Citation Nr: 21032140 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-11 572 DATE: May 26, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to compensation pursuant to the provisions of 38 U.S.C. § 1151 for additional disability from diffuse myalgia (now claimed as severe myalgia) as a result of taking medicine prescribed at a Department of Veterans Affairs Medical Center (VAMC) is granted. Entitlement to compensation pursuant to the provisions of 38 U.S.C. § 1151 for additional disability from diffuse myalgia (now claimed as severe myalgia) as a result of taking medicine prescribed at a VAMC is denied. FINDING OF FACT 1. A November 2016 Board decision denied the Veteran's request to reopen a claim for entitlement to compensation under 38 U.S.C. § 1151 for diffuse myalgia, claimed as muscle damage, due to VA prescribed medications. The Veteran did not thereafter request reconsideration or file a notice of appeal. 2. Since the November 2016 Board decision, there is new and material evidence of record relating to the Veteran's claim for compensation for myalgia. 3. The Veteran's myalgias were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or event not reasonably foreseeable. CONCLUSION OF LAW 1. The November 2016 Board decision which denied the Veteran's claim to reopen a claim for entitlement to compensation under 38 U.S.C. § 1151 for diffuse myalgia, claimed as muscle damage, due to VA prescribed medications, is final. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.1103. 2. New and material evidence having been received, the claim for compensation for myalgia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for compensation benefits under 38 U.S.C. § 1151 have not been met. 38 U.S.C.A. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1955 to February 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in May 2021. 1. New and material evidence In June 2017, the Veteran filed a claim to reopen his myalgia claim. See June 2017 VA Form 21-526EZ. A decision of the AOJ becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992) As noted above, the Veteran's claim for compensation for diffuse myalgia was last denied by a November 2016 Board decision, which declined to find new and material evidence had been received to reopen his claim. The Veteran did not appeal the decision and therefore it became final. To reopen his claim, the Veteran must submit new and material evidence which relates to an unestablished fact necessary to substantiate the claims. The Veteran submitted current medical records from Tampa VA Medical Center (VAMC) establishing that he has myalgias. He also submitted lay statements regarding his use of simvastatin (Zocor) which had previously been made part of the record. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge regarding myalgia and Zocor use but stated that he was not presenting new information regarding negligence on the part of VA. Rather, he testified regarding the claim that Zocor caused his myalgias. A new VA medical opinion was obtained in July 2017, which is new and material evidence since the last denial. Therefore, the Board finds new and material evidence has been submitted to reopen the claim. See Shade v. Shinseki, 24 Vet. App 110 (2010). 2. Compensation for Diffuse Myalgia As an initial matter, the Board acknowledges the Veteran's service to his country and is sympathetic to his medical conditions; however, the Board must apply the law as it exists. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Legal Standard Pursuant to 38 U.S.C. § 1151, compensation may be awarded for a qualifying additional disability or death in the same manner as if the additional disability or death were service connected. In order to qualify for such compensation, the additional disability or death must not have been the result of the Veteran's willful misconduct, and the disability must have been 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 or death, the proximate cause of the disability or death 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. First, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment 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 or died does not establish cause. Second, the additional disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 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). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees but also where an injury occurs in a VA facility resulting from VA's negligence. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(2); 38 C.F.R. § 3.361(d). Regarding reasonable foreseeability, whether the proximate cause of a veteran's additional disability or death 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. 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Analysis Turning to the evidence, the Veteran has an additional disability; he has a current diagnosis of myalgia. Next, he must show that the additional disability was caused by VA's medical treatment. In this regard, the proximate cause of the disability or death 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. Here, the Veteran has repeatedly contended that his VA-prescribed medication, Zocor, caused his diffuse myalgias. To this end, the Veteran has submitted numerous articles regarding the side effects of Zocor, and two statements by physicians that his myalgias are caused by statin use. See Dr. E.B. Letter. Dr. E.B. stated that muscle pain developed a short time after starting Zocor and that the Veteran was switched to other statins and remained on them for 10 years. Dr. E.B. concluded, that the Veteran's current myalgias are "caused by statin use." See Dr. E.B. Letter, dated November 2, 2012. The Veteran also submitted a medical record written by Dr. H.K. which stated that his myalgia symptoms "would be related to Zocor treatment." See 2003 VA Treatment Record (CAPRI), Muscle Examination, received May 21, 2021. The same medical record also states "diffuse myalgias both upper and lower body without trigger points, of unknown etiology." See id. Regarding whether his myalgia is due to VA (1) carelessness, negligence lack of proper skill, error in judgment, or similar instance of fault, or (2) not reasonably foreseeable, the Veteran was provided a VA examination in July 2017. The examiner reviewed the entire claim file, lay statements, Dr. E.B.'s statement, and Dr. H.K.'s treatment records which are part of the records from 2003, as well as additional information provided. The examiner opined that noted that the Veteran received treatment at a VA facility, but there was no evidence of carelessness, negligence, lack of proper skill, error in judgement, or similar fault on the part of VA in furnishing the treatment for the Veteran. The examiner reasoned that although the possibility of muscle involvement was low, the benefit of the use of the medication outweighs the risks involved, and thus was not the result of carelessness, negligence, lack of skill of similar incidence of fault by VA attending personnel. Further, the examiner noted that side effects of statins are a widely accepted agent in the treatment of hyperlipidemia and that myalgias are foreseeable side effects of Zocor. Finally, the examiner noted that the Veteran was not seen on multiple times on several occasions for myalgia complaints, which included input from subspecialty services and referral for diagnostic testing. The examiner concluded that the clinic records do not show evidence that his condition was allowed to deteriorate or progress without knowledge or intervention by his healthcare team. The Board finds the third element is not met or the proximate cause of the disability was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(2); 38 C.F.R. § 3.361(d). The Board affords the VA examiner's findings substantial probative value. After reviewing the Veteran's electronic claims file and VA treatment, the examiner found no evidence of carelessness, negligence, lack of proper skill, or error in judgement by the VA for the Veteran's myalgia and myalgia following treatment with statins was reasonably foreseeable. The Board notes there is no opinion in the record to the contrary. Although the Veteran submitted Dr. E.B.'s letter stating that myalgias are due to statin use, the letter does not provide an opinion that it was not reasonably foreseeable, or that it was caused by negligence, carelessness by VA. Nor does Dr. H.K.'s medical record entry provide an opinion on whether VA negligence caused the myalgia. Thus, the Veteran has not submitted an opinion from another medical professional indicating that VA was careless, negligent, lacked proper skill, erred in judgment, or had other fault that ultimately resulted in additional disability. After a review of all the evidence, the Board finds the preponderance of the evidence is against a finding of entitlement to compensation 38 U.S.C. § 1151 for myalgias. The July 2017 VA medical opinion is supported by explanations based on the examiner's medical knowledge, learned treatises and review of the Veteran's record. The Board has no reason to doubt the competency or the veracity of the July 2017 VA medical opinion. The assessment and opinion are uncontroverted. Here, although the examiner found an additional disability caused by treatment furnished by VA, the examiner did not find evidence of carelessness, negligence, lack of skill, or similar incidence of fault. The examiner also determined the myalgias resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider because myalgia is a documented risk of statins. Under 38 C.F.R. § 3.361 (d), the question of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. See also Schertz, supra. The examiner noted myalgia is a well-known risk of statins, or Zocor, and thus a foreseeable risk. Though the Veteran is competent to provide lay testimony regarding the symptoms he observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in myalgias. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. He is competent to report muscle pain after statin use. However, there is no proof of carelessness, negligence, lack of skill, or similar incidence of fault or an event that could not have been reasonably foreseen by a reasonable healthcare provider. Furthermore, the examiner that the benefits of the treatment outweighed the risks of untreated hyperlipidemia. The Veteran's own opinion as to these matters is not competent and outweighed by the medical evidence of record. Although the Board is grateful for the Veteran's Honorable service, and sympathizes with the Veteran for his disability, compensation under 38 U.S.C. § 1151 for myalgias must be denied. In denying the Veteran's appeal, the Board emphasizes its review of the Veteran's statements and what happened to him. The Board acknowledges and sympathizes with the ordeal the Veteran has been through because of his myalgias. However, 38 U.S.C. § 1151 does not provide compensation for treatment that has reasonably foreseeable risks. (Continued on the next page) As such, the preponderance of the evidence is against the claim and the benefit of the doubt provisions are not for application. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.