Citation Nr: 21068017 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 14-27 647 DATE: November 8, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based upon service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C. § 1151 based upon a theory of VA negligence in furnishing medical care, specifically, prescription medication to the Veteran is denied. FINDINGS OF FACT 1. The Veteran died in May 2012; his death certificate listed the immediate cause of death as cardiopulmonary arrest and his underlying cause of death as diabetes and hypertension. 2. The Veteran's prescribed medications to treat his service-connected disabilities did not contribute substantially or materially to death, combine to cause death, or aide or lent assistance to the production of death. 3. The preponderance of the evidence is against a finding that the Veteran has an additional disability from the VA-prescribed medications for his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC based upon service connection for the cause of the Veteran's death have not been met 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312, 4.104 (2019). 2. The criteria for entitlement to DIC under 38 U.S.C. § 1151 based upon a theory of VA negligence in furnishing medical care, specifically, prescription medication to the Veteran have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.159, 3.361 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1980 until April 1983. Unfortunately, the Veteran died in May 2012. The appellant is the Veteran's surviving spouse. This matter was initially before the Board in October 2019, where it was remanded for additional development. Specifically, the Board determined that the appellant should be afforded an adequate VA examination to determine the Veteran's cause of death. The matter returned to the Board in September 2020, where it was again remanded. The Board determined that the May 2020 examination was inadequate for adjudicative purposes and an additional opinion was warranted. Such development has been completed and the matter returned to the Board for appellate consideration. 1. Entitlement to DIC based upon service connection for the cause of the Veteran's death. DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran's death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appellant filed an application for Dependency and Indemnity Compensation benefits (VA Form 21-534) in June 2012. According to the Veteran's May 2012 death certificate, his immediate cause of death was cardiopulmonary arrest and his underlying cause of death was diabetes and hypertension. At the time of his death, the Veteran was service-connected for a mood disorder (claimed as depressive disorder), post-operative right and left knee arthrotomy, thoracolumbar degenerative changes, traumatic arthritis of the left knee, right and left hip strain, and recurrent sprain of the left ankle with degenerative changes. He was not service-connected for any cardiopulmonary disability, diabetes, or hypertension. The appellant contends that the medications prescribed to treat the Veteran's service-connected disabilities caused, aggravated, or hastened the death of the Veteran. She asserts that Propranolol, Naproxen, Gemfibrozil, and Baclofen, amongst the other medications, including their side-effects, significantly diminished the Veteran's health. See February 2017 Correspondence; See also April 2013 Medical Treatment Record. Turning to the evidence, in a June 2014 VA opinion, the examiner opined that it is less likely than not that the prescribed medications to treat the Veteran's service-connected disabilities caused his death. The examiner noted that there was no clear evidence in the medical records to support the contention. However, the reviewer failed to address any specific drug interactions and whether or not those side-effects contributed to the underlying conditions affecting the Veteran's death, including diabetes mellitus and hypertension. In October 2019, the Board remanded the issues to obtain a medical opinion from a VA pharmacologist and/or gerontologist to determine whether the Veteran's VA prescribed medications could have proximately caused his death. In May 2020, a medical opinion was provided from a family medicine and surgery specialist that contained little to no rationale as to how the Veteran's medications did not contribute to the Veteran's death. In a March 2021 medical opinion, the examiner opined that the Veteran's death was less likely than not proximately due to or caused by the medications associated with his service-connected disabilities. The examiner reasoned that the Veteran "was on the medications for his service-connected disabilities for many years without any suggestion of side effects that would cause his death with 50% or greater probability." Specifically, the examiner noted that the Veteran was on Naproxen and Baclofen since 2003, Gemfibrozil (non-service connected condition) since 2004, Morphine IR or SR since 2005, Doxepin and Duloxetine EC since 2008, Quetiapine and Alprazolam since 2009, and Propranolol SA since 2010. The examiner added that adverse drug interactions usually appear soon after initiation of the medication and the Veteran had been on these drugs for long periods of time prior to his death. The most recent added medication, Propranolol, was prescribed over two years prior to his death. The examiner addressed the appellant's claim that Propranolol, Naproxen, Gemfibrozil, and Baclofen, including their side-effects, significantly diminished the Veteran's health. The examiner noted that while Propranolol may cause congestive heart failure, the examiner cited to Lexicomp, an evidence-based medical research database, that lists adverse effects by percentage of documented cases. The study found that the incidence of congestive heart failure is not listed as being greater than one percent. Similarly, the examiner noted that while Naproxen may increase the risk of heart attack, and the risk may be greater with patients with diabetes, the study on Lexicomp places the incidence of heart attack due to Naproxen as less than one percent, which "indicates remote possibility, not 50% or greater probability." The examiner added that while Baclofen may cause atrial fibrillation chest pain and palpitations, it occurs in less than one percent of cases. The medical evidence of record does not indicate that the Veteran had these above mentioned symptoms after being prescribed Baclofen. See November 2011, August 2009, and February 2009 VA Treatment Records. According to the examiner, the shortness of breath noted in the Veteran's May 2012 Emergency Department Chart was a manifestation of a terminal event. The examiner stated the following: Statistically, the most likely explanation of this is a myocardial infarction. The Veteran had two conditions that are well known in the medical literature to predispose to myocardial infarction: hypertension and diabetes mellitus. Neither of these is service connected. The examiner added that while Gemfibrozil may cause atrial fibrillation, the side effect of this medication is "rare" and less than two percent incidence. The Board notes that the Veteran was prescribed Gemfibrozil for his hyperlipidemia, which he was not service-connected for. Similarly, incidence of heart attack due to NSAIDS are rare in probability. The examiner also opined that it is less likely than not the medications prescribed for the Veteran's service-connected conditions aggravated his diabetes mellitus and hypertension beyond the normal progress of such diseases by the medication prescribed to treat his service-connected disabilities. Regarding diabetes, the examiner reasoned that the medications prescribed for the Veteran preceded the diagnosis of diabetes by over two years, therefore not aggravating a preexisting condition. Regarding hypertension, the examiner reasoned that a "review of all vital signs in VA records at all sites shows variable blood pressure throughout the subsequent period." Specifically, the Veteran's blood pressure was 127/80 on March 23, 2005, 157/90 on June 28, 2005, 138/88 on August 17, 2005, 123/86 on December 13, 2005, 119/76 on February 2, 2010 and 115/76 on June 24, 2010. Based on the available data, the examiner concluded that there was "no systematic pattern of aggravation of the Veteran's preexisting hypertension by Naproxen." Lastly, review of the medical literature does not show evidence that suggests the medications listed above would aggravate the Veteran's hypertension or diabetes beyond its normal progression. Upon review of the relevant evidence, the Board finds that the probative medical evidence of record does not support a finding that the Veteran's medications prescribed for his service-connected disabilities caused, substantially or materially, contributed to his death. In making this determination, the Board places substantial weight to the March 2021 VA medical opinion which contains a well-reasoned rationale and an accurate review of the factual record with consideration of medical treatise materials for and against the theory presented in this case. Therefore, the VA opinion is entitled to significant probative weight to the appellant's overall claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the articles submitted by the appellant, which addresses the adverse effects of taking Propranolol. However, the Board places much greater probative value to the VA examiner's opinions which considered the Veteran's specific medical history. The articles are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim, but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion") (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). Additionally, the article specifically stated that "there is not enough systematic collection of data to support an estimate of their frequency." The March 2021 examiner concluded that the medical articles submitted was not from expert sources or journals and does not "provide evidence that would support the claim with 50% or greater probability." The Board recognizes the appellant's sincere belief that the Veteran's death was related in some way to his service-connected disabilities. She is competent to report the Veteran's symptoms as well as her impression as to his state of mind. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the appellant, as a lay person, is not competent to opine as to the Veteran's cause of death. The appellant is not shown to possess the requisite training and expertise to competently link the Veteran's medications prescribed for his service-connected disabilities to his cause of death. Opining as to cause of death is a complex medical question that requires specialized knowledge. Jandreau, 492 F.3d at 1377 n.4. Additionally, evidence in support of the claim includes the Veteran's brother in law, A.P., who works at a VA pharmacy. He testified that he believes the medications prescribed to the Veteran contributed to his death. See February 2017 Hearing Transcript. He also testified that he witnessed the Veteran hallucinating when taking Morphine. This statement has some probative value as it was rendered by a competent provider of treatment. However, A.P. does not specifically reference any specific facts to support this opinion, or offer more than a conclusory statement, which is ultimately speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The March 2021 also provided an opinion in response to A.P.'s testimony. The examiner stated the following: I find no indication in the records subsequent to 3/11/09 that [the] Veteran was on morphine. The 4/12/12 MEDICATION RECONCILIATION EDUCATION EXIT NOTE at Beckley does not list morphine. There is no mention on either the Beckley Hospital ER record or the death certificate that morphine played any role in the Veteran's death. Thus, there is no reason to suspect, with 50% or greater probability, that the Veteran's death was related to the use of morphine. Likewise, I find no evidence in the expert literature, in particular Lexicomp, that morphine either causes or aggravates DM or HTN with 50% or greater probability. As such, the Board affords such statements regarding the Veteran's cause of death by the appellant and A.P. offer minimal probative value, which are greatly outweighed by the VA examiner who provided an opinion based upon review of the claims folder in light of their medical training and expertise. While sympathetic to the Appellant's claim, the Board finds that, based on the competent and probative evidence of record, the Veteran's service-connected disabilities was neither a principle nor contributory cause of the Veteran's death. As such, the Board finds that the evidence weighs against a finding that the Veteran's death was related to a service-connected disability or to service in any other way. Therefore, service connection for the cause of the Veteran's death is denied. See 38 U.S.C. §§ 5107, 5110(b)(2); 38 C.F.R. § 3.102. Since the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to DIC under 38 U.S.C. § 1151 based upon a theory of VA negligence in furnishing medical care, specifically, prescription medication to the Veteran. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. § 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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)(2). 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, it must be shown that the hospital care or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. In evaluating the Veteran's claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151(a)(1). The March 2021 medical examiner opined that it is less likely than not the Veteran incurred an additional disability as a result of any over-medication or adverse drug interaction while treating his service-connected disabilities. The examiner reasoned that the dosages of all these medications are within the normal range of dosages for his prescribed medications. Regarding adverse interaction, the examiner stated that they would usually appear soon after initiation of the medication. The Veteran was prescribed medications for several years without any complications and/or adverse effects. The examiner noted that while Propranolol may cause congestive heart failure, the likelihood of it was no greater than one percent. Review of the medical record of evidence does not indicate that the Veteran's death due to cardiopulmonary arrest was caused by Propranolol itself or an adverse drug interaction with any of his other medications, as discussed above. In sum, the preponderance of the evidence weighs against finding that the medications prescribed for his service-connected disabilities resulted in a qualifying additional disability that was proximately caused by either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment, or an event not reasonably foreseeable. The Veteran was prescribed the abovementioned medications for years prior to his death in May 2012. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 The Board acknowledges the appellant's belief the Veteran incurred an additional disability as a result of any over-medication or adverse drug interaction while treating his service-connected disabilities. However, the appellant does not possess the requisite medical expertise to provide a competent opinion on this question. See Jandreau, 492 F.3d at 1377 n.4. The most probative evidence of record is the thorough and well-reasoned March 2021 medical opinion. The examiner reviewed the claims file, including the relevant medical records, lay statements, medical literature, and provided well-reasoned opinions related specifically to the Veteran's issues in this case. Nieves-Rodriguez, 22 Vet. App. at 295. (Continued on the next page) As there is no evidence of an additional disability resulting from VA treatment, specifically, the medication prescribed to the Veteran, the question of causation becomes moot. Accordingly, entitlement to compensation pursuant to 38 U.S.C. § 1151 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 § U.S.C. 5107(b); 38 C.F.R. § 3.102. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.