Citation Nr: 1322110 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-05 001 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability due to VA treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1957. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO. The Board remanded the claim for additional development in August 2012, and it has now been returned to the Board for the purpose of appellate review. The Veteran testified at a hearing before the undersigned Veteran's Law Judge in July 2012. 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. On November 30, 2004, the Veteran is shown to have been prescribed terazosin to treat his high blood pressure after reporting adverse effects from clonidine, which was discontinued, and to have continued to be prescribed lisinopril to help control his high blood pressure, as well as sertraline, lorzepam, glyburide, metformin, simvastatin, and sildenafil citrate to treat other disorders. 2. The Veteran's fall down the stairs in his home resulting in a dislocation his shoulder and fractured his nasal bone on January 23, 2005 is not shown to have been caused by medication prescribed by VA to treat his hypertension. 3. The VA prescribed Clonidine, lisinopril and terazosin were appropriately used to control the Veteran's high blood pressure. 4. The Veteran's fractured nose and a dislocated shoulder due to the fall are not shown to have been caused by medical care furnished to the Veteran by VA that was either the result of careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing such care, treatment, or examination or due to an event that was not reasonable foreseeable. CONCLUSIONS OF LAW 1. The Veteran's fall in his home on January 23, 2005 was not caused by hospital care, medical or surgical treatment, or examination that was furnished to the Veteran by VA. 38 U.S.C.A. § 1151 (West 2002), 38 C.F.R. § 3.361 (2012) 2. The medical care that was provided to the Veteran by VA to treat his high blood pressure and other conditions was appropriate and not the result of negligence, carelessness, lack of proper skill, error in judgment, or fault on the part of VA or due to any unforeseeable consequences. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). . REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, the VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in August 2008 which explained how VA could assist him with developing evidence in support of his claim. It also explained what the evidence needed to show in order to establish entitlement to compensation for a disability pursuant to 38 U.S.C.A. § 1151. The Veteran was not notified of how VA assigns ratings and effective dates for service connected disabilities. To the extent that this is required in 38 U.S.C.A. § 1151 claims, any error is harmless because compensation under that statute is denied, hence no rating or effective date will be assigned. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, the evidence of record includes VA treatment records, private treatment records, the written contentions of the Veteran and his representative, and a transcript of the Veteran's testimony at the July 2012 hearing at which time the Veterans Law Judge defined the issue and heard testimony concerning the events which the Veteran felt led to his fall. The Veteran was afforded a VA examination with opinion in April 2013 that complied with the instructions set forth in the Board's August 2012 remand and fully addressed the propriety of the treatment that the Veteran received for his high blood pressure at VA as well as the likely cause of the Veteran's fall at home. Also in accordance with the remand, the Veteran was sent a letter in September 2012 which requested that he identify any additional medical treatment for residuals of his fall; the Veteran did not respond to the letter. The Board finds that VA satisfied the VA's duty to assist the Veteran in this case. Additionally, the Board finds that the instructions which were set forth in the August 2012 remand were substantially complied with. 38 U.S.C.A. §1151 The Veteran contends that he fell and broke his nose and dislocated his shoulder as the result of negligent medical care at a VA hospital. He asserts that he was prescribed the wrong medication for his high blood pressure and that a side effect of the medication caused him to fall. His representative also contended that VA failed to adequately control the Veteran's high blood pressure, which caused his fall. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation (including DIC benefits) are 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. 38 U.S.C.A. § 1151 indicates that a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault is necessary for entitlement to compensation for claims filed on or after October 1, 1997, as is the case here. Alternatively, compensation may be awarded where the Veteran's death resulted from an event that was not reasonably foreseeable by VA. Id. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish causation. 38 C.F.R. § 3.361(c)(1). VA treatment cannot cause the continuance or natural progression of a disease or injury unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progression thereof. 38 C.F.R. § 3.361(c)(2). In addition to a showing of additional disability or death following VA treatment, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without obtaining the informed consent of the Veteran and/or his or her surrogate as is required by 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(1). Minor deviations from 38 C.F.R. § 17.32's requirements which are immaterial under the circumstances of a particular case will not defeat a finding of informed consent. Id. Consent may be express or implied as set forth in 38 C.F.R. § 17.32(b). The proximate cause of a Veteran's additional disability or death will be considered to be the result of an event that was not reasonably foreseeable if a reasonable health care provider would have not have foreseen the possibility of the occurrence of the event given the particular circumstances of the case. Therefore, the event need not be completely unforeseeable or unimaginable, but it 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). In making the determination as to whether an event was reasonably foreseeable, VA considers whether the risk of the adverse event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures that are set forth in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In November 2004, the Veteran was taking several medications to treat various medical problems. These medications included clonidine and lisoprinil to treat his high blood pressure. The clonidine was prescribed on November 9, 2004; the lisoprinil was a more longstanding prescription. The Veteran was also prescribed sertraline, lorzepam, glyburide, metformin, simvastatin, and sildenafil citrate to treat other disorders. On November 30, 2004, the Veteran reported being depressed since taking clonidine, although it had been working well to control his blood pressure. At that time, his blood pressure was 138/50. The Veteran's physician resultantly discontinued clonidine and prescribed terazosin instead. On December 20, 2004 the Veteran's blood pressure was noted to be 130/76. However, the Veteran's physician felt that it was still on the high side and increased his dose of terazosin. The treatment records reflect that, on January 23, 2005, the Veteran slipped and fell down 5 to 8 steps while in his home and dislocated his shoulder and fractured his nasal bone. He was initially treated after the accident at a private hospital, where he had his right shoulder reinserted and was instructed to pursue follow up treatment. The initial blood pressure reading at the private hospital was 206/98. Subsequent monitoring showed blood pressures of 166/123, 166/84, 167/66, and 179/84. The Veteran was not treated for high blood pressure at the private hospital. The subsequent treatment records show that, as of August 2009, the Veteran was still prescribed terazosin and lisoprinil for his high blood pressure. As of March 2012, the Veteran was still prescribed lisinopril. Terazosin seemed to have been discontinued sometime in 2009. The Veteran testified at a July 2012 hearing that he "blacked out" and fell down the stairs in his home. His representative argued that this occurred due to uncontrolled blood pressure. The Veteran believed that he had been prescribed the wrong medicine in that it was for depression rather than high blood pressure. The Board notes that, at the relevant time, the Veteran had been prescribed sertraline for depression by a psychiatrist and was still taking the medication as of August 2009. The Veteran testified that a doctor told him he had been given the wrong medicine. He asserted that, after the fall, his medication was changed, although the VA treatment records reflect he continued to be prescribed lisoprinil and terazosin for several years after his fall. In contrast to what he reported to medical professionals, at his hearing, he testified that he fell down the 18 steps of the stairs. A VA medical opinion was obtained in April 2013. The examiner noted that the Veteran's high blood pressure was treated with clonidine, terazosin and lisinopril. All of these medications were noted to be FDA approved for use in treating high blood pressure. Terazosin was noted to have a risk of first dose syncope and transient loss of consciousness, as well as orthostatic hypotension, so it was recommended to be taken at bedtime. The half-life of the medication is 12 to 14 hours, so orthostatic hypotension was less likely to occur during waking hours. The examiner noted that, prior to being prescribed terazosin for his hypertension, the Veteran had been prescribed terazosin for benign prostatic hypertrophy without incident. The Veteran continued to take terazosin for several years after the fall. There was noted to be no medical indication for the Veteran's physician to withhold or withdraw the terazosin due to adverse effects. Previous to the fall, the Veteran had not reported any side effects from terazosin. Clonidine was noted to be known to cause dizziness. However, the half-life of clonidine was short, reported as 12.7 to 13.7 hours in patients with normal renal function and 41 hours in patients with altered renal function. The clonadine was discontinued in late November 2004. At the time of the fall, clonidine had no effect on the Veteran's body. Lisinopril was known to cause hypotension, syncope, hyperkalemia, dizziness, headache, renal function abnormalities, and cough. The Veteran had been taking this medication since 1995 without incident. There was no indication for the clinician to withhold or withdraw the lisinopril medication due to adverse effects. The examiner opined that the lisinopril, clonidine, and terazosin were appropriately used to treat the Veteran's hypertension. The examiner added that, considering all of the information pertaining to the Veteran's hypertension medications, it was less likely than not that the Veteran incurred additional disability in the fall on January 23, 2005 due to medication that was prescribed or other medical treatment that was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event that was not reasonably foreseeable. The examiner added that the most likely etiology of the Veteran's fall was due to his reported "slipping on steps." The evidence does not show that the Veteran's fall, in which he fractured his nose and dislocated his right shoulder, was due to medication that he had been prescribed or any other medical treatment by VA. At the time of his initial presentation to the emergency room, the Veteran reported that he slipped on his steps, and the VA examiner noted that this was the most likely etiology for the Veteran's fall. The clinical records from the Veteran's visit to the emergency room do not reflect treatment for either high or low blood pressure, and there is no indication that the hospital personnel believed that any of his medications should be discontinued. There is no showing of any recommended medication changes at that time or reporting any adverse effects from medication during his emergency room stay. Additionally, while the Veteran's blood pressure was quite high at the time he was in the emergency room, his diastolic blood pressure returned to lower levels while he was there without any medical intervention to control it. There is no evidence that the Veteran's blood pressure was abnormal prior to his fall or dangerously high since the Veteran's blood pressure readings at VA were monitored. The Veteran had been using lisoprinil for a long time prior to the fall without any reported side effects, making it unlikely that this medication caused the fall. Clonidine had no effect on the Veteran's body at the time of his fall. Terazosin was most often prescribed for use at bedtime, and the Veteran had previously taken this medication without incident. The Veteran continued to use lisinopril and terazosin after the January 23, 2005 fall for several years without incident. There is no medical evidence to show that any medications prescribed to treat the Veteran's high blood pressure had any role in causing his fall. The Veteran believes that his hypertension medications caused his fall, but lacks the requisite medical expertise to render such an opinion. There is also no competent evidence that the Veteran's hypertension was treated inappropriately. All of the medications noted to have been prescribed to treat the Veteran's hypertension were noted to be FDA approved, and the VA examiner noted that there were no contraindications for any of the medications at the time they were prescribed. In fact, clonidine was discontinued approximately two months prior to the Veteran's fall and had no effect on the body at that time. Lisinopril and terazosin continued to be prescribed to the Veteran for several years after his fall. Neither clonidine, lisinopril, nor terazosin was an antidepressant as claimed by the Veteran; rather, these were all appropriate agents to treat the Veteran's high blood pressure as explained by the VA examiner. The Veteran was taking an antidepressant which was prescribed by his psychiatrist at the time of his fall, but there is no evidence that this drug had any connection to his fall. Contrary to the Veteran's assertions, his hypertension medications were not changed after his January 23, 2005 fall; rather as of August 2009, he was still taking those same medications to treat his hypertension. Thus, the evidence of record is shown to outweigh the Veteran's assertions that he was prescribed the wrong medicine to treat his hypertension. Although the Veteran in competent to report that a doctor told him this, these assertions are outweighed by other evidence that contradicts his statement. There is also no evidence that the Veteran's fall was an unforeseeable consequence of VA medical treatment. The evidence does not show that VA medical treatment played any role in causing the Veteran's fall and resultant injury to his right shoulder and nose. The benefit of the doubt rule is inapplicable since the weight of the evidence is against the Veteran's claim. ORDER Compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a fall including a fractured nose and dislocated shoulder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs