Citation Nr: 1704728 Decision Date: 02/16/17 Archive Date: 02/24/17 DOCKET NO. 12-10 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the Veteran's cause of death under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to March 2004. He died in October 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2016 the appellant testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran died in October 2009 and the cause of death was acute oxycodone toxicity. 2. The Veteran's death, which was caused by acute oxycodone toxicity, was a consequence of VA treatment of the Veteran's PTSD specifically due to carelessness, negligence, lack of proper skill, error in judgement or similar instance on the fault of the VA. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1151 have been met. 38 U.S.C.A. §§ 1151 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the Veteran died as a result of negligent treatment provided by the VA and that she is therefore entitled to DIC under the provisions of 38 U.S.C. § 1151. DIC shall be awarded for a qualifying veteran's death if the death was not the result of the veteran's willful misconduct and the death was caused by hospital care or medical treatment furnished by the VA and the proximate cause of the 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. See 38 U.S.C.A. § 1151. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's death. Merely showing that a veteran received care, treatment, or examination and that the veteran died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2016). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). The determination of whether the proximate cause of a veteran's death was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. Schertz v. Shinseki, 26 Vet. App. 362 (2013). The event does not have to 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. 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. 38 C.F.R. § 3.361(d)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran died in October 2009. His Certificate of Death lists the cause of death as due to acute oxycodone toxicity. At the time of the Veteran's death, service connection was in effect for PTSD, bilateral toe scars and dermatitis of the bilateral hands and feet. In the present case, the Veteran was hospitalized at the Salisbury VAMC in September 2009 for exacerbation of his PTSD, specifically for an increase in his PTSD symptoms of feeling angry, having visual hallucinations and feeling hypervigilant. He was heavily medicated to obtain sleep and then his medications were reduced and changed. A VA psychiatrist noted that the Veteran requested immediate discharge on October 2nd, due to RMS recommendation of discontinuation of pain medications. The psychiatrist noted that he was reluctantly discharging the Veteran regularly rather than an against medical advice discharge, due to his improving symptoms. He was discharged on October 2, 2009 with the active medication prescriptions of ibuprofen, linisopril, testosterone injections, terbinafine cream and triamcinolone cream for all his service connected disabilities of PTSD, bilateral toe scars and dermatitis of the hands and feet, and the new outpatient prescriptions for alprazolam, citalopram, divalproex, methocarbamol, oxycodone, prazosin and zolpidem. See Salisbury VAMC Discharge Report October 2009. In an October 2009 VA record, a suicide prevention coordination at the Salisbury VAMC noted speaking with a detective investigating the death of the Veteran. The report notes the detective's belief that this was probably an accidental death and that there was no indication of a suicide attempt. An August 2010 VA opinion noted the manner of death was accidental and that he was discharged with 60 oxycodone pills, among other medications. At the appellant's July 2016 Board hearing, she testified that the Veteran was not trained or counseled on the risks of any newly prescribed medications. She specifically noted the discharging psychiatrist's report that he reluctantly discharged the Veteran. See July 2016 Board Hearing Transcript, p.8. The appellant's representative noted the educational program for patients on the use of opioids entitled Saving Veterans Lives for Implementation of Opioid Overdose and emphasized that the Veteran did not receive such training. See id. at p. 9. The appellant thereafter indicated that it was this lack of knowledge and careless prescription of pain medication that led to the Veteran's accidental toxicity. In October 2016 the Board requested an expert opinion regarding whether the Veteran's death was due to any carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault on the part of the VA in furnishing care to the Veteran and whether such treatment caused or hastened the Veteran's death. In response to the request for an expert opinion, in January 2017 Dr. C.N. noted that it was clear from the record that the Veteran was prescribed opioids for either his back or knee pain. He stated that while the dose of oxycodone that was prescribed was not likely to cause overdose, all of the medications that the Veteran was taking combined for all of his disabilities could be additive to the activity of oxycodone or its sedating properties, thereby increasing the risk of overdose. The examiner further noted the documentation that the Veteran complained of being overmedicated the day he was discharged. Therefore, the examiner concluded that a lack of proper skill or an error in judgement took place at the hospital in October 2009, and that it is at least as likely as not that the Veteran's treatment with oxycodone and other new medications caused, hastened or materially contributed to the Veteran's death. Applying the legal criteria above to the facts in this case, the Board finds that the criteria for an award of DIC under the provisions of 38 U.S.C.A. § 1151 have been met. As an initial matter, there is no evidence to suggest that the Veteran's death was due to his own misconduct. Additionally, the Board finds that the weight of the evidence indicates that VA treatment proximately caused the Veteran's death, as a result of carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault on the part of the VA. There is evidence suggesting that the discharging VA doctor's treatment of the Veteran with oxycodone and other sedating medications without the proper cautionary measures ultimately led to the Veteran's death. In this regard, the Veteran's death certificate lists the cause of death as oxycodone toxicity and the January 2017 expert doctor opined that "it is at least as likely as not that the treatment with oxycodone and other new medications caused, hastened or materially contributed to the Veteran's death." See January 2017 VHA Response. Thus, as the evidence shows that the Veteran's death was a result of carelessness, negligence, lack of proper skill, error in judgement or similar instance on the fault of the VA, the criteria for establishing entitlement to DIC under 38 U.S.C.A. § 1151 are met. ORDER Service connection for the Veteran's cause of death under the provisions of 38 U.S.C.A. § 1151 is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs