On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota
THE ISSUE
Entitlement to compensation under 38 USCA § 1151, for the Veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
The Veteran served on active duty from September 1951 to August 1955.
This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied a claim for dependency and indemnity compensation under 38 U.S.C.A. § 1151.
In January 2008 decision and again in June 2010, the Board remanded the case for further development.
Since the most recent, October 2010, supplemental statement of the case, the appellant has submitted additional pertinent medical evidence. The RO has not had the opportunity to review this new evidence; however, the appellant has waived her right to initial RO consideration of this evidence. Thus, a remand will not be necessary for this procedural safeguard. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
FINDINGS OF FACT
1. The Veteran underwent thoracentesis on July [redacted], 2002, at a VA medical center.
2. The Veteran died on July [redacted], 2002, due to complications of the thoracentesis performed the day prior.
3. Uncontroverted medical evidence, both VA and private, concludes that the Veteran's death was an unforeseeable consequence of a VA-performed thoracentesis.
CONCLUSION OF LAW
The requirements for compensation under 38 U.S.C.A. § 1151 for the cause of death of the Veteran and for dependency and indemnity compensation for the appellant are met. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West 2002); §§ 1151, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.361 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefit sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed.
§ 1151 Compensation
The Veteran died on July [redacted], 2002, at the Tampa, Florida, VA Medical Center following a left thoracentesis procedure performed at the Tampa VA Medical Center on July [redacted], 2002 (thoracentesis is a surgical puncture of the chest wall into the parietal cavity for aspiration of fluids; called also pleurocentesis and thoracocentesis, Dorland's Illustrated Medical Dictionary 1705 (28th ed. 1994)). He was 69 years of age at the time of death. A certificate of death reflects that death was caused by acute hemothorax, due to or as a consequence of thoracentesis.
An August 2, 2002, VA autopsy report reflects that the cause of the Veteran's death was an intercostal artery perforation with hemothorax following therapeutic thoracentesis for pleural effusion due to congestive heart failure from atherosclerotic and hypertensive heart disease.
In September 2002, the appellant requested dependency and indemnity compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. In September 2003, the RO requested a VA medical opinion concerning the cause of death, including whether there was any VA fault or carelessness in furnishing medical care.
In December 2003, A VA physician responded to the RO's request and wrote back that the Veteran's death was due to complications of the thoracentesis. No other information was provided. The RO then denied the claim in a January 2004 rating decision.
In her notice of disagreement and at various times thereafter, the appellant has asserted numerous medical errors-errors that caused the Veteran's death-on the part of the VA medical center. The appellant also asserted that informed consent was not obtained prior to surgery.
In June 2010, the Board remanded the case and requested that a physician who is experienced in the treatment of coronary artery disease and related diseases, but who is not associated with the Tampa VA Medical Center, review the medical history and then address whether the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or was an event not reasonably foreseeable.
In October 2010, a VA physician not associated with the Tampa VA Medical Center (hereinafter: the opining physician) reviewed the medical history. The opining physician agreed that it is as likely as not that death was due to complications of the thoracentesis. The opining physician felt that an appropriate informed consent was obtained from the Veteran himself prior to the procedure. The opining physician felt that there was no error in judgment on the part of the VA surgeon who performed the thoracentesis. With respect to whether the VA surgeon lacked the proper skill, the opining physician declined to state one way or another, stating that it would be "mere speculation" to comment on this aspect of the case.
The VA medical records showed that at the time of the July 2002 VA surgery, the Veteran was taking a course of Coumadin(r), which is an anti-coagulation therapy. The opining physician concluded that performing a thoracentesis while anti-coagulation therapy was in progress represents no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part.
The opining physician then mentioned that the VA surgeon who performed the thoracentesis was an inexperienced first-year resident, but maintained that it would be mere speculation to comment on whether this first-year resident surgeon lacked the proper skill to perform that procedure.
The opining VA physician addressed whether the combined VA treatment dating back several years might have proximately caused death through carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The physician concluded that the course of treatment given "appears to be consistent with the standard of practice," but that certain treatment decisions that were made, "may be debated."
Finally, the opinion physician specifically noted, "It was not foreseeable that there would be a complication."
