VAOPGCPREC 5-2001 (Feb. 5, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1941 to June 1946. He died in January 2013, and the appellant is seeking benefits as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the VA Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing is of record. The Board notes that the appellant initially filed a December 2013 notice of disagreement with the agency of original jurisdiction's (AOJ) denial of the DIC section 1151 claim in the above rating decision. During that same month, the appellant and her representative filed written statements indicating that she was satisfied with the explanation provided to her and no longer wished to proceed with the appeal. Prior to receipt of those submissions, however, the appellant indicated that she intended to pursue the appeal in a telephone call with the AOJ and that it should disregard any statement received to the contrary. She also submitted another timely notice of disagreement for the claim in which she also expressed disagreement with the denial of her burial benefits claim in the corresponding December 2013 notification letter/decision to the November 2013 rating decision. See December 2013 report of general information (AOJ telephone call); May 2014 notice of disagreement and cover letter. The AOJ granted the burial benefits claim in an August 2016 decision, and the appellant did not express disagreement with that determination. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). In addition, the AOJ denied DIC based on service connection for the cause of the Veteran's death as part of the adjudication of the appellant's February 2013 original death benefits claim; however, she did not express disagreement with that determination. See April 2013 rating decision. The Board remanded the case for further development in September 2019. That development was completed, and the case has since returned to the Board for appellate review. Law and Analysis DIC benefits are payable to the surviving spouse of a veteran for the veteran's death resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility in the same manner as if such death were service-connected if the death 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)(1)(A), (B); 38 C.F.R. §§ 3.5(a), 3.361. First, the death must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361(c). 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). Hospital care, medical or surgical treatment, or examination 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). 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. VAOPGCPREC 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Second, the proximate cause of the 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). 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 death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's 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)(1). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that entitlement to DIC benefits under 38 U.S.C. § 1151 is warranted. The appellant has contended that VA was negligent in not treating the Veteran for symptoms of COPD for several years prior to his death in 2013 as early as 2009 and that the failure to timely diagnose and properly treat the disease resulted in his hastened death from emphysema as the next stage of the disease. In support of her claim, she has referenced various treatment records that she believes were indications of the Veteran's respiratory problems that went unaddressed by his VA primary care provider (Dr. A.N., initials used to protect privacy) without proper treatment; the record indicates that she is a former nurse. See, e.g., October 2005 Bd. Hrg. Tr. (testified to work history in Veteran's prior appeal) and June 2019 Bd. Hrg. Tr. (current appeal); 2013 written statements and July 2016 substantive appeal. For example, the appellant has referenced the following: (1) a November 2009 VA physical therapy consultation note with reported moderate dyspnea on exertion and a request for a home oxygen evaluation (having been on oxygen after his hospitalization the month prior for a right hip fracture) with an assessment including a recommendation for a pulmonary/oxygen assessment for possible home oxygen given that symptomatology; (2) the finding on the June 2011 VA x-ray report of a mild pectus carinatum deformity that the appellant has indicated is common with COPD and appears after long-time dyspnea; (3) an August 2011 VA primary care note reflecting a history of memory problems the appellant reported that she suggested could be a sign of a lack of oxygen; (4) a July 2012 VA primary care note reflecting a history of the Veteran becoming intermittently short of breath, as reported by the appellant, as well as her concerns about the Veteran's oxygen saturation levels (see also January 2012 neuropsychology consultation note); and (5) the end of the September 2012 VA emergency department physician note with a diagnosis of severe COPD needing steroids and oxygen and dementia, as well as a note of time spent trying to get Veteran what he needed that should have been dealt with in his clinic, as he was not acutely ill. The Veteran died in January 2013, and his death certificate lists the immediate cause of death as emphysema. The death certificate was certified by the Veteran's long-time non-VA primary care provider, and the record otherwise supports this determination. See, e.g., December 2012 VA treatment record (noted receiving hospice services for end stage COPD); January 2013 private treatment record (history and physical for hospital admission earlier that same month with assessment including acute on chronic respiratory failure due to COPD exacerbation; same diagnosis in discharge summary); see also, e.g., Cleveland Clinic, "Emphysema" (defining emphysema as a disease that belongs to a group of lung diseases known as COPD), https://my.clevelandclinic.org/health/diseases/9370-emphysema (reviewed March 2022). Regarding the Veteran's medical history before receiving the subject VA care, the private treatment records show that he had a 30-year smoking history, stopping in the late 1970s. See, e.g., private treatment records from November 1997, November 1998, November 1999, and January 2001 (most indicating 1/2 pack per day for that time). A November 1996 private treatment record shows a notation to rule out COPD, with a treatment diagnosis of COPD the following year. Thereafter, it was noted that chest x-ray and pulmonary function testing yielded normal results, with a noted pectus excavatum on physical examination. See, e.g., private treatment records from November 1997, November 1999, October 2000, January 2001, and May 2002. More recent chest x-ray results show old linear fibrotic atelectasis in the left lung base and then later prominence of the central and interstitial lung markings as well. See December 2008 VA chest x-ray report; private chest x-ray reports from October 2009 and January 2013 (noted no significant change from prior study). On review, the Board finds that most probative evidence establishes that the Veteran's VA primary care provider failed to diagnose and/or treat his preexisting COPD, and a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment. The Veteran was transferred to Dr. A.N.'s care in November 2009, shortly after he received private surgical treatment for a hip fracture due to a fall. The October 2009 discharge summary for that procedure shows that the Veteran needed incentive spirometry for atelectasis, and it was noted that he was on oxygen that could be discontinued at the time of discharge from the skilled nursing facility. During the November 2009 VA physical therapy consultation, the Veteran reported having moderate dyspnea on exertion and requested a home oxygen evaluation, having been on oxygen until he was discharged from post-surgical care. In the assessment, the physical therapist recommended a pulmonary/oxygen assessment for possible home oxygen given that symptomatology and made a notation for the primary care provider to read the assessment for the recommendations. The VA treatment records show that the primary care provider acknowledged receipt of the physical therapy consultation note the following day and requested that the nurse help secure the information for the Veteran's private sector care, including whether he was sent home on home oxygen. The record shows that the private treatment records associated with the hip treatment, including the record above, were scanned into the VA Computerized Patient Record System (CPRS) Tools database by January 2010. See December 2009 VA memorandum acknowledging receipt of records and headers on corresponding scanned documents. In addition, the VA treatment records show that the primary care provider ordered chest imaging and acknowledged a diagnosis of COPD, but it does not appear that the recommended pulmonary consultation was ordered. The Veteran had continued respiratory symptomatology, and the appellant reported her concerns about his oxygen saturation levels, as noted above. See, e.g., VA treatment records from June 2011 (chest x-ray report; impression including hyperaerated lungs, probable COPD, linear fibrotic strands at the left lung base similar to December 2008 and noted abnormality, attention needed), August 2011 (chest CT report noted reason for study was patient with COPD, right lung nodule; conclusion including postinflammatory changes likely in the chest), and July 2012 (assessment of history of shortness of breath stable at present but will get chest x-ray; addendum noted x-ray reflected old lung changes). In August 2012, the appellant called VA to inform the primary care provider that the Veteran fell the day prior and was seen by a physician in his private primary treatment provider's office. She also mentioned her ongoing concern as to his home pulse/oximeter readings for which the private treatment provider recommended a consultation with a pulmonologist. She opted to seek a referral from the private primary care provider when asked by the VA nurse during the return phone call. In a follow-up call to VA about a week later, the appellant reported that the private pulmonologist said that the Veteran had advanced pulmonary disease and was in need of oxygen, prednisone, advair, a nebulizer, and a pulmonary consultation. She indicated that the Veteran's oxygen saturation was low during the appointment and that it was sometimes even lower at adult daycare, providing percentage measurements. In addition, she explained that she did not purchase the prescriptions or oxygen after the appointment due to a lack of funds. The VA triage nurse instructed the appellant to get the medical records and take the Veteran to the VA emergency room for care, as they needed to get the Veteran's plan of care started at that time. See VA telephone encounter notes from August 2012 and September 2012. The September 2012 VA emergency room physician note shows that the appellant provided the Veteran's respiratory history as his caregiver because he had dementia by that point, and it was noted that the private pulmonologist diagnosed him with COPD. The physician reviewed the information from that provider and noted that the Veteran should have been seen in his clinic for "all of this," as he had no acute symptoms (all had been ongoing). It was noted that the chest x-ray from that day showed scarring in the left base without acute abnormality and appeared unchanged from the prior study. The physician also noted that he discussed the case with the primary care provider, who stated that she would write prescriptions for the prednisone and inhaled medications, but that only pulmonary could write prescriptions for the home oxygen and nebulizer machine. The assessment included severe COPD needing steroids and oxygen, and it was specifically noted that nearly two hours were spent trying to get the patient what he needed that should have been dealt with in his clinic, as he was not acutely ill. A respiratory therapist note from that same day shows that the Veteran may meet the criteria for oxygen ordered for comfort/palliative reasons due to end stage COPD, and another respiratory therapist note confirmed that the Veteran met the medical criteria for home oxygen therapy. A December 2012 VA treatment record shows that the Veteran's medical records reflected a diagnosis of severe COPD with hypoxemia and that he was receiving hospice services for end stage COPD. An addendum reflects that the Veteran's respirations were even and unlabored with the oxygen use. See also, e.g., June 2019 Bd. Hrg. Tr. (appellant testified that Veteran appeared to be doing okay with the home oxygen for several months). In a November 2013 medical opinion, a VA examiner determined that the medical records did not document evidence to suggest or support a finding that the Veteran's complaints of shortness of breath, dyspnea, confusion, or anxiety were not adequately addressed by the Veteran's VA primary care physicians. Although the examiner addressed questions related to the Veteran's respiratory difficulties, there are inadequacies with the opinion. For example, the examiner indicated that the medical records document that the Veteran began having problems with his breathing in approximately 2011 and that the first evidence of this being brought to the attention of the VA primary care provider was in July 2012; however, the record includes a history of a COPD diagnosis and respiratory complaints prior to those times, as outlined above. In a February 2020 medical opinion, another VA examiner indicated that it appeared that VA was aware of the COPD diagnosis based in part on the November 2009 VA physical therapy consultation note above. He further indicated that the COPD treatment provided was appropriate; however, it appears that the examiner based his opinion in significant part on the treatment the Veteran received during the September 2012 VA emergency room visit without addressing the lack of follow-up treatment after the 2009 physical therapy consultation. These VA medical opinions have limited, if any, probative value on these questions because it appears that the examiners relied on an incomplete or inaccurate factual premise. On the other hand, the August 2020/September 2020 VA examiner determined that it was at least as likely as not that the Veteran suffered additional disability from the primary care provider's failure to treat his preexisting COPD, which represented carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the attending VA personnel. In so finding, he explained that the Veteran ultimately received supplemental oxygen in 2012; however, when he was noted by the physical therapist to experience shortness of breath with minor exertion, and pulmonary consultation was requested in 2009, there was no indication that he received such evaluation. The examiner further explained that, if the Veteran was hypoxic at that time, he would have benefitted from treatment with supplemental oxygen and that the lack of evaluation in 2009 and assessment of the Veteran's room air oxygen saturation (not including his in-hospital treatment following surgery in 2009) prevented the institution of treatment with supplemental oxygen if needed. Moreover, the examiner explained that, although treatment with inhaled bronchodilators and glucocorticoids does not affect the natural history of COPD, it does improve comfort and morbidity. Therefore, he concluded, appropriate evaluation and treatment in 2009 related to the Veteran's respiratory status would at least as likely as not have led to the prescription of inhaled medications that would have improved the Veteran's quality of life, and in the case of supplemental oxygen, if clinically indicated, prolonged survival. This VA medical opinion in its entirety is highly probative, as it is based on a review of the claims file and is supported by rationale. Finally, there is a reasonable doubt as to whether the Veteran's death probably would have been avoided at least for a period of time if proper diagnosis and treatment had been rendered. In other words, even if his COPD would have ultimately caused the Veteran's death, there is evidence suggesting that the lack of an earlier diagnosis and treatment, hastened it. See August/September 2020 VA examination report (indicating that treatment with inhaled bronchodilators and glucocorticoids does not affect the natural history of COPD, but does improve morbidity and that supplemental oxygen prolongs survival). The Board acknowledges the appellant's work experience as a nurse and her diligent pursuit of her claim; however, she did not provide a definitive opinion on this question beyond her own speculation as a claimant. The 2013 VA examiner determined that it would be speculative to state that the Veteran would have lived longer if he had earlier treatment of the COPD because the prognosis of COPD is variable and the variability is incompletely understood, citing to medical literature. The 2020 VA examiners indicated that COPD is an inexorably progressive disease, and the more recent examiner indicated that the Veteran would have ultimately suffered death due to COPD. Nevertheless, the August 2020/September 2020 VA examiner further indicated that it was at least as likely as not that the Veteran's survival would have been improved and prolonged with earlier recognition/treatment. He also noted that COPD does have at least some level of impact from treatment or lack of treatment (as opposed to completely no impact). In other words, this medical opinion indicates that the VA primary care provider's failure to render proper treatment to address the Veteran's respiratory symptoms associated with his preexisting COPD, at a minimum, hastened his death from the disease. This determination is supported by the findings of the September 2012 VA emergency room physician, who indicated that the Veteran's respiratory problems were ongoing and not acute, and that he should have been seen in his clinic for them. Moreover, the record after this visit shows that the home oxygen did help the Veteran's breathing. Resolving reasonable doubt in favor of the appellant, the criteria for entitlement to DIC under 38 U.S.C. § 1151 have been met, and the claim is granted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.