Citation Nr: 0005579	
Decision Date: 03/01/00    Archive Date: 03/14/00

DOCKET NO.  98-17 974A	)	DATE
	)
	)
                             
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) 
benefits under the provisions of 38 U.S.C.A. § 1151 (West 
1991 & Supp. 1998) for the cause of the veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. M. Panarella, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1953 to April 
1955.  He died in April 1997.  The appellant is his widow.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from the June 1998 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Cleveland, Ohio (RO).


FINDING OF FACT

There is no competent medical evidence linking the veteran's 
cause of death to medical treatment administered by the VA.


CONCLUSION OF LAW

The claim of entitlement to DIC benefits under the provisions 
of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998) for the cause 
of the veteran's death is not well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant believes that the veteran's death was a result 
of VA medical treatment during his hospitalization in March 
and April 1997.  Specifically, she claims that the veteran 
received an overdose of Heparin which led to his death.  The 
Certificate of Death states that the veteran died on April 
[redacted], 1997 and identifies the cause of death as metastatic lung 
cancer.  It lists underlying causes as pneumonia and 
endocarditis-methicillin resistant staph aureus.

A claimant of DIC benefits is entitled to service connection 
for cause of death if a service-connected or compensable 
disability caused, hastened, or substantially and materially 
contributed to the veteran's death.  See 38 U.S.C.A. 
§ 1310(b) (West 1991).  When a veteran dies as the result of 
training, hospital care, medical or surgical treatment, or an 
examination furnished by the VA, compensation shall be 
awarded in the same manner as if such death were service-
connected.  See 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998); 
38 C.F.R. § 3.358 (1999).  

For claims filed prior to October 1, 1997, an appellant is 
not required to show fault or negligence in medical 
treatment.  Essentially, all additional disability resulting 
from VA treatment, except for a few narrowly prescribed 
exceptions, may be compensated under 38 U.S.C.A. § 1151.  See 
Brown v. Gardner, 115 S.Ct. 552 (1994).  However, for claims 
filed on or after October 1, 1997, the appellant must show 
that the VA treatment in question resulted in additional 
disability and that the proximate cause of the disability was 
carelessness, negligence, lack of proper skill, error in 
judgment, or similar instance of fault on VA's part in 
furnishing the medical or surgical treatment, or that the 
proximate cause of additional disability was an event which 
was not reasonably foreseeable.  See VAOPGCPREC 40-97; 
38 U.S.C.A. § 1151 (West 1991 & Supp. 1998).  The appellant's 
claim in this case was filed in December 1997.

In determining that additional disability exists, the 
veteran's physical condition immediately prior to the disease 
or injury upon which the claim for compensation is based will 
be compared with the subsequent physical condition resulting 
from the disease or injury.  See 38 C.F.R. § 3.358(b)(1) 
(1999).  Compensation will not be payable for the continuance 
or natural progress of diseases or injuries for which the 
hospitalization or treatment was authorized.  See 38 C.F.R. § 
3.358(b)(2) (1999).

The appellant must show that additional disability is 
actually the result of such disease or injury or an 
aggravation of an existing disease or injury suffered as the 
result of hospitalization or medical treatment and not merely 
coincidental therewith.  The mere fact of aggravation alone 
will not suffice to make the disability compensable in the 
absence of proof that it resulted from disease or injury or 
an aggravation of an existing disease or injury suffered as 
the result of training, hospitalization, an examination, or 
medical or surgical treatment.  See 38 C.F.R. § 3.358(c)(1), 
(2) (1999).  Further, compensation is not payable for the 
necessary consequences of medical or surgical treatment 
properly administered with the express or implied consent of 
the veteran.  Necessary consequences are those which are 
certain to result from, or were intended to result from, the 
examination or treatment administered.  See 38 C.F.R. § 
3.358(c)(3) (1999).

The threshold question for the Board, however, is whether the 
appellant has presented a well-grounded claim.  A well-
grounded claim is one that is plausible, capable of 
substantiation or meritorious on its own.  See 38 U.S.C.A. § 
5107(a) (West 1991); Murphy v. Derwinski, 1 Vet App. 78, 81 
(1990).  Competent medical evidence is required where the 
determination involves medical causation or a medical 
diagnosis.  See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).  
In the absence of evidence of a well-grounded claim, there is 
no duty to assist the appellant in developing the facts 
pertinent to her claim, and the claim must be denied.  See 
Epps v. Gober, 126 F.3d 1464, 1467-68 (1997).

In the present case, the veteran was admitted for his final 
VA hospitalization in March and April 1997 due to complaints 
of left arm swelling and tenderness for several days.  He was 
hospitalized for intravenous anticoagulation due to a finding 
of upper extremity deep vein thrombosis.  His other relevant 
diagnoses during admission included metastatic lung cancer, 
Trousseau's syndrome, disseminated intravascular coagulation, 
arteriothrombosis of the left arm and leg, and methicillin 
resistant staph aureus bacteremia with possible endocarditis.  
Diagnostic testing also disclosed the presence of a current 
cerebrovascular accident and old infarcts of the brain.  In 
addition, the veteran had anemia, guaiac positive stool, and 
post-obstructive pneumonia.

During his hospitalization, the veteran was placed on 
intravenous Heparin.  An incident report in the latter part 
of March 1997 noted that a nurse incorrectly adjusted the 
Heparin drip rate.  An order to increase the Heparin dose had 
been called in, but was not adjusted until five hours later.  
The incident was classified as requiring minimal or no 
medical or nursing intervention, and as being expected to 
cause no medical sequelae.  Another entry a few days later 
noted that the veteran did not receive Heparin for a 
prolonged period of time during a transfer to another 
facility.  In April, the veteran's condition deteriorated 
with the onset of Rousseau's syndrome, disseminated 
intravascular coagulation, endocarditis, and post-obstructive 
pneumonia.  It was noted that the veteran's family was aware 
of the risks and that prognosis was poor.  The family agreed 
with the decision not to pursue aggressive treatment of the 
disseminated intravascular coagulation and the veteran died.

A May 1997 letter from a VA physician serving as Chief, 
Hematology and Oncology Section of the Cincinnati VA Medical 
Center stated that the veteran was believed to have a 
possible carcinoma of the lung due to abnormal chest films in 
October and November 1996.  Subsequent CT scans showed 
possible metastatic disease of the liver and bone.  The 
veteran also had problems with recurrent deep vein 
thrombosis, requiring anticoagulation and an inferior vena 
cava filter to control blood clots.  A liver biopsy in 
February 1997 confirmed metastatic adenocarcinoma.  During 
hospitalization, the veteran presented with the symptoms of 
accelerated blood clotting in the presence of an 
adenocarcinoma, known as Trousseau's syndrome.  He continued 
to have problems with recurrent thrombosis and subsequently 
developed severe sepsis and died.

The autopsy report of April 1997 recorded a medical history 
of lung tumor diagnosed in December 1996 with metastases to 
the liver and vertebral body, an acute upper intestinal bleed 
in August 1996 with antrectomy, episodes of deep vein 
thrombosis of the lower extremities in October and November 
1996, and upper extremity deep vein thrombosis in March 1997.  
Upon autopsy, objective findings included a metastatic tumor 
of the lung, emphysema of the upper lobes of the lungs, 
bronchopneumonia of both lungs, an ulcerated lesion of the 
gastrointestinal tract, metastatic nodules of the liver and 
musculoskeletal system, thrombi in the femoral vein, and 
gangrene of the left upper and lower extremities.  The 
preliminary cause of death was attributed to extensive 
metastatic disease complicated by endocarditis and bilateral 
bronchopneumonia.

Based upon a review of all of the medical evidence of record, 
the Board finds that there is no competent medical opinion, 
or other evidence, of a nexus between the veteran's cause of 
death and any incident of VA treatment, including the 
dispensing of medication.  The record shows that the veteran 
did not receive an increase in his Heparin dosage for a few 
hours on one occasion and that he did no receive Heparin for 
several hours on another occasion.  However, there is no 
medical evidence that these incidents caused an increase in 
disability or led to the veteran's death.  See 38 C.F.R. 
§ 3.358 (1999).  In fact, the immediate cause of the 
veteran's death has been identified as metastatic lung cancer 
and complications due to infection and pneumonia.

The record shows that the veteran was chronically ill and 
that his health was severely compromised by several life-
threatening disabilities.  The opinion of the VA physician 
suggests that the veteran's death was a natural progression 
of these disabilities.  While the appellant believes that the 
veteran died due to VA negligence, as a lay person, she may 
not provide evidence of medical causation.  Espiritu v. 
Derwinski, 2 Vet.App. 492, 494-95 (1992).  Accordingly, in 
the absence of a nexus or link between the cause of the 
veteran's death and VA treatment, the Board must deny the 
appellant's claim as not well grounded.  Having found the 
claim not well grounded and being unaware of any additional 
relevant evidence, the VA has no further duty to assist the 
appellant in developing the record.  McKnight v. Gober, 131 
F.3d 1483, 1484-85 (Fed. Cir. 1997).


ORDER

Evidence of a well-grounded claim not having been submitted, 
entitlement to DIC benefits under the provisions of 
38 U.S.C.A. § 1151 for the cause of the veteran's death is 
denied.



		
	RAYMOND F. FERNER
	Acting Member, Board of Veterans' Appeals