The appellant obtained a private medical opinion on the matter in March 2011. In March 2011, C. Bash, M.D., reviewed the pertinent medical history, including VA's consent form. Dr. Bash felt it significant that the consent form does not reflect the appellant's signature, although the appellant held a power of attorney for such consent. Dr. Bash noted that the consent form does not mention death as a possible outcome. Dr. Bash also noted that it was known that the patient was a high-risk patient due to coagulopathy, yet VA chose a first-year resident surgeon who had not performed a thoracentesis before. Dr. Bash then provided the following opinion:
It is my opinion that this patient died earlier than he would have due to poor VA care. In addition the VA care lent assistance and caused his demise due to carelessness, negligence, error in judgment, and lack of proper skill. In addition his demise was not the usual expected-foreseeable outcome of a thoracentesis (proximate cause). Thus, his demise was not foreseeable. Furthermore, non-timely proper diagnosis/treatment allowed his new and old diseases/disabilities to continue to progress for the following reasons:
Dr. Bash then provided a detailed analysis of her/his conclusion. Dr. Bash felt that assigning a high-risk patient to a first-year resident was a demonstration of poor judgment in itself.
Dr. Bash explained in more detail that informed consent was not obtained. The consent form of record failed to inform the Veteran of the risk of complications such as bleeding, or death. Dr. Bash noted that a discharge summary [terminal hospital report], signed 23 days after death, indicates that the Veteran was informed of the risks of bleeding and death; however, Dr. Bash noted that in contrast to that report, the facts show that at the time of the surgery the Veteran had not, in fact, been informed of such risks. Dr. Bash noted that the discharge summary was not a part of the signed consent form obtained prior to surgery and cannot now be used to show informed consent.
Dr. Bash also concluded that bleeding and/or death are not foreseeable results of a thoracentesis. Concerning foreseeability, Dr. Bash noted, "...the expected and usual outcome (foreseeable) of this procedure is for the pleural fluid to be drained without complication." Dr. Bash noted that the Veteran had hemorrhaged to death and stated, "In fact, to hemorrhage to death is a very, very rare complication."
Dr. Bash also noted that the VA surgeon in July 2002 failed to inform the Veteran of alternative treatments available.
Under § 1151, a claimant must show an additional disability proximately due to VA hospital care, medical or surgical treatment, or VA examination. A claimant must show that the proximate cause of additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. Alternatively, a claimant may show additional disability or death which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the additional disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a) (1) (A) and (B) (West 2002 & Supp 2010); 38 C.F.R. § 3.361 (2010); VAOPGCPREC 40-97.
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, 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 reasonably 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, or in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. 38 C.F.R. § 3.361 (d) (1) (i), (ii) (2010).
According to 38 C.F.R. § 3.361 (d) (2) an 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 the Veteran's death was due to VA hospitalization or medical treatment and not merely coincidental therewith, the Board must consider the case of Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). In that case, the Court held that additional disability sustained during an examination as a result of a falling ceiling grate was not part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA. In contrast, the Veteran's death was not caused by some remote action, such as a falling ceiling grate. Rather, the death occurred due to the accidental laceration of an artery during surgery. Had the thoracentesis not been performed, the artery would not have been lacerated and death would not have resulted.
Having shown that the Veteran's death was proximately due to VA hospitalization or medical treatment, the appellant must next show carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination; or, that the proximate cause of the additional disability was an event which was not reasonably foreseeable.
In this case, the medical evidence, both VA and private, agrees that the Veteran's death was not foreseeable. VA's opining physician stated in October 2010, "It was not foreseeable that there would be a complication." In March 2011, private physician Dr. Bash stated, "...In addition his demise was not the usual expected-foreseeable outcome of a thoracentesis (proximate cause). Thus, his demise was not foreseeable..."
The Board finds both of the above-mentioned medical opinions persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Both opinions compellingly argue that the Veteran's death was not a foreseeable outcome of the VA thoracentesis performed on July [redacted], 2002.
Because the lack of foreseeability of the death of the Veteran is a basis for a grant of benefits, the merits of other arguments for grant based on alleged carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination, or lack of informed consent, need not be addressed.
After considering all the evidence of record, the Board finds that it favors the claim. Compensation for the cause of the Veteran's death, including dependency and indemnity compensation, must therefore be granted.
ORDER
Compensation under § 1151 for the cause of the Veteran's death and for dependency and indemnity compensation is granted.
