Citation Nr: 18140889 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-42 742 DATE: ORDER Entitlement to compensation for side effects of Gabapentin including drowsiness, fatigue, swelling of hands and feet, persistent coughing, fever, increased moodiness, depression, inability to think clearly, forgetfulness, feelings of uneasiness, dizziness, and trouble breathing pursuant to 38 U.S.C. §1151 is denied. FINDING OF FACT The side effects the Veteran experienced as a result of taking Gabapentin were not the proximate cause of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA when they treated the Veteran’s pain, and the symptoms were a reasonably foreseeable result of the treatment. CONCLUSION OF LAW The criteria for entitlement to compensation for side effects of Gabapentin including drowsiness, fatigue, swelling of hands and feet, persistent coughing, fever, increased moodiness, depression, inability to think clearly, forgetfulness, feelings of uneasiness, dizziness, and trouble breathing pursuant to 38 U.S.C. §1151 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1963 to August 1966 and from November 1966 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah (Agency of Original Jurisdiction (AOJ)). The Board acknowledges that the Veteran has a separate appeal stream pertaining to a claim for entitlement to the following: an increased rating for bilateral hearing loss; whether new and material evidence has been received to reopen the Veteran’s claims for defective vision, high blood pressure, tension headaches, and generalized anxiety disorder; and compensation pursuant to 38 U.S.C. § 1151 for staphylococcus infection. This appeal has not yet been received by the Board and thus, it is not before the Board for adjudication at this time. 1. Entitlement to compensation for side effects of Gabapentin including drowsiness, fatigue, swelling of hands and feet, persistent coughing, fever, increased moodiness, depression, inability to think clearly, forgetfulness, feelings of uneasiness, dizziness, and trouble breathing pursuant to 38 U.S.C. §1151 Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c)(1). See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013) (additional disability was caused by VA medical treatment where injury was due to improperly installed restroom grab bar, as equipment specifically designed to assist the disabled are a necessary component of the health care services VA provides). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran filed his claim pursuant to 38 U.S.C. § 1151 regarding the purportedly incorrect medication in June 2015. At that time, he claimed to be experiencing side effects including drowsiness, fatigue, swelling of hands and feet, persistent coughing, fever, increased moodiness, depression, inability to think clearly, forgetfulness, feelings of uneasiness, dizziness, and trouble breathing from a medication he was prescribed called Gabapentin. See June 2015 Application for Compensation and Pension. The Veteran alleges that his doctor, Dr. O.G., failed to prescribe a medication known to alleviate the Veteran’s pain caused by his lower back condition, Hydrocodone, and instead negligently prescribed Gabapentin. He says that he protested taking the medication due to the side effects, but Dr. O.G. would not order Hydrocodone to help with his pain. See June 2015 Third Party Correspondence. A review of the record reveals that the Veteran was initially prescribed Gabapentin, Norco (Hydrocodone), Flexeril, and Flomax in October 2014, as he was experiencing significant tenderness and chronic pelvic pain. See November 2015 CAPRI Records. Subsequent notes reflect that the Veteran experienced negative side effects that he contends were related to the Gabapentin; these notes recorded that he had difficulty breathing, he was yelling at his wife, and he felt mentally ill. Id. A medical opinion was provided by L.C., a physician assistant, who opined that it was not at least as likely as not that the Veteran’s symptoms of fatigue, swelling of hands and feet, persistent coughing, fever, increased moodiness, depression, inability to think clearly, forgetfulness, feelings of uneasiness, dizziness, and trouble breathing were caused by or worsened as a result of negligent VA treatment. See August 2015 C&P Examination. L.C. noted that the Veteran requested a refill in January 2015 (and the Board notes refills were requested on several other occasions), and in April 2015 his Gabapentin prescription was increased from 300 mg TID to 600 mg TID. The following month, the Veteran claimed he was no longer going to take the medication because he was concerned about the side effects and his allergies to other medications. Id. L.C. noted that Gabapentin is a controlled substance, but is widely used to treat neuropathic pain; it is not uncommon for this medication to be used in conjunction with other analgesics like opiates and NSAIDs to better treat the various pathways associated with pain. See August 2015 C&P Examination. That being said, the symptoms the Veteran experienced are all known, potential side effects of the drug and L.C. believed the physician was acting in good faith when he increased the dosage to optimally control the Veteran’s pain. He said there is no indication that the prescriber acted in carelessness, negligence, lack of skill, or similar incidence of fault, and there was no additional disability that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. Lastly, he stated there was no failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability, nor allowed the disease or disability to continue to progress. Id. After this opinion was provided, the AOJ denied the Veteran’s claim pursuant to 38 U.S.C. § 1151 in an August 2015 rating decision. See August 2015 Rating Decision. The Veteran filed a timely Notice of Disagreement in September 2015, and subsequently perfected his appeal in November 2015. See September 2015 Notice of Disagreement; see also November 2015 VA Form 9. The Board finds that the criteria for compensation under 38 U.S.C. § 1151 are not met because the weight of the evidence is against finding any “additional disability” caused by or the result of Dr. O.G.’s care. As L.C. noted, there is no indication that Dr. O.G. acted in carelessness, negligence, lack of skill, or similar incidence of fault when prescribing the Veteran Gabapentin. Furthermore, there was no additional disability or chronic side effects that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; the side effects of the medication that the Veteran experienced were known. The Board thus finds that the Veteran’s claim for entitlement to compensation for side effects of Gabapentin including drowsiness, fatigue, swelling of hands and feet, persistent coughing, fever, increased moodiness, depression, inability to think clearly, forgetfulness, feelings of uneasiness, dizziness, and trouble breathing pursuant to 38 U.S.C. §1151 must be denied. T. Mainelli Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel