Citation Nr: 20021293 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-63 154 DATE: March 25, 2020 ORDER Entitlement to dependency and indemnity compensation under 38 U.S.C. § 1151 is denied. FINDINGS OF FACT 1. The Veteran died in April 2012 as a result of congestive heart failure, secondary to coronary artery disease present for 15 years prior to the Veteran’s death. 2. The evidence does not establish that the Veteran’s death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault due to VA treatment, and was not caused by an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to dependency and indemnity compensation under 38 U.S.C. § 1151 have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to May 1976. This Veteran died in April 2012. The appellant is the Veteran’s surviving spouse. Entitlement to dependency and indemnity compensation under 38 U.S.C. § 1151 The appellant contends that the Veteran’s death was caused by Hydralazine, a medication he received at the VA Medical Center in Decatur, Georgia on April 19, 2012. She asserts that the VA medical staff neglected the Veteran by not watching over him carefully, and by giving him Hydralazine, aware that it could cause very fast heartbeats and sudden death. Unfortunately, because the Veteran’s death was not caused by VA-provided care, the Board must deny the instant claim. Compensation under this Chapter and DIC under Chapter 13 of this Title 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. For purposes of this section, a disability or death is a “qualifying additional disability” or “qualifying death” if the disability or death was not the result of the veteran’s willful misconduct and; (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A); and (2) 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. Thus, to establish entitlement to Section 1151 benefits, three requirements must be shown: (1) a disability/additional disability or death; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability or death; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from a reasonably foreseeable event. Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements. Actual causation is required. 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 the veteran has an additional disability or died does not establish cause. 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. 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). Here, the appellant asserts that the VA providers caring for her husband gave him Hydralazine, knowing it could cause a fast heartbeat, which caused his death. Unfortunately, while a qualifying death has been shown, the evidence does not indicate that it was caused by VA-provided care. The Veteran was admitted on April 16, 2012, with exacerbation of his congestive heart failure (CHF). The patient had reported at least four weeks of progressive abdominal bloating, early satiety, cough, and worsening leg edema. The Board notes that due to his early satiety, he had not been compliant with his medication, as he did not want to take it on an empty stomach. While hospitalized, the Veteran developed new onset supraventricular tachycardia (SVT). He was transferred to critical care to administer intravenous Amiodarone for control. The nursing staff attempted to stabilize fluctuations in the Veteran’s heart rate, but he passed away after a sudden drop. The Veteran’s death certificate indicates that his immediate cause of death was congestive heart failure, present three years prior to death, due to his 15-year coronary artery disease. As an initial matter, it is clear that the Veteran’s died while under VA care. Therefore, the only question before the Board is whether the treatment he received was somehow faulty or, in the alternative, whether the event was reasonably foreseeable. After a review of the evidence, the Board determines that neither was the case. Specifically, the day after the Veteran died, his treating physician opined in an April 2012 note that his death was likely from pump failure secondary to advanced systolic heart failure. In other words, the Veteran died because his heart was weakened by years of blocked arteries, not the medication he received. Moreover, a September 2015 C&P opinion cited a recent study of FDA-reported adverse reactions to Hydralazine, concluding that while Hydralazine is known to increase heart rate, it would only rarely cause supraventricular tachycardia, compared to other drugs that cause SVT. From this the Board can conclude that, first, the use of Hydralazine was not unusual and, second, it is unlikely that the use of this drug caused or hastened the Veteran’s death. While this opinion does not apply its reasoning to the Veteran’s specific case, a January 2020 opinion is illustrative. Specifically, the examiner, a cardiologist, emphasizes that a “bradyarrhythmia” or a weak heartbeat, not the use of Hydralazine, caused the Veteran’s death. He elaborated that Hydralazine is a well-known vasodilator, commonly used for severe systolic failure such as the Veteran’s. According to the examiner, vasodilators, while useful for treating immediate symptoms and extending life, can cause reflexive SVT. When this occurs, it is treated with a different type of medication, as was done with the Veteran. In the Veteran’s case, however, since the Veteran’s death was preceded by a low heartbeat, it is more likely that his death was caused by CHF than by any reflexive SVT caused by Hydralazine. The appellant submitted a non-VA opinion dated September 2016, from Dr. J.B., a physician trained in internal medicine. Unfortunately, this opinion contains legal conclusions, which the examiner is not competent to make, and virtually no medical facts, analysis, or conclusions. Accordingly, its probative value is outweighed by the analysis and rationale provided by the January 2020 C&P physician. To the extent that the appellant has argued fault on VA’s behalf, the question of causation for purposes of 38 U.S.C. § 1151 claims is whether 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, or an event not reasonably foreseeable. There is no indication that the appellant possesses the requisite medical expertise to provide a competent opinion on this question. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence of record is against a finding of causation, which is necessary to prove a claim under 38 U.S.C. § 1151. Thus, a discussion of fault at this point would not assist the appellant. The criteria for compensation for DIC under 38 U.S.C. § 1151 have not been met. The Board finds that the preponderance of the evidence is against the claim for compensation for DIC under 38 U.S.C. § 1151 and the claim is denied. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia