Citation Nr: 1014089 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 06-16 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for cause of death of the Veteran. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Alsup, Counsel INTRODUCTION The Veteran served on active duty from January 1959 to April 1960. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the appellant's claim for compensation benefits under 38 U.S.C. § 1151 for the cause of death of the Veteran. The appellant disagreed and perfected an appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for remand In pertinent part, 38 U.S.C.A. § 1151 reads as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service- connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- "(1) the disability or death 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 as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (A) 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 (B) an event not reasonably foreseeable." See 38 U.S.C.A. § 1151 (West 2002). 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 or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32; 38 C.F.R. § 3.361(d)(2) (2009). The appellant in this case is the Veteran's widow. She has essentially alleged that the record evidence shows that the Veteran was treated in June 2004 in preparation for a prostate biopsy. The medical evidence shows that in June 2004, the Veteran had a long medical history including, but not limited to, diabetes mellitus insulin-dependent, coronary artery disease (CAD), hypertension, atrial fibrillation and flutter, hyperlipidemia, and obesity. On June 9, 2004, the Veteran was seen by M.B., a VA nurse practitioner who, the appellant contends, "was concerned about" the fact that the Veteran had been prescribed Plavix(r) and Coumadin(r), drugs which are essentially used to prevent the coagulation of blood. M.B. noted the concerns in a June 9, 2004, treatment note in the record. The appellant states that the Veteran was instructed by M.B. to stop taking the blood thinning drugs and resume taking them on June 17, the day after the Veteran's biopsy procedure. The appellant describes in her August 2004 statement that she assisted the Veteran in maintaining his numerous prescriptions and the normal procedure they employed to ensure all prescriptions were properly and timely filled. She states that the Veteran determined he needed to refill Plavix(r) and made phone calls to VA to have the prescription refilled. The calls were unsuccessful, so the Veteran sent an e-mail to Dr. W.B., a physician who practiced at the VA medical facility in Ann Arbor, Michigan, explaining he was "out of Plavix(r) and a diabetes" medication. The appellant states that subsequent to the e-mail the Veteran had a phone conversation with Dr. W.B. who, among other things, told him he was not refilling the Plavix(r) because he "didn't think I [the Veteran] need it." The Veteran died five days later. The appellant contends that the lack of Plavix(r), caused by VA's failure to refill the prescription, is the proximate cause of death. The medical evidence includes a June 28, 2004, addendum to the Veteran's medical record authored by Dr. W.B. which states that the Veteran called "out of plavix." After review of the medical records, Dr. W.B. wrote "not clear to me he continues to needs (sic) plavix." The death certificate of record indicates that the Veteran was pronounced dead at 5:49 a.m., June 29, 2004. The immediate cause of death listed on the death certificate is "cardiac arrest" as a result of a 5 year history of ischemic cardiomyopathy. Also of record is the opinion of Dr. W.W., Ph.D., a pharmacologist and toxicologist. Dr. W.W. indicated in a letter dated June 8, 2005, that she had reviewed "the medical records" of the Veteran and determined that it was within a reasonable degree of scientific certainty that the Veteran's death was due to the sudden withdrawal of Plavix(r) which caused the aggravation of his ischemic cardiomyopathy and was a cause of his death. Finally, Dr. S.R., M.D., a VA physician, was unable to provide an opinion regarding the issue at hand because at the time he reviewed the Veteran's record, there were no records regarding the Veteran's death. The Board is unable to render a decision without further development of this claim. There are several concerns that need to be addressed. First, it is unclear whether the Veteran did indeed stop taking Plavix(r) and if so, when precisely he stopped. The appellant related how she and her husband systematically ensured prescriptions were refilled and, it appears, that they started the process well before the medications actually ran out. In addition, it appears that the Veteran did not take Plavix(r) for about one week prior to the June biopsy; this alters the number of potentially available tablets available to the Veteran from the date of the last filled prescription and it also calls into question precisely how many Plavix(r) tablets may have been available to the Veteran at the time the prescription was last filled. Second, Dr. W.W.'s opinion is largely conclusive and does not specifically address the Veteran's complex medical history. Dr. W.W. also presumes facts that are not clear in the record, such as, for example, when the Veteran last administered Plavix(r). Another concern with Dr. W.W.'s conclusion is that the Veteran evidently went without Plavix(r) for at least one week prior to the biopsy and didn't appear to suffer any adverse consequences. Dr. W.W. did not address why he was able to survive that but yet, as she asserts, the week without Plavix(r) after the biopsy was fatal. Moreover, although Dr. W.W. certainly brings an expertise to bear on the issues at hand, she does not appear to have, and does not profess to have, the medical background or expertise regarding treatment of CAD in connection with the other complicating conditions presented by the Veteran at the time of his death. The Board seeks an opinion regarding whether it is as likely as not that the lack of Plavix(r) was the "proximate cause" of the Veteran's death and was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or was "an event not reasonably foreseeable." The Board has determined that this opinion must be provided by a VA physician who is experienced in the treatment of CAD and related diseases, and who does not practice and has not practiced in the Detroit or Ann Arbor, Michigan, area. Accordingly, the case is REMANDED for the following action: 1. VBA shall contact the appellant in writing and request that she specify when the Veteran last administered Plavix(r) and further specify how it is that she knows that information. VBA shall also inform the appellant that she may submit further evidence in support of her claim and VBA shall request that she identify any further records that may be relevant to her claim. Any response shall be associated with the Veteran's VA claims folder. 2. VBA shall provide the Veteran's VA claims folder, including this decision, to a physician who is experienced in the treatment of coronary artery disease and related diseases and who is not associated and has not been associated with VA facilities in Detroit or Ann Arbor, Michigan. The examiner shall review the Veteran's VA claims folder and provide an opinion whether it is as likely as not that the lack of Plavix(r) was the "proximate cause" of the Veteran's death and was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or was "an event not reasonably foreseeable." The examiner shall provide a rationale for the opinion rendered. If the examiner determines that such an opinion can not be provided without resort to mere speculation, the examiner shall provide an explanation why that is the case. The examiner's concise and clearly written report shall be associated with the Veteran's VA claims folder. 3. After completion of the foregoing and any other development deemed necessary, VBA shall readjudicate the appellant's claim for entitlement to benefits under 38 U.S.C. § 1151 for cause of death of the Veteran. If the benefit sought on appeal remains denied, VBA should provide the appellant and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).