Citation Nr: 1801372 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-16 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for a heart disorder, to include arteriosclerotic heart disease, coronary artery disease (CAD) and congestive heart failure (CHF). 2. Entitlement to compensation under 38 U.S.C. § 1151 for a lung disorder, to include chronic obstructive pulmonary disease (COPD) and restrictive lung disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to June 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain all outstanding VA treatment records and request the Veteran to complete and return authorization to obtain any outstanding private treatment records. The Board notes that updated treatment records have been obtained and associated with the claims file. In addition, the Board found prior VA medical opinions inadequate to adjudicate the claims on appeal and directed the AOJ to obtain a new VA medical opinion. The Board notes that new VA medical opinions were obtained in November 2016 and February 2017 and have been associated with the claims file. The Board has reviewed the examination reports and finds they are adequate to adjudicate the issues on appeal. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In June 2015, the Veteran testified at a Board videoconference hearing. A copy of the transcript of that hearing has been associated with the claims file. In a September 2017 letter, the Board notified the Veteran that the Veterans Law Judge who conducted his June 2015 hearing was no longer employed by the Board. Accordingly, the Veteran was advised of his right to another optional Board hearing. In October 2017, the Veteran notified the Board that he did not wish to appear at another Board hearing. Lastly, the Board notes that a November 2015 rating decision denied service connection for depression. That same month, the Veteran submitted a notice of disagreement (NOD). Additionally, during the pendency of the appeal, a December 2016 rating decision granted service connection for bilateral hearing loss. In January 2017 the Veteran filed a NOD with the assigned disability evaluation. Both the November 2015 and January 2017 NODs requested informal DRO conferences prior to issuance of a statement of the case (SOC). However, the record shows that the Agency of Original Jurisdiction (AOJ) has not conducted an informal DRO conference or issued a SOC addressing those issues. The AOJ is clearly aware of the NODs and the outstanding requests for informal DRO conferences; accordingly, those claims are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's heart disability 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 not reasonably foreseeable. 2. The Veteran's diagnosed lung disability 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 not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for a heart disorder have not been met. 38 U.S.C. § 1151, 5103A, 5107 (2012); 38 C.F.R. § 3.361 (2017). 2. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for a lung disorder have not been met. 38 U.S.C. § 1151, 5103A, 5107 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with a 38 U.S.C. § 5103(a)-compliant notice in January 2012. The record shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examinations of the Veteran. Neither the Veteran nor his representative identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed.Cir. 2015). Compensation Under 38 U.S.C. § 1151 Under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.358, 3.361 (2017). For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). Since the Veteran filed his claim after that date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1) (2012); 38 C.F.R. § 3.361 (2017). In determining that additional disability exists, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b) (2017). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2017). 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 diagnoses and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2017). 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. 38 C.F.R. § 3.361(c)(3) (2017). 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 VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1) (2017). 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. 38 C.F.R. § 3.361(d)(2) (2017). Compensation or dependence and indemnity compensation (DIC) are payable under 38 U.S.C. § 1151 "as if" the additional disability or death were service-connected. The only time the term "service-connected" is used in the context of a § 1151 case is while explaining the provision of law that states that compensation shall be awarded "in the same manner" as if such disability, aggravation, or death were service-connected. Anderson v. Principi, 18 Vet.App. 371, 376 (2004) (a claim under § 1151 is not a claim for service connection: the disability is not to be treated generally as if it were service-connected). Compensation awarded under § 1151 reflects a disability rating and effective date, just like a service-connected disability. Service connection is considered the greater benefit over § 1151 compensation because a veteran receiving compensation under § 1151 is not entitled to all ancillary benefits that are payable to veterans with service-connected disabilities. 1. Factual Background The Veteran asserts he is entitled to compensation under 38 U.S.C. § 1151 based on an act of omission. Specifically, the Veteran asserts that his heart and lung condition resulted from medications prescribed during a treatment trial and that VA failed to properly identify, monitor and treat the resulting adverse events. VA medical records show the Veteran participated in the Action to Control Cardiovascular Risk in Diabetes (ACCORD) trial which was conducted by Dr. JB. An initial screening occurred in September 2004 which noted the Veteran qualified for the study, that the Veteran was given the informed consent form, read it, asked questions about the study and signed the consent form. In October 2004, the Veteran was placed in the intensive glycemic/lipid control group. In November 2004, the Veteran was prescribed Avandia, metformin and other drugs. A November 2005 VA ACCORD medical record shows the Veteran reported feeling good, staying active and eating and sleeping well. In June 2006, the Veteran reported that his legs were swollen at the end of the day after being on them. In addition, he stated that his legs were better in the morning. He further reported that when he took acarbose three times per day it made him bloated. A February 2007 VA medical record from Dr. JB noted the Veteran complained of some shortness of breath that occurred when he exerted himself a lot during the past year. Dr. JB referred the matter to the Veteran's primary care physician. A March 2007 VA primary care medical record shows the Veteran reported worsening shortness of breath over the past year with increased swelling in his legs. The physician noted a dry cough and the Veteran denied any chest pain or previous cardiovascular problems. The physician diagnosed the Veteran with shortness of breath possibly due to heart failure and ordered an echocardiogram. In addition, the physician diagnosed the Veteran with bilateral lower extremity edema. An echocardiogram performed in March 2007 revealed a diagnosis for a pericardial effusion. The Veteran had a pericardial drain placed to drain fluid. Thereafter, the Veteran was hospitalized for several recurrent pericardial and pleural effusions between April and June 2007. With regard to the pleural effusions, a June 2007 chest X-ray revealed increased opacity in the left lung consistent with a history of recent talc pleurodesis used to treat the pleural effusion. An April 2007 VA primary care medical record noted that while the Veteran was hospitalized his metformin was stopped because his creatinine had gone up. A lab result showed the creatinine level at 1.3 and the Veteran was continued on metformin. An August 2007 MUSC progress note shows the Veteran had been hospitalized on six occasions. The hospitalizations began with a pericardial effusion with tamponade requiring an emergency pericardial window. The physician noted recurrent fluid accumulations and pleural effusions that required surgical procedures to fix the pleura to the rib cage. The pericardial and pleural effusions were of an unknown etiology with no infectious etiology found and no connective tissue or other inflammatory etiology determined. The physician noted a normal nuclear stress test and no angina like chest pain, no overt heart failure and a normal systolic function. He did note a mild diastolic dysfunction and expressed concern that the Veteran had discontinued use of his CPAP machine to treat his obstructive sleep apnea (OSA). Another August 2007 MUSC record shows the Veteran was treated for dyspnea. The treating physician noted dyspnea of unclear etiology, but did note airflow obstruction. In this regard, the physician noted the Veteran smoked three packs per day until 1989, and opined that the symptoms were most likely a manifestation of COPD. An October 2007 VA mental health note shows the Veteran reported that he felt the research drug Avandia pushed him into CHF. The Veteran additionally reported that he felt MUSC mismanaged his fluid aspiration which caused a collapsed lung. A February 2008 letter from a VA Medical Center notified the Veteran that the ACCORD intensive treatment group was being changed to the standard treatment group. The change was made due to a higher risk of death in the intensive group versus the standard group. A March 2008 VA medical record shows the Veteran was last seen as part of the ACCORD trial in April 2007. The record also shows the Veteran refused to come back for a follow-up appointment after developing a pericardial effusion which required pericardial stripping in May 2007. The record further shows that the Veteran and his spouse felt his pericardial effusions were secondary to Avandia. Dr. JB noted that an echocardiogram showed a preserved systolic function which would go against any abnormality associated with Avandia. The physician further noted that the Veteran's heart doctor had taken him off Avandia and his urologist had taken him off metformin. Lastly, the physician noted the Veteran was on home oxygen. Dr. JB further noted that the drug manufacturer had been written and could find only an association with pleural and pericardial effusion accompanied with heart failure. Accordingly, Dr. JB opined that the study medications were not responsible for the Veteran's current medical conditions. The Veteran underwent a VA heart examination in December 2012. The examiner opined that the claimed heart and lung condition was "less likely as not the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault in furnishing hospital care, medical or surgical treatment or examination" by the VA medical center. In support of her opinion, the examiner noted a longstanding history of diabetes and a body mass index that had been in the morbid obesity range for years. In addition, the examiner found the Veteran had been seen and received timely, appropriate treatment for his pericardial effusion which was found to be of unknown etiology. The examiner further noted a 2010 right heart catheterization and a 2011 echocardiogram that were normal. With regard to the Veteran's lung condition, the examiner supported her opinion by noting that OSA was most commonly the result of obesity and the aging process. The examiner further noted that the Veteran's OSA had gone untreated by the Veteran's choice and that his body mass index had continued to rise. At a November 2013 DRO hearing, the Veteran's spouse testified that the Veteran had an echocardiogram performed before he began the ACCORD study which demonstrated he had a good heart. She further testified that the Veteran was placed in the intensive study group in October 2005 and later that year they began noticing swelling including bloating in the stomach, ankles, feet and legs. In addition, she testified that the Veteran's VA doctor was informed that he was swelling, but that the doctor thought the he needed to lose weight. She further stated that in March 2007 the Veteran's fluid retention had got so bad he could not breathe. At that point, the Veteran's VA physician contacted the primary care doctor and the Veteran underwent an echocardiogram. Due to the results of the echocardiogram, the Veteran was admitted to the hospital due to fluid in the pericardium. Thereafter, the Veteran was taken off Avandia and metformin by a private doctor, but that the VA physician placed the Veteran back on those medications. Following the resumption of Avandia and metformin, she stated the Veteran underwent a pericardia window due to fluid build-up, and went through that procedure a number of times due to continued fluid build-up. Following those procedures, the Veteran reportedly suffered a heart attack and his pericardium was removed from around his heart. She further stated that fluid had built up around the Veteran's lungs and he underwent a pleural effusion with talcum slurry. She testified that the Veteran had been on oxygen since that procedure. The Veteran's spouse also asserted that a doctor at MUSC stated the Veteran did not have COPD and that his current lung condition was caused by the pleural effusion and talcum powder slurry. Lastly, the Veteran stated that he was part of class action tort claim against the manufacturer of Avandia and that he received a $9,000 settlement. The Veteran underwent another VA examination in January 2014. Based on a review of the record, the examiner found no evidence of carelessness, negligence, lack of proper skill or error in judgement by the VA medical center. The examiner also opined that it was "less likely than not" that the pericardial effusion was caused by the Veteran's use of Avandia. The examiner noted the Veteran was started on Avandia in November 2004 and tolerated the medication well for 2 1/2 years prior to the onset of his symptoms. The examiner further noted the Veteran was seen for possible heart failure in March 2007. Later that month, the Veteran was found to have a large pericardial effusion and underwent pericardiocentesis. Other concurrent medical problems noted included COPD, diabetes, CAD, and morbid obesity. The examiner did recognize that Avandia was known to cause systolic CHF, but that the Veteran did not have that condition as an echocardiogram showed a preserved systolic function. Additionally, the echocardiogram noted a diastolic dysfunction which was likely due to the Veteran's diagnosed OSA. In addition, the examiner noted that cardiology found no etiology of the effusion but felt it was likely a post-viral pericarditis as the Veteran had a flu-like illness prior to the onset of his pericardial effusion. The examiner concurred with that assessment. In a July 2015 Decision, the Board found both the December 2012 and January 2014 VA examinations inadequate to adjudicate the issues on appeal. Specifically, the Board found that neither VA examiner addressed all of the Veteran's contentions as to how VA care, or lack thereof, caused his heart conditions, surgeries and additional disabilities. Accordingly, the Board remanded the matter and requested a new VA examination. The Veteran underwent another VA examination in November 2016. The Veteran was diagnosed with arteriosclerotic heart disease, CAD and CHF. The examiner opined that the Veteran's heart issues were "at least as likely as not a direct result of the VA treatment according to the ACCORD trial he was put on." The examiner additionally opined that it was "at least as likely as not" that the heart issues were caused by the medications taken in connection with the ACCORD trial. The examiner based this finding on known side effects of Avandia on the heart including heart attacks and that the drug had a black box warning for use in patients with heart failure. However, the examiner noted that the Veteran was screened via an echocardiogram prior to his enrollment in the trial which ruled out heart failure. Thus, the examiner ultimately opined that the VA provider did all the necessary testing prior to starting the Veteran on Avandia and that the development of a heart condition was an "unforeseeable event." The examiner also diagnosed the Veteran with COPD and restrictive lung disease. The examiner found that the current lung condition was a direct result of the Veteran's heart condition. As such, the examiner opined that the lung condition was directly related to medications used during the ACCORD trial. Another VA medical opinion was obtained in February 2017. Based on a review of the record, the examiner opined that claimed heart and lung disabilities were "less likely than not" caused by or became worse as a result of VA treatment. In addition, the examiner opined that the additional disability "less likely than not" resulted from carelessness, negligence, lack of skill, or similar incidence, nor the fault on the part of the attending VA personnel. Lastly, the examiner opined that it was "less likely than not" that the additional disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability, or allowed the disease or disability to continue to progress. In support of his opinions, the examiner found the Veteran was well monitored during the ACCORD trial. The examiner noted the Veteran had a documented diagnosis of COPD and had a 70 pack a year smoking history which was more likely than not the cause of his pulmonary disability rather than the ACCORD trial. The examiner further noted a history of pneumovax with pleurodesis from pneumothorax which pre-dated the ACCORD trial. Therefore, the examiner found that the pre-existing respiratory conditions caused the current restrictive processes. The examiner also noted a long standing history of hypertension. In an October 2017 letter, the Veteran asserted that he and his wife tried to explain his swelling to Dr. JB, but that the physician would not listen. He further stated that an echocardiogram prior to being placed on Avandia showed he had a heart that "was in great shape." Since the Avandia trial, the Veteran asserted that he had been seen in the hospital many times including for 4 heart attacks and 3 stent implants, and that he is currently wheelchair bound with a pacemaker and oxygen. 2. Legal Analysis After a review of the evidence of record, the Board finds that entitlement to compensation under 38 U.S.C. § 1151 for a heart and lung condition is not warranted. The Veteran has maintained that as a result of improper care in monitoring him during the ACCORD trial, he developed a heart and lung condition. Initially, the Board notes that the threshold element for 38 U.S.C. § 1151 compensation, the presence of a qualifying additional disability, has been met in this case. The record establishes that the Veteran developed a pericardial effusion during the course of the ACCORD trial in March 2007, and that he was treated for pericardial and pleural effusions between March and June 2007. The Veteran has been diagnosed with a heart condition, to include arteriosclerotic heart disease, CAD and CHF, and a lung condition, to include COPD and restrictive lung disease. The remaining question is whether the diagnosed heart and lung conditions were proximately caused by VA's care, treatment, or lack thereof. To establish causation, evidence must show that VA medical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and has additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). The Board finds that the weight of the evidence does not establish that the Veteran's heart or lung conditions are due to VA's carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault. Initially, the Board notes the contemporary VA medical records do not demonstrate that the Veteran's VA provider would not listen to his reports of swelling prior to the onset of the pericardial and pleural effusions. In June 2006, Dr. JB noted that the Veteran reported swollen legs at the end of the day after being on them. Dr. JB also noted that the Veteran reported that when he took acarbose three times per day it made him bloated. The record does not support the Veteran or his spouse's assertion that in late 2005 they began noticing swelling including bloating in the stomach, ankles, feet and legs, and that Dr. JB would not listen to those complaints. The Veteran has also been provided with several VA examinations, all of which clearly address these concerns. Initially, the Board notes that the November 2016 and February 2017 VA examination reports offered conflicting opinions as to the etiology of the Veteran's current heart and lung conditions. However, the November 2016 VA examiner found that the VA provider did all the necessary testing prior to starting the Veteran on Avandia. Additionally, after a review of the evidence of record, the February 2017 VA examiner found the Veteran was well monitored during the ACCORD trial. While the December 2012 and January 2014 VA examination reports were previously found inadequate to adjudicate the issues on appeal, both medical examiners found no evidence of carelessness, negligence, lack of proper skill or error in judgement by the VA medical center, and that the Veteran had been seen and received timely and appropriate treatment for his pericardial effusion. Thus, both the December 2012 and January 2014 VA examination reports add weight to the conclusion that the Veteran's heart and lung conditions were not due to VA's carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault. However, as noted above, the proximate cause of the disability, alternatively, may be an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361 (d)(2). 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. 38 C.F.R. § 3.361(d)(2). 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. Id. In this regard, the Board notes that the November 2016 and February 2017 VA examiners again offered conflicting medical opinions as to the etiology of the Veteran's heart and lung conditions. The November 2016 VA examiner found that the Veteran's heart condition was an adverse event caused by medication taken in connection with the ACCORD trial (specifically Avandia), that the lung condition was directly related to the heart condition, and that the development of the Veteran's heart condition due to his prescribed medication was an unforeseeable event. Conversely, the February 2017 VA examiner did not find that the heart or lung conditions were caused by medication taken in connection with the ACCORD trial. Even in providing the Veteran with the benefit-of-the-doubt that his heart and lung conditions were caused by medication taken in connection with the ACCORD trial, the evidence of record does not support a finding that such development was an unforeseeable event. Prior to his participation in the ACCORD trial, the Veteran underwent a screening process including an echocardiogram. As noted by the November 2016 VA examiner, heart problems were known side effects of Avandia and the drug included a black box warning for use in patients with heart failure. Therefore, the development of a heart condition due to the use of Avandia cannot be said to be reasonably unforeseeable. In this respect, the Board finds that the November 2016 VA examiner appears to have misunderstood what "not reasonably foreseeable" meant in the context of proximate cause as the examiner also found that the VA provider did all the necessary testing prior to starting the Veteran on the medication. Simply put, the positive medical opinion acknowledges that the disorders at issue are known to be potential side effects of the medication, but nevertheless believed the development of the disorders were not reasonably foreseeable because the Veteran did not have any heart problems prior to starting the trial. That is not what is contemplated by "not reasonably foreseeable". The fact that the drug at issue was known to have potential side effects of the type the Veteran experienced from the drug demonstrates that the resulting disorders were in fact foreseeable. The examiner's opinion lacks a sound basis. It is important for the Veteran to understand that the Board is no disputing the fact that his heart and lung conditions may be associated with the use of Avandia during the ACCORD trial. In this regard, the Board recognizes the Veteran's assertion that he was part of a class action lawsuit against the manufacturer of Avandia and was awarded a settlement. However, whether the Veteran reached a settlement with the drug manufacturer does not address the issues currently on appeal; specifically whether the Veteran developed a heart and/or lung condition due to the negligence of his VA provider. Moreover, the record reflects that prior to his participation in the ACCORD trial, the study was explained to the Veteran, he was given the consent form, afforded the opportunity to read the consent form and ask questions, and that the Veteran chose to have the recommended treatment. There are no other opinions of record addressing standard of care or foreseeability. The Board has also considered statements provided by the Veteran and his spouse. Nonetheless, neither is competent to opine on questions of causation, medical negligence, or reasonable foreseeability of medical risks particular to the use of medications used in the ACCORD trial. These determinations are based upon findings that are medically complex in nature and simply not readily amenable to lay comment. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease that necessarily involved complex medical issues). Indeed, contrary to their assertions, the medical evidence shows that VA was not careless, negligent, used lack of proper skill, or demonstrated error in judgment, or similar instance of fault. The evidence also shows that the complications claimed by the Veteran were reasonably foreseeable as they were known side effects and contained in the drugs black box warning. Thus, under these circumstances, the claims for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a heart disorder is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a lung disorder is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs