Citation Nr: 1430902 Decision Date: 07/09/14 Archive Date: 07/15/14 DOCKET NO. 08-29 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a January 2006 myocardial infarction (MI), claimed as due to a VA medical facility's (VAMF) refusal to refill a Plavix prescription in September 2005. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for coronary artery disease (CAD), status-post MI, stent placement. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of that hearing is associated with the claims file. The hearing was adequate as the undersigned VLJ and representative for the Veteran explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In April 2011 the Board remanded the matter for further development of the record, to include obtaining treatment records and scheduling a VA examination and medical opinion. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 1998) where there was substantial compliance with remand directives). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA and VBMS to ensure a complete assessment of the evidence. FINDINGS OF FACT The Veteran's residuals of a January 2006 MI did not result from 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. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a January 2006 MI have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by letter issued in April 2007, prior to the initial adjudication of the Veteran's claim, which advised the Veteran of the criteria for establishing entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has obtained and associated with the claims file all identified relevant VA and private treatment records. The claims file indicates that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since December 2005. These SSA records have not yet been associated with the claims file. However, there being no indication or contention that the Veteran's SSA application or records would be relevant to his claim for entitlement to 38 U.S.C.A. § 1151 benefits, VA's duty to assist does not include obtaining his records pertaining to adjudication of claims for SSA disability benefits with respect to the claim. See Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010) (holding that the United States Court of Appeals for Veterans Claims correctly determined that Veteran's medical records used to determine his eligibility for SSA benefits were not relevant to VA determination, and that VA was thus not required to assist veteran in obtaining records from SSA). The VA examination, records review and opinion provided to the Veteran in March 2012, May 2012, and March 2013 are cumulatively adequate because the examiners considered the Veteran's medical history, described his heart disabilities in detail, and provided a nexus opinion and accompanying rationale which cited the Veteran's current diagnosis and VA treatment. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Pursuant to 38 U.S.C. § 1151, a Veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C. § 1151(a); 38 C.F.R § 3.361. "To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the....medical or surgical treatment...upon which the claim is based to the Veteran's condition after such...treatment." 38 C.F.R § 3.361(b). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R § 3.361(c)(1). When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment. 38 C.F.R § 3.361(c)(3). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. 38 C.F.R § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to 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)(1). The Veteran has a history of heart disease and a heart attack that took place in August 1996. The Veteran has argued that his VA cardiologist prescribed him Plavix, which he claimed was "keeping [him] alive." The Veteran and his representative have based their argument on a succession of VA treatment records, dated in September 2005, which arguably show that the Veteran's physician and the VA pharmacist were at odds about whether or not the Veteran met the criteria for a Plavix prescription. He believes that his second MI in January 2006 is due to the VA pharmacist's failure to refill his prescribed Plavix. The Board finds that the most probative evidence of record shows that the claimed residuals of a January 2006 MI was not actually caused by VA care, treatment, or examination. 38 C.F.R § 3.361(c)(1). In July 2005, the Veteran contacted the VAMF seeking a refill for his Plavix. The Veteran had not been treated in over a year by the VA cardiologist so he made an appointment for mid-August 2005. He was informed that the VAMF could not fill his prescription until after the appointment. On September 1, 2005, the Veteran's VA cardiologist prescribed Clopidogrel (otherwise known as Plavix which is the trade name) for the Veteran. According to the request, the criteria for the use of Clopidogrel are that the "Patient must have one of the following indications: [patient] has CAD and carotid [dissection] although he has never had a stroke." It was noted that the Veteran had been on 75 milligrams of Clopidogrel, daily, for one year. On September 7, 2005, a VA pharmacist commented "Clopidogrel 'does not meet criteria and [prescription] not processed, practitioner to take appropriate action.'" The VA cardiologist commented "NO!! You take appropriate action. I have done everything I can do. You deny it, you deny it and that's it!!!" On September 16, 2005, the VA pharmacist commented "History reviewed. Patient does not meet criteria for use. [N]ot enough justification to make exception to criteria." In January 2006, the Veteran was hospitalized at the VAMF for another MI. A January 2006 private treatment record from St. Joseph Hospital, where the Veteran was treated post-acute inferolateral MI, shows a reported history of MI in 1996. The physician noted that since then, the Veteran was known to have hyperlipidemia, and has been on medical management with Atenolol, Aspirin, Nitroglycerin, Furosemide, Prevacid, and Gemfibrozil. The physician also noted that the Veteran had been a chronic smoker, and that he smoked 3 to 4 cigars a day and was advised to stop smoking. It was noted that the Veteran underwent emergency cardiac catheterization, which revealed a number of partial and total occlusions and heavy calcifications in a number of the Veteran's blood vessels, and the Veteran was advised to undergo bypass surgery but he refused. He was prescribed 75 milligrams of Plavix, daily. In March 2012 and May 2012, a VA clinician opined that the Veteran did not qualify for Plavix use prior to his second heart attack. The clinician noted that the Veteran was seen in the clinic and told about it. In March 2013, a VA clinician opined that the Veteran did not meet the criteria for therapy with Plavix prior to his second MI. It was noted that the Veteran was first prescribed Plavix for carotid artery disease, and had been on it for greater than 12 months at the time of cessation of use. The examiner concluded that termination of Plavix therapy was not the indication for development of MI in January 2006. The examiner explained that current guidelines for Plavix use based on the CURE study of 2001 show that Plavix use is indicated for unstable angina and non-Q-wave MI. Benefits were seen within 2 hours of treatment of onset of symptoms for a duration of 12 months. The examiner noted that the Veteran was prescribed Plavix in 2002 by his primary care physician due to the history of carotid artery disease. However, as the Veteran was not seen for 13 months and there was no history noted of whether he had recent acute coronary syndrome (ACS), stent, transient ischemic attack (TIS), or cerebrovascular accident (CVA). The examiner concluded that the Plavix use was appropriately stopped as there was no indication of use. The examiner also opined that the termination of the Veteran's Plavix use in 2005 and subsequent development of MI in January 2006 was an event not reasonably foreseeable, because termination of the Veteran's Plavix did not result in his second MI, therefore it was not reasonably known beforehand that the Veteran would develop a second MI. The examiner opined that in 2005 the Veteran did not meet guidelines for continuation of Plavix use, thus there was no evidence of carelessness, negligence, or of similar fault on the VA's part that contributed to or caused the January 2006 MI. Finally, the examiner opined that there was no additional disability resulted from the VA's refusal to refill Plavix, because the Veteran did not meet the criteria for Plavix use in 2005 and his second MI is unrelated to the cessation of Plavix use. The Board finds that the March 2013 VA clinician's opinion that the Veteran's January 2006 MI was less likely than not to have been caused by the VAMF's refusal to refill a Plavix prescription in September 2005 is the most probative because it includes a persuasive rationale, viz., that the Veteran was first prescribed Plavix for carotid artery disease and had been on it for greater than 12 months at the time of cessation of use, that current guidelines for Plavix use based on the CURE study in 2001 indicate that it is used for unstable angina and non-Q-wave MI, and that the Veteran had not been seen for 13 months prior to the cessation of treatment with Plavix so there was no history noted of whether he had recent ACS, stent, TIA, or CVA. Moreover, the March 2012, May 2012 and March 2013 VA clinicians noted that in 2005 the Veteran did not meet the guidelines for continuation of Plavix use, therefore there was no evidence of carelessness, negligence, or similar fault on the VA's part that contributed to or caused his January 2006 MI. In support of his claim, the Veteran has submitted various Internet medical articles indicating that patients given Plavix after a heart attack are at a significantly higher risk of heart attack or death within three months after they stop taking the drug. However, such evidence is not adequate. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (providing that while a medical article or treatise can provide support for a claim of service connection, it must be bolstered by an opinion of a medical professional and relate to the specific facts of the case as opposed to a discussion of generic relationships). The Veteran has not submitted such accompanying medical opinion, and hence his treatise evidence is of limited probative value. Finally, the Board finds that the Veteran's opinion regarding the cause of his January 2006 MI is entitled to no probative weight because that issue is complex. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (certain conditions are not capable of lay diagnosis); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent). In this case, because the etiology of an MI is not subject to lay observation and requires complex medical knowledge and background, the Board finds that the Veteran's opinion as to the cause thereof is not competent for VA purposes. Based on the foregoing, the Board finds that entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted because the VAMF's refusal to refill a Plavix prescription in September 2005 did not cause his January 2006 MI. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a January 2006 MI is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs