Citation Nr: 21007481 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-19 388A DATE: February 9, 2021 ORDER Compensation under 38 U.S.C. § 1151 for additional disability associated with deep vein thrombosis (DVT) of the right leg, claimed as due to a prescription error following hospitalization at the Department of Veterans Affairs (VA) Medical Center in San Juan, Puerto Rico on February 9, 2012, is denied. FINDING OF FACT The only competent, probative medical opinion to address the question of whether the Veteran experiences additional disability associated with DVT of the right leg 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, weighs against the claim. CONCLUSION OF LAW The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, for additional disability associated with DVT of the right leg, claimed as due to a prescription error following hospitalization at the VA Medical Center in San Juan, Puerto Rico on February 9, 2012, are not met.  38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to April 1980 and again from July 1983 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 VA Regional Office (RO) rating decision which denied compensation under 38 U.S.C. § 1151 for DVT of the right leg. In December 2020, the Veteran testified at a Board Central Office hearing before the undersigned Veterans Law Judge. A transcript of this proceeding has been associated with the claims file. Compensation under 38 U.S.C. § 1151 for additional disability associated with DVT of the right leg, claimed as due to a prescription error following hospitalization at the VA Medical Center in San Juan, Puerto Rico on February 9, 2012, is denied. The Veteran contends that compensation pursuant to 38 U.S.C. § 1151 is warranted for additional disability associated with DVT of the right leg, claimed as due to a prescription error following hospitalization at the VA Medical Center in San Juan, Puerto Rico on February 9, 2012. Specifically, the Veteran notes that he was treated at the San Juan VA Medical Center from February 7-9, 2012 for DVT in the right calf. Upon discharge, the doctor mistakenly only prescribed 7 shots (3.5 days) worth of Lovenox instead of the intended 14 shots (7 days) as a bridge between Lovenox and Warfarin therapies. During this bridging gap, the Veteran developed severe clotting of the entire upper thigh. He was readmitted to the San Juan VA medical center on February 24, 2012 with severe DVT and was treated with a thrombectomy. The attending staff during the Veteran’s second period of hospitalization believed that the second DVT episode was a direct result of an incomplete bridge between Lovenox and Warfarin and that he should not have been discharged from his initial hospitalization without either having completed the bridge or having sufficient Lovenox provided to ensure that the bridge would be completed. Due to this February 9, 2012 prescription error, the Veteran contends that he has long term severe thrombosis of the right leg, swelling associated with post thrombotic syndrome, and a significantly heightened risk of future development of DVT. 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. Pertinent VA treatment records confirm that the Veteran was treated at the San Juan VA Medical Center from February 7-9, 2012 for DVT in the right calf, was prescribed 7 shots (3.5 days) worth of Lovenox on February 9, 2012, and was readmitted to the San Juan VA medical center on February 24, 2012 with severe DVT. Evidence relevant to the Veteran’s 38 U.S.C. § 1151 claim includes VA medical opinions dated in September 2013 and March 2016.  Significantly, the September 2013 VA examiner opined that it was at least as likely as not that the Veteran’s DVT of the right 1eg was aggravated by ordering 7 shots of Lovenox. It is recommended that low molecular weight Heparin (Lovenox) therapy be discontinued after no less than five days and when INR is stable at 2.0 or more for two days (http://www.aafp.org/afp/2007/0401/p1031.html). According to the medical records, it states that the Veteran ran out of Lovenox after 3 days and his INR was 1.59 (sub-therapeutic) on February 14, 2012. This most likely led to the extension of his DVT. The error in the Lovenox order is seen on the medication management note dated on February 9, 2012. The order states: quantity 7 for 7 days administer every 12 hours. Although his DVT was aggravated, it was not permanently aggravated because it was treated on his readmission. The March 2016 VA examiner also opined that it was less likely as not that the Veteran’s DVT of the right leg was permanently aggravated by the February 9, 2012 prescription error. As rationale for this opinion, the examiner noted that, while VA erred in only prescribing 7 instead of 14 doses of Lovenox which led to the extension of DVT, this error did not permanently aggravate the Veteran’s DVT because it was retreated on his re-admission. It was noted that the Veteran’s DVT of the right leg was a complex case that had history of clot despite Warfarin dosing. He also had a challenging hypercoagulable state, specifically a clot in large popliteal artery that would be expected to cause residual post-phlebotic syndrome despite anticoagulation therapies. The Veteran’s post-phlebotic syndrome (i.e., the permanently aggravated condition) was not caused by the February 9, 2012 prescription error but was instead caused by the large popliteal clot formation causing peripheral vascular disease insufficiency. In support of this opinion, the examiner explained that post-thrombotic syndrome is the development of symptoms and signs of chronic venous insufficiency following DVT and is an all too common, burdensome, and costly complication. The term “post-thrombotic” replaces the prior terminology “post-phlebitic” syndrome. A combination of reflux due to valvular incompetence, and venous hypertension due to thrombotic obstruction, is thought to contribute to post-thrombotic syndrome. Symptoms and signs of chronic venous insufficiency may include pain, vein dilation, edema, skin pigmentation, and venous ulcers. The reported incidence of post-thrombotic syndrome varies widely, in part, due to inhomogeneous patient populations and diagnostic criteria. Older studies reported rates up to 100 percent; contemporary studies cite incidences ranging from 20 to 80 percent. Among studies that use validated diagnostic criteria, the incidence is approximately 50 percent in the first year in spite of anticoagulation. Severe post-thrombotic syndrome occurs in 5 to 10 percent of patients. Most patients who develop post-thrombotic syndrome become symptomatic within two years from the acute episode. However, the incidence of severe post-thrombotic syndrome progressively accumulates. In a study of 93 patients who were followed for six years, the incidence of the post-thrombotic syndrome was 49 percent after one year, 55 percent after two years, without further increase up to six years. In a larger prospective study, the cumulative incidence of post-thrombotic syndrome at one, two, and five years was 17, 23, and 28 percent, respectively; these percentages did not increase thereafter. The incidence of severe skin changes indicative of chronic venous insufficiency, including venous ulcer, increased from 2.6 percent at one year to 9.3 percent at five years. See Up to date- post thrombotic syndrome, Dr. Alguire, Dr. Mathes Topic 8200 Version 10.0. The Veteran has also submitted private treatment records dated in December 2012 and January 2014 as well as a June 2014 statement from a military physician noting the Veteran’s February 2012 treatment for DVT of the right leg and subsequent development of post-thrombotic syndrome. However, none of these records suggest that the Veteran experiences additional disability associated with DVT of the right leg, claimed as due to a prescription error following hospitalization at the VA Medical Center in San Juan, Puerto Rico on February 9, 2012. The Board finds that the first element, evidence of additional disability, is not satisfied for the Veteran’s claimed disability. Significantly, both the September 2013 and March 2016 VA examiners opined that, while VA erred in only prescribing 7 instead of 14 doses of Lovenox which led to the extension of DVT, this error did not permanently aggravate the Veteran’s DVT because it was retreated on his re-admission. Instead, the Veteran’s post-phlebotic/post-thrombotic syndrome (i.e., the permanently aggravated condition) was caused by the large popliteal clot formation causing peripheral vascular disease insufficiency and is a very common complication of DVT. The VA examiners collectively, provided detailed opinions, based on review of the claims file, and the Board finds that the collective opinion provided is highly probative. 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.  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.  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 this prescription error 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).  As neither the Veteran nor his 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.  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 April Maddox, 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.