Citation Nr: 1327758 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 07-10 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013) for hypertension and a chronic disability manifested by an irregular heart beat due to the failure of the Muskogee VA Medical Center ("VAMC") pharmacy to provide the Veteran with Klonopin in a timely manner. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from May 1985 to August 1985. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Muskogee, Oklahoma, which denied the claim. The Board has previously considered this claim. In February 2013, the claim was remanded to the Agency of Original Jurisdiction ("AOJ") for additional evidentiary development. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. FINDING OF FACT The probative evidence of record fails to support the Veteran's claim that she sustained hypertension, a chronic disability manifested by an irregular heartbeat, or any other disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for hypertension and a chronic disability manifested by an irregular heart beat due to the failure of the Muskogee VAMC pharmacy to provide the Veteran with Klonopin in a timely manner are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.361, 17.32 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA ("Secretary"). See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, a May 2006 pre-adjudication letter informed the Veteran of the types of evidence needed in order to substantiate her claim, the division of responsibility between herself and VA for obtaining the required evidence, and requested that she provide any information or evidence in her possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. Thereafter, her case was readjudicated in a January 2007 Statement of the Case ("SOC") and in several subsequent Supplemental Statements of the Case ("SSOC"). B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, and a VA examination report dated October 2010. The claims folder also contains addendum opinions from the same VA examiner, dated June 2012 and April 2013. In addition, the claims file contains the Veteran's personal statements in support of her claim. The Veteran has not referenced any outstanding, available records that she wanted VA to obtain or that she felt were relevant to the claim that have not already been obtained and associated with the record. Review of the October 2010 examination report reveals that the VA examiner reviewed the pertinent evidence of record, elicited from the Veteran a history of her claimed disabilities, performed a comprehensive examination, and provided clinical findings, along with reasons and bases for his opinion that the Veteran's claimed disorders are not the result of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. In this respect, the Board acknowledges that it found the October 2010 examination report inadequate for rating purposes because the examiner failed to comment on an October 2005 treatment record from the Veteran's private physician. However, in his April 2013 supplemental review of the claims folder, the VA examiner noted that he had now reviewed the complete evidence of record, including the October 2005 treatment report, and provided a well-reasoned explanation for his opinion that the Veteran's claimed disabilities are not the result of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Accordingly, the Board finds the VA examination reports, when taken as a whole, to be adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran avers that she has hypertension and heart irregularities as a result of requesting a refill of the prescription medication, clonazepam (known by the brand name "Klonopin") by mail from the Muskogee VAMC pharmacy and not receiving the medication in a timely fashion. Specifically, she claims that because she was out of medication and did not receive a timely refill, her abrupt discontinuation of the drug caused "severe damage," resulting in the aforementioned cardiovascular conditions (the Veteran claims that she read that stopping Klonopin abruptly causes severe damage, but did not cite a source for this assertion). The Veteran states that she requested the refill sometime between October and November 2005, but did not provide a more specific date. A December 14, 2005 VAMC treatment record shows she reported that she was "at one time off her clonazempam for 2 months because she did not receive it in the mail." In pertinent part, 38 U.S.C. § 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." In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2012). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2012). 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. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2012). 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) (2012). Review of the claims folder shows that the Veteran was prescribed Klonopin, 1 mg tablets, 3 times per day, by her private physician, Dr. M. Kelley. An October 2005 treatment report from Dr. Kelley shows that she was on several prescription medications, including Effexor, Phenergan/codeine, and Phentermine HCL. In an October 17, 2005 progress note, Dr. Kelley reported that she had seen the Veteran for complaints of more frequent headaches, at which time, the Veteran reported that she had run out of Klonopin about a week earlier. The Board notes that while the Veteran, as part of the VA Health Care System, was afforded the opportunity to have her prescriptions filled by the VA pharmacy in Muskogee, Dr. Kelley was the physician who actually prescribed the mediation. In addition, although the prescription was filled at Muskogee, it was shipped to the Veteran from Tennessee. Review of the VAMC Muskogee pharmacy records shows that, during the period in question, the Veteran's Klonopin prescription was refilled four times: October 14, 2005, November 3, 2005, November 23, 2005 and December 17, 2005, each time for 90 tablets. The Veteran states that, when her medication did not arrive in the mail on time, she went to her primary care physician, Dr. Kelley, where her blood pressure was abnormally high and she had an increased heart rate. The October 17, 2005 treatment record shows that the Veteran was being treated for several disorders, including hypertension in poor control with associated chest pain and shortness of breath. At that time, her blood pressure was 158/110 and her weight was 226.8 pounds. Her heart had a regular rate and rhythm without murmur or abnormal heat sounds, gallops or rubs. She was diagnosed with palpitations, chest pain not otherwise specified ("NOS"), and hypertension. Dr. Kelley recommended that she undergo diagnostic testing with a Holter Monitor and electrocardiograph ("EKG"). In December 2005, the Veteran underwent an EKG, which showed a normal sinus rhythm with frequent premature supraventricular aberrancy, and prolonged QT interval in the heart's electric cycle or t-u wave fusion. The results of the Holter Monitor revealed abnormal findings with frequent premature ventricular contractions ("PVCs"). Private treatment records dated July 2006 from St. John's Hospital show that the Veteran was seen in the emergency room with complaints of chest pain that she said began the prior day. An EKG was deemed "borderline," and demonstrated normal sinus rhythm with occasional ventricular premature complexes and left atrial enlargement. A cardiac and vascular comprehensive report based on left heart catheterization and left and right angiography found that there was no angiographic evidence for coronary artery disease. It further noted that the Veteran had a history as a lifelong smoker. In June 2007, VA received a letter from Dr. Kelley, in which she wrote that the Veteran had been her patient since October 2003 and was under her care for chronic headaches, fatigue and a sleep disorder. Dr. Kelley, however, did not mention or comment on the Veteran's claim of having suffered cardiovascular damage as a result of abruptly discontinuing Klonopin. VAMC treatment reports, dated January 2008, show that the Veteran was seen for complaints of neck pain. At that time, it was also noted that her laboratory reports showed a high lipid level. Her diagnoses included irregular heart arrhythmias with fluctuating blood pressure with withdrawal from Klonopin in the past "reported," now stable, and hypertension, stable for now on current treatment, obesity and hyperlipidemia. In October 2010, the Veteran was afforded a VA compensation and pension examination pursuant to her claim. The VA examiner noted that the Veteran chose not to be present for an EKG and chest x-ray as requested. After reviewing the Veteran's complete claims folder, performing a comprehensive physical examination and interviewing the Veteran regarding her medical history, the examiner concluded that her hypertension was less likely than not permanently aggravated by or the result of a delay by the Muskogee VAMC pharmacy in providing her with her Klonopin, and instead concluded that the disease was at least as likely as not permanently aggravated by or a result of the Veteran's obesity and/or the use of such medications as Phentermine and/or race, and/or genetics, and/or the risk of hypertension in the general population. In this respect, he noted that Dr. Kelley's treatment records showed that the Veteran had heart palpations in March 2000, several years before her alleged discontinuation of Klonopin. He further noted that she had hypertension with palpitations and chest pain on October 30, 2005, an abnormal Halter Monitor study in November 2005, which revealed PVCs, and subsequently called the VAMC requesting a renewal of Klonopin on November 22, 2005. He found that this clearly demonstrated the onset of hypertension and an irregular heartbeat prior to any alleged delay in receiving the medication from VA. In this regard, he explained that a March 2000 treatment report showed that the Veteran was on the medication, Elavil, which he said has a potential side effect of prolonged QT interval. He also noted that her treatment records showed that she used Phentermine (which he explained is an amphetamine-like drug with the potential to cause hypertension and palpitations) intermittently for about five years prior to the December 2005 allegation of sudden heart problems. Moreover, he observed that her December 2005 Echocardiogram showed left ventricular hypertrophy consistent with hypertensive heart disease, and a February 2006 myocardial perfusion report showed ischemia of the anterior wall, which he said are chronic changes more consistent with longstanding hypertension and less consistent with the sudden onset of hypertension. In citing what appears to be a medical article or study, the VA examiner noted that many drugs have been implicated as a common cause of acquired prolonged QT intervals and TdP (a polymorphic ventricular tachycardia), and included on this list was Phentermine. In June 2012, the Veteran's claims folder was reviewed again by the October 2010 VA examiner to insure that he had reviewed the October 17, 2005 treatment record from Dr. Kelley. In his report, the examiner noted that his opinion had not changed after another review of this record. In February 2013, the claims folder was again returned to the VA examiner for a clarification of his October 2010 report. This time, in an April 2013 report, he specifically cited each treatment report he had reviewed and noted the prescription medications prescribed to the Veteran by Dr. Kelley. He further observed that, during three separate interactions with the VAMC in December 2005, the Veteran made no mention of having not received her Klonopin refill, despite, as noted above, reporting on December 14 of that year that she had been without the medication for two months. Significantly, the VA examiner noted that he had reviewed the VAMC Muskogee pharmacy record and listed all the dates the Veteran had reordered Klonopin between December 2004 and March 2006. He observed that she had been issued 14 monthly refills in a span of 13 months, amounting to 180 extra Klonopin tablets, and concluded that the Veteran's pattern of early refills and gaps in treatment was consistent with inappropriate use of medication, and/or intermittent symptoms, and/or stock piling and/or diversion of medication. The examiner added that, according to the record, the Veteran was issued 90 Klonopin tablets on November 15, 2005, 10 days early. Thus, on December 2, she would have had enough medication, if taken as directed, to last until January 3, 2006. He noted that, although he checked with the Muskogee Pharmacy and the U.S. Postal Service for proof of delivery, he was told that the records from 2005 were no longer available. The examiner concluded that the Veteran's hypertension and heart disease manifested by hypertensive heart disease and irregular heart beat were less likely than the result of, or permanently aggravated by any alleged delay in receiving clonazepam from the VA pharmacy. He also found there was no additional disability related to the VA care that could have reasonably been foreseen by the VAMC pharmacy in allegedly failing to provide the Veteran's prescription drug in a timely manner. III. Conclusion Based on a review of the evidence of record, the Board concludes that the requirements for compensation under 38 U.S.C.A. § 1151 are not met, as the probative evidence fails to establish that the Veteran incurred any additional disabilities as a result of the Muskogee VAMC pharmacy's alleged failure to provide her with Klonopin in a timely manner. While the Veteran's private and VA treatment records show she currently has (or had during the pendency of this appeal) hypertension and heart irregularities, there had been no probative medical evidence presented that would support her contention that these events were the result of not receiving her Klonopin from VA on time and then abruptly stopping the medication. Specifically, there is no probative evidence to show that any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care proximately caused any additional disability or the permanent aggravation of any disability. In fact, as discussed above, although the Veteran reported to Dr. Kelley during her October 17, 2005 outpatient visit that she had run out of Klonopin a week earlier, there is nothing in Dr. Kelley's treatment notes to suggest that the Veteran could or would sustain any type of damage as a result of not taking her medication on time. There is also no indication that Dr. Kelley provided the Veteran with a new prescription for the drug. Rather, Dr. Kelley's treatment report for that day shows (contrary to the Veteran's assertion that she had never experienced hypertension or heart problems before running out of clonazepam) that the Veteran was already being treated for hypertension, noted to be in poor control, with associated chest pain and shortness of breath. Moreover, as discussed above, the VA examiner noted that the Veteran's treatment records demonstrated that she had experienced heart palpations as early as March 2000, more than five years before her alleged abrupt discontinuation of Klonopin. The VA examiner's findings are consistent with the medical evidence, as no treatment reports of record show the Veteran to have any additional disability as a result of the alleged failure, carelessness or negligence on the part of VA in furnishing her medication in a timely manner. In addition to the medical evidence of record, the Board has considered the Veteran's personal contentions that some failure on the part of VA resulted in her claimed cardiovascular disorders and that she never had these problems prior to discontinuing her Klonopin in 2005. The Court has repeatedly held that laypersons are competent to describe symptoms of which they have first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, competency must be distinguished from weight and credibility, which are factual determinations, going to the probative value of the evidence, for the adjudicator. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Board has taken into account the report of a competent VA examiner, which found that, based on the Muskogee VAMC pharmacy's refill records, which showed several instances in which the Veteran requested a refill of Klonopin several days before she would have been out of the last refill, the Veteran would have had more than enough medication to last had VA not provided her refill in a timely manner. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, and in light of the Veteran's clear pattern of requesting medication refills early, the Board does not find the Veteran's statements that she ran out of medication and was forced to abruptly discontinue Klonopin to be credible. Based on the foregoing, the Board concludes that there is no competent evidence demonstrating the presence of additional disability due to VA negligence, lack of proper skill, error in judgment or similar instance of fault on VA's part, and therefore, compensation under 38 U.S.C.A. § 1151 must be denied. Accordingly, for the reasons stated above, the Board finds that the evidence is against the claim for compensation under 38 U.S.C.A. § 1151 for hypertension and a chronic disability manifested by an irregular heart beat due to the failure of the Muskogee VAMC pharmacy to provide the Veteran with Klonopin in a timely manner. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for hypertension and a chronic disability manifested by an irregular heart beat due to the failure of the Muskogee VAMC pharmacy to provide the Veteran with Klonopin in a timely manner is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs