Citation Nr: 20031990 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 12-29 599 DATE: May 6, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for heart disability (coronary artery disease with atrial fibrillation and enlarged aorta) is denied. FINDING OF FACT The evidence of record does not support a finding that the Veteran sustained any additional residual disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in performing and treating the Veteran’s heart disability (including the administration of and dosage level of Levothyroxine) or resulting from an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for heart disability (coronary artery disease with atrial fibrillation and enlarged aorta) have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.361, 3.1000 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1960 to July 1964. The record reflects that the Veteran died in December 2017 during the pendency of this appeal. His surviving spouse has been substituted as claimant in this appeal. In August 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board acknowledges this appeal has a rather lengthy procedural history. It was most recently remanded by the Board in September 2018 for evidentiary development. The appeal has since been returned to the Board for further consideration. Entitlement to compensation under 38 U.S.C. § 1151 for heart disability (coronary artery disease with atrial fibrillation and enlarged aorta) The record shows that the Veteran had thyroidectomy with subsequent replacement hormone therapy of Levothyroxine. In 2006, an increased dosage of Levothyroxine resulted in atrial fibrillation, but this was “successfully cardioverted with the return of normal sinus rhythm after cardioversion and the dosage of Levothyroxine was readjusted and with no further sequelae.” The Veteran contended that, due to the dosage of Levothyroxine given to him during VA medical care, he developed coronary artery disease with atrial fibrillation and enlarged aorta. Under 38 U.S.C. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service-connected. 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 either: 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, and the proximate cause of the disability or death was either 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; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Initially, the Board observes that there are several VA examination reports and opinions of record. For a number of reasons, they have been considered inadequate and the Board will not discuss them in its decision herein. Instead, and pursuant to the Board’s September 2018 remand, another VA opinion was obtained in March 2020. The examiner provided the following statement as to his instructions: This is a claim for compensation under 38 U.S.C. § 1151 for this 76 year old male veteran who died on 12/[REDACTED]/2017. I am asked if the veteran had any heart disability, including CAD with atrial fibrillation and enlarged aorta which was caused by or a result of levothyroxine/Synthroid, or became worse as a result of the VA’s treatment at issue; or if the additional disability resulted from the attending VA personnel’s failure to follow the appropriate standard or care; or if the additional disability resulted from an event that could not have reasonably been 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 allowed the disease or disability to continue to progress. Medical records in CPRS and VBMS were reviewed. The examiner’s rationale was: In my opinion, the veteran’s present cardiovascular condition with 2 vessel coronary artery disease and ascending aortic aneurysm IS MOST LIKELY DUE TO his multiple cardiac risk factors, which include polymyalgia rheumatica, (an autoimmune inflammatory disease affecting the joints and arteries, and which causes the immune system to attack its own connective tissues.) Patients with this condition are at more than twice the risk of vascular events, including myocardial infarction, cardiomyopathy, and aortic aneurysm than are age and sex matched patients without this disease. In addition, the veteran had hypertension, hyperlipidemia, history of tobacco smoking, older age, male gender, and positive family history of heart disease. (His father had hypertension, mother had hypertension and CHF, and one brother died of myocardial infarction.) 1. Tobacco use is the strongest risk factor for aortic aneurysm, with age 65 or older, male gender, white phenotype, and positive family history also being known risk factors. 2. Risk factors for atrial fibrillation include male gender age older than 60, hypertension, CAD, cardiomyopathy, and CHF. 3. Risk factors for CAD include older age, male gender, positive family history, history of smoking hypertension, hypercholesterolemia and diabetes. 4. Although there is some association of low-normal free thyroxine levels after endovascular aortic repair with greater risk of readmissions, there is no correlation of low-normal free thyroxine levels with adverse aorta-related events. The veteran was noted to have hyperthyroidism due to a thyroid adenoma in 2/12/1970, with resultant need for subtotal thyroidectomy. Following this, he was placed on hormonal replacement with levothyroxine. Both overt and subclinical hyperthyroidism do increase the risk of developing atrial fibrillation, and atrial fibrillation increases the risk of developing aortic aneurysms, however the veteran did not have significant episodes of hyperthyroidism. He did have some issues with hypothyroidism, but the effect of hypothyroidism on atrial fibrillation is unclear. The examiner then synthesized the entirety of the Veteran’s medical history as it pertained to treatment for his heart from 2005 until his death in 2012, with a thorough summary of each notable event. Per VA policy, an event is considered “not reasonably foreseeable” if it is not the type of risk that would be disclosed as part of the informed consent procedures shown in 38 C.F.R. § 17.32 (2019). Notably, VA received the Veteran’s informed consent to treat his various medical conditions with prescription medication and later to treat his heart disability as well. The Board affords the March 2020 VA examiner’s opinion substantial probative value. After reviewing the Veteran’s electronic claims file and VA treatment, the examiner provided an accurate and thorough summary of the Veteran’s medical history and found no evidence of carelessness, negligence, lack of proper skill, or error in judgement by the VA. The Board notes that there is no opinion in the record to the contrary. Here, the March 2020 examiner explained that while the Veteran did sustain an additional heart disability (2 vessel coronary artery disease and ascending aortic aneurysm), the disability was most likely due to his multiple cardiac risk factors, including polymyalgia rheumatica. The examiner stated that his condition more than doubles the risk for additional vascular events, including those that developed in the Veteran. The examiner also stated that the Veteran had additional risk factors such as hypertension, hyperlipidemia, history of tobacco use, older age, male gender, and family history of heart disease. Moreover, the examiner noted that the Veteran suffered from hyperthyroidism, for which he was placed on hormonal replacement with Levothyroxine. However, the examiner stated that while hyperthyroidism can increase the risk of developing atrial fibrillation and subsequently aortic aneurysms, the Veteran did not have significant episodes of hyperthyroidism. Therefore, it can be inferred that the Veteran’s prescribed medication and dosage for hyperthyroidism did not ultimately lead to the Veteran developing an additional heart disability. Finally, the medical record reveals that the Veteran’s dosage levels for his hyperthyroidism were adjusted to lower levels, which resulted in no additional sequelae. The Board observes the Veteran’s assertions that he experienced additional problems ever since the above described treatment and procedures, which he claims to have caused additional disability. The Board further observes the August 2015 testimony describing his medical history. While he is competent to report his symptoms, he was not competent to independently render a medical diagnosis or opine as to any potential carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. While he had a rather complicated treatment history for a variety of conditions, additional disability due to any VA fault or an event not reasonably foreseeable has not been demonstrated. Accordingly, the preponderance of the evidence of record, to include the March 2020 opinion, is against a finding that carelessness, negligence, lack of proper skill, or error in judgment on the part of VA caused additional disability. In addition, the preponderance of the evidence of record is against a finding that an event not reasonably foreseeable caused additional disability. Therefore, the claim for entitlement to benefits pursuant to 38 U.S.C. § 1151 for heart disability (coronary artery disease with atrial fibrillation and enlarged aorta) must be denied and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, Associate Counsel 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.