Citation Nr: 1641052 Decision Date: 10/20/16 Archive Date: 11/08/16 DOCKET NO. 13-30 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Whether new and material evidence has been received to reopen the claim of entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. 2. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to December 1971. The Veteran died in 1993. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. FINDINGS OF FACT 1. In a March 2005 decision, the RO denied entitlement to DIC under the provisions of 38 U.S.C.A. § 1151; the appellant did not appeal the decision. 2. The evidence added to the record subsequent to the March 2005 rating decision is not cumulative of the evidence previously of record; it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. 3. The Veteran was not given an overdose of Digoxin while being treated at the VA Medical Center (VAMC) in Decatur, Georgia; there is no evidence of fault on the part of VA in connection with the Veteran's death. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (2016). 2. The criteria for establishing entitlement to DIC benefits under 38 U.S.C.A. § 1151 are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that VA's duty to assist the appellant has been satisfied. The identified medical records have been obtained and associated with the claims file to the extent possible. The appellant has not identified any outstanding evidence (medical or otherwise) that could be obtained to substantiate the claim. The Board is unaware of any such evidence. The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the appellant's claims. Whether new and material evidence has been received to reopen the claim of entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis In March 2005, the appellant submitted a claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. The claim was denied by the RO the same month. The appellant was notified of the decision and of her procedural and appellate rights via correspondence dated in April 2005. The appellant did not appeal the March 2005 rating decision and that determination is final. In November 2010, the appellant submitted a claim of entitlement to dependency and indemnity compensation. The evidence of record at the time of the March 2005 rating decision consisted of the treatment records from the Veteran's final illness, an autopsy report and statements from the appellant. The claim was denied as it was determined that there was no evidence showing improper medication was administered to the Veteran which caused his death. There was no evidence demonstrating that VA medical center services were the proximate cause of the Veteran's death. The Board finds that new and material evidence has been received to reopen the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. Associated with the claims file is a letter from a private physician dated in November 2010. The letter reveals the physician had reviewed the medical evidence of record and, in his opinion, found that the Veteran's death was precipitated and significantly accelerated by the administration of Digoxin upon the Veteran's admission to the Decatur VAMC. The Board finds this letter satisfies the definition of new and material evidence. It was not of record at the time of the prior final denial and it provides evidence of a link between VA treatment and the Veteran's demise. The credibility of the document is presumed for purposes of reopening the claim. As new and material evidence has been received, the Board will adjudicate the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 de novo. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. Criteria When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To establish entitlement to benefits under 38 U.S.C.A. § 1151, the veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable. For claims filed on or after October 1, 1997, as in this case, a veteran 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 not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151. To determine whether additional disability exists, VA compares a veteran's physical condition immediately prior to the beginning of medical or surgical treatment to the Veteran's physical condition after such care has ceased. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has additional disability does not establish cause. 38 C.F.R. § 3.361(c). To establish that fault on the part of VA, it must be shown that VA hospital care, medical or surgical treatment, or examination caused a veteran's additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 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. 38 C.F.R. § 3.361(d). Analysis The appellant is claiming that the Veteran died in 1993 as a result of being given an overdose of Digoxin. The Certificate of Death reveals the immediate cause of death was diffuse alveolar damage. The approximate interval between onset and death was 24 hours. No other causation was reported. The autopsy report documents the Veteran was a 43 year old black male with history of heavy alcohol abuse, hypertension, and a myocardial infarction in 1989 who presented to the hospital complaining of fever, chills, and loss of appetite of three to four day duration. The Veteran was noted to have yellow discoloration of skin and sclera and was noted to be dyspneic and orthopneic. A Chest X-ray revealed cardiomegaly and bilateral pulmonary infiltrates. The next day the Veteran suffered from increased shortness of breath for which he was intubated and the Veteran's condition rapidly deteriorated. Histologic examination of the lungs demonstrated diffuse moderate alveolar septal fibrosis with numerous hyaline membranes and acute and chronic inflammatory cells. There was also mild edema of the alveolar septa. The myocardium of the left ventricle demonstrated patchy interstitial fibrosis with no histologic evidence of acute myocardial infarction in seven sections taken. The histologic findings in the lungs are consistent with diffuse alveolar damage and indicate an insult to the lungs of approximately one to two weeks duration. In the absence of any other known cause of diffuse alveolar, a diagnosis of idiopathic diffuse alveolar damage, as the cause of death, was made. This disorder has been referred to as acute interstitial pneumonia or Hamman Rich Syndrome. Supporting the appellant's claim is a statement from a private physician. In November 2010, the Chief Medical Examiner for the State of Georgia, wrote that he had reviewed medical records concerning the Veteran as well as the death certificate that was completed following his death. It was noted the Veteran was admitted with a three to four day history of fever, chills, and decreased appetitive. He denied chest pain and shortness of breath. He was diagnosed with sepsis syndrome, with superimposed congestive heart failure. It was written in the Veteran's admission history that he had taken his usual dose of Lanoxin 0.25 mg on the morning of his admission. Nonetheless, the Veteran was given another dose of Digoxin while in the emergency room (which appears to have been 0.125 mg) and then the order was written for an additional 0.125 mg Digoxin daily. This order was crossed out in the order sheet, with the notation, "given in ER." Following his admission and the administration of the Digoxin, the Veteran was relatively stable overnight but developed shortness of breath the next morning along with bradycardia. Intubation and CPR were unsuccessful. An autopsy was performed which disclosed pulmonary hyaline membranes and changes indicative of an insult to the lungs of approximately one to two weeks duration. However, the Veteran was not short of breath or tachypneic upon his admission and did not develop respiratory distress until after the Digoxin had been administered. The author found it noteworthy that the Discharge (Death) Summary was not dictated until almost one year after death and the entirety of the hospital course was contained in a quarter line summary. It was the physician's opinion, to a reasonable degree of medical certainty, that the death of the Veteran was precipitated and significantly accelerated by the administration of Digoxin upon his admission to the Decatur VAMC, in the face of underlying probable interstitial pneumonia that had been present for one to two weeks and was stable until admitted and overmedicated. The relationship between the deviation in the standard of care and the death indicate that the actions of the Decatur VAMC were contributory to the Veteran's death, and his death should properly be classified as being service connected. The physician also noted that VA had previously found that the Veteran died of a service connected disability. It was written that this was a conclusion which was independently reached by VA and he concurs with this opinion and find it incorrect to have subsequently changed this conclusion. The Board's review of the evidence of record leads the Board to place reduced probative value on the private physician's November 2010 statement. The premise of the letter is the Veteran's death was due to an overdose of Digoxin. Significantly, the Board questions whether the Veteran was, in fact, given an overdose of Digoxin while at the Decatur VAMC. A VA Form titled "Data Base" which is dated in May 15, 1993 is of record. This document memorializes the Veteran's presentation at VAMC Decatur the day prior to his death. The document reveals the Veteran's current medications at that time included Lanoxin which is Digoxin. Testing revealed a Digoxin level of 1.04. Under the heading of "ASSESSMENT AND PLAN" it was noted the Veteran had congestive heart failure and the treatment plan specifically indicated that Digoxin will be held "for now" as the Veteran had left bundle branch block. Another record dated in May 15 reveals it was known that the Veteran had taken Lanoxin that morning. This was also reflected in a May 15 record titled "MEDICAL CERTIFICATE." A VA Form titled "DOCTORS ORDERS - MEDICATION RECORD" indicates that, sometime around 8:00 pm on May 15, Digoxin was written in as a medication to be given at 0.125 MGs by mouth every day. This annotation was then crossed out and the word "error" was written. Another annotation on the form was interpreted by the private physician to mean that it was "given in the emergency room" but the word "given" is not clear. The rest of the medical records are silent as to whether the Veteran received any Digoxin while at the Decatur VAMC. Records titled "PRN AND ONE-TIME MEDICATION RECORD" and "CONTINUING MEDICATION RECORD" were silent as to the administration of Lanoxin or Digoxin. The Board's interpretation of the pertinent clinical records is that it was known the Veteran had taken Lanoxin the morning he presented to the emergency room and that Digoxin was initially included in medications to be prescribed but this treatment regime was cancelled. There is absolutely no objective evidence of record demonstrating that the Veteran received additional Digoxin when he presented at Decatur VAMC on May 15th or 16th of 1993. The only possible entry which could indicate the Veteran was actually administered Digoxin while at the VAMC was crossed out which, to the Board's interpretation, meant that the medication was not administered. The Board believes that, if the Digoxin was mistakenly administered, there would have been more than a single line next to the crossed out wording indicating that it was administered in the emergency room. There is no evidence that the Veteran was administered Digoxin while in the emergency room. No clinical record documents such a fact pattern. The only evidence of record which indicates that the Veteran was given Digoxin while in the emergency room is included in the November 2010 opinion from the private physician and the report of a May 2011 VA examination. It is not apparent upon what basis it was determined that the Veteran was given Digoxin in the emergency room. Again, this allegation is not supported anywhere in the clinical records. Compensation under the provisions of 38 U.S.C.A. § 1151 requires there to be demonstrated fault on the part of VA in rendering the medical treatment. In the current case, the only evidence of potential fault on the part of VA is included in the private physician's November 2010 opinion based on an alleged overdose of Digoxin. As set out above, this allegation of fault is not supported by the medical records. The Board notes the reports of VA examinations conducted in April 2011 and May 2011 are of record. The author of the April 2011 VA examination specifically opined that the death of the Veteran was not caused by overmedication of Digoxin. The physician interpreted the medical record "Error on order for Digoxin 0.125 po medication not given" - as being that the word error refers to the crossed out order for Digoxin on the progress note. The physician observed that Digoxin was to be held even if the drug (0.125 mg) were given orally. The physician opined that it is very unlikely or less likely as not (less than 50/50 probability) that this would cause the Veteran's death. In April 2011, the Chief of Cardiology, Atlanta VAMC wrote that he had reviewed the claims file. It was summarized that the Veteran was admitted with 3-4 days of fever, chills and decreased appetite after an alcohol binge. In the emergency room sepsis syndrome with superimposed congestive heart failure was diagnosed. The Veteran was continued on his outpatient Digoxin therapy as an inpatient with 0 125 or 0 25 mg Digoxin in addition to his antibiotic treatment and Librium for symptoms of alcohol withdrawal. The patient was relatively stable overnight but developed dyspnea the next morning with acute respiratory compromise requiring CPR which was unsuccessful. An autopsy was performed and final anatomic diagnoses were diffuse alveolar damage, idiopathic, bilateral and extensive cardiomegaly (750 gm) with patchy interstitial fibrosis and calcific arteriosclerosis of the left anterior descending artery (50% occlusion) and right coronary artery (50% occlusion) and Nutmeg liver. The physician noted he was asked to render an opinion whether the Veteran's death was due to an overmedication of Digoxin. In the physician's opinion, the death of the Veteran was due to diffuse alveolar damage due to alcohol-induced lung disease and multi organ failure. It is less likely as not (less than 50/50 probability) that the additional Digoxin dose has caused the Veteran's death. The Board finds the April 2011 opinion to be more probative regarding the question at hand as it is supported by objective evidence of record (or the lack thereof). Again, the Board finds there is no objective evidence demonstrating that the Veteran was given any Digoxin while he was being treated at the Decatur VAMC in May 1993. As the preponderance of the evidence weighs against a finding that VA was at fault by giving the Veteran an overdose of Digoxin, compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted. ORDER New and material evidence having been received, the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 has been reopened. The appeal is granted to that extent only. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is not warranted. The appeal is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs