Citation Nr: 1547597 Decision Date: 11/10/15 Archive Date: 11/13/15 DOCKET NO. 12-09 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1151 for cause of the Veteran's death due to VA medical treatment. REPRESENTATION Appellant represented by: Jeany Mark, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to September 1965. He died in September 2004. The appellant is his surviving spouse. In September 2014, the Board denied the issue on appeal. The appellant appealed to the Veterans Claims Court. In April 2015, the Court Clerk granted a Joint Motion for Remand (JMR) and remanded the case for additional development in compliance with the JMR instructions. As the instant decision grants the issue on appeal, a remand by the Board for additional development is not necessary at this time. The appellant testified before the Board in July 2012. The Veterans Law Judge (VLJ) who conducted the hearing has since left the Board. She was offered another hearing but did not respond. Therefore, the Board will proceed to adjudicate the claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in September 2004. Although no autopsy was conducted, the immediate cause of death was found to be a drug overdose as a known consequence of severe degenerative arthritis with neck and back pain and alcoholism. 2. The Veteran's drug overdose death was proximately caused by an incorrect Methadone dosage prescription and was not the result of willful misconduct. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1151, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.154, 3.159, 3.361 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compensation under the provisions of 38 U.S.C.A. § 1151 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. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran's willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) the proximate cause of the disability 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. In determining whether a veteran sustained additional disability, VA compares his or her condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). 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). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). 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 disability or death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations as to 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). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is 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. As specified in 38 C.F.R. § 3.361(d)(2), 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. The appellant advanced that DIC benefits are warranted under 38 U.S.C.A. § 1151 due to VA negligently prescribing medications that resulted in the Veteran's death by overdose or interaction of the medications. He had a history of neck pain that was treated with narcotics by several different physicians. He took about 30 tablets of Oxycodone, 5 milligrams (mg) a day during the first two weeks of each monthly prescription cycle and about 20 to 25 tablets of Lortab 10 mg a day during the second two weeks of each monthly cycle. In mid-September 2004, the Veteran ran out of narcotics and began self-medicating with alcohol. Two days later, he was admitted to a VAMC for detoxification due to alcoholism. The active inpatient medications included: * Folic Acid, 1 mg one tab daily * Methadone, 30 mg three times a day * Phenobarbital, 32 mg one tab four times a day * Thiamine, 100 mg one tab daily After two days in the hospital, he was discharged. The active medications on discharge were: * Alprazolam, 1 mg one tab every six hours as needed * Chlordiazepoxide HCL, 10 mg one cap three times a day * Folic Acid, 1 mg one tab daily * Methadone HCL, 10 mg three tabs three times a day * Omeprazole, 20 mg one cap two times a day * Phenobarbital, 32 mg one tab four times a day * Thiamine HCL, 100mg one tab daily At the time of discharge, he left his Methadone medication at the VAMC. One day later, the VAMC mailed the medication to his residence. The following day, a VA physician prescribed a temporary Methadone prescription of 45 tablets, 10 mg, three tablets, three times a day for five days, until the Veteran received the full prescription. The VA physician noted that the Veteran had low potassium of 3.1, and the Veteran was given potassium. The following day, the Veteran was found dead in his apartment. The estimated time of death was the day before at 10:00 p.m. The official cause of death was drug overdose due to severe degenerative arthritis with neck and back pain and alcoholism. There was no autopsy or police investigation. Police seized all medications in the deceased Veteran's possession, and there is no record of what the medications were. VA received a private opinion report dated June 2015, along with the supporting documentation on which the opinion is based. The physician who rendered the opinion is board certified in internal medicine, along with pain and palliative care/hospice. The private physician began by reviewing all of the medical records concerning the relevant period in September 2004. After reviewing all the evidence and completing the relevant dosage and alcohol consumption calculations, the private physician opined that VA had acted negligently in prescribing the Veteran Methadone. Specifically, the private physician explained: It is my medical opinion that there was negligence in prescribing the Veteran Methadone. My argument points below are based on the literature attached to this opinion. When the Veteran arrived at the hospital he was intoxicated. He had a blood alcohol level of 324 mg/dL or 0.324 g/dL. 1) He never should have received Methadone in an intoxicated state. He was started on 20 mg three times a day for a TDD of 60 mg of Methadone that was then increased to a TDD of 90 mg methadone. 