Citation Nr: 1313820 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 11-22 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1151 based on treatment at a VA medical facility. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and G.G. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1955. He died in July 1997, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Philadelphia Regional Office and Insurance Center. Jurisdiction over the Veteran's case was subsequently transferred to the Roanoke, Virginia Regional Office (RO). The appellant testified at a Board hearing held at the RO in March 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in July 1997 of acute coronary artery insufficiency due to hypertensive and arteriosclerotic cardiovascular disease. Unspecified renal and hepatic disease were other significant conditions contributing to death but not resulting in the underlying cause. 2. The Veteran's death was not proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. CONCLUSION OF LAW The criteria required for DIC benefits pursuant to 38 U.S.C.A. § 1151 due to treatment at a VA medical facility have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, VA provided the appellant with the contemplated notice in a May 2010 correspondence. The correspondence advised her of the information and evidence necessary to substantiate her claim under 38 U.S.C.A. § 1151. The notice also informed her of the respective burdens of she and VA in obtaining evidence in connection with her claim. The Board notes that in the context of a Dependency and Indemnity Compensation claim under 38 U.S.C.A. § 1310, the United States Court of Appeals for Veterans Claims (Court) held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). However, as noted above, this case involves a claim for DIC pursuant to 38 U.S.C.A. § 1151. Under that statute, it is irrelevant whether the Veteran is service-connected for any disorder, or whether the fatal disorders originated in service. Rather, entitlement under the statute is predicated on the actions or nonactions of VA medical personnel in the treatment of a Veteran. Consequently, the failure to notify the appellant of the conditions for which the Veteran was service-connected at the time of death is not prejudicial to the instant claim. With respect to VA's duty to assist the appellant, pertinent records from all relevant sources identified by her, and for which she authorized VA to request, were obtained by the RO or provided by the appellant herself. 38 U.S.C.A. § 5103A. An attempt was made to obtain treatment records from Riverside Regional Medical Center; however, a response was received indicating that due to the hospital's record retention policy the records had been destroyed. In addition, the appellant identified treatment by Dr. R.N. An attempt was made to obtain records from Dr. R.N.; however, the request was returned as undeliverable. The appellant was notified in September 2008 that the address for Dr. R.N. was incorrect and that she should provide the correct address. The letter also indicated that the appellant could obtain and submit the records herself. In addition, the record shows that VA obtained a medical opinion in connection with this claim in November 2010. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). There are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the appellant's receipt of compliant notice letter. Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). During the hearing, the Veterans Law Judge noted the basis of the prior determination and the elements that were required to substantiate the appellant's claim. In addition, the Veterans Law Judge indicated that all the VA treatment records had been associated with the claims file. The appellant identified private treatment at Riverside Hospital for the Veteran's back. The Veterans Law Judge inquired regarding whether a claim was filed against the VA hospital. Accordingly, the appellant is not shown to be prejudiced on this basis. Moreover, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran's widow claims entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151 based on treatment at a VA medical facility. Specifically, she contends that the Veteran injured his back in a fall shortly after physical therapy at the VA medical center, was not treated appropriately thereafter, and was inappropriately prescribed medications due to this fall that ultimately caused the Veteran's death. With respect to claims filed on or after October 1, 1997, 38 U.S.C.A. §1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. 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, and the proximate cause of the disability 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. 38 U.S.C.A. §1151. Pursuant to 38 C.F.R. § 3.361, to determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 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). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability (see 38 C.F.R. § 3.361(c)); and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that VA 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)(1). Finally, the determination of whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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. 38 C.F.R. § 3.361(d)(2). The regulation further provides that, 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). VA treatment notes dated in October 1996 reveal that the appellant reported that the Veteran had a back spasm while being seen in Rehabilitation Medicine Service (RMS) and fell. landing on his hands and feet. In another treatment note the Veteran was reported to be observed after leaving physical therapy kneeling down outside the building. He was noted to have lowered himself down to the ground slowly and controlled. A therapist was reported to have gone out to assist the Veteran. He was helped into a wheelchair and complained of acute back pain. The Veteran asked for his TENS unit to be turned off. He was sent home after evaluation. The appellant has reported that the Veteran's fall in October 1996 was due to his TENS unit being set too high. An October 1996 VA orthopedic note indicates that the Veteran had a provisional diagnosis of low back pain exacerbated secondary to a fall with compression. It was noted that the plan included x-rays of the lumbar spine and right hip. A December 1996 VA treatment note reveals that the Appellant reported that the Veteran fell in November 1996. In another December 1996 VA note, the appellant reported that the Veteran had lost approximately 15 pounds in the prior one and a half months. In March 1997 the appellant called with the Veteran's complaints of increasing back spasms for 10 days and inquired what medications to give him. She reported that the Veteran fell leaving his primary care clinic in October 1996 and fractured his upper spine in two places. She denied that the Veteran any other recent trauma. A May 1997 treatment record indicates that the Veteran was told that x-rays of his spine revealed deterioration. Another treatment record dated in May 1997 revealed significant osteoporosis. In June 1997 the appellant called to report that the Veteran had a temperature of 101 and sounded congested. It was reported that the Veteran was mostly bedridden due to a spinal fracture eight months prior. The appellant requested medical test results and indicated that the Veteran felt bad and did not take any of his medications. She was advised to give her husband his medications as ordered by his physician. In July 1997 the appellant called to report that the Veteran was vomiting up blood and that blood was coming from his nose. In a subsequent July 1997 treatment note is was indicated that the Veteran had a history of chronic back pain and compression fracture in October 1996. A hematologist indicated that the peripheral smear was most consistent with chronic myelocytic leukemia. The Veteran was noted to have had an urgent need for transfusion and that over night his hemoglobin/hematocrit were substantially improved, however his platelet count did not improve. It was noted that his bilirubin was elevated without much evidence of acute enzyme elevation. The provider indicated that "[a]lthough it is possible that this represents liver disease, it seems more likely to represent either hemolysis or some form of consumptive coagulopathy." The results of a bone marrow biopsy dated in July 1997 revealed leukocytosis with relative and absolute monocytosis; left shift with immature myelo- and monocytic forms and two percent blasts; normocytic anemia with erythroblasosis, polychromasia, and schistocityes; and thrombocytopenia with large platelets on peripheral blood smear. In July 1997 the Veteran was noted to have undergone a bone marrow biopsy, computed tomography of the liver, and flow studies of the liver, which were normal. A blood test in July 1997 has a comment for amylase that the "values may be decreased in: a. Extensive marked destruction of pancreas (e.g., acute fulminant pancreatitis). b. Severe liver damage (hepatitis, poisons, toxemia of pregnancy, severe thyrotoxicosis, severe burns, etc.). c. Decreased levels are clinically significant only in occasional cases of fulminant pancreatitis." The diagnoses on discharge in July 1997 were hepatic toxicity and osteoporosis. Hepatitis screen was negative. A liver scan was noted to reveal marked hepatocellular dysfunction, possibly due to hepatic toxicity, iatrogenic, versus Budd-Chiari. Doppler studies were negative, rule out Budd-Chiari. The Veteran's death certificate indicates that the Veteran died in July 1997 due to acute coronary artery insufficiency due to hypertensive and arteriosclerotic cardiovascular disease. The death certificate also indicated that unspecified renal and hepatic disease were other significant conditions contributing to death but not resulting in the underlying cause. An autopsy report, dated in July 1997, indicates that the Veteran was received wrapped in a white sheet, embalmed, and wearing a blue hospital gown. The pathological diagnosis was atherosclerotic and hypertensive cardiovascular disease including cardiomegaly and left ventricular hypertrophy, mild nephrosclerosis, focal moderate coronary artery atherosclerosis, and microscopic evidence of ischemic heart disease. The pathological diagnosis also included myelodysplastic syndrome including chronic myelomonocytic leukemia, hepatosplenomegaly, and leukemic infiltrates of the heart, lung, spleen, liver, and kidneys. The pathological diagnosis also include cortical cysts of both kidneys and status post embalming with embalming artifact. The liver was tan and without focal lesions. The case summary reiterated the above findings and indicated that a postmortem toxicology was not performed due to embalming prior to autopsy. The cause of death was found to be acute coronary insufficiency due to atherosclerotic and hypertensive cardiovascular disease. In a statement dated in July 2007 the appellant indicated that a doctor at the ICU at the VA Hospital in Hampton, VA indicated that the Veteran had been poisoned by the amounts of medications that he was prescribed. The appellant indicates that in the six months prior to the Veteran's death prescriptions for Fentanyl Patch, Acetaminophen with Codeine, Flexeril, Sertaline, Naproxen, Ibuprofen, Tamotidine, Motrin, Amitriptyl, Morphine, Percocet, Tylenol #3 with Codeine, Salsalate, Calatonin, and Lansoprazole were filled for the Veteran. The appellant stated that his VA physician indicated that he wanted to start the Veteran on a new medication. The appellant reported that the Veteran's liver function improved after he was taken off medications at his July 1997 hospitalization. In November 2010 a VA medical opinion was obtained. The examiner noted that the claims file was reviewed and that private treatment records were reviewed. The examiner noted that the contention was that the medications prescribed by the Veteran's primary care provider at VA caused liver toxicity and that this lead to his death. The examiner noted that the Veteran was admitted to the ICU in July 1997 after evaluation of an UGI bleed with hepatotoxicity. The admitting bloodwork showed markedly elevated while count and thrombocytopenia, elevated liver function tests (LFTs) including bilirubin, and anemia with a presumptive diagnosis of hepatitis. At the time of the admission, the Veteran was under the care of a VA physician whose subspecialty was rheumatology. The doctor had special expertise in the area of chronic pain and fibromyalgia. The appellant was noted to contend that the doctor's overuse of medications including Flexeril, Motrin, Sertraline, Morphine, Tylenol with Codeine, Fentanyl, in the six months prior to the Veteran death along with failure to supervise and perform periodic evaluations of effectiveness/possible side effects of the medications caused the Veteran's death in July 1997. The appellant was noted to have stated that the hepatic disease noted on his death certificate was due to medication overuse and that the hepatomegaly was the result of "poisoning" by the medications. The appellant was also noted to believe that there was a lack of documentation, lack of proper care planning, and failure to perform imaging on the part of the doctor claiming that no x-rays were done at the time of a fall in October 1996 and that "very few . . . were documented in the chart." The appellant was noted to indicate that the physician was unaware of the fractures and implied that his use of pain medication without imaging was the cause. The appellant was reported to have indicated that the improvement in the Veteran's liver after discontinuance of all medications is proof that the medications prescribed by the VA physician contributed to his death. The appellant argued that a new medication ordered by the doctor in May 1997 caused his liver to fail within a month with the Veteran's death six weeks later. The examiner noted that during the hospitalization there was a bone marrow biopsy and aspirate done as part of the workup for suspected chronic myelocytic leukemia. The results were pending at the time of his discharge. The bone marrow pathology clearly demonstrated criteria for the diagnosis of chronic myelomonocytic leukemia and the physical findings of hepatosplenomegaly supported the diagnosis. The examiner reported that it is likely that the febrile illness in the short period prior to his hospitalization caused an immune response that revealed the underlying myelodysplatic disorder. The LAP score indicated less a monocytic leukemia process than a myelodysplastic disorder. The examiner noted that in review of old records, mild abnormalities in monocytic counts can be found as early as 1992 although in the presence of a normal white count, they were clinically insignificant. The treatment of the Veteran's myelodysplasia with multiple blood transfusions, and 40 units of platelets assisted with the improvement in his overall condition. Thus, the examiner noted that the hepatotoxicity was more likely to be associated with the hematologic problem than any drugs prescribed. The examiner noted that review of the chart showed a reasonable amount of drugs were ordered for the Veteran in the previous year (Fentanyl, Motrin, Tylenol #3, Naprosyn, Famotidine, and calcium) and all orders with notations could be found in paper records. It was also noted that the Veteran's civilian physician was also ordering prescriptive pharmaceuticals as recently as July of the previous year; some of the drugs the appellant mentioned were noted to be out of date prescriptions that had not been ordered or filled within the previous year. The chart also showed EKG abnormalities on two different EKGs done at Riverside Hospital but no dates were noted on the studies. The abnormalities indicated the previous cardiovascular disease that was confirmed at autopsy. The Veteran was noted to have had problems with his kidneys with hematuria and an intravenous pyelogram (IVP) done in 1992 suggested some nonspecific abnormalities. The autopsy also showed massive organ infiltration and involvement of leukemic cells within the lung, liver, and spleen as well as most vascular spaces. The examiner noted that in retrospect, there were signs of clinical deterioration of the Veteran as early as December 1996 when an unexplained weight loss of 15 pounds was noted. The examiner was unable to find that the VA physician prescribed medications for the Veteran without documentation, without imaging, or proper care planning. The examiner explained that the effect of the widespread myelodysplastic disorder upon the liver and the spleen was unmistakable but unfortunately, was too extensive for the Veteran's own organ systems to combat thus resulting in his death. The examiner rendered the opinion that the death of the Veteran was not due to medication overdose, toxicity, irresponsible prescribing, or was associated with careless lack of documentation, workup or planning. The autopsy clearly showed cardiac disease and liver involvement from leukemic infiltrates. While the liver disease was present, biopsy showed it was unlikely a reactive process. The Board finds that entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151 based on treatment at a VA medical facility is not warranted. The Veteran died in July 1997 and the Veteran's death certificate and autopsy results indicate that the cause of the Veteran's death was acute coronary artery insufficiency due to hypertensive and arteriosclerotic cardiovascular disease. The death certificate also indicates that unspecified renal and hepatic disease were other significant conditions contributing to death but not resulting in the underlying cause. The appellant contends that the Veteran was poisoned by medications prescribed by a VA provider and that this is supported by the notation of hepatic disease on the Veteran's death certificate as well as the suspension of the medical license of the VA provider. The Board acknowledges that the claims file reveals that the Veteran was noted to have a diagnosis of hepatic toxicity upon discharge from treatment in July 1997. Upon review of the evidence of record a VA examiner rendered the opinion that the Veteran's death was not due to medication overdose, toxicity, irresponsible prescribing, or was associated with careless lack of documentation, workup or planning. The examiner noted that the Veteran was prescribed a reasonable amount of medications and that the medications noted by the appellant were out of date prescriptions that had not been ordered or filled with the previous year. Bone marrow pathology was noted to clearly demonstrate criteria for the diagnosis of chronic myelomonocytic leukemia and the physical findings of hepatosplenomegaly supported the diagnosis. The examiner noted that the hepatotoxicity was more likely to be associated with the hematologic problem than any drugs prescribed. The examiner noted that the Veteran's autopsy showed cardiac disease and liver involvement from leukemic infiltrates. In regard to the cause of death being cardiovascular and the note of kidney problems, the examiner indicated that there was evidence of existing cardiovascular and kidney abnormalities. In short, the liver involvement, argued to be due to overprescription of medication by the VA, was due to leukemic infiltrates. The examiner found that the effect of the widespread myelodysplastic disorder upon the liver and the spleen was unmistakable but unfortunately, was too extensive for the Veteran's own organ systems to combat thus resulting in his death. At the hearing before the undersigned the examination opinion was questioned regarding whether the Veteran's fall was considered and whether the examiner had all of the information regarding the circumstances of the autopsy. In particular the appellant noted that the Veteran had been embalmed at the time of the autopsy. The Board notes that upon further close review of the examination, the examiner indicated that the Veteran fell in October 1996 and reported that the appellant believed that there was a lack of documentation, lack of proper care planning, and failure to perform imaging on the part of the Veteran's physician, claiming no x-rays were done at the time of the Veteran's fall. In addition, close review of the autopsy report, which was reviewed by the examiner, clearly states that the Veteran was embalmed at the time of the autopsy. As such, the examiner discussed the Veteran's fall and had knowledge of the condition of the Veteran at the time of the autopsy and the examination is adequate. As the preponderance of the evidence is against a finding that the treatment provided by VA caused the Veteran's death, entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151 based on treatment at a VA medical facility is denied. ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1151 based on treatment at a VA medical facility is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs