Citation Nr: 21077435 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 08-24 298 DATE: December 29, 2021 ORDER Compensation under 38 U.S.C. § 1151 for additional disability for residuals of Avandia use, to include weight gain, congestive heart failure, lower extremity edema, high blood pressure, tachycardia, angina, and atherosclerosis is denied. FINDING OF FACT The probative evidence of record weighs against the claim of additional disability associated with Avandia use due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA physicians, or an event not reasonably foreseeable in connection with VA medical treatment. CONCLUSION OF LAW The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, for additional disability for residuals of Avandia use, are not met. 38U.S.C. §§1151, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to March 1976. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in November 2018, at which time it was remanded in order to obtain authorization from the Veteran to obtain private treatment records, to obtain additional VA treatment records, and to obtain all available court records and evidence associated with the Veteran's claim against the United States with respect to medical treatment received by her at the VA Medical Center in Reno, Nevada. A review of the record shows that the Veteran filled out additional VA Forms 21-4142 authorizing VA to obtain private medical records in September 2019, and that these records were received in September 2019, October 2019, and November 2019. Additionally, VA treatment records as well as court records from the U.S. District Court for the District of Nevada were received in September 2019. Thus, the Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). Further, the claim was before the Board in December 2020 and July 2021 to obtain a VA examination and opinion on the Veteran's claim. This development was completed and the claim has returned to the Board. Finally, the Board notes that the outstanding issues of entitlement to payment or reimbursement for the cost of medical treatment provided on March 30, 2010, at Mount Grant General Hospital and entitlement to payment or reimbursement for the cost of medical treatment provided from September 15, 2006 to May 1, 2007, and from June 2007 to August 2008, have historically been docketed in a separate appeal stream assigned to the VLJ who conducted the Board hearing for those issues. As these issues are still in Remand status, they will be addressed in a separate decision under a different docket number upon their eventual reactivation at the Board. Compensation under 38 U.S.C. § 1151 The Veteran contends that compensation pursuant to 38 U.S.C. § 1151 is warranted because she developed complications after VA physician's prescribed Avandia. She contends that she developed additional complications to include weight gain, congestive heart failure, lower extremity edema, high blood pressure, tachycardia, angina, and atherosclerosis. She relates all of these conditions with the prescription of Avandia. 38 U.S.C. § 1151 affords compensation benefits for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. 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 U.S.C. § 1151. See also 38 C.F.R. § 3.361. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361 (b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). 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)(2). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the Veteran's additional disability; and (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, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b), as in emergency situations. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361 (d). In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence and Analysis Based upon the evidence of record, the Board finds that entitlement to compensation under the provisions of 38 U.S.C. § 1151 is not warranted. The Veteran contends that she developed complications after VA physician's prescribed Avandia. Turning first to the asserted error, she contends that it was an error to prescribe her Avandia because she has Type I diabetes, not Type II diabetes. She asserts Avandia has a "black box" warning that it should not be combined with insulin. Because she was given Avandia, that prescription in conjunction with insulin caused weight gain, "symptoms" of heart failure, and lower extremity edema. She describes that in 2006, after her prescription started, she gained weight quickly. In 2007, she had swelling in her legs and ankles, was short of breath, and had chest pain. She eventually reported to the hospital. The prescription was discontinued in July 2007. In April 2011, she contends that she was diagnosed with symptoms of heart failure. See VBMS, document labeled VA 21-4138 Statement In Support of Claim, receipt date June 27, 2011. The Veteran has further explained that she had many health problems prior to starting Avandia, but she did not have weight gain or symptoms related to heart failure until after. See VBMS, document labeled CAVC decision, receipt date April 9, 2013, page 6 of 7. To the extent that she had symptoms prior to Avandia, Avandia made them worse. See VBMS, document labeled Correspondence, receipt date October 22, 2015, page 3 of 7. The Board requested a VA clinician review the medical record and render an opinion on the Veteran's claim. The October 2021 VA clinician acknowledged that Avandia can cause certain side effects, to include those asserted by the Veteran. However, the clinician found that the side effects resolved after she stopped Avandia. Further, the clinician gave the opinion that many prescriptions have some amount of side effects, but the Veteran's insulin use and diabetes are more likely to be the cause of the Veteran's medical issues and to have aggravated them further. The Board gives the clinician's opinion great probative weight because it is based on a review of the record and the clinician has the medical expertise to render such an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the original prescription for Avandia turned out to be inappropriate, it was stopped and the complications went away. Thus, even if VA may have failed to exercise the degree of care that would be expected of a reasonable health care provider, the mistake was corrected and there were no lingering issues associated with the mistake. Further, as pointed out by the October 21 clinician, side effects occur with many medications and a clinician cannot predict all side effects. The important aspect is to stop the prescription if side effects are noted which was accomplished in this case. Thus, there is no evidence for any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault related to residuals of Avandia prescription. As such, the Board finds that the actions of the VA medical professionals do not demonstrate negligence or other failing such that the provisions for benefits pursuant to 38 U.S.C. § 1151 have been met. The Board acknowledges that lay assertions may serve to support a claim with respect to the occurrence of lay observable events or the presence of disability or symptoms of disability subject to lay observation (see, e.g., Jandreau v. Nicholson, 492 F.3d. 1372 (2007)), and that lay persons may be competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)). However, in this case, the specific matters of whether the Veteran has additional disability resulting from VA ccare, and, if so, whether such disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA physicians, or an event not reasonably foreseeable, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377, note 4 (lay persons are not competent to diagnose cancer). Furthermore, to whatever extent the Veteran and/or his representative attempt(s) to establish the Veteran's entitlement to compensation under U.S.C.A. § 1151 on the basis of lay assertions, alone, such attempt must fail. As neither the Veteran nor her representative is shown to be other than a layperson without appropriate training and expertise, neither is competent to render a probative and persuasive opinion on the complex medical matters upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, lay assertions in this regard have no probative value. The only competent, persuasive opinion to address the 38 U.S.C. § 1151 claim weighs against the claim, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any medical opinion that, in fact, supports this claim. The Board is sympathetic to the Veteran's frustration with her symptoms experienced during the period she was prescribed Avandia. The Board finds, however, that the preponderance of the probative evidence is against her contention that these problems or disabilities were due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals. As such, the criteria for entitlement to compensation under 38 U.S.C. § 1151 have not been met. As a final matter, the Board has reviewed the U.S. District Court materials regarding the Veteran's tort claims. These documents reveal that the claims were dismissed. Under these circumstances, the Board finds that the claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for additional disability resulting from VA treatment must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.