2) As the calculations above show this was not an equianalgesic dose based on the amount of narcotics he was used to taking. If he had not been intoxicated then an appropriate starting dose would have been about 20 mg TDD of Methadone. 3) There was escalation of the Methadone in too short a time period. Methadone has a progressively cumulative effect in the body. Therefore, an individual needs to be monitored for almost a week to see what dose is effective. If there is pain control achieved on the first day - as was indicated in the medical records - then the individual is already on too high a dose as they will overdose with that same dose by the 4-5th day. So not only was he started on too high a dose, that dose was then increased in too short a time period. Once Methadone is started - with correct equianalgesic conversions - the individual is monitored daily for almost a week. Pain control is usually achieved by day 4-5 and often the dose can even be lowed at this point as the methadone levels continue to escalate in the body. Methadone also has effects on cardiac conduction. 4) A baseline EKG was never done to see if there was a QT prolongation. 5) The Veteran was hypokalemic which can cause QT prolongation and to add Methadone to this can exacerbate the QT prolongation. 6) Additionally, the Veteran was continued on a cocktail of medications that do have interactions with Methadone. At the conclusion of the opinion, the private physician explicitly stated that VA failed to exercise the degree of care expected of a reasonable healthcare provider. Specifically, VA failed in its understanding of when and how to prescribe Methadone. The Veteran was started on Methadone while intoxicated, had low potassium, was not appropriately monitored, was given an improper dose escalation of Methadone, and was dosed at three to four times the appropriate amount. The private physician then went on to opine that these failures ultimately led to the Veteran's death. As stated another way, VA's incorrect Methadone dosage prescription proximately caused the Veteran's subsequent death by drug overdose. At the July 2012, Board videoconference hearing, the appellant testified that a VA doctor had told her that the VA doctors had improperly started the Veteran on Methadone before actually knowing what was in his blood stream. Further, she testified that a private doctor noted that the Veteran's potassium level of 3.1 was dangerous low, and that he should not have been allowed to leave the hospital at that time. In July 2014, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). Specifically, a VA pharmacist opined that VA did not fail in exercising the degree of care expected of a reasonable healthcare provider; that, due to the absence of an autopsy, there was inconclusive evidence as to whether the death was caused by medical illness, methadone overdose, or respiratory depression due to multiple drug interactions; and that, while high, the methadone dosage prescribed in September 2004 was not out of the ordinary. Pursuant to the April 2015 JMR, the parties agreed that the July 2014 VHA opinion was inadequate as it was based upon an inaccurate factual basis. Specifically, the VA pharmacist stated that the drugs Methadone, Alprazolam, and Chlordiazepoxide were the only drugs in the Veteran's possession at the time of death. However, as had been explained in the VHA opinion request, it was unknown what drugs he had access to at the time of his death due to the officers confiscating all of the drugs. As such, the VHA opinion is of lesser probative value. Further, the evidence reflects that the Veteran's overdose was accidental and not due to the Veteran's failure to follow the prescription instructions or other willful misconduct. The private physician specifically noted in the opinion that the Veteran had been prescribed too high of a Methadone dosage that would have resulted in an overdose within four to five days. There is no evidence of record, particularly in light of the fact that no autopsy was conducted, indicating that he took a higher dosage of Methadone than the already too high dose prescribed by VA. As such, the Board does not find that the Veteran's overdose was due to his own willful misconduct. In sum, the private opinion supports the conclusion that VA failed to exercise the degree of care that would be expected of a reasonable health care provider by negligently prescribing the Veteran an incorrect (too high) dosage of Methadone, which proximately lead to his death by drug overdose. The overdose was not the result of the Veteran's willful misconduct. Therefore, resolving reasonable doubt in the appellant's favor, compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death due to VA medical treatment is warranted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board grants compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. As such action represents a complete allowance of the claim as to the issue on appeal, no further discussion of VA's duties to notify and to assist is necessary. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death due to VA medical treatment is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs