Citation Nr: 1542083 Decision Date: 09/29/15 Archive Date: 10/05/15 DOCKET NO. 10-14 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1151 for the death of the Veteran. 2. Entitlement to service connection for death pension benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1976 to February 1983. The Appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (the Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Appellant had a hearing before the undersigned Veterans' Law Judge in May 2015. A transcript of that proceeding has been associated with the claims file. The record reflects that after the final Supplemental Statement of the Case (SSOC) the Appellant submitted additional evidence to the Board without a waiver of initial RO consideration. The evidence consisted of VA medical records already associated with the claims file, with additional argument from the Appellant. As the newly submitted evidence is duplicative and contains argument, the Board finds that the Appellant is not prejudiced by the present adjudication of the issues on appeal. 38 C.F.R. § 20.1304(c) (2015). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran died in August 2008. The cause of death listed on his death certificate was combined drug intoxication: (morphine, hydrocodone, and methadone). 2. At the time of the Veteran's death, service connection had been established for arthritic changes of the left knee with arthroscopy / lateral meniscectomy and limitation of motion, rated as 50 percent disabling; degenerative arthritis of the right knee with limitation of motion, rated as 50 percent disabling; right knee injury with partial meniscectomy, rated as 30 percent disabling; duodenal ulcer, rated as 10 percent disabling; and hemorrhoids, rated as noncompensable. 3. The preponderance of the competent evidence is against a finding that the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical care or medical care by a VA contracted facility in furnishing hospital care; or an event which is not reasonably foreseeable. 4. At the time of the Veteran's death, he had no claims pending before VA and there were no due, but unpaid, benefits to which the Veteran was entitled under existing ratings or decisions. 5. The Veteran had verified active military service from May 10, 1976 to February 2, 1983. 6. The Veteran did not serve in Vietnam and he had no wartime service. 7. The Veteran's service does not qualify the Appellant for death pension benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation pursuant to 38 U.S.C.A § 1151 for cause of death have not been met. 38 U.S.C.A. §§ 1101, 1131, 1151, 5107(b) (West 2014); 38 C.F.R. § 3.361 (2015). 2. The criteria for basic eligibility for VA death pension benefits have not been met. 38 U.S.C.A. §§ 101, 1502, 1521, 1541 (West 2014); 38 C.F.R. §§ 3.2, 3.3 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In a letter issued in March 2009, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate her claim for compensation under 38 U.S.C.A. § 1151. The letter also satisfied the second and third elements of the duty to notify by informing the Appellant that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that she was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2015). VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, the Veteran's VA medical records and service personnel records are in the claims file. The Appellant has not identified any other records or evidence that remains outstanding with respect to the claims adjudicated herein, nor is there any indication from the medical evidence in the file that there are outstanding, relevant records. Thus, the Board finds that the duty to obtain relevant records on the Appellant's behalf is satisfied and that it may proceed with adjudicating the claims below. See 38 C.F.R. § 3.159(c) (2015). Additionally, a May 2009 VA medical opinion and August 2015 independent medical examiner's (IME) opinion were obtained. Taken in combination, these opinions address all pertinent theories of entitlement and are adequate for adjudication purposes. Both opinions were furnished by appropriately qualified healthcare providers after review of the entire claims folder and contain definitive opinions with readily apparent rationales. Barr v. Nicholson, 21 Vet. App. 303 (2007). As noted above, the Appellant was afforded a hearing before the undersigned VLJ during which the Appellant and her representative presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issues on appeal, the hearing focused on the elements necessary to substantiate the Appellant's claims, and the Appellant and her representative, through questioning and the Appellant's testimony, demonstrated actual knowledge of the elements necessary to substantiate her claims. Moreover, neither the Appellant nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2015), nor has either individual identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2015). The Appellant has been accorded the opportunity to present evidence and argument in support of her claims. Accordingly, VA's duty to notify and assist under the VCAA is satisfied, and the Board may proceed with appellate review. Cause of Death Claim The Appellant contends that the Veteran's death due to combined drug intoxication should be service-connected and that it was the result of the Veteran's treatment at the VA Medical Center (VAMC) in Fresno, California. Under 38 U.S.C.A. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2014). A disability is a qualifying additional disability if the additional 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 of VA, and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. Id.; see also Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013) (holding that "Section 1151 thus contains two causation elements - a veteran's disability must not only be 'caused by' the hospital care or medical treatment he received from the VA, but also must be 'proximately caused' by the VA's 'fault' or an unforeseen 'event'"). 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. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2015). 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 is not sufficient to establish causation. 38 C.F.R. § 3.361(c)(1) (2015). 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) (2015). An additional disability or death caused by the Veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3) (2015). VA death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. §§ 3.5, 3.312 (2015). As discussed in further detail below, the Appellant contends that the Veteran's death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical treatment, or examination. Specifically, she asserts that VA physicians erroneously prescribed the Veteran's medications or administered a toxic level of a combination of medications. See May 2009 Statement in Support of Claim, March 2010 VA Form 9, and May 2012 Hearing Transcript, pg. 12. Alternatively, the Appellant argues that the Veteran was rated totally disabled for a heart condition and that the drugs mentioned above should not have been administered given that condition. See September 2015 letter. According to the record, on August 3, 2008 the Veteran was treated at a VA emergency room for headaches, neck pain, and back pain following an automobile accident on August 2. X-rays of the cervical and thoracic spines showed good alignment and no significant bone abnormalities, though the result was pending an official interpretation. An MRI was recommended to rule out a ligament component to the pain. The record indicates the Veteran was discharged home that day, and was prescribed morphine, 30 milligrams, oral, twice daily; and Vicodin, 1-2 tabs, oral every 6 hours, conditional for breakthrough pain. On August 11, the Veteran returned to the VA medical center complaining of headaches, dizziness, and trouble sleeping due to pain. The clinicians noted that prior to the August 2 accident, the Veteran was prescribed Methadone 10 mg daily and a "very large amount" of Vicodin, 8 pills per day; they also noted that although he was still taking Vicodin with Morphine, he was not taking Methadone. The Veteran reported that the current medications were not helping his pain and neck spasms. The Veteran was assessed with severe cervicalgia with headache and muscle spasm, negative cervical x-ray for fracture, and "? nerve - soft tissue injury." The records indicate the Veteran's morphine was stopped and Vicodin was decreased to 4 pills per day to avoid acetaminophen toxicity. Further, his Methadone was restarted and increased to 20 mg twice daily for pain control; methocarbamol was prescribed, 500 mg three times a day for muscle spasms; and he was directed to return to the clinic as necessary for pain management. It was noted that the Veteran still needed to have an MRI, and that as one could not be obtained at the Fresno facility, a fee-service MRI would be requested. The Veteran passed away on August 13, 2008. The cause of death listed on his death certificate was combined drug intoxication: (morphine, hydrocodone, and methadone). In a May 2009 statement, the Appellant reported that the Veteran was treated at the Fresno VAMC from August 3 to August 11, 2008, that he received medication during this treatment, and that morphine was prescribed for his pain even though he was on other strong medications. In her April 2010 VA Form 9, the Appellant stated that the Fresno VAMC was responsible for erroneously prescribing the Veteran's medication that contributed to his death. During the May 2015 hearing, the Appellant testified that after the August 2 accident, the Veteran went to the hospital and was prescribed morphine. See Hearing Transcript, pp. 3-5. She said they returned to the Fresno VAMC on August 11 as the Veteran was complaining of pain and that he was given additional morphine. She said the Veteran was very tired, and that she expressed concern to the treating nurse because he had already been given strong medications; she stated that the Veteran was subsequently sent home. Id. at 6-7, 9. She testified that that the Veteran was not given written instructions on the change of his medications, but they were verbally instructed that the Veteran should take one dose of medication every four hours. Id. The Appellant reported that they returned home and that the Veteran took one dose and went to sleep later that evening. Id. at 10, 11. The Appellant's representative indicated that VA staff did not properly tell the Veteran how to use his pain medication and did not revise his other medications to account for the new medications, which resulted in VA staff administering a toxic level of a combination of pain medications. Id. at 12. In a statement received in September 2015, the Appellant wrote that on August 11, 2008, the Veteran was hospitalized and given morphine. She said that with the Veteran's heart condition and sleeping problem, he should not have been given the morphine and sent home heavily sedated, but should have instead remained in the hospital under close supervision until the medication wore off. The Appellant wrote that it was "common knowledge" that drugs remain in one's system for up to 30 days, and that VA care showed negligence and poor judgment. She added that the Veteran's documentation showed he was 100 percent disabled due to his heart condition. The Appellant submitted a VA discharge summary from October 2005 noting a diagnosis of atrial fibrillation status post ablation currently in sinus rhythm and a report of history of obstructive sleep apnea. There are two medical opinions of record. A May 2009 VA medical examiner noted review of the available records and opined that the hospital and medical care were less likely than not the cause of the Veteran's death. She reasoned that the August 11, 2008 clinician visit note clearly indicated the recommendations to the Veteran to decrease the Vicodin amount to four tablets a day, as well as to discontinue the morphine and start methocarbamol and methadone. Additionally, she stated that she could not assume without resorting to mere speculation about how the Veteran decided to manage his pain medication regimen; she added that the Veteran was clearly given the right recommendations regarding discontinuing his morphine and decreasing his amount of Vicodin. The Board obtained an independent medical examiner's (IME) opinion in August 2015. The opinion provider, who is an Interim Chairman of the Department of Internal Medicine, noted review of the claims file. The reviewer stated he had reviewed the prescribed doses, drug interactions, and physician oversight, and found that the medications prescribed, the doses, and the frequency of administration were within acceptable standards. He added that there was evidence from the medical record that medication reconciliation occurred at every encounter and that the physicians reviewed all prescribed medications on a regular basis. The reviewer wrote that none of the medications had any untoward interactions that should have been anticipated or that would have resulted in drug overdose. Additionally, the Veteran received multiple counseling sessions from a pharmacist regarding medication use. Furthermore, there was dose adjustment based on sound clinical data. The reviewer concluded that based on these findings, it was less likely than not that the Veteran's death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in managing the Veteran's medication. Additionally, the reviewer found that VA providers exercised the degree of care that would be expected of a reasonable health care provider. As to whether the Veteran's death was due to an event that was not reasonable foreseeable, the reviewer noted that there were some "confounding variables" that may have affected the Veteran's course of treatment. The Veteran was noted to have exceeded his prescribed dosages in the past and had been advised to remain within the prescribed ranges. The reviewer wrote that this could be interpreted to suggest the Veteran's drug treatment may not have been sufficient to control his pain. Alternatively, the reviewer continued, the Veteran may have developed a substance abuse problem given how long he had been on high doses of narcotics beyond what had been prescribed. The reviewer added that the Veteran's obesity may have affected the volume of distribution of medications, resulting in altered bioavailability. The reviewer explained that it could not be determined from the available evidence the extent to which these factors may have contributed to the overdose. However, the reviewer noted the fact that physicians actually tried to decrease the ingested doses implied that these factors could not have been foreseeable and would not have influenced the outcome. Based on these facts, the examiner found that it did not appear that the outcome was related to any foreseeable event, and that it was less likely than not that the Veteran's cause of death was related to physician factors including incompetence, negligence, or lack of attention to potential foreseeable adverse events. Based on the foregoing, the Board finds that the competent medical evidence weighs against the Appellant's claim. The August 2015 IME opinion is particularly persuasive as it was based upon a thorough review and analysis of the Veteran's records surrounding the time of his death. Based on this review, the IME concluded that the medical evidence of record did not indicate evidence of carelessness, negligence, lack of skills, errors in judgment, or instances of fault on the part of the VA or an event not reasonably foreseeable. The IME pointed to specific evidence including medication reconciliation and physician review of the Veteran's prescribed medications, as well as the Veteran's multiple counseling regarding the proper use of his medications. This reasoning demonstrates that the conclusions provided are supported by the relevant and material information in the clinical record. Moreover, the IME's opinion is factually accurate, fully articulated, and based on sound reasoning relying on the evidence of record. Indeed, the medical records including August 3 discharge instructions and an August 11 outpatient medication reconciliation note, both described the Veteran's prescriptions and dosage amounts and demonstrate the Veteran was made aware of the proper use of the prescribed medications. In light of the foregoing, the Board finds the August 2015 IME opinion to be highly persuasive evidence as to the question of whether entitlement to DIC benefits based on the provisions of 38 U.S.C.A. § 1151 is warranted. See Nieves-Rodriguez v. Peake, 22.Vet. App. 295 (2008). The Board is sympathetic to the Appellant in that it is clear she sincerely believes the Veteran's death was the result of treatment by VA. In that regard, the Appellant certainly is competent to report about her personal observations or impressions of the Veteran's care. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the most probative medical evidence of record does not support her contentions of as to the Veteran's death being caused by VA treatment. The question of whether the Veteran's death was due in some measure to carelessness, negligence, lack of skills, errors in judgment, or instances of fault on the part of the VA or an event not reasonably foreseeable, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a claimant is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Thus, the Board finds the August 2015 IME opinion to be of significantly greater probative weight given the IME's medical expertise and detailed rationale supporting his conclusions. Moreover, the Board affords lesser probative value to the assertions of the Appellant as they do not comport with other evidence of record. In her September 2015 statement, the Appellant wrote that the Veteran was service-connected for a heart condition, rated 100 percent disabling, and appeared to draw a link between this condition and the eventual drug overdose. However, a review of the record shows no service-connected heart condition, nor that the Veteran at any time filed or attempted to file a claim for such a condition. Moreover, the Veteran's death certificate shows his cause of death was not a heart condition, but the drug overdose. Additionally, the Appellant's representative argued that the Veteran was not given proper instructions regarding his medications. However as noted above, the medical evidence of record shows that on August 3 and August 11 the Veteran was provided instructions regarding his prescriptions and dosage instructions. Given the incongruence between the Appellant's assertions and the objective medical evidence of record, the Board finds these arguments to be outweighed by the medical evidence of record, including the August 2015 IME opinion. In sum, the preponderance of the probative evidence of record does not demonstrate that the Veteran's death was related to carelessness, negligence, lack of skills, errors in judgment, or instances of fault on the part of the VA or an event not reasonably foreseeable. As such, the criteria for service connection under 38 U.S.C.A. § 1151 have not been met. Although the Appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Death Pension Claim The Appellant seeks death pension benefits based on the Veteran's military service. In the May 2015 hearing testimony, the Appellant asserted that the Veteran had service in "the Lebanon war" in 1982 to 1983. See Hearing Transcript, pg. 16; September 2015 letter. The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521 (West 2014). The VA Secretary shall pay pension for non-service-connected disability or death for service to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in section 1521(j) of title 38, U.S. Code, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. 38 U.S.C.A. § 1541 (West 2014). A Veteran meets the service requirements if he or she served in the active military, naval, or air service (1) for 90 days or more during a period of war, (2) during a period of war and was discharged or released from such service for a service-connected disability, (3) for a period of 90 consecutive days or more and such period began or ended during a period of war, or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2014); 38 C.F.R. § 3.3(a)(3) (2015). For VA pension purposes, the periods of war are defined at 38 C.F.R. § 3.2 (2015). Specifically, according to 38 C.F.R. § 3.2, the Korean conflict is defined as the period beginning on June 27, 1950 through January 31, 1955. The Vietnam era is defined as the period beginning on February 28, 1961 and ending on May 7, 1975, for veterans who served in the Republic of Vietnam during that period. 38 U.S.C.A. § 101(29)(A) (West 2014); 38 C.F.R. § 3.2(f) (2015). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964 and ending on May 7, 1975. 38 U.S.C.A. § 101(29)(B), (33) (West 2014); 38 C.F.R. § 3.2(f) (2015). The DD Form 214 in the Veteran's claims file indicates he had active duty from May 10, 1976 to February 2, 1983. Additionally, his service personnel records indicate the Veteran was stationed in Germany from September 1977 to September 1979, and include no reference to Lebanon. Regardless, although the Appellant has twice asserted that the Veteran had service during a period of war, the Veteran's confirmed service does not include a recognized period of war as defined by the controlling regulation. The Appellant has not submitted any information that differs from the content in the Veteran's DD Form 214 or his personnel records, nor has she suggested that the Veteran had any additional service that would render her eligible for death pension benefits. Although the Veteran completed more than 90 days of active service, no part of his period of active service was completed during a period of war as defined by VA. For this reason, the Board finds that the Appellant is not eligible for death pension benefits. In this case, the law is dispositive, and basic eligibility for death pension benefits is precluded based upon the service of the Veteran; therefore, eligibility for death pension benefits must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2014) is denied. Entitlement to death pension benefits is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs