Citation Nr: 1538072 Decision Date: 09/04/15 Archive Date: 09/10/15 DOCKET NO. 10-34 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for additional disability of the lumbar spine, claimed to have resulted from VA treatment. 2. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for additional disability of the left shoulder, claimed to have resulted from VA treatment. 3. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for additional disability of the left leg, claimed to have resulted from VA treatment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Giannecchini INTRODUCTION The Veteran had active military service from June 1972 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal following a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2015. The Board remanded this case in March 2015 and again in June 2015. Most recently, a supplemental statement of the case (SSOC) was issued in July 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). See 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. On June 15, 2007, the Veteran suffered a cardiac event (ventricular fibrillation) causing him to fall to the floor; he reportedly landed on his left shoulder and low back. 2. The weight of the competent evidence does not attribute the Veteran's June 15, 2007 cardiac event (ventricular fibrillation) to VA prescribed medications. CONCLUSIONS OF LAW 1. Entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left shoulder as the result of VA medical treatment is not warranted. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). 2. Entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the lumbar spine as the result of VA medical treatment is not warranted. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). 3. Entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left lower leg as the result of VA medical treatment is not warranted. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The Board finds that all notification action needed has been accomplished to make a decision on the claims of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151. In a March 2009 letter, the RO notified the Veteran of the information and evidence needed to substantiate his claims. The RO also notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records. Furthermore, the letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). There is no indication that any additional action is needed to comply with the duty to assist in connection with the claims decided herein. The Veteran's service treatment records (STRs) and VA treatment records are associated with his electronic claims folder, as are relevant private medical records. Additionally, in September 2009, a VA physician provided a medical opinion concerning the Veteran's claims. The Board finds that the VA opinion is adequate as it is based upon consideration of the Veteran's pertinent medical history, and the VA examiner provides a thorough explanation for his conclusions thus allowing the Board to make a fully informed decision on the Veteran's claims. Barr v. Nicholson, 21 Vet. App. 303 (2007). Otherwise, the Veteran and his representative have provided argument and testimony in support of the appeal. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide those claims being decided herein and no further action is necessary. II. Analysis A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability...were service-connected" if the additional disability 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.A. § 1151(a)(1)(A), (B) (West 2014); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C.A. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability 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 has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1). That is, the additional disability must have been the result of injury that was 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 and that such additional disability was directly caused by that VA activity. Third, the proximate cause of the disability, 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.A. § 1151(a)(1); 38 C.F.R. § 3.361(d) . Thus, section 1151 contains two causation elements-a veteran's disability must not only be "caused by" the hospital care or medical treatment he received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." 38 U.S.C.A. § 1151(a)(1) With regard to reasonable foreseeability, whether the proximate cause of a veteran's additional disability or 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. See 38 C.F.R. § 3.361(d)(2). With regard to reasonable foreseeability, in Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013), the Court held that merely because a treating physician, expert, or other health care provider actually foresaw certain risks does not mean that a reasonable health care provider with primary care for the patient would have disclosed these risks. This means that the actual foreseeability of an event by a treating physician, an expert, or any other health care provider, is not dispositive. Notwithstanding any informed consent document of record, the Court emphasized that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a veteran with the same characteristics as the Veteran in a given case. Id. at 368-69 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 (2015). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). Consent may be express (i.e., given orally or in writing) or implied, as in emergency situations. See 38 C.F.R. §§ 3.361(d)(1); 17.32. If the adequacy of the informed consent process is raised, lay assertions of not being informed of the potential, reasonably foreseeable complications that occurred must be addressed. See Halcomb v. Shinseki, 23 Vet. App. 234 (2009). It cannot be presumed, however, that a complication was not discussed because it was not recorded. Id. at 241 (noting in its rationale that it is obviously both impractical and impossible to detail every potential risk involved, and indeed if this were done many patients might well become so frightened that they would decline to accept needed and indicated treatment.) The Veteran has alleged that he suffered a cardiac event (ventricular fibrillation) on June 15, 2007 and that such event is attributable to VA prescribed medications, in particular, those he was taking for anxiety. Furthermore, that as a result of the cardiac event he fell and incurred additional disability to his left shoulder, lumbar spine, and left leg. The Board's review of the VA treatment records reflects the Veteran's left leg complaints are related to sciatic nerve pain, and that the medical records document the Veteran's complaints of left shoulder and low back pain prior to and following his fall associated with the cardiac event. With regard to the Veteran's left shoulder prior to the June 15, 2007 cardiac event, a June 8, 2007 VA X-ray noted the Veteran's clinical history as "frozen shoulder, pain, possible rotator cuff injury." The X-ray revealed mild hypertrophic changes of the acromioclavicular (AC) joint. After the cardiac event, a July 2008 X-ray of the left shoulder revealed a maintained glenohumeral joint without evidence of fracture, dislocation, or suspicious soft tissue calcification. There was mild degenerative change at the AC joint. An October 2010 X-ray of the left shoulder revealed no acute fracture or dislocation; hypertrophic changes at the AC joint; and no abnormal intra-articular calcification, bony erosion, or destruction. A CT scan of the left shoulder in January 2009 revealed no significant bony abnormality or dislocation. The radiologist could not rule out a rotator cuff tear without an arthrogram being performed. With regard to the lumbar spine prior to the June 15, 2007 event, a June 8, 2007 X-ray revealed the Veteran's clinical history as "degenerative disease, spondylithesis [sic], now with worsening back pain, need to evaluate for progression." The X-ray revealed degenerative disc disease, mild grade 1 spondylolisthesis of L5 on S1, and chronic L1 compression fracture. Following the cardiac event, a January 2009 CT scan of the lumbar spine revealed the following: Minimal wedging of L1 vertebral body, minimal degenerative changes at L3-L4, L4-L5 and L5-S1 levels with diffuse disc bulge and disc herniation causing mild central canal compromise. Mild bilateral neuronal foramen compromise at these levels. L5 bilateral spondylolysis. Otherwise, a May 2008 VA internal medicine treatment note documents the Veteran's complaints of low back pain and shooting pain radiating from the left lateral sacral area along the posterolateral thigh and down to his left foot, with occasional numbness and tingling. A July 2008 VA internal medicine note reflects the Veteran's continued complaints of left shoulder pain as well as left hip/thigh numbness and lower back pain since the cardiac event in which he fell. A January 2009 VA internal medicine attending note reflects an impression of chronic shoulder and back pain with probable partial left rotator cuff tear with adhesive capsulitis, and lumbar degenerative disc disease and spondylolisthesis. The Board notes that initially following the cardiac event, the Veteran was hospitalized at Parma Community General Hospital on June 15, 2007. An emergency room report noted the following: [The Veteran] . . . presents to us by way of EMS from church. The [Veteran] evidently collapsed while standing in church. The episode was witnessed. He fell to the ground and became unresponsive. EMS was called and when they arrived the [Veteran] was in ventricular fibrillation. . . . They noticed the [Veteran] was in ventricular fibrillation on the monitor and they shocked him with 200 joules, which converted him to sinus tachycardia. The [Veteran] was then transported to us for evaluation. During his hospitalization, a treating physician at Parma Community General Hospital noted the following: At this point in time, this could have been arrhythmic. . . . He does have obviously multiple risk factors for myocardial infarction. . . . . He is on some psychiatric medicines as well as Prevacid and some of these could have arrhythmogenic potential. In a June 23, 2007 VA internal medicine note, it was reported: 54 [year old] with no previous cardiac history, heavy smoker, [alcohol] abuse (recently quit) had a witnessed cardiac arrest at church on Sunday 6/17. Found by Brooklyn fire [department], shocked x 1 (200J[oules]) with return to sinus [tachycardia]. [I]nitially ventilated with an external ventilation system. The June 23, 2007 VA treatment note also identified that the Veteran had smoked two packs of cigarettes per day for 35 years, and that his mother has suffered a myocardial infarction in her 50s and had died from an acute myocardial infarction in her 60s. The Veteran's prescribed outpatient VA medications included Hydroxyzine Pamoate, Tramadol HCL, Trazodone, and Venlafaxine. A subsequent VA cardiac catheterization in July 2007 revealed occluded coronary arteries. The Veteran was diagnosed with coronary artery disease (CAD). Additional VA outpatient treatment notes reflect the most probable cause or etiology of the ventricular fibrillation as being ischemia/infarct, particularly in the RCA (right coronary artery) distribution. In the light of the medical evidence, to include possible connection between the Veteran's cardiac event and his VA prescribed medication, a VA medical opinion was obtained in September 2009. The VA physician (examiner) reviewed the Veteran's claims folder. In particular, he commented on the Veteran's physical condition prior to and following the cardiac event, as well as laboratory studies. He reported the following: In review of this lab work, it should be noted that the Veteran fell short of the desired levels for both total cholesterol and LDL for the 3 years preceding the cardiac event in June of 2007 after which his numbers seemed to make a change for the better. In review of this Veteran's history I also found that he had a social history positive for heavy smoking of approximately 70 pack years. His family history includes a mother who had her first heart attack in her mid-50s and died of acute [myocardial infarction] in her 60s. With regard to the Veteran's medications, the VA examiner commented that Trazodone had been prescribed since July 23, 2006 and Tramadol since January 3, 2006. He additionally commented: [I]t is not uncommon in medical practice to prescribe a medication of which the effect outweighs the side effects or the disease effects are inconsequential. . . . I reviewed available literature and found that any incident of cardiac related events (arrhythmias) [is] less common and a rare side effect associated with use of Venlafaxine or Trazodone. Otherwise, the examiner reported that a left heart catheterization showed a right coronary artery with 99 percent mid stenosis, a diffusely mildly diseased LAD (left anterior descending) coronary artery, and an obtuse marginal (OM) branch of the coronary artery with 70-80 percent mid stenosis. He also reported that it was suspected that the RCA was the cause of the ventricular fibrillation (cardiac) arrest. The VA examiner concluded that the VA Medical Center in Brecksville, Ohio had in fact delivered care to the Veteran that would have been expected of a reasonable health care provider. He also concluded: The records review weighs very heavily toward the Veteran's own personal risk for the development of cardiac complications. First, he has a strong genetic history of heart disease with his [m]other having her first heart attack at a similar age. The Veteran's individual risk factors that include tobacco use and chronically elevated lipids only serve to shorten the distance of the pathway toward development of [CAD]. This fact is further supported by the results of the heart catheterization that showed severe stenosis of major vessels. Finally, the VA examiner opined: [T]he medications that the Veteran was taking for his anxiety were being used for [1-1 1/2] years without obvious problems. In fact, the Veteran reported in April of 2007 that the medications were working well for his problems. For these reasons it is my opinion that the medications used to treat the Veteran's anxiety on June [15], 2007 did not cause his witnessed cardiac arrest. With respect to additional disability of the left shoulder following the cardiac event, the diagnostic and clinical findings, as noted above, do not appear to show any additional disability. The Veteran's post-cardiac event complaints have been related to pain and limitation of motion. Prior to the cardiac event, a June 8, 2007 VA X-ray noted the Veteran's clinical history as "frozen shoulder, pain, possible rotator cuff injury. Likewise, diagnostic test prior to June 15, 2007 are similar to those after June 15, 2007. Concerning the lumbar spine, as noted above, X-ray evidence appears to reveal additional pathology subsequent to the June 15, 2007 fall. Furthermore, the Veteran has reported experiencing radiculopathy in his left leg (i.e. left leg disability), a complaint that does not appear to the Board to have been reported prior to the June 15, 2007 cardiac event. Whether the diagnostic changes of the lumbar spine and any radiculopathy are a natural progression of the Veteran's pre-existing lumbar spine disability, or for that matter an aggravation due to the reported fall, is not specifically addressed by the examiner. Otherwise, the examiner noted that he would be speculating if he attempted to link the Veteran's fall and any current left shoulder disability. Notwithstanding the above discussion with regard to any additional disability, as will be discussed in more detail below, the Board concludes that the competent evidence does not attribute the Veteran's VA prescribed medications to his cardiac event on June 15, 2007. As such, the question of whether there was any additional disability of the Veteran's left shoulder, lumbar spine, and/or left leg due to a fall after the cardiac event is moot. In the present case, the Board has weighed the evidence of record. It initially notes that while lay persons, such as the Veteran, are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether VA prescribed psychiatric medications caused the Veteran's cardiac event falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1). Otherwise, the most relevant medical evidence consists of the June 2007 Parma Community General Hospital (PCGH) treatment record and the September 2009 VA medical opinion. The June 2007 comment from the PCGH treating physician regarding the arrhythmogenic potential of some psychiatric medications does not necessarily link the Veteran's cardiac event to his psychiatric medications. The comment, which was made prior to the Veteran's cardiac catheterization, only raised the possibility of their being a connection between the Veteran's cardiac event and the use of psychiatric medications. As such, the PCGH physician's comment is speculative and the Board finds it to be of little probative value. See e.g. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding doctor's statement that brain tumor "may well be" connected to Agent Orange exposure was speculative); see also Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2009) (holding that the equivocal nature of an examiner's opinion should have signaled to the Board that the medical opinion was speculative and of little probative value) The Board finds the September 2009 VA examiner's opinion to be persuasive and probative of the matter under consideration. The VA examiner considered the Veteran's physical and family history, the cardiac catheterization findings along with both VA and PCGH medical records, and also consulted medical literature about the effects of psychiatric medications. The VA examiner's opinion reflects consideration of the possible side effects from the Veteran taking the prescribed VA psychiatric medications. The opinion was based on supporting data and a reasoned medical explanation was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). With that said, at his February 2015 Board hearing, the Veteran's representative cited and discussed a January 2014 VA treatment record signed by a nurse practitioner acknowledged by E. Konicki, a VA psychiatrist. In particular, the treatment record noted: [The Veteran is] not a candidate for antidepressant therapy because he had serotonin syndrome with venlafaxine and tramadol as well as he is on multiple medications that can cause drug [ ] interactions. The representative and the Veteran appear to raise the argument that the Veteran's fall may have also been caused by serotonin syndrome. Serotonin syndrome occurs when an individual takes medications that cause high levels of the chemical serotonin to accumulate in the body. Too much serotonin causes symptoms that can range from mild (shivering and diarrhea) to severe (muscle rigidity, fever and seizures). See www.mayoclinic.org In its review of the medical evidence, the Board notes that a December 2004 VA mental health clinic medication management note identified the Veteran as being prescribed "Hydroxyzine Pamoate" for anxiety as well as Trazodone. Under the section entitled "Allergies/Adverse Drug Reactions", a VA nurse commented in the treatment plan the following: Continue meds as ordered. If Tramadol is [discontinued] we can better treat his d/depression and anxiety. Tramadol combined with SSRI's or TCA may cause seizures or serotonin syndrome. Subsequently, a VA mental health discharge summary, dated July 22, 2006 to July 31, 2006 identified the Veteran's active medications as including Hydroxyzine Pamoate, Trazodone, and Venlafaxine, as did a March 2007 VA mental health note. In a June 7, 2007 VA internal medicine outpatient treatment note, the Veteran's medications included Tramadol, issued the Veteran that same day, as well as the above Hydroxyzine Pamoate, Trazodone, and Venlafaxine. (Parenthetically, Venlafaxine and Trazodone are identified as being in the selective serotonin reuptake inhibitor (SSNRI) class and used to treat depression. Trazodone is also used to treat anxiety and as a sleeping agent. Hydroxyzine Pamoate is used to treat anxiety, while Tramadol is identified as a narcotic-like pain reliever.) Following the June 15, 2007 cardiac event, a VA cardiology discharge summary, dated Jun 23, 2007 to June 30, 2007 identified the Veteran's active medications as including Hydroxyzine Pamoate, Trazadone, and Venlafaxine, as well as Tramadol. In his September 2009 VA opinion, the examiner commented: A [VA treatment] note from April of 2007, which predates the incident [i.e. cardiac event] in question, shows that the Veteran had been getting refills of his mental health medications and reporting that he was clean and sober for 8 months after being in jail for 6 months. The Veteran reported that he was doing OK on medications and wanted refills. These medications included Venlafaxine, Trazodone, and Hydroxyzine. Here, the Board notes that the medical evidence does not reflect that the June 15, 2007 cardiac event was a seizure or has it been linked to serotonin syndrome. As noted previously, VA outpatient treatment notes reflect that the most likely or probable etiology of the ventricular fibrillation on June 15, 2007 was ischemia/infarct, particularly in the RCA (right coronary artery) distribution. Furthermore, the event later required an automatic implantable cardioverter defibrillator (AICD). The September 2009 VA examiner considered the Veteran's use of the prescribed VA medications, identified that the Veteran had been taking the drugs for 1-1 1/2 years prior to the cardiac event without obvious problems, and consulted medical literature about the effects of the drugs. The examiner's opinion reflects consideration of the possible side effects of the Veteran taking the prescribed VA psychiatric medications. As such, the Board does not find the medical evidence supports that serotonin syndrome was the proximate cause of the Veteran's cardiac event on June 15, 2007. Therefore, while consideration has been given to the Veteran's lay contentions and the Board testimony, and to the June 2007 speculative comment from the PCGH treating physician, the Board assigns greater probative weight to the September 2009 VA examiner's opinion in light of his expertise and competency in the field of medicine as well as the opinion's rationale and explanations. It is clear from the record that the VA examiner reviewed the pertinent medical evidence in reaching his conclusion as well as the Veteran's medical history. Thus, given the above evidentiary posture, the claims for compensation benefits under the provisions of 38 U.S.C.A. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claims, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability of the left shoulder due to VA medical treatment is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability of the lumbar spine due to VA medical treatment is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability of the left leg due to VA medical treatment is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs