Citation Nr: 1638808 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 03-07 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability, including hypertension and transient ischemic attacks (TIAs), as a result of medication issued by the Department of Veteran's Affairs on March 22, 2001. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the issue on appeal was previously characterized as an additional cardiovascular disability, including hypertension and transient ischemic attacks (TIAs). However, in a June 2011 rating decision, the RO awarded the Veteran service connection for coronary artery disease status post coronary artery bypass graft, effective from September 28, 1990. That has resulted in there being no case or controversy as to the matter of coronary artery disease. Therefore, the issue on appeal has been recharacterized. The Veteran was afforded two Board hearings, each in front of a different Veterans Law Judge in January 2005 and April 2016. During the second hearing, the Veteran waived his right to a hearing before the third member of the panel deciding this appeal. See April 2016 Board Hearing Transcript (Tr.) at 2; see also Arneson v. Shinseki, 24 Vet. App. 379 (2011). Transcripts of both hearings are of record. The Board denied the claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, including hypertension and TIAs, as a result of medication issued by the Department of Veterans Affairs on March 22, 2001 in April 2006. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In an February 2008 Memorandum Decision, the Court found the Board had erred by not seeking to obtain certain medical records that were adequately identified by the Veteran and did not provide an adequate reasons and bases in its decision, particularly in regard to the Veteran's statement regarding his tort claim. Thus, the claim was vacated and remanded for readjudication. In his argument to the Court, the Veteran claimed that his depression claim remains pending. As previously stated in the October 2008 Board remand, the record shows that the RO denied entitlement to compensation under 38 U.S.C. 1151 for depression in April 2002. In May 2002, the Veteran submitted a notice of disagreement with that denial. However, in a signed statement submitted on VA Form 21-4138 and received at the RO on September 19, 2002, the Veteran stated that he withdrew the appeal of the denial of depression. See 38 C.F.R. § 20.204 (2015). Therefore, that issue is not in appellate status and the Board will not address it further. After the Court decision, the issue was remanded by the Board in October 2008 for notice and outstanding records, February 2010 for any non-privileged records that were part of the Veteran's tort claim, and in September 2011 and September 2015 to schedule the Veteran for a Board hearing. The issue has since returned to the Board. The Board notes that in June 2016, the Veteran filed a motion to advance his case on the docket (AOD) due upcoming surgery June 30, 2016 and he was told that he probably would not live; in other words, he related that he was considered "terminally ill." The record indicates the Veteran was admitted for colon polyp surgery on June 30, 2016. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. Any motion for advancement should be supported by pertinent documentation. The evidence of record indicates that the Veteran does not meet the requisite 75 year age requirement. There is also insufficient supporting medical evidence to demonstrate an illness that is so serious or grave in nature that advancement is warranted. Further, there is no evidence that demonstrates severe financial hardship such as a pending bankruptcy, home foreclosure, or homelessness, or evidence of administrative error resulting in a significant delay or misinterpretation of a question of law. In the absence of sufficient cause, the Veteran's motion is denied, and the Veteran was notified of such decision in a letter from the Board. In accordance with this ruling, the appeal will remain in its current docket number order. FINDING OF FACT The preponderance of the competent evidence of record is against a finding that the Veteran has any additional disability caused by VA medical treatment, to include the administration of medications. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, including hypertension and TIAs, have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. 3.361 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied in March 2003 and November 2008 letters. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a claimant in the development of the claim. That duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, private treatment records, relevant VA medical records and May and December 2005 VA opinions, and the Veteran's own contentions. There is no indication that any pertinent records remain outstanding. In the February 2008 Memorandum Decision, the Court found that the Board had erred by not seeking to obtain certain medical records that had been adequately identified by the Veteran. In an October 2008 Remand, the Board instructed the AOJ to obtain records related the Veteran's tort settlement, from a private hospital and doctor, and updated VA treatment records. VA General Counsel (OGC) declined to provide records as they were considered privileged, and the identified private records and updated VA treatment records were associated with the claims file. The Board remanded the matter again in February 2010 to obtain any non-privileged information in regard to the tort claim. Non-privileged records were identified and are associated with the claims file, which consisted of private medical records already obtained. See August 2010 report of general information, September 2010 OGC response. As noted above, the matter was remanded in September 2011 and September 2015 to afford the Veteran a Board hearing. A hearing was conducted in April 2016. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Further remanding of this case would serve no constructive purpose. The Board finds that there has been compliance both with the Memorandum Decision and remand instructions as well as the instructions of the Remands of the Board to the AOJ. See Stegall v. West, 11 Vet. App. 268 (1998). Compensation under 38 U.S.C. §1151 It is undisputed that on March 22, 2001, the Veteran was issued two bottles of VA-prescribed medications by mail. These were reportedly labeled Trazodone (100 mg tablets) and Sertraline (100 mg tablets). It is further undisputed that the bottles were not properly labeled. VA officials stated that he received Trazodone in the bottle labeled Sertraline, and Sertraline in the bottle labeled Trazodone. The Veteran contends, however, that Sertraline was contained in both bottles, including the bottle labeled Trazodone, and that taking the excessive dose of Sertraline caused him to have hypertension and TIAs. The Veteran's claim for 38 U.S.C.A. § 1151 benefits was submitted in September 2001. For claims filed on or after October 1, 1997, compensation under 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability as caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). A determination of the additional disability includes consideration of pathology prior to, during, and after VA treatment. The first element of a claim under 38 U.S.C.A. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. See 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. Id. Prior to the March 2001 medication incident, the record reveals that the Veteran had a history of having ongoing complaints of headaches and dizziness, which have been attributed to cardiovascular problems. Beginning in August 1981, VA records show that the Veteran complained of severe headaches. A 1981 electrocardiogram revealed some abnormal findings and it was noted that the changes were suggestive of left ventricular hypertrophy on a non-voltage basis. Records from a private medical center (B.U.M.C.) showed that in June 1990 the Veteran complained of passing out and dizziness. After several tests were performed, the overall impression was remote total occlusion, right internal carotid artery; irregular atherosclerotic plaque left carotid artery; and bilateral moderate vertebral origin stenosis. In 1991, the Veteran underwent an angiogram, which showed similar findings as above. A VA examination in October 1992 revealed diagnoses of old occlusion of the right internal carotid artery with headaches and atherosclerotic cardiovascular disease. VA treatment records reflect that the Veteran reported a vague history of a "mini stroke" but could not recall the date it occurred in October 1994. The Veteran had a hypertension diagnosis with treatment through medication. See e.g., September 21, 2000 VA treatment record (blood pressure was 114/63 at that time). In July 1995, the Veteran was afforded a VA examination to address a claim of service connection for residuals of a head injury with headaches. The Veteran was noted as taking Sertraline 100 mg for his depression and Trazodone 50 mg at bedtime, among other medications. His blood pressure at the time was 110/78. Following a physical examination, the Veteran was diagnosed as having chronic headaches, probably vascular in etiology; arteriosclerotic cardiovascular disease, with a history of multiple coronary occlusions; and peripheral arteriosclerosis with bruit over the right femoral artery and somewhat decreased pulses in the left foot. The examiner opined that the Veteran's chronic headaches were not etiologically related to being struck on the head with a beer bottle during service as the Veteran obviously had severe arteriosclerotic disease. In a private record (P.H.) from June 16, 1997, the Veteran was assessed with a transient ischemic attack, history of severe internal carotid disease, hypertension, history of cerebrovascular disease and a history of headaches. In June 30, 1998, the Veteran was admitted to private hospital (P.H.) with complaints of having headaches for weeks. It was noted that the Veteran came in with signs and symptoms of possible stroke. The Veteran had been diagnosed with cluster headaches in the past. The assessment was cluster, severe intractable headache with possible dehydration. The discharge diagnosis was cluster headache, coronary artery disease, severe cerebrovascular disease and atherosclerotic disease. Subsequent to the March 2001 medication incident, the Veteran was admitted to a private hospital (P.H.) for complaints of chest pain, shortness of breath, vomiting, and possible strokes in May 2001. At that time, his maximum blood pressure was 150/80. He was reported to have had a cardiac catheterization and a coronary artery bypass graft surgery in June 1999. He was assessed as having a coronary insufficiency, status post coronary artery bypass graft in 1999; hypertension; lipid disorder; history of transient ischemic attack; history of carotid obstructive disease; and possible depression. In June 2001, the Veteran presented with left face numbness twice. The private physician observed that in May 2001 the Veteran's physician suspected TIAs; however, there had been extensive workup to rule out transient ischemic attack, seizures, or stroke. The assessment and plan was left facial numbness, with transient ischemic attacks ruled out. See private treatment record dated June 11, 2001, from a private neurologist (Dr. A.). In a private August 6, 2001 treatment record (P.H.), the Veteran was treated for a "medication adjustment" and reported that he was taking 5 sertraline per day until he realized the mistake. Blood pressure was 110/84 and distress was not detected. The Veteran was assessed with a TIA, carotid artery disease, hypertension, and history of cerebrovascular accident and headaches. An executive panel and EKG were ordered. He was advised to return in one week. The next day, the Veteran went to a VA emergency room for medication refills. He stated that he discovered during treatment at a private hospital that his Trazodone was mixed up with the Sertraline. He complained of lethargy and weakness. See August 7, 2001 VA treatment record. The following day, a VA treating physician noted that the Veteran had been taking 650 mg of Sertraline for some time and complained of problems with sleep, depression, and anxiety. His blood pressure was reported as being elevated recently as well. It was noted that the Veteran's blood pressure should be checked regularly as increases in Zoloft (another name for Sertraline) may have caused the Veteran's blood pressure to increase. See August 8, 2001 VA treatment record. On August 9, 2001, the Veteran went back to his private hospital (P.H.) and with symptoms of confusion and ataxia. The Veteran's family stated that he was bumping into walls. He was diagnosed as having confusion, possibly secondary to medication. It was noted that the Veteran's blood pressure was running within normal limits. During that admission, the Veteran suffered another cerebrovascular accident, which was reported as secondary to discontinued Plavix, that he was prescribed 3 to 4 weeks earlier when he underwent a left carotid endarterectomy. The Veteran was instructed to discontinue taking Plavix the Thursday before. The report stated that he was a very high risk for multiple cerebrovascular accidents. In an August 15, 2001 private record follow-up after hospital discharge, the Veteran's blood pressure was 117/84 and distress was again not detected. The assessment remained the same. It was noted that the Veteran was on a high dose of Sertraline and it may be causing blood pressure problems, but the Veteran had stopped taking the high dose. The plan was to have the Veteran see his psychiatrist to get the medication readjusted. In May 2005, the Veteran was afforded a VA examination. The examiner noted providing a lengthy review of what was noted to be a "huge" claims file. After a physical examination and an electrocardiogram, the Veteran was diagnosed as having ischemic heart disease, status post aortocoronary bypass 1999, with stable angina; carotid artery disease, right carotid occlusion 100 percent and status post left carotid endarterectomy 2001; transient ischemic attack 2001, subsequent cerebrovascular accident TIA 2004; and hypercholesterolemia. The examiner stated that the "cardiovascular disorder that is particularly noted at that point is persistent essential hypertension since June 2001, this could have been aggravated by the issuance of medication in March 22, 2001, but the current disorder was an event, not reasonably foreseeable as a result of VA treatment or care, since the [Veteran] had significant atherosclerotic heart disease-carotid vascular disease and significant coronary vascular disease." In a December 2005 addendum, a different examiner provided the following opinion after reviewing the records and discussing the case with the May 2005 VA examiner. The examiner stated that there was no evidence of any additional disability or lingering effects, nor was there any medical evidence to suggest that there was any permanent worsening of his condition from the transient medication change. Regarding the Veteran's hypertension, the examiner stated that there was no medical evidence of any permanent aggravation and to ascribe any aggravation to his hypertension would be speculating as to the change or possibility that there could be some transient increase in blood pressure due to different medication, but this was not a documented occurrence. Subsequent private treatment records from multiple providers reflect treatment from 2005 and beyond for multiple conditions including TIA of the eye, hypertension, headaches, chest pain. For example, a January 26, 2005 letter reported that the Veteran had symptoms of TIAs affecting the right eye (from T.V.A.). The Veteran was hospitalized (at H.R.M.C.) for symptoms of chest pain and a headache in November 2009 with a discharge diagnosis of angina, coronary artery disease, tobacco use, and hypertension. In January 2010, the Veteran was treated in an emergency room (H.R.M.C.) for abdominal pain. The discharge summary diagnosed the Veteran with diverticulosis, thrombocytopenia, infrarenal abdominal aortic aneurysm, small hiatal hernia, distal abdominal aortic aneurysm, and dyslipidemia. However, none of the private medical records contain any evidence suggesting a link between any of the conditions and the March 2001 medication incident. In support of his claim, the Veteran submitted a document dated August 26, 2005 which indicated the Veteran had been granted a settlement award for a March 22, 2001 incident which occurred at a VAMC consolidated mail outpatient pharmacy. In a correspondence received June 26, 2006, the Veteran asserted that he won his tort claim on the same case. In documented correspondences via email with VA Regional Counsel, it was clarified that the above information regarding the tort claim was incorrect. The Waco Regional Counsel denied the administrative claim for medication error May 11, 2005. The Washington Office of General Counsel settled on August 26, 2005. The settlement was paid in September 2005. See email dated November 18, 2008. The Veteran has asserted on multiple occasions that poison control told him that the amount of Sertraline that he took should have been fatal and was responsible for his symptoms of TIA's, dizziness, hypertension, confusion, and other symptomatology. A critical inquiry under 38 U.S.C.A. § 1151 is whether additional disability resulted from VA medical treatment. The Board observes that the August 8, 2001 VA record showed that an examiner stated, "Increases zoloft dosage may have caused the [Veteran's] BP to have increased which in turn caused increases in BP meds." In addition, a private August 15, 2001 record stated that the Veteran was on a high dose of Sertraline and it "may be causing" blood pressure problems. However, neither examiner stated that the medication taken by the Veteran caused hypertension or any additional disability, rather, they only indicated that it "may" have caused an increase in blood pressure at that time (in August 2001). In Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Court held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. Here, the opinions are vague and speculative. The qualified language of the opinion means that it has limited value. Further, neither opinion was based upon a complete review of the relevant information of record. With respect to the May 2005 VA examiner's opinion, it was clarified by another examiner in December 2005. The VA examiner in December 2005 specifically found that the overdose of medication did not cause any additional disability or lingering affects, nor was there any permanent aggravation of the Veteran's already existing conditions. He stated that there were no documented medical occurrences of this and to ascribe any aggravation of the Veteran's hypertension would be speculation. The fact that the December 2005 VA doctor made a conclusive statement based upon consultation with the May 2005 VA examiner and review of the claims folder is highly probative when weighing his statement against those discussed above. The Board has considered the Veteran's and his wife's assertions that VA's mislabeling of his medication resulted in additional disability including hypertension and TIAs. However, as laypersons without the appropriate medical training and expertise, they are not competent to render a probative opinion on a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board has considered the Veteran's report that poison control told him that symptoms including TIAs, hypertension, and dizziness were attributable to the amount of sertraline he was taking. To the extent the poison control employee may to competent to provide a medical opinion addressing this issue, the Board finds the previously discussed 2005 addendum VA opinion to be of significantly more probative value because such was provided by a VA physician, and was accompanied by a review of the claims file and a thorough rationale. Further, the information provided appears to have been general in nature. The Board has also considered the Veteran's contention that he won his tort claim against the VA over his medication and hypertension. However, the private treatment records associated with this settlement do not contain information or opinions which support a finding of additional disability related to his VA treatment. Thus, the Veteran's tort claim settlement does not support the existence of additional disability due to VA treatment. The medical evidence does not show that the Veteran has any identifiable additional disability related to his VA treatment. The question of whether the proximate cause of the disability was due to VA carelessness, negligence, lack of proper skill, or error in judgment is therefore moot. In light of the evidence discussed above, the Board finds that the probative medical evidence of record is against a finding that the Veteran developed additional disability as a result of improperly labeled medications provided by the VA in March 2001. Given that this is an essential element of a section 1151 claim, the Board need not address the question of whether there was fault on the part of VA in providing such treatment or whether such disability was due to an event not reasonably foreseeable. The claim on appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability, including hypertension and TIAs, as a result of medication issued by the Department of Veteran's Affairs on March 22, 2001, is denied. ____________________________ _____________________________ S. HENEKS P.M. DILORENZO Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs