Citation Nr: 21003797 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-30 686 DATE: January 22, 2021 ORDER Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for additional disability to include respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception incurred as a result of VA treatment with Dilaudid in July 2013 is denied. FINDING OF FACT The weight of the evidence shows that the Veteran’s respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception were not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception due to VA treatment in July 2014, under the provisions of 38 U.S.C. § 1151, have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to January 1979. In November 2018, the Veteran and his wife testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in March 2019 for additional development. The Board finds substantial compliance with the March 2019 Board remand directives have been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a July 2020 phone call, the Veteran requested an additional 30 days to submit additional evidence or argument. See July 2020 VA Form 27-0820. The VA granted the Veteran’s request for extension of time until September 16, 2020. See August 2020 VA Notification Letter. In September 2020, the Veteran and his representative were informed that the appeal was returned to the Board and he had 90 days from the date of the letter or until the Board issues a decision (whichever comes first) to change representation or submit additional evidence or argument. See September 2020 Board Letter. However, no additional evidence or argument was submitted. The Board is thus satisfied that the Veteran and his representative were provided sufficient time and opportunity to submit additional evidence and/or argument including granting his July 2020 request for extension of time. Accordingly, the Board will adjudicate the matter based on the evidence of record. 1. Entitlement to VA compensation benefits under 38 U.S.C. § 1151 The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for an allergic reaction to Dilaudid. Specifically, the Veteran stated “an error was made on July 15, 2013, when I was treated at the Fayetteville, VA Hospital for Kidney stones. I was given 2 mg dose of Dilaudid for pain. I was not monitored in the ER for the appropriate amount of time….” See August 2014 Veteran Lay Statement. He also stated that “I went into respiratory arrest for somewhere between 10 to 15 minutes. During the respiratory arrest I suffered an anoxic brain injury.” Id. Legal Criteria Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran’s willful misconduct and either: 1) the disability 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 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 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. The first element of a claim under 38 U.S.C. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. See 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. Id. However, causation alone is not sufficient to warrant compensation under 38 U.S.C. § 1151; rather, the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. 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 the hospital care or medical or surgical treatment caused the Veteran’s additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1). In determining whether compensation is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background VA treatment records from July 13, 2013 confirm that the Veteran received emergency treatment in July 2013 for complaint of right flank pain, which was confirmed as an acute kidney stone. See July 2013 VA Emergency History and Physical (H&P) Note. The H&P note indicated that the Veteran was given pain medication and had respiratory distress when he was in the computed tomography (CT) room. His condition required resuscitation, and he was treated in the ER with ventilator mask and monitored. Id. The Veteran signed a Consent to Care, wherein the Veteran agreed his care was “under the supervision and control of my attending physician and I consent to all medical treatment, procedures, examinations necessary for my proper care.” See July 2013 VA Consent to Care, in CAPRI received December 2019. The Veteran’s records show that he was given 2 milligrams (mg) of Dilaudid at 11:17 am and the nurse was instructed to take side effect precautions including calling for assistance, for which she verbalized understanding, while the Veteran remained on the stretcher. See July 2015 VA ER Nursing Addendum. Four minutes later, the Veteran was escorted to CT room via stretcher by a VA registered nurse. The next note is from 11:50 am which shows the Veteran’s eyes were closed, he was easily arousable with verbal stimuli, and had shallow respirations. He had a regular heart rate and rhythm and was pain free. Id. His VA treatments also reflect a chaplain responded when Code Blue was sounded. See July 2013 VA Chaplain Outpatient Note. The chaplain stated that he was unable to speak to the Veteran because physicians were providing critical care. He encouraged the Veteran’s wife and administered the Sacrament of the Sick to the Veteran. Id. The VA discharge planning note indicated the Veteran had status post respiratory arrest due to pain medication, sinus bradycardia, and renal colic and stone. The Veteran was admitted for medical observation. See July 2013 VA Discharge Planning Note. Upon discharge, his condition was noted to be acute, resolved, and clinically stable. In August 2013, three weeks after his treatment for kidney stones, the Veteran received inpatient psychiatric treatment for suicidal and homicidal threats involving a gun stemming from a discussion with his wife about neutral subject. See August 2015 VA Psychiatry Initial Evaluation Note. The Veteran reported that he functioned at a higher level prior to his July 2013 treatment at the VA for kidney stone pain. Id. The VA psychiatrist noted “[c]ode blue called while pt getting CT imaging and found to have respiratory arrest with breathing resuscitated by gag reflex by Mac blade during intubation insertion process.” Id. He also reported more fatigue, memory loss, cognitive slowing, and low heart rate. The Veteran was assessed under Diagnostic and Statistical Manual of Mental Disorders, fourth edition, with major depressive disorder (MDD) and his Axis III diagnosis included fatigue, multifactorial and adverse drug event to ADR with acute respiratory depression and acute on chronic bradycardia on 7/15/13. Id. In October 2013, the Veteran was seen in urgent care by his VA primary care physician (PCP) for report of persistent fatigue after Dilaudid-related respiratory distress and MDD with suicidal episode. See October 2013 VA Primary Care Urgent Care Note. His PCP stated in an addendum note that she reviewed the neurology evaluation from Dr. B.S.S. for memory loss which did not identify a specific cause, and stated that she was awaiting neuropsychological testing results. In November 2013, Dr. B.S.S. recorded the Veteran’s report of changes to his cognitive ability and personality due to July 2013 treatment for kidney stones. See November 2013 Letter from Dr. B.S.S. He stated that the formal neuropsychological testing revealed minimal deficits with visual attention, concentration, and verbal conceptual reasoning. On examination, the Veteran had average memory and prior psychiatric history. Id. Finally, Dr. B.S.S. asserted the Veteran’s “cardiopulmonary arrest certainly could have caused and/or contributed to the deficits in visual attention, concentration and verbal conceptual reasoning.” Id. As noted in the introduction, the Veteran and his wife Mrs. K.C.R. testified before the undersigned in a November 2018 Board hearing. See Hearing Transcript. The Veteran testified the he drove two hours to the Fayetteville VA Medical Center (VAMC) to receive treatment for kidney stones in July 2013. He further stated that he waited 30 minutes in waiting room, and another hour and 10 to 15 minutes in emergency room., after which “my body started to go into a shake mode.” His wife went to get doctors after which “they came in, I guess, shot me with Dilaudid [sic].” Mrs. K.C.R. stated that the VA medical provider stayed with the Veteran for four (4) minutes after he was given Dilaudid, and the Veteran was taken upstairs for X-rays by a nurse who left them alone. She stated that the Veteran’s eyes rolled in the back of his head and he was responsive. She went to the nurse’s station to report that the Veteran stopped breathing, and that Code Blue was called. The Veteran was taken to the emergency room for treatment. Mrs. K.C.R. averred that he was without oxygen for 10 to 20 minutes. Mrs. K.C.R. further stated that the VA medical providers “did not follow protocol which would have been – I believe, at least 30 minutes of observation before they sent him out of the emergency room. IT was four minutes.” Id. She further reported that the Veteran had chest pains, was unable to walk, and slept a lot three days after being discharged. She also stated the Veteran became depressed, had a nervous breakdown which required inpatient psychiatric treatment, and heart problems as well as memory problems. Id. Finally, she asserted her belief that “all this have been caused by his allergic reaction and subsequent oxygen deprivation.” Pursuant to the March 2019 Board remand, the VA obtained three VA examinations and medical opinions. In December 2019, the Veteran was provided a VA neurological examination. The VA examiner determined that the Veteran did not have a central nervous system diagnosis. See December 2019 VA Central Nervous System Disability Benefits Questionnaire (DBQ). The examiner discussed the Veteran’s medical history as reported by the Veteran. The Veteran endorsed intermittent nervous tremors. The examiner stated that the Veteran experienced tremors when he was visibly anxious which resolved when he was calm, in finding it was not a pathological tremor or diagnosable condition. The examiner noted that September 2013 magnetic resonance imaging (MRI) of the brain was normal. On neurological examination, the Veteran demonstrated normal gait and speech. In her remarks, the examiner stated, “current complaints of fatigue, loss of stamina, depression, and memory loss would be unrelated to a central nervous condition.” Id. The VA also obtained a respiratory VA examination in December 2019. See December 2019 VA Respiratory Conditions DBQ. The examiner found that the Veteran did not have any currently diagnosed respiratory conditions. She noted the Veteran’s report of respiratory issues related to pain medication given during his emergency treatment in 2013. The Veteran also stated that he has a pacemaker installed but denied any lung diagnosis or treatment or medications for breathing. Id. The examiner attributed the Veteran’s current shortness of breath to his pacemaker and being deconditioned. Id. The December 2019 VA examiner also provided a VA medical opinion pertaining to his Section 1151 claim. See December 2019 VA Medical Opinion DBQ. The examiner stated that the Veteran “had pre-existing sinus brady[cardia] since 2012, and on presentation to the ER was in 10/10 pain and given 2 mg dilaudid for that pain in the absence of pre-existing allergy to opiates.” Regarding his medical treatment in July 2013, the examiner stated that: Medication Dilaudid was provided in at a normal dose (2mg) at 1117, he was taken to CT escorted by an RN at 1121, per RT code blue occurred at 1130 at which point claimant was bagged on 100% O2 with his regular/normal HR throughout and was arousable by noxious stimuli (gag reflex) on 2 attempts to intubate, which indicates he was NOT unconscious. He was reported to be alert and breathing on his own with ‘assisted ventilation on the way back to the ER’ where he arrived at 1150… He was admitted for observation with no further events. See December 2019 VA Medical Opinion DBQ. The examiner opined that the Veteran did not have any additional disabilities due to the VA treatment on July 15, 2013 including the use of Dilaudid. Id. She reasoned that the Veteran does not currently have a diagnosis of respiratory arrest, or memory loss. She stated that low stamina is not a diagnosis but rather a subjective complaint that is related to the Veteran’s history of low testosterone. Regarding his MDD, she asserted that the Veteran had a “long-standing family of depression and suicide with recent loss of his son … in 2009.” She concluded that the Veteran’s current complaints were likely “due to situational depression due to loss of his son and deep family history of depression and suicide as well as untreated low testosterone and natural decline due to aging process.” Id. She opined that the Veteran’s fatigue was due to his sinus bradycardia “which was shown to have onset in 2012, well before this occurred.” The December 2019 VA examiner stated the Veteran’s contention that an error was made during his July 2013 treatment was “unfounded.” See December 2019 VA Medical Opinion DBQ. She further stated “I am not sure what is inferred by his contention of what an “appropriate amount of time’ is, because he was monitored by an RN throughout his Trip to during and returning from CT (C.H., RN). There was no error here.” Id. The examiner found no evidence of negligence, carelessness, or lack of proper skill, or similar fault in the Veteran’s treatment with dilaudid. Specifically, she stated “IV Dilaudid was indicated for his severe 10/10 pain and was the appropriate choice for this situation. He had no prior allergies listed for this medication (only to penicillin) and signed a consent for treatment.” Finally, regarding whether the Veteran’s claimed disabilities were an ordinary risk of treatment such that the risk should have been disclosed to the Veteran the examiner stated: “acute reversable respiratory and cognitive changes are a known risk of any administered opiate medication, which is generally why he remained monitored by an RN throughout his journey to CT following administration.” However, she noted that the Veteran’s claimed low stamina, memory loss, depression, shaking of the hands, chronic cognitive changes “are not known or reasonably foreseeable outcomes of a single dose of pain medication for severe pain.” Id. The Veteran also underwent a VA psychiatric examination in January 2020. See January 2020 VA Mental Disorders DBQ. The examiner confirmed the Veteran’s psychiatric diagnosis were MDD, recurrent, unspecified, and mild neurocognitive disorder due to cardiorespiratory depression. Id. The January 2020 VA examiner opined that the Veteran’s “MDD and mild neurocognitive disorder due to cardiorespiratory depression are as least as likely as not related to the medical treatment that the Veteran received on 07/03/2013.” See January 2020 Medical Opinion DBQ. In her rationale, the examiner stated that the Veteran’s symptoms of “memory loss, depression, cognitive changes, and verbal conception are consumed under the diagnosis of MDD and Mild Neurocognitive Disorder” and were likely related to his July 2013 treatment. She reasoned that the Veteran did not have these symptoms or diagnosis prior to the July 2013 treatment. Id. Regarding whether the Veteran’s contention that an “error was made on July 15, 2013, when I was treated at the Fayetteville, VA Hospital for Kidney stones…” (See August 2014 Veteran Lay Statement), the examiner was unable to provide a medical opinion because it was beyond the scope of a mental health provider. Similarly, the examiner was unable to opine on whether at least as likely as not that any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or whether the Veteran’s reported symptoms were reasonably foreseeable outcome of the treatment with Dilaudid based on the Veteran’s specific facts. Finally, she was unable to opine on whether a “reasonable health care provider” would have considered the Veteran’s additional disability to be an ordinary risk of the treatment provided. Id. Analysis Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception claimed as due to VA error for an allergic reaction to Dilaudid during his the July 2013 VA treatment. Despite the Veteran’s assertions to the contrary, the record evidence clearly shows that his current respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception are not related to or a consequence of his July 2013 VA treatment with Dilaudid. Rather, the record shows that his treatment with Dilaudid and complications were successfully resolved at the time of discharge in July 2013. Essentially, causation has not been established, which is required by the regulation. Specifically, the December 2019 VA examiner concluded that the claimed conditions were not caused by or related to the July 2013 VA treatment with Dilaudid. As the treatment provided by VA met the standard of care, there was no improperly administered care. Moreover, the December 2019 VA examiner opined that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. See December 2019 VA Medical Opinion DBQ. The VA examiner conducted a thorough review of the Veteran’s treatment and medical history and concluded that his current complaints of respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception were not related to the July 2013 treatment with Dilaudid. All in all, there is no evidence of an additional disability based on the care received. The Board finds that the December 2019 VA medical opinion is entitled to great probative weight because it was based upon a thorough review of the claims file, discusses the relevant medical evidence of record, and includes a well-reasoned explanation for the conclusions reached. Notably, the Board is cognizant of the January 2020 VA examiner’s opinion that the Veteran’s MDD and Mild Neurocognitive Disorder were related to his July 2013 VA treatment. See January 2020 Medical Opinion DBQ. However, the Board affords this opinion less weight because the examiner’s conclusion was based solely on lack of these diagnoses prior to the July 2013 VA treatment. Notably, the January 2020 VA examiner did not conclude that the Veteran’s MDD and Mild Neurocognitive Disorder were caused by treatment with Dilaudid, nor was the examiner able to opine on whether there was an negligence, carelessness, or error committed by the VA in administering Dilaudid to the Veteran. As such, the Board finds that that January 2020 VA medical opinion does not address the necessary information required for the Board’s Section 1151 determination. Finally, the Board finds the December 2019 VA examiner’s conclusion that the Veteran’s current psychiatric complaints were likely other causes to include “due to situational depression due to loss of his son and deep family history of depression … and untreated low testosterone… and natural decline due to aging process,” is adequate, where the examiner was able to opine based on review of the relevant medical facts that there was no carelessness, error, negligence in the July 2013 VA treatment record and that the Veteran’s claimed low stamina, memory loss, depression, shaking of the hands, chronic cognitive changes “are not known or reasonably foreseeable outcomes of a single dose of pain medication for severe pain.” See December 2019 VA Medical Opinion DBQ Id. Thus, the Board finds the December 2019 VA examiner is entitled to more probative weight than the January 2020 VA medical opinion. The Board has considered the Veteran’s and his wife Mrs. K.C.R.’s lay history of symptomatology throughout the appeal period, to include their testimony provided in November 2018. They are certainly competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, they are not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran and his wife, who have not been shown by the evidence of record to have medical training or skills. The Board finds the December 2019 VA medical opinion to be of greater probative weight than such lay assertions. The issue of informed consent was not raised by the Veteran, nor is it reasonably raised by the record. However, assuming arguendo, the Veteran signed a Consent to Care, wherein the Veteran agreed his care was “under the supervision and control of my attending physician and I consent to all medical treatment, procedures, examinations necessary for my proper care.” See July 2013 VA Consent to Care, in CAPRI received December 2019. The Veteran also has not identified or submitted any evidence, to include a medical nexus, which supports granting his claim. As the weight of the competent probative medical evidence does not show that the Veteran’s experienced back, right hand, memory, walking and standing problems complaints of respiratory arrest, low stamina, memory loss, depression, shaking of hands, cognitive changes, and verbal conception, due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, compensation under 38 U.S.C. § 1151 is not warